Executive Branch Ethics Program Amendments, 36193-36211 [2016-13152]
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Federal Register / Vol. 81, No. 108 / Monday, June 6, 2016 / Proposed Rules
a medical emergency or the unexpected
availability of an appointment for
surgery or other critical treatment. The
employee must provide notice within a
reasonable period of time appropriate to
the circumstances involved. If the
agency determines that the need for
leave is critical and not foreseeable and
that the employee is unable to provide
advance notice of his or her need for
leave, the leave may not be delayed or
denied.
(c)(1) When an employee did not
provide the agency with certification of
a qualifying service-connected disability
before having a period of absence for
treatment of such disability, the
employee is entitled to substitute
approved disabled veteran leave
retroactively for such period of absence
(excluding periods of suspension or
absence without leave (AWOL), but
including leave without pay, sick leave,
annual leave, compensatory time off, or
other paid time off) in the 12-month
eligibility period. Such retroactive
substitution cancels the use of the
original leave or paid time off and
requires appropriate adjustments. In the
case of retroactive substitution for a
period when an employee used
advanced annual leave or advanced sick
leave, the adjustment is a liquidation of
the leave indebtedness covered by the
substitution.
(2) An agency may require an
employee to submit the medical
certification described in § 630.1307(a)
before approving such retroactive
substitution.
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§ 630.1307
Medical certification.
(a) In addition to the employee’s selfcertification required under
§ 630.1306(b)(1), an agency may
additionally require that the use of
disabled veteran leave be supported by
a signed written medical certification
issued by a health care provider.
(b) When an agency requires a signed
written medical certification by a health
care provider, the agency may specify
that the certification include—
(1) A statement by the health care
provider that the medical treatment is
for one or more service-connected
disabilities of the employee rated at 30
percent or more;
(2) The date or dates of treatment or,
if the treatment extends over several
days, the beginning and ending dates of
the treatment;
(3) If the leave was not requested in
advance, a statement that the treatment
required was of an urgent nature or
there were other circumstances that
made advanced scheduling not possible;
and
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(4) any additional information that is
essential to verify the employee’s
eligibility.
(c)(1) An employee must provide any
required written medical certification
no later than 15 calendar days after the
date the agency requests such medical
certification, except as otherwise
allowed under paragraph (c)(2) of this
section.
(2) If the agency determines it is not
practicable under the particular
circumstances for the employee to
provide the requested medical
certification within 15 calendar days
after the date requested by the agency
despite the employee’s diligent, good
faith efforts, the employee must provide
the medical certification within a
reasonable period of time under the
circumstances involved, but no later
than 30 calendar days after the date the
agency requests such documentation.
(3) An employee who does not
provide the required evidence or
medical certification within the
specified time period is not entitled to
use disabled veteran leave, and the
agency may, as appropriate and
consistent with applicable laws and
regulations—
(i) Charge the employee as absent
without leave (AWOL); or
(ii) Allow the employee to request
that the absence be charged to leave
without pay, sick leave, annual leave, or
other forms of paid time off.
§ 630.1308 Disabled veteran leave
forfeiture, transfer, reinstatement.
(a) Disabled veteran leave not used
during the 12-month eligibility period
may not be carried over to subsequent
years and must be forfeited.
(b) If a change in the employee’s
disability rating during the 12-month
eligibility period causes the employee to
no longer have a qualifying serviceconnected disability (as described in
§ 630.1304(d)), any unused disabled
veteran leave to the employee’s credit as
of the effective date of the rating change
must be forfeited.
(c) When an employee with a positive
disabled veteran leave balance transfers
between positions in different agencies,
or transfers from the United States
Postal Service or Postal Regulatory
Commission to a position in another
agency, during the 12-month eligibility
period, the agency from which the
employee transfers must certify the
number of unused disabled veteran
leave hours available for credit by the
gaining agency. The losing agency must
also certify the expiration date of the
employee’s 12-month eligibility period
to the gaining agency. Any unused
disabled veteran leave will be forfeited
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36193
at the end of that eligibility period. For
the purpose of this paragraph, the term
‘‘transfers’’ means movement from a
position in one agency (or the United
States Postal Service or Postal
Regulatory Commission) to a position in
another agency without a break in
employment of 1 workday or more in
circumstances where service in both
positions qualifies as employment
under this subpart.
(d)(1) An employee covered by this
subpart, or an employee of the United
States Postal Service or Postal
Regulatory Commission, with a balance
of unused disabled veteran leave who
has a break in employment of at least 1
workday during the employee’s 12month eligibility period, and later
recommences employment covered by 5
U.S.C. 6329 within that same eligibility
period, is entitled to a recredit of the
unused balance.
(2) When an employee has a break in
employment as described in paragraph
(d)(1) of this section, the losing agency
must certify the number of unused
disabled veteran leave hours available
for recredit by the gaining agency. The
losing agency must also certify the
expiration date of the employee’s 12month eligibility period. Any unused
disabled veteran leave must be forfeited
at the end of that eligibility period.
(3) In the absence of the certification
described in paragraph (d)(2) of this
section, the recredit of disabled veteran
leave may also be supported by written
documentation available to the
employing agency in its official
personnel records concerning the
employee, the official records of the
employee’s former employing agency,
copies of contemporaneous earnings
and leave statement(s) provided by the
employee, or copies of other
contemporaneous written
documentation acceptable to the agency.
(e) An employee may not receive a
lump-sum payment for any unused
disabled veteran leave under any
circumstance.
[FR Doc. 2016–13285 Filed 6–3–16; 8:45 am]
BILLING CODE 6325–39–P
OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2638
RIN 3209–AA42
Executive Branch Ethics Program
Amendments
Office of Government Ethics.
Proposed rule.
AGENCY:
ACTION:
The Office of Government
Ethics is proposing to amend the
SUMMARY:
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regulation that sets forth the elements
and procedures of the executive branch
ethics program. This comprehensive
revision of 5 CFR part 2638 is informed
by the experience gained over the last
several decades administering the
program, and was developed in
consultation with agency ethics
officials, the inspector general
community, the Office of Personnel
Management, and the Department of
Justice. The proposed regulation defines
and describes the executive branch
ethics program, delineates the
responsibilities of various stakeholders,
and enumerates key executive branch
ethics procedures.
DATES: Comments are invited and must
be received on or before August 5, 2016.
ADDRESSES: You may submit comments,
in writing, on this proposed rule,
identified by RIN 3209–AA42, by any of
the following methods:
Email: usoge@oge.gov. Include the
reference ‘‘Proposed Amendment to the
Executive Branch Ethics Program
Regulation, 3209–AA42’’ in the subject
line of the message.
Fax: 202–482–9237.
Mail/Hand Delivery/Courier: Office of
Government Ethics, Suite 500, 1201
New York Avenue NW., Washington,
DC 20005–3917, Attention: Monica
Ashar, Assistant Counsel.
Instructions: All submissions must
include the agency name of the Office
of Government Ethics and the
Regulation Identifier Number (RIN),
3209–AA42, for this proposed
rulemaking. All comments, including
attachments and other supporting
materials, will become part of the public
record and be subject to public
disclosure. Comments may be posted at
www.oge.gov. Sensitive personal
information, such as account numbers
or Social Security numbers, should not
be included. Comments generally will
not be edited to remove any identifying
or contact information.
FOR FURTHER INFORMATION CONTACT:
Monica Ashar, Assistant Counsel;
Telephone: 202–482–9300; TTY: 800–
877–8339; FAX: 202–482–9237.
SUPPLEMENTARY INFORMATION:
A. Background and Analysis of
Proposed Rule Changes
Title IV of the Ethics in Government
Act of 1978 as amended (the Act), sets
forth the responsibilities of the Director
of the U.S. Office of Government Ethics
in providing overall direction of
executive branch policies related to
preventing conflicts of interest on the
part of officers and employees of any
executive agency. On January 9, 1981, a
final rule was published which set forth
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the elements of an agency’s ethics
program, the responsibilities of an
agency head with regard to that
program, and the duties of a Designated
Agency Ethics Official. It also
established the formal advisory opinion
service of the Office of Government
Ethics. See 46 FR 2582–2587 (January 9,
1981). These provisions, which are now
codified at subparts A through C of 5
CFR part 2638, have remained largely
unchanged since they were first issued,
despite having been developed when
the executive branch-wide ethics
program was in its infancy.
The next substantive addition to part
2638 occurred in 1990. The Office of
Government Ethics Reauthorization Act
of 1988, Public Law 100–598, granted
the Director of the Office of Government
Ethics the authority to order corrective
action on the part of individuals and
agencies, and to require certain reports
from agencies. On January 18, 1990, the
Office of Government Ethics issued
interim regulations, as later modified by
the final rule, which established
procedures to correct deficiencies in
executive branch ethics programs; to
bring individual agency employees into
compliance with rules, regulations, and
executive orders relating to standards of
conduct and conflicts of interest; and to
specify requirements for executive
agency reports. See 55 FR 1665–1670
(January 18, 1990) and 55 FR 21845–
21847 (May 30, 1990). These
procedures, which are codified at
subparts D through F of part 2638, have
remained unchanged since the final rule
was issued 26 years ago.
That same year, the Office of
Government Ethics issued a proposed
new subpart G to require executive
branch ethics programs to maintain
ethics training programs for their
employees. See 55 FR 38335–38337
(September 18, 1990). After the final
rule was promulgated in 1992, the
Office of Government Ethics made
several revisions to the training
regulations, based in part on feedback
from agency ethics officials. See 62 FR
11307 (March 12, 1997). The most
recent amendment occurred 16 years
ago, and was done to rewrite the
regulation in plain language. See 65 FR
7275–7281 (February 14, 2000).
The proposed revisions, which are
described in further detail below, draw
upon the collective experience of
agency ethics officials across the
executive branch and the Office of
Government Ethics as the supervising
ethics office. They reflect the extensive
input that the executive branch ethics
community provided throughout the
drafting process. In short, they present
a comprehensive picture of the
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executive branch ethics program, its
responsibilities and its procedures, as
reflected through 35 years of
interpreting and implementing the
Ethics in Government Act of 1978, as
amended, as well as other applicable
statutes, regulations, executive orders
and authorities.
Mission and Responsibilities
The proposed subpart A, titled
‘‘Mission and Responsibilities,’’
presents an overarching view of the
executive branch ethics program and
establishes context for part 2638. It
opens by setting forth the program’s
core principles: Its mission of
preventing conflicts of interest, the
breadth of conflicts prevention, and the
scope of a conflicts-based program.
Whereas the current regulation
necessarily focuses on the granular
operations of the executive branch
ethics program, the proposed rule seeks
also to articulate the core goals that
guide the program’s work.
Subpart A then expands upon the
regulations that currently exist at
subpart B and that have remained
largely unchanged since their issuance
in 1981. The existing provisions,
collected under the heading
‘‘Designated Agency Ethics Official,’’
enumerate the responsibilities of the
agency head, the duties of the
Designated Agency Ethics Official
(DAEO), and the delegation of those
duties by the DAEO to one or more
deputy agency ethics officials. However,
as the Office of Government Ethics and
agency ethics officials have experienced
in the time since issuance of those
provisions, there are several agency
operations outside of the DAEO’s
control that are nonetheless critical to
the success of an agency ethics program.
Further, while the agency head is
ultimately responsible for the ethics
program, the structure of the existing
subpart B serves to understate the
agency head’s role. The proposed
subpart A improves upon the current
regulation by identifying key
constituencies individually and
delineating their responsibilities.
Subpart A concludes by defining the
role and responsibilities of the Office of
Government Ethics as the supervising
ethics office for the executive branch. It
expands upon the provision presently
located at § 2638.102 to provide a more
comprehensive list of the authorities
and functions of the agency. It also
institutionalizes certain practices, such
as convening quarterly meetings, that
the Office of Government Ethics
otherwise plans to continue
indefinitely.
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Procedures of the Executive Branch
Ethics Program
The proposed subpart B centralizes
the procedures of the executive branch
ethics program. At present, these
procedures are found in the existing
subpart C (Formal Advisory Opinion
Service), the existing subpart F
(Executive Branch Agency Reports), and
in several advisories that are available
on the public-facing Web site of the
Office of Government Ethics. These
procedures concern the furnishing of
information, records and reports to the
Office of Government Ethics; the
executive branch’s collection of
financial disclosure reports; and the
issuance of formal advisory opinions
and other written guidance by the Office
of Government Ethics. Further, the
proposed subpart B will include one
new procedure, which pertains to ethics
preparations for presidential transitions.
With respect to financial disclosure
reports, §§ 2638.203 through 2638.205
establish the procedures that the
executive branch ethics program will
use to collect public and confidential
financial disclosure reports. Part 2634 of
this chapter addresses the substantive
requirements of public and confidential
financial disclosure, as well as the
processes for individual agencies’
review, maintenance, and, where
applicable, release of financial
disclosure reports.
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Government Ethics Education
Subpart C further modernizes the
ethics training regulations currently
located at subpart G. This revision is
one of several that have occurred since
the training regulations were first issued
in 1992. Most notably, it acknowledges
the increased use of technology to fulfill
existing training requirements and
updates the current framework, which
distinguishes between ‘‘verbal training’’
and ‘‘written training,’’ so that the key
distinction will be between ‘‘live
training’’ and ‘‘interactive training.’’
Interactive training may take a variety of
forms, and training that satisfies the
requirements for live training will also
always satisfy the requirements for
interactive training.
Additionally, it creates greater
flexibility for agency ethics officials—
who are in the best position to know
their agencies’ programs and
operations—to tailor the content of the
training to meet the needs of their
employees. For example, for employees
who are required to receive annual
training, the current subpart C has
required the agency’s training to cover
each of the principles of ethical
conduct, each of the standards of ethical
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conduct, and each of the Federal
conflict of interest statutes, in addition
to any agency supplemental standards
of conduct. The proposed rule distills
this broad range of topics into four key
topic areas and provides the DAEO with
broad discretion to determine how
much of the training to devote to each
of these four topic areas. After covering
these four required topic areas, as
briefly or extensively as the
circumstances warrant, an agency’s
training may focus on other government
ethics topics that the DAEO deems
relevant to the audience being trained.
As part of this modernization, subpart
C also makes adjustments to the existing
requirements for initial ethics
orientation and annual training. At the
same time, it introduces a new
requirement to brief certain agency
leaders around the time of appointment.
This briefing must occur after
confirmation but no later than 15 days
after appointment, unless the DAEO
grants a 15-day extension. A limited
exception permits the DAEO to grant an
individual an additional extension, but
only in extraordinary circumstances. An
individual’s workload, meeting
schedule, or travel schedule will
normally not, without more, constitute
extraordinary circumstances.
Extraordinary circumstances
necessitating an additional extension
might include a natural or manmade
disaster, an imminent threat to national
security, the individual’s physical
incapacity, the individual’s absence
from the office in connection with the
death of a family member, and other
circumstances of a similarly disruptive
magnitude.
Subpart C also introduces
requirements for agencies to inform
prospective employees, in any written
employment offers, of the ethical
obligations associated with the positions
being offered, and to notify newly
appointed supervisors of their unique
role in the agency ethics program. By
taking advantage of existing personnel
systems for issuing written offers of
employment and for training new
supervisors, agencies can, with little
additional effort, inform employees of
their newly acquired ethical
responsibilities. For example, the notice
to new supervisors that is required
under § 2638.306 could be provided to
new supervisors either in the written
notice that they are subject to the
requirements of 5 CFR 412.202(b) or
during the training they receive
pursuant to 5 CFR 412.202(b).
Subpart C acknowledges that ethics
officials may coordinate with other
offices to fulfill certain programmatic
requirements. For example, an agency’s
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Office of Human Resources may be
delegated the responsibility to inform
prospective employees, in written
employment offers, of their ethical
obligations. With respect to the tracking
of specified activities performed by
offices that are not supervised by the
DAEO, as described in § 2638.310, the
Office of Government Ethics requires
only that the DAEO receive a written
summary of the established procedures,
and a written confirmation that these
procedures are being properly
implemented. Where § 2638.310
applies, agencies need not track the
completion of each particular action
taken with respect to individual
employees.
Finally, subpart C eliminates the
formal requirement for agencies to
develop training plans, which largely
consist of inordinately detailed
estimates of various categories of
employees required to complete annual
training in a particular year. In the
experience of the Office of Government
Ethics, these plans appear to contribute
little to the success of agency training
programs while requiring a
disproportionately large effort from
agency ethics officials. The requirement
to engage in reasonable planning efforts
still applies, but the Office of
Government Ethics will no longer
prescribe the form these efforts must
take. See Executive Order 12674 of
April 12, 1989, as modified by
Executive Order 12731 of October 17,
1990.
Correction of Executive Branch Agency
Ethics Programs
The proposed subpart D modifies the
current subpart D, which establishes
procedures for the correction of
executive branch ethics programs. These
procedures are implemented when there
are indications that an agency ethics
program is not in compliance with the
requirements set forth in applicable
government ethics laws and regulations.
The proposed subpart D improves the
current procedures by enumerating
several informal actions that the
Director may take in order to bring the
agency into compliance. These informal
procedures reflect the practice of the
Office of Government Ethics over the
past several decades. The Office of
Government Ethics has found that
informal resolution is often an
appropriate and effective alternative to
formal action because it involves agency
ethics officials and other stakeholders in
actively crafting and implementing a
resolution. However, in the event that
informal action does not resolve the
deficiency, the Director will take formal
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action with respect to the agency’s
ethics program, as required by the Act.
Corrective Action Involving Individual
Employees
The proposed subpart E modifies the
current subpart E, which contains
procedures for addressing potential
violations of noncriminal ethics laws
and regulations by individual
employees. These corrective action
procedures, which were established in
1990, have generated considerable
confusion among external stakeholders
over the past 26 years. The proposed
subpart E therefore seeks to clarify three
fundamental elements. First, it clarifies
the meaning and effect of subpart E,
particularly with respect to the limits on
the authority of the Office of
Government Ethics to direct employees
to take corrective action. Second, it
emphasizes that, in practice, suspected
violations of noncriminal government
ethics laws or regulations are generally
resolved without the need for formal
action on the part of the Office of
Government Ethics. Third, it makes
clear that, as a matter of law, the formal
procedures may be used only when no
criminal law is or has been implicated.
General Provisions
The proposed subpart F, which
comprises general provisions, largely
incorporates subpart A of the current
regulation. Additionally, the proposed
subpart F provides a comprehensive list
of key ethics dates and deadlines that
are otherwise dispersed throughout this
part and other statutes and regulations.
B. Matters of Regulatory Procedure
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Regulatory Flexibility Act
As Director of the Office of
Government Ethics, I certify under the
Regulatory Flexibility Act (5 U.S.C.
chapter 6) that this proposed rule would
not have a significant economic impact
on a substantial number of small entities
because it primarily affects current and
former Federal executive branch
employees.
Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. chapter 35) does not apply
because this regulation does not contain
information collection requirements that
require approval of the Office of
Management and Budget.
Unfunded Mandates Reform Act
For purposes of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
chapter 5, subchapter II), this proposed
rule would not significantly or uniquely
affect small governments and will not
result in increased expenditures by
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State, local, and tribal governments, in
the aggregate, or by the private sector, of
$100 million or more (as adjusted for
inflation) in any one year.
Executive Order 13563 and Executive
Order 12866
Executive Orders 13563 and 12866
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select the regulatory
approaches that maximize net benefits
(including economic, environmental,
public health and safety effects,
distributive impacts, and equity).
Executive Order 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This rulemaking has been
designated as a ‘‘significant regulatory
action’’ although not economically
significant, under section 3(f) of
Executive Order 12866. Accordingly
this proposed rule has been reviewed by
the Office of Management and Budget.
Executive Order 12988
As Director of the Office of
Government Ethics, I have reviewed this
proposed rule in light of section 3 of
Executive Order 12988, Civil Justice
Reform, and certify that it meets the
applicable standards provided therein.
List of Subjects in 5 CFR Part 2638
Administrative practice and
procedure, Conflict of interests,
Government employees, Reporting and
recordkeeping requirements.
Approved: May 31, 2016.
Walter M. Shaub, Jr.,
Director, Office of Government Ethics.
Accordingly, for the reasons set forth
in the preamble, the Office of
Government Ethics proposes to revise 5
CFR part 2638 to read as follows:
PART 2638—EXECUTIVE BRANCH
ETHICS PROGRAM
Subpart A—Mission and Responsibilities
Sec.
2638.101 Mission.
2638.102 Government ethics
responsibilities of employees.
2638.103 Government ethics
responsibilities of supervisors.
2638.104 Government ethics
responsibilities of agency ethics officials.
2638.105 Government ethics
responsibilities of lead human resources
officials.
2638.106 Government ethics
responsibilities of responsibilities of
Inspectors General.
2638.107 Government ethics
responsibilities of agency heads.
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2638.108 Government ethics
responsibilities of the Office of
Government Ethics.
Subpart B—Procedures of the Executive
Branch Ethics Program
2638.201 In general.
2638.202 Furnishing records and
information generally.
2638.203 Collection of public financial
disclosure reports required to be
submitted to the Office of Government
Ethics.
2638.204 Collection of other public
financial disclosure reports.
2638.205 Collection of confidential
financial disclosure reports.
2638.206 Notice to the Director of certain
referrals to the Department of Justice.
2638.207 Annual report on the agency’s
ethics program.
2638.208 Written guidance on the
executive branch ethics program.
2638.209 Formal advisory opinions.
2638.210 Presidential transition planning.
Subpart C—Government Ethics Education
2638.301 In general.
2638.302 Definitions.
2638.303 Notice to prospective employees.
2638.304 Initial ethics training.
2638.305 Additional ethics briefing for
certain agency leaders.
2638.306 Notice to new supervisors.
2638.307 Annual ethics training for
confidential filers and certain other
employees.
2638.308 Annual ethics training for public
filers.
2638.309 Agency-specific ethics education
requirements.
2638.310 Coordinating the agency’s ethics
education program.
Subpart D—Correction of Executive Branch
Agency Ethics Programs
2638.401 In general.
2638.402 Informal action.
2638.403 Formal action.
Subpart E—Corrective Action Involving
Individual Employees
2638.501 In general.
2638.502 Violations of criminal provisions
related to government ethics.
2638.503 Recommendations and advice to
employees and agencies.
2638.504 Violations of noncriminal
provisions related to government ethics.
Subpart F—General Provisions
2638.601 Authority and purpose.
2638.602 Agency regulations.
2638.603 Definitions.
2638.604 Key program dates.
Authority: 5 U.S.C. App. 101–505; E.O.
12674, 54 FR 15159, 3 CFR, 1989 Comp., p.
215, as modified by E.O. 12731, 55 FR 42547,
3 CFR, 1990 Comp., p. 306.
Subpart A—Mission and
Responsibilities
§ 2638.101
Mission.
(a) Mission. The primary mission of
the executive branch ethics program is
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to prevent conflicts of interest on the
part of executive branch employees.
(b) Breadth. The executive branch
ethics program works to ensure that
public servants make impartial
decisions based on the interests of the
public when carrying out the
governmental responsibilities entrusted
to them, serve as good stewards of
public resources, and loyally adhere to
the Constitution and laws of the United
States. The program’s mission includes
preventing conflicts of interest that stem
from: Financial interests; business or
personal relationships; misuses of
official position, official time, or public
resources; and the receipt of gifts. The
mission is focused on both conflicts of
interest and the appearance of conflicts
of interest.
(c) Conflicts-based program. The
executive branch ethics program is a
conflicts-based program, rather than a
solely disclosure-based program. While
transparency is an invaluable tool for
promoting and monitoring ethical
conduct, the executive branch ethics
program requires more than
transparency. This program seeks to
ensure the integrity of governmental
decision-making and to promote public
confidence by preventing conflicts of
interest. Taken together, the systems in
place to identify and address conflicts of
interest establish a foundation on which
to build and sustain an ethical culture
in the executive branch.
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§ 2638.102 Government ethics
responsibilities of employees.
Consistent with the fundamental
principle that public service is a public
trust, every employee in the executive
branch plays a critical role in the
executive branch ethics program. As
provided in the Standards of Conduct at
part 2635 of this chapter, employees
must endeavor to act at all times in the
public’s interest, avoid losing
impartiality or appearing to lose
impartiality in carrying out official
duties, refrain from misusing their
offices for private gain, serve as good
stewards of public resources, and
comply with the requirements of
government ethics laws and regulations,
including any applicable financial
disclosure requirements. Employees
must refrain from participating in
particular matters in which they have
financial interests and, pursuant to
§ 2635.402(f) of this chapter, should
notify their supervisors or ethics
officials when their official duties create
the substantial likelihood of such
conflicts of interest. Collectively, the
charge of employees is to make ethical
conduct the hallmark of government
service.
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§ 2638.103 Government ethics
responsibilities of supervisors.
Every supervisor in the executive
branch has a heightened personal
responsibility for advancing government
ethics. It is imperative that supervisors
serve as models of ethical behavior for
subordinates. Supervisors have a
responsibility to help ensure that
subordinates are aware of their ethical
obligations under the Standards of
Conduct and that subordinates know
how to contact agency ethics officials.
Supervisors are also responsible for
working with agency ethics officials to
help resolve conflicts of interest and
enforce government ethics laws and
regulations, including those requiring
certain employees to file financial
disclosure reports. In addition,
supervisors are responsible, when
requested, for assisting agency ethics
officials in evaluating potential conflicts
of interest and identifying positions
subject to financial disclosure
requirements.
§ 2638.104 Government ethics
responsibilities of agency ethics officials.
(a) Appointment of a Designated
Agency Ethics Official. Each agency
head must appoint a Designated Agency
Ethics Official (DAEO). The DAEO is the
employee with primary responsibility
for directing the daily activities of the
agency’s ethics program and
coordinating with the Office of
Government Ethics.
(b) Qualifications necessary to serve
as DAEO. The following are necessary
qualifications of an agency’s DAEO:
(1) The DAEO must be an employee
at an appropriate level in the
organization, such that the DAEO is able
to coordinate effectively with officials in
relevant agency components and gain
access to the agency head when
necessary to discuss important matters
related to the agency’s ethics program.
(2) The DAEO must be an employee
who has demonstrated the knowledge,
skills, and abilities necessary to manage
a significant agency program, to
understand and apply complex legal
requirements, and to generate support
for building and sustaining an ethical
culture in the organization.
(3) On an ongoing basis, the DAEO
must demonstrate the capacity to serve
as an effective advocate for the
executive branch ethics program, show
support for the mission of the executive
branch ethics program, prove responsive
to the Director’s requests for documents
and information related to the ethics
program, and serve as an effective
liaison with the Office of Government
Ethics.
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(4) In any agency with 1,000 or more
employees, any DAEO appointed after
the effective date of this regulation must
be an employee at the senior executive
level or higher, unless the agency has
fewer than 10 positions at that level.
(c) Responsibilities of the DAEO.
Acting directly or through other
officials, the DAEO is responsible for
taking actions authorized or required
under this subchapter, including the
following:
(1) Serving as an effective liaison to
the Office of Government Ethics;
(2) Maintaining records of agency
ethics program activities;
(3) Promptly and timely furnishing
the Office of Government Ethics with all
documents and information requested
or required under subpart B of this part;
(4) Providing advice and counseling
to prospective and current employees
regarding government ethics laws and
regulations, and providing former
employees with advice and counseling
regarding post-employment restrictions
applicable to them;
(5) Carrying out an effective
government ethics education program
under subpart C of this part;
(6) Taking appropriate action to
resolve conflicts of interest and the
appearance of conflicts of interest,
through recusals, directed divestitures,
waivers, authorizations, reassignments,
and other appropriate means;
(7) Consistent with § 2640.303 of this
chapter, consulting with the Office of
Government Ethics regarding the
issuance of waivers pursuant to 18
U.S.C. 208(b);
(8) Carrying out an effective financial
disclosure program, by:
(i) Establishing such written
procedures as are appropriate relative to
the size and complexity of the agency’s
financial disclosure program for the
filing, review, and, when applicable,
public availability of financial
disclosure reports;
(ii) Requiring public and confidential
filers to comply with deadlines and
requirements for financial disclosure
reports under part 2634 of this chapter
and, in the event of noncompliance,
taking appropriate action to address
such noncompliance;
(iii) Imposing late fees in appropriate
cases involving untimely filing of public
financial disclosure reports;
(iv) Making referrals to the Inspector
General or the Department of Justice in
appropriate cases involving knowing
and willful falsification of financial
disclosure reports or knowing and
willful failure to file financial disclosure
reports;
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(v) Reviewing financial disclosure
reports, with an emphasis on preventing
conflicts of interest;
(vi) Consulting, when necessary, with
financial disclosure filers and their
supervisors to evaluate potential
conflicts of interest;
(vii) Timely certifying financial
disclosure reports and taking
appropriate action with regard to
financial disclosure reports that cannot
be certified; and
(viii) Using the information disclosed
in financial disclosure reports to
prevent and resolve potential conflicts
of interest.
(9) Assisting the agency in its
enforcement of ethics laws and
regulations when agency officials:
(i) Make appropriate referrals to the
Inspector General or the Department of
Justice;
(ii) Take disciplinary or corrective
action; and
(iii) Employ other means available to
them.
(10) Upon request of the Office of
Inspector General, providing that office
with ready and active assistance with
regard to the interpretation and
application of government ethics laws
and regulations, as well as the
procedural requirements of the ethics
program;
(11) Ensuring that the agency has a
process for notifying the Office of
Government Ethics upon referral, made
pursuant to 28 U.S.C. 535, to the
Department of Justice regarding a
potential violation of a conflict of
interest law, unless such notification
would be prohibited by law;
(12) Providing agency officials with
advice on the applicability of
government ethics laws and regulations
to special Government employees;
(13) Requiring timely compliance
with ethics agreements, pursuant to part
2634, subpart H of this chapter;
(14) Conducting ethics briefings for
certain agency leaders, pursuant to
§ 2638.305;
(15) Prior to any Presidential election,
preparing the agency’s ethics program
for a potential Presidential transition;
and
(16) Periodically evaluating the
agency’s ethics program and making
recommendations to the agency
regarding the resources available to the
ethics program.
(d) Appointment of an Alternate
Designated Agency Ethics Official. Each
agency head must appoint an Alternate
Designated Agency Ethics Official
(ADAEO). The ADAEO serves as the
primary deputy to the DAEO in the
administration of the agency’s ethics
program. Together, the DAEO and the
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ADAEO direct the daily activities of an
agency’s ethics program and coordinate
with the Office of Government Ethics.
The ADAEO must be an employee who
has demonstrated the skills necessary to
assist the DAEO in the administration of
the agency’s ethics program.
(e) Program support by additional
ethics officials and other individuals.
Subject to approval by the DAEO or the
agency head, an agency may designate
additional ethics officials and other
employees to assist the DAEO in
carrying out the responsibilities of the
ethics program, some of whom may be
designated ‘‘deputy ethics officials’’ for
purposes of parts 2635 and 2636 of this
chapter. The agency is responsible for
ensuring that these employees have the
skills and expertise needed to perform
their assigned duties related to the
ethics program and must provide
appropriate training to them for this
purpose. Although the agency may
appoint such officials as are necessary
to assist in carrying out functions of the
agency’s ethics program, they will be
subject to the direction of the DAEO
with respect to the functions of the
agency’s ethics program described in
this chapter. The DAEO retains
authority to make final decisions
regarding the agency’s ethics program
and its functions, subject only to the
authority of the agency head and the
Office of Government Ethics.
(f) Ethics responsibilities that may be
performed only by the DAEO or ADAEO.
In addition to any items reserved for
action by the DAEO or ADAEO in other
parts of this chapter, only the DAEO or
ADAEO may carry out the following
responsibilities:
(1) Request approval of supplemental
agency regulations, pursuant to
§ 2635.105 of this chapter;
(2) Recommend a separate component
designation, pursuant to § 2641.302(e) of
this chapter;
(3) Request approval of an alternative
means for collecting certain public
financial disclosure reports, pursuant to
§ 2638.204(c);
(4) Request determinations regarding
public reporting requirements, pursuant
to §§ 2634.202(c), 2634.203, 2634.205,
and 2634.304(f) of this chapter;
(5) Make determinations, other than
exceptions in individual cases,
regarding the means the agency will use
to collect public or confidential
financial disclosure reports, pursuant to
§§ 2638.204 and 2638.205;
(6) Request an alternative procedure
for filing confidential financial
disclosure reports, pursuant to
§ 2634.905(a) of this chapter;
(7) Request a formal advisory opinion
on behalf of the agency or a prospective,
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current, or former employee of that
agency, pursuant to § 2638.209(d); and
(8) Request a certificate of divestiture,
pursuant to § 2634.1005(b) of this
chapter.
§ 2638.105 Government ethics
responsibilities of lead human resources
officials.
(a) The lead human resources official,
as defined in § 2638.603, acting directly
or through delegees, is responsible for:
(1) Promptly notifying the DAEO of
all appointments to positions that
require incumbents to file public or
confidential financial disclosure reports,
with the notification occurring prior to
appointment whenever practicable but
in no case occurring more than 15 days
after appointment; and
(2) Promptly notifying the DAEO of
terminations of employees in positions
that require incumbents to file public
financial disclosure reports, with the
notification occurring prior to
termination whenever practicable but in
no case occurring more than 15 days
after termination.
(b) The lead human resources official
may be assigned certain additional
ethics responsibilities by the agency.
(1) If an agency elects to assign such
responsibilities to human resources
officials, the lead human resources
official is responsible for coordinating,
to the extent necessary and practicable,
with the DAEO to support the agency’s
ethics program;
(2) If the lead human resources
official is responsible for conducting
ethics training pursuant to subpart C of
this part, that official must follow the
DAEO’s directions regarding applicable
requirements, procedures, and the
qualifications of any presenters,
consistent with the requirements of this
chapter;
(3) If the lead human resources
official is responsible for issuing the
required government ethics notices in
written offers of employment, pursuant
to § 2638.303, or providing supervisory
ethics notices, pursuant to § 2638.306,
that official must comply with any
substantive and procedural
requirements established by the DAEO,
consistent with the requirements of this
chapter; and
(4) To the extent applicable, the lead
human resources official is required to
provide the DAEO with a written
summary and confirmation regarding
procedures for implementing certain
requirements of subpart C of this part by
January 15 each year, pursuant to
§ 2638.310.
(c) Nothing in this section prevents an
agency head from delegating the duties
described in paragraph (b) of this
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section to another agency official. In the
event that an agency head delegates the
duties described in paragraph (b) of this
section to an agency official other than
the lead human resources official, the
requirements of paragraph (b) of this
section will apply to that official.
§ 2638.106 Government ethics
responsibilities of Inspectors General.
An agency’s Inspector General has
authority to conduct investigations of
suspected violations of conflict of
interest laws and other government
ethics laws and regulations. An
Inspector General is responsible for
giving serious consideration to a request
made pursuant to section 403 of the
Ethics in Government Act of 1978 (the
‘‘Act’’) by the Office of Government
Ethics for investigation of a possible
violation of a government ethics law or
regulation. In addition, an Inspector
General is responsible for providing the
Office of Government Ethics
information about certain referrals to the
Department of Justice, pursuant to
§ 2638.206. An Inspector General may
consult with the Director for legal
guidance on the application of
government ethics laws and regulations,
except that the Director may not make
any finding as to whether a provision of
title 18, United States Code, or any
criminal law of the United States
outside of such title, has been or is
being violated.
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§ 2638.107 Government ethics
responsibilities of agency heads.
The agency head is responsible for,
and will exercise personal leadership in,
establishing and maintaining an
effective agency ethics program and
fostering an ethical culture in the
agency. The agency head is also
responsible for:
(a) Designating employees to serve as
the DAEO and ADAEO and notifying
the Director in writing within 30 days
of such designation;
(b) Providing the DAEO with
sufficient resources, including staffing,
to sustain an effective ethics program;
(c) Requiring agency officials to
provide the DAEO with the information,
support, and cooperation necessary for
the accomplishment of the DAEO’s
responsibilities;
(d) When action is warranted,
enforcing government ethics laws and
regulations through appropriate referrals
to the Inspector General or the
Department of Justice, investigations,
and disciplinary or corrective action;
(e) Requiring that violations of
government ethics laws and regulations,
or interference with the functioning of
the agency ethics program, be
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appropriately considered in evaluating
the performance of senior executives;
(f) Requiring the Chief Information
Officer and other appropriate agency
officials to support the DAEO in using
technology, to the extent practicable, to
carry out ethics program functions such
as delivering interactive training and
tracking ethics program activities;
(g) Requiring appropriate agency
officials to submit to the Office of
Government Ethics, by May 31 each
year, required reports of travel accepted
by the agency under 31 U.S.C. 1353
during the period from October 1
through March 31;
(h) Requiring appropriate agency
officials to submit to the Office of
Government Ethics, by November 30
each year, required reports of travel
accepted by the agency under 31 U.S.C.
1353 during the period from April 1
through September 30; and
(i) Prior to any Presidential election,
supporting the agency’s ethics program
in preparing for a Presidential
transition.
§ 2638.108 Government ethics
responsibilities of the Office of Government
Ethics.
The Office of Government Ethics is
the supervising ethics office for the
executive branch, providing overall
leadership and oversight of the
executive branch ethics program
designed to prevent and resolve
conflicts of interest. The Office of
Government Ethics has the authorities
and functions established in the Act.
(a) Authorities and functions. Among
other authorities and functions, the
Office of Government Ethics has the
authorities and functions described in
this section.
(1) The Office of Government Ethics
issues regulations regarding conflicts of
interest, standards of conduct, financial
disclosure, requirements for agency
ethics programs, and executive branchwide systems of records for government
ethics records. In issuing any such
regulations, the Office of Government
Ethics will, to the full extent required
under the Act and any Executive Order,
coordinate with the Department of
Justice and the Office of Personnel
Management. When practicable, the
Office of Government Ethics will also
consult with a diverse group of selected
agency ethics officials that represent a
cross section of executive branch
agencies to ascertain representative
views of the DAEO community when
developing substantive revisions to this
chapter.
(2) The Office of Government Ethics
reviews and approves or disapproves
agency supplemental ethics regulations.
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(3) The Office of Government Ethics
issues formal advisory opinions to
interested parties, pursuant to
§ 2638.209. When developing a formal
advisory opinion, the Office of
Government Ethics will provide
interested parties with an opportunity to
comment.
(4) The Office of Government Ethics
issues guidance and informal advisory
opinions, pursuant to § 2638.208. When
practicable, the Office of Government
Ethics will consult with selected agency
ethics officials to ascertain
representative views of the DAEO
community when developing guidance
or informal advisory opinions that the
Director determines to be of significant
interest to a broad segment of the DAEO
community.
(5) The Office of Government Ethics
supports agency ethics officials through
such training, advice, and counseling as
the Director deems necessary.
(6) The Office of Government Ethics
provides assistance in interpreting
government ethics laws and regulations
to executive branch Offices of Inspector
General and other executive branch
entities.
(7) When practicable, the Office of
Government Ethics convenes quarterly
executive branch-wide meetings of key
agency ethics officials. When the Office
of Government Ethics convenes a major
executive branch-wide training event,
the event normally serves in place of a
quarterly meeting.
(8) Pursuant to sections 402(b)(10)
and 403 of the Act, the Director requires
agencies to furnish the Office of
Government Ethics with all information,
reports, and records which the Director
determines to be necessary for the
performance of the Director’s duties,
except when such a release is prohibited
by law.
(9) The Office of Government Ethics
conducts reviews of agency ethics
programs in order to ensure their
compliance with program requirements
and to ensure their effectiveness in
advancing the mission of the executive
branch-wide ethics program. The Office
of Government Ethics also conducts
single-issue reviews of individual
agencies, groups of agencies, or the
executive branch ethics program as a
whole.
(10) The Office of Government Ethics
reviews financial disclosure reports
filed by employees, former employees,
nominees, candidates for the Office of
the President of the United States, and
candidates for the Office of the Vice
President of the United States who are
required to file executive branch
financial disclosure reports with the
Office of Government Ethics pursuant to
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sections 101, 103(c), and 103(l) of the
Act.
(11) By January 15 each year, the
Office of Government Ethics issues yearend reports to agencies regarding their
compliance with the obligations,
pursuant to section 103(c) of the Act
and part 2634 of this chapter:
(i) To timely transmit the annual
public financial disclosure reports of
certain high-level officials to the Office
of Government Ethics; and
(ii) To promptly submit such
additional information as is necessary to
obtain the Director’s certification of the
reports.
(12) The Office of Government Ethics
oversees the development of ethics
agreements between agencies and
Presidential nominees for positions in
the executive branch requiring Senate
confirmation and tracks compliance
with such agreements. The Office of
Government Ethics also maintains a
guide that provides sample language for
ethics agreements of Presidential
nominees requiring Senate
confirmation.
(13) The Office of Government Ethics
proactively assists Presidential
Transition Teams in support of effective
and efficient Presidential transitions
and, to the extent practicable, may
provide Presidential campaigns with
advice and counsel on preparing for
Presidential transitions.
(14) The Office of Government Ethics
orders such corrective action on the part
of an agency as the Director deems
necessary, pursuant to subpart D of this
part, and such corrective action on the
part of individual executive branch
employees as the Director deems
necessary, pursuant to subpart E of this
part.
(15) The Office of Government Ethics
makes determinations regarding public
financial disclosure requirements,
pursuant to §§ 2634.202(c), 2634.203,
2634.205, and 2634.304(f) of this
chapter.
(16) The Office of Government Ethics
conducts outreach to inform the public
of matters related to the executive
branch ethics program.
(17) The Director and the Office of
Government Ethics take such other
actions as are necessary and appropriate
to carry out their responsibilities under
the Act.
(b) Other authorities and functions.
Nothing in this subpart or this chapter
limits the authority of the Director or
the Office of Government Ethics under
the Act.
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Subpart B—Procedures of the
Executive Branch Ethics Program
§ 2638.201
In general.
This subpart establishes certain
procedures of the executive branch
ethics program. The procedures set forth
in this subpart are in addition to
procedures established elsewhere in this
chapter and in the program advisories
and other issuances of the Office of
Government Ethics.
§ 2638.202 Furnishing records and
information generally.
Consistent with sections 402 and 403
of the Act, each agency must furnish to
the Director all information and records
in its possession which the Director
deems necessary to the performance of
the Director’s duties, except to the
extent prohibited by law. All such
information and records must be
provided to the Office of Government
Ethics in a complete and timely manner.
§ 2638.203 Collection of public financial
disclosure reports required to be submitted
to the Office of Government Ethics.
The public financial disclosure
reports of individuals, other than
candidates for elected office and elected
officials, whose reports are required by
section 103 of the Act to be transmitted
to the Office of Government Ethics will
be transmitted through the executive
branch-wide electronic filing system of
the Office of Government Ethics, except
in cases in which the Director
determines that using that system would
be impracticable.
§ 2638.204 Collection of other public
financial disclosure reports.
This section establishes the procedure
that the executive branch ethics
program will use to collect, pursuant to
section 101 of the Act, public financial
disclosure reports of individuals whose
reports are not required by section 103
of the Act to be transmitted to the Office
of Government Ethics.
(a) General. Subject to the exclusions
and exceptions in paragraphs (b)
through (d) of this section, the public
financial disclosure reports required by
part 2634 of this chapter will be
collected through the executive branchwide electronic filing system of the
Office of Government Ethics.
(b) Exclusions. This section does not
apply to persons whose financial
disclosure reports are covered by
section 105(a)(1) or (2) of the Act,
persons whose reports are required by
section 103 of the Act to be transmitted
to the Office of Government Ethics, or
such other persons as the Director may
exclude from the coverage of this
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section in the interest of the executive
branch ethics program.
(c) Authorization to collect public
reports in paper format or through a
legacy electronic filing system. Upon
written request signed by the DAEO or
ADAEO and by the Chief Information
Officer, the Director of the Office of
Government Ethics may authorize an
agency in the interest of the executive
branch ethics program to collect public
financial disclosure reports in paper
format or through a legacy electronic
filing system other than the executive
branch-wide electronic filing system of
the Office of Government Ethics. The
Director may rescind any such
authorization based on a written
determination that the rescission
promotes the efficiency or effectiveness
of the executive branch ethics program,
but only after providing the agency with
advance written notice and an
opportunity to respond. The rescission
will become effective on January 1 of a
subsequent calendar year, but not less
than 24 months after notice is provided.
(d) Exceptions in cases of
extraordinary circumstances or
temporary technical difficulties. Based
on a determination that extraordinary
circumstances or temporary technical
difficulties make the use of an electronic
filing system impractical, the DAEO or
ADAEO may authorize an individual to
file a public financial disclosure report
using such alternate means of filing as
are authorized in the program advisories
of the Office of Government Ethics. To
the extent practicable, agencies should
limit the number of exceptions they
grant under this paragraph each year.
The Director may suspend an agency’s
authority to grant exceptions under this
paragraph when the Director is
concerned that the agency may be
granting exceptions unnecessarily or in
a manner that is inconsistent with
§ 2638.601(c). Nothing in this paragraph
limits the authority of the agency to
excuse an employee from filing
electronically to the extent necessary to
provide reasonable accommodations
under the Rehabilitation Act of 1973
(Public Law 93–112), as amended, or
other applicable legal authority.
§ 2638.205 Collection of confidential
financial disclosure reports.
This section establishes the procedure
that the executive branch will use to
collect confidential financial disclosure
reports from employees of the executive
branch. To the extent not inconsistent
with part 2634 of this chapter or with
the approved forms, instructions, and
other guidance of the Office of
Government Ethics, the DAEO of each
agency will determine the means by
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which the agency will collect
confidential financial disclosure reports,
including a determination as to whether
the agency will collect such reports in
either paper or electronic format.
Nothing in this paragraph limits the
authority of the agency to provide
reasonable accommodations under the
Rehabilitation Act of 1973 (Public Law
93–112), as amended, or other
applicable legal authority.
§ 2638.206 Notice to the Director of certain
referrals to the Department of Justice.
This section establishes procedures
implementing the requirement to
provide the Director with notice of
certain referrals, pursuant to sections
402(e)(2) and 403(a)(2) of the Act.
(a) Upon any referral made by an
agency pursuant to 28 U.S.C. 535 to the
Department of Justice regarding a
potential violation of a conflict of
interest law, the referring agency must
notify the Director of the referral by
filing a completed OGE Form 202 with
the Director, as soon as practicable after
the referral but in no case more than 30
days after the referral, unless prohibited
by law.
(b) Thereafter, unless prohibited by
law, the referring agency must promptly
provide the Director with such other
information as requested regarding the
matter and any related prosecution, civil
action, disciplinary action, or other
corrective measure.
(c) If an agency’s procedures authorize
an official outside the Office of
Inspector General to make a referral
covered by this section, that official
must provide the Inspector General and
the DAEO with copies of documents
provided to the Director pursuant this
section, unless prohibited by law. If an
Inspector General makes a referral
covered by this section, the Inspector
General should provide the DAEO with
copies of documents provided to the
Director pursuant to this section, unless
the Inspector General determines that
disclosure to the DAEO would be
inappropriate or prohibited by law.
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§ 2638.207 Annual report on the agency’s
ethics program.
(a) By February 1 of each year, the
agency must file with the Office of
Government Ethics, pursuant to section
402(e)(1) of the Act, a report containing
such information about the agency’s
ethics program as is requested by the
Office of Government Ethics. The report
must be filed electronically and in a
manner consistent with the instructions
of the Office of Government Ethics.
(b) In order to facilitate the collection
of required information by agencies, the
Office of Government Ethics will
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provide agencies with advance notice
regarding the contents of the report
prior to the beginning of the reporting
period for information that would be
expected to be tracked over the course
of the reporting period. Otherwise, it
will provide as much notice as
practicable, taking in consideration the
effort required to collect the
information.
§ 2638.208 Written guidance on the
executive branch ethics program.
This section describes several means
by which the Office of Government
Ethics provides agencies, employees,
and the public with guidance regarding
its legal interpretations, program
requirements, and educational offerings.
Normally, guidance documents are
published on the official Web site of the
Office of Government Ethics.
(a) Legal advisories. The Office of
Government Ethics issues legal
advisories, which are memoranda
regarding the interpretation of
government ethics laws and regulations.
They are intended primarily to provide
education and notice to executive
branch ethics officials; prospective,
current, and former executive branch
employees; and individuals who
interact with the executive branch.
(b) Program advisories. The Office of
Government Ethics issues program
advisories, which are memoranda
regarding the requirements or
procedures applicable to the executive
branch ethics program and individual
agency ethics programs. They are
intended primarily to instruct agencies
on uniform procedures for the executive
branch ethics program.
(c) Informal advisory opinions. Upon
request or upon its own initiative, the
Office of Government Ethics issues
informal advisory opinions. Informal
advisory opinions address subjects that
in the opinion of the Director do not
meet the criteria for issuance of formal
advisory opinions. They are intended
primarily to provide guidance to
individuals and illustrate the
application of government ethics laws
and regulations to specific
circumstances.
§ 2638.209
Formal advisory opinions.
This section establishes the formal
advisory opinion service of the Office of
Government Ethics.
(a) General. The Office of Government
Ethics renders formal advisory opinions
pursuant to section 402(b)(8) of the Act.
A formal advisory opinion will be
issued when the Director determines
that the criteria and requirements
established in this section are met.
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(b) Subjects of formal advisory
opinions. Formal advisory opinions may
be rendered on matters of general
applicability or important matters of
first impression concerning the
application of the Act; Executive Order
12674 of April 12, 1989, as modified by
Executive Order 12731 of October 17,
1990; 18 U.S.C. 202–209; and
regulations interpreting or
implementing these authorities. In
determining whether to issue a formal
advisory opinion, the Director will
consider:
(1) The unique nature of the question
and its precedential value;
(2) The potential number of
employees throughout the government
affected by the question;
(3) The frequency with which the
question arises;
(4) The likelihood or presence of
inconsistent interpretations on the same
question by different agencies; and
(5) The interests of the executive
branch ethics program.
(c) Role of the formal advisory
opinion service. The formal advisory
opinion service of the Office of
Government Ethics is not intended to
replace the government ethics advice
and counseling programs maintained by
executive branch agencies. Normally,
formal advisory opinions will not be
issued with regard to the types of
questions appropriately directed to an
agency’s DAEO. If a DAEO receives a
request that the DAEO believes might
appropriately be answered by the Office
of Government Ethics through a formal
advisory opinion, the DAEO will
consult informally with the General
Counsel of the Office of Government
Ethics for instructions as to whether the
matter should be referred to the Office
of Government Ethics or retained by the
agency for handling. Except in unusual
circumstances, the Office of
Government Ethics will not render
formal advisory opinions with respect to
hypothetical situations posed in
requests for formal advisory opinions.
At the discretion of the Director,
however, the Office of Government
Ethics may render formal advisory
opinions on certain proposed activities
or financial transactions.
(d) Eligible persons. Any person may
request an opinion with respect to a
situation in which that person is
directly involved, and an authorized
representative may request an opinion
on behalf of that person. However, an
employee will normally be required to
seek an opinion from the agency’s
DAEO before requesting a formal
advisory opinion from the Office of
Government Ethics. In addition, a DAEO
may request a formal advisory opinion
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on behalf of the agency or a prospective,
current, or former employee of that
agency.
(e) Submitting a request for a formal
advisory opinion. The request must be
submitted either by electronic mail
addressed to ContactOGE@oge.gov or by
mail, through either the United States
Postal Service or a private shipment
service, to the Director of the Office of
Government Ethics, Suite 500, 1201
New York Avenue NW., Washington,
DC 20005–3917. Personal deliveries will
not be accepted.
(f) Requirements for request. The
request must include:
(1) An express statement indicating
that the submission is a request for a
formal advisory opinion;
(2) The name, street address, and
telephone number of the person
requesting the opinion;
(3) The name, street address, and
telephone number of any representative
of that person;
(4) All material facts necessary for the
Director to render a complete and
correct opinion;
(5) The date of the request and the
signature of either the requestor or the
requestor’s representative; and
(6) In the case of a request signed by
a representative, a written designation
of the representative that is dated and
signed by the requestor.
(g) Optional materials. At the election
of the requestor, the request may also
include legal memoranda or other
material relevant to the requested formal
advisory opinion.
(h) Additional information. The
Director may request such additional
information or documentation as the
Director deems necessary to the
development of a formal advisory
opinion, from either the requestor or
other sources. If the requestor or the
requestor’s representative fails to
cooperate with such a request, the
Office of Government Ethics normally
will close the matter without issuing a
formal advisory opinion.
(i) Comments from interested parties.
The Office of Government Ethics will, to
the extent practicable, solicit written
comments on a request by posting a
prominent notice on its official Web
site. Any such notice will summarize
relevant information in the request,
provide interested parties 30 days to
submit written comments, and include
instructions for submitting written
comments. Written comments submitted
after the deadline will be considered
only at the discretion of the Director.
(j) Consultation with the Department
of Justice. Whenever the Office of the
Government Ethics is considering
rendering a formal advisory opinion, the
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Director will consult with the Office of
Legal Counsel of the Department of
Justice sufficiently in advance to afford
that office an opportunity to review the
matter. In addition, whenever a request
involves an actual or apparent violation
of any provision of 18 U.S.C. 202–209,
the Director will consult with the
Criminal Division of the Department of
Justice. If the Criminal Division
determines that an investigation or
prosecution will be undertaken, the
Director will take no further action on
the request, unless the Criminal
Division makes a determination not to
prosecute.
(k) Consultation with other executive
branch officials. The Director will
consult with such other executive
branch officials as the Director deems
necessary to ensure thorough
consideration of issues and information
relevant to the request by the Office of
Government Ethics. In the case of a
request submitted by a prospective or
current employee, the Director will
share a copy of the request with the
DAEO of the employee’s agency.
(l) Publication. The Office of
Government Ethics will publish each
formal advisory opinion on its official
Web site. Prior to publishing a formal
advisory opinion on its Web site, the
Office of Government Ethics will delete
information that identifies individuals
involved and that is unnecessary to a
complete understanding of the opinion.
(m) Reliance on formal advisory
opinions. (1) Any formal advisory
opinion referred to in this section or any
provisions or finding of a formal
advisory opinion involving the
application of the Act or the regulations
promulgated pursuant to the Act or
Executive Order may be relied upon by:
(i) Any person directly involved in
the specific transaction or activity with
respect to which such advisory opinion
has been rendered; and
(ii) Any person directly involved in
any specific transaction or activity
which is indistinguishable in all its
material aspects from the transaction or
activity with respect to which such
formal advisory opinion was rendered.
(2) Any person who relies upon any
provision or finding of any formal
advisory opinion in accordance with
this paragraph and who acts in good
faith in accordance with the provisions
and findings of such opinion, will not,
as a result of such act, be subject to
prosecution under 18 U.S.C. 202–209 or,
when the opinion is exculpatory, be
subject to any disciplinary action or
civil action based upon legal authority
cited in that opinion.
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§ 2638.210
planning.
Presidential transition
Prior to any Presidential election,
each agency has a responsibility to
prepare its agency ethics program for a
Presidential transition. Such
preparations do not constitute support
for a particular candidate and are not
reflective of a belief regarding the likely
outcome of the election; rather, they
reflect an understanding that agencies
are responsible for ensuring the
continuity of governmental operations.
(a) Preparing the ethics program for a
transition. The agency head or the
DAEO must, not later than 12 months
before any Presidential election,
evaluate whether the agency’s ethics
program has an adequate number of
trained agency ethics officials to
effectively support a Presidential
transition.
(b) Support by the Office of
Government Ethics. In connection with
any Presidential election, the Office of
Government Ethics will:
(1) Prior to the election, offer training
opportunities for agency ethics officials
on counseling departing noncareer
appointees on post-employment
restrictions, reviewing financial
disclosure reports, drafting ethics
agreements for Presidential nominees,
and counseling new noncareer
appointees on conflict of interest laws
and the Standards of Conduct; and
(2) After the election, in the event of
a Presidential transition, proactively
assist the Presidential Transition Team
in preparing for Presidential
nominations, coordinate with agency
ethics officials, and develop plans to
implement new initiatives related to
government ethics.
Subpart C—Government Ethics
Education
§ 2638.301
In general.
Every agency must carry out a
government ethics education program to
teach employees how to identify
government ethics issues and obtain
assistance in complying with
government ethics laws and regulations.
An agency’s failure to comply with any
of the education or notice requirements
set forth in this subpart does not exempt
an employee from applicable
government ethics requirements.
§ 2638.302
Definitions.
The following definitions apply to the
format of the various types of training
required in this subpart. The agency
may deviate from these prescribed
formats to the extent necessary to
provide reasonable accommodations to
participants under the Rehabilitation
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Act of 1973 (Pub. L. 93–112), as
amended, or other applicable legal
authority.
(a) Live. A training presentation is
considered live if the presenter
personally communicates a substantial
portion of the material at the same time
as the employees being trained are
receiving the material, even if part of the
training is prerecorded or automated.
The training may be delivered in person
or through video or audio technology.
The presenter must respond to
questions posed during the training and
provide instructions for participants to
submit questions after the training.
Example 1. An agency ethics official
provides a presentation regarding
government ethics and takes questions from
participants who are assembled in a training
room with the ethics official. At the end of
the session, the ethics official provides
contact information for participants who
wish to pose additional questions. This
training is considered live.
Example 2. An agency ethics official
provides a presentation to a group of
employees in an auditorium. She presents an
introduction and a brief overview of the
material that will be covered in the training.
She has participants watch a prerecorded
video regarding government ethics. She stops
the video frequently to elaborate on key
concepts and offer participants opportunities
to pose questions before resuming the video.
At the end of the session, she recaps key
concepts and answers additional questions.
She then provides contact information for
employees who wish to pose additional
questions. This training is considered live.
Example 3. The ethics official in Example
2 arranges for several Senate-confirmed
public filers stationed outside of
headquarters to participate in the live
training via streaming video or telephone.
For these remote participants, the ethics
official also establishes a means for them to
pose questions during the training, such as
by emailing questions to her assistant. She
also provides these remote participants with
instructions for contacting the ethics office to
pose additional questions after the training.
This training is also considered live for the
remote participants.
Example 4. Agency ethics officials present
training via a telephone conference. A few
dozen agency employees dial into the
conference call. The ethics officials take
questions that are submitted by email and
provide contact information for employees
who wish to pose additional questions later.
This training is considered live.
Example 5. Several Senate-confirmed
public filers required to complete live
training in a particular year are stationed at
various facilities throughout the country. For
these filers, an ethics official schedules a 20minute conference call, emails them copies
of the written materials and a link to a 40minute video on government ethics, and
instructs them to view the video before the
conference call. During the conference call,
the ethics official recaps key concepts, takes
questions, and provides his contact
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information in case participants have
additional questions. The public filers then
confirm by email that they watched the video
and participated in the conference call. This
training is considered live because a
substantial portion of the training was live.
(b) Interactive. A training presentation
is considered interactive if the employee
being trained is required to take an
action with regard to the subject of the
training. The required action must
involve the employee’s use of
knowledge gained through the training
and may not be limited to merely
advancing from one section of the
training to another section. Training that
satisfies the requirements of paragraph
(a) of this section will also satisfy the
requirements of this paragraph.
Example 1. An automated system allows
employees to view a prerecorded video in
which an agency ethics official provides
training. At various points, the system poses
questions and an employee selects from
among a variety of possible answers. The
system provides immediate feedback as to
whether the selections are correct or
incorrect. When the employee’s selections
are incorrect, the system displays the correct
answer and explains the relevant concepts.
This training is considered interactive.
Example 2. If, instead of a video, the
training described in Example 1 were to
include animated or written materials
interspersed with questions and answers, the
training would still be considered interactive.
Example 3. A DAEO emails materials to
employees who are permitted under part
2638 to complete interactive training. The
materials include a written training
presentation, questions, and space for
employees to provide written responses.
Employees are instructed to submit their
answers to agency ethics officials, who
provide individualized feedback. This
training is considered interactive.
Example 4. A DAEO emails materials to
employees who are permitted under part
2638 to complete interactive training. The
materials include a written training
presentation, questions, and an answer key.
The DAEO also distributes instructions for
contacting an ethics official with any
questions about the subjects covered. This
training meets the minimum requirements to
be considered interactive, even though the
employees are not required to submit their
answers for review and feedback. However,
any DAEO who uses this minimally
interactive format is encouraged to provide
employees with other opportunities for more
direct and personalized feedback.
§ 2638.303 Notice to prospective
employees.
Written offers of employment for
positions covered by the Standards of
Conduct must include the information
required in this section to provide
prospective employees with notice of
the ethical obligations associated with
the positions.
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(a) Content. The written offer must
include, in either the body of the offer
or an attachment:
(1) A statement regarding the agency’s
commitment to government ethics;
(2) Notice that the individual will be
subject to the Standards of Conduct and
the criminal conflict of interest statutes
as an employee;
(3) Contact information for an
appropriate agency ethics office or an
explanation of how to obtain additional
information on applicable ethics
requirements;
(4) Where applicable, notice of the
time frame for completing initial ethics
training; and
(5) Where applicable, a statement
regarding financial disclosure
requirements and an explanation that
new entrant reports must be filed within
30 days of appointment.
(b) DAEO’s authority. At the election
of the DAEO, the DAEO may specify the
language that the agency will use in the
notice required under paragraph (a) of
this section or may approve, disapprove,
or revise language drafted by other
agency officials.
(c) Tracking. Each agency must
establish written procedures, which the
DAEO must review each year, for
issuing the notice required in this
section. In the case of an agency with
1,000 or more employees, the DAEO
must review any submissions under
§ 2638.310 each year to confirm that the
agency has implemented an appropriate
process for meeting the requirements of
this section.
§ 2638.304
Initial ethics training.
Each new employee of the agency
subject to the Standards of Conduct
must complete initial ethics training
that meets the requirements of this
section.
(a) Coverage. (1) This section applies
to each employee appointed to a
position in an agency who was not an
employee of the agency immediately
prior to that appointment. This section
also permits Presidential nominees for
Senate-confirmed positions to complete
the initial ethics training prior to
appointment.
(2) The DAEO may exclude a nonsupervisory position at or below the
GS–8 grade level, or the equivalent,
from the requirement to complete the
training presentation described in
paragraph (e)(1) of this section,
provided that:
(i) The DAEO signs a written
determination that the duties of the
position do not create a substantial
likelihood that conflicts of interest will
arise;
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(ii) The position does not meet the
criteria set forth at § 2634.904 of this
chapter; and
(iii) The agency provides an employee
described in paragraph (a)(1) of this
section who is appointed to the position
with the written materials required
under paragraph (e)(2) of this section
within 90 days of appointment.
(b) Deadline. Except as provided in
this paragraph, each new employee
must complete initial ethics training
within 3 months of appointment.
(1) In the case of a Presidential
nominee for a Senate-confirmed
position, the nominee may complete the
ethics training before or after
appointment, but not later than 3
months after appointment.
(2) In the case of a special
Government employee who is
reasonably expected to serve for less
than 60 days in a calendar year on a
board, commission, or committee, the
agency may provide the initial ethics
training at any time before, or at the
beginning of, the employee’s first
meeting of the board, commission, or
committee.
(c) Duration. The duration of the
training must be sufficient for the
agency to communicate the basic ethical
obligations of Federal service and to
present the content described in
paragraph (e) of this section.
(d) Format. Employees covered by
this section are required to complete
interactive initial ethics training.
(e) Content. The following content
requirements apply to initial ethics
training.
(1) Training presentation. The
training presentation must focus on
government ethics laws and regulations
that the DAEO deems appropriate for
the employees participating in the
training. The presentation must address
concepts related to the following
subjects:
(i) Financial conflicts of interest;
(ii) Impartiality;
(iii) Misuse of position; and
(iv) Gifts.
(2) Written materials. In addition to
the training presentation, the agency
must provide the employee with either
the following written materials or
written instructions for accessing them:
(i) The summary of the Standards of
Conduct distributed by the Office of
Government Ethics or an equivalent
summary prepared by the agency;
(ii) Provisions of any supplemental
agency regulations that the DAEO
determines to be relevant or a summary
of those provisions;
(iii) Such other written materials as
the DAEO determines should be
included; and
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(iv) Instructions for contacting the
agency’s ethics office.
(f) Tracking. Each agency must
establish written procedures, which the
DAEO must review each year, for initial
ethics training. In the case of an agency
with 1,000 or more employees, the
DAEO must review any submissions
under § 2638.310 each year to confirm
that the agency has implemented an
appropriate process for meeting the
requirements of this section.
Example 1. The DAEO of a large agency
decides that the agency’s ethics officials will
conduct live initial ethics training for highlevel employees and certain procurement
officials. The DAEO directs ethics officials to
cover concepts related to financial conflicts
of interest, impartiality, misuse of position,
and gifts during the live training sessions.
She also coordinates with the agency’s Chief
Information Officer to develop computerized
training for all other new employees, and she
directs her staff to include concepts related
to financial conflicts of interest, impartiality,
misuse of position, and gifts in the
computerized training. The computerized
training poses multiple-choice questions and
provides feedback when employees answer
the questions. At the DAEO’s request, the
agency’s human resources officials distribute
the required written materials as part of the
onboarding procedures for new employees.
The computerized training automatically
tracks completion of the training, and the
ethics officials use sign-in sheets to track
participation in the live training. After the
end of the calendar year, the DAEO reviews
the materials submitted by the Office of
Human Resources under § 2638.310 to
confirm that the agency has implemented
procedures for identifying new employees,
distributing the written materials, and
providing their initial ethics training. The
agency’s program for initial ethics training
complies with the requirements of
§ 2638.304.
Example 2. The agency head, the DAEO,
and the lead human resources official of an
agency with more than 1,000 employees have
agreed that human resources officials will
conduct initial ethics training. The DAEO
provides the lead human resources official
with written materials for use during the
training, approves the content of the
presentations, and trains the human
resources officials who will conduct the
initial ethics training. After the end of the
calendar year, the lead human resources
official provides the DAEO with a copy of the
agency’s procedures for identifying new
employees and providing initial ethics
training, and the lead human resources
official confirms that there is a reasonable
basis for concluding that the procedures have
been implemented. The DAEO reviews these
procedures and finds them satisfactory. The
agency has complied with its tracking
obligations with regard to initial ethics
training.
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§ 2638.305 Additional ethics briefing for
certain agency leaders.
In addition to other applicable
requirements, each individual covered
by this section must complete an ethics
briefing to discuss the individual’s
immediate ethics obligations. Although
the ethics briefing is separate from the
initial ethics training, the agency may
elect to combine the ethics briefing and
the initial ethics training, provided that
the requirements of both this section
and § 2638.304 are met.
(a) Coverage. This section applies to
public filers who are Senate-confirmed
Presidential nominees and appointees,
except for those in positions identified
in § 2634.201(c)(2) of this chapter.
(b) Deadline. The following deadlines
apply to the ethics briefing.
(1) Except as provided in paragraph
(b)(2) of this section, each individual
covered by this section must complete
the ethics briefing after confirmation but
not later than 15 days after
appointment. The DAEO may grant an
extension of the deadline not to exceed
30 days after appointment.
(2)(i) In extraordinary circumstances,
the DAEO may grant an additional
extension to an individual by issuing a
written determination that an extension
is necessary. The determination must
describe the extraordinary
circumstances necessitating the
extension, caution the individual to be
vigilant for conflicts of interest created
by any newly acquired financial
interests, remind the individual to
comply with any applicable ethics
agreement, and be accompanied by a
copy of the ethics agreement(s). The
DAEO must send a copy of the
determination to the individual before
expiration of the time period established
in paragraph (b)(1) of this section. The
agency must conduct the briefing at the
earliest practicable date thereafter. The
written determination must be retained
with the record of the individual’s
briefing.
(ii) In the case of a special
Government employee who is expected
to serve for less than 60 days in a
calendar year on a board, commission,
or committee, the agency must provide
the ethics briefing before the first
meeting of the board, commission, or
committee.
(c) Qualifications of presenter. The
employee conducting the briefing must
have knowledge of government ethics
laws and regulations and must be
qualified, as the DAEO deems
appropriate, to answer the types of basic
and advanced questions that are likely
to arise regarding the required content.
(d) Duration. The duration of the
ethics briefing must be sufficient for the
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agency to communicate the required
content.
(e) Format. The ethics briefing must
be conducted live.
(f) Content. The ethics briefing must
include the following activities.
(1) If the individual acquired new
financial interests reportable under
section 102 of the Act after filing the
nominee financial disclosure report, the
agency ethics official must
appropriately address the potential for
conflicts of interest arising from those
financial interests.
(2) The agency ethics official must
counsel the individual on the basic
recusal obligation under 18 U.S.C.
208(a).
(3) The agency ethics official must
explain the recusal obligations and
other commitments addressed in the
individual’s ethics agreement and
ensure that the individual understands
what is specifically required in order to
comply with each of them, including
any deadline for compliance. The ethics
official and the individual must
establish a process by which the
recusals will be achieved, which may
consist of a screening arrangement or,
when the DAEO deems appropriate,
vigilance on the part of the individual
with regard to recusal obligations as
they arise in particular matters.
(4) The agency ethics official must
provide the individual with instructions
and the deadline for completing initial
ethics training, unless the individual
completes the initial ethics training
either before or during the ethics
briefing.
(g) Tracking. The DAEO must
maintain a record of the date of the
ethics briefing for each current
employee covered by this section.
Example 1. A group of ethics officials
conducts initial ethics training for six Senateconfirmed Presidential appointees within 15
days of their appointments. At the end of the
training, ethics officials meet individually
with each of the appointees to conduct their
ethics briefings. The agency and the
appointees have complied with both
§ 2638.304 and § 2638.305.
Example 2. The Senate confirms a nominee
for a position as an Assistant Secretary. After
the nominee’s confirmation but several days
before her appointment, the nominee
completes her initial ethics briefing during a
telephone call with an agency ethics official,
and the ethics official records the date of the
briefing. The agency and the nominee have
complied with § 2638.305. During the
telephone call, the ethics official also
discusses the content required for initial
ethics training and provides the nominee
with instructions for accessing the required
written materials online. The agency and the
nominee have also complied with § 2638.304.
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§ 2638.306
Notice to new supervisors.
The agency must provide each
employee upon initial appointment to a
supervisory position with the written
information required under this section.
(a) Coverage. This requirement
applies to each civilian employee who
is required to receive training pursuant
to 5 CFR 412.202(b).
(b) Deadline. The agency must
provide the written materials required
by this section within one year of the
employee’s initial appointment to the
supervisory position.
(c) Written materials. The written
materials must include contact
information for the agency’s ethics
office and the text of § 2638.103. In
addition, a copy of, a hyperlink to, or
the address of a Web site containing the
Principles of Ethical Conduct must be
included, as well as such other
information as the DAEO deems
necessary for new supervisors.
(d) Tracking. Each agency must
establish written procedures, which the
DAEO must review each year, for
supervisory ethics notices. In the case of
an agency with 1,000 or more
employees, the DAEO must review any
submissions under § 2638.310 each year
to confirm that the agency has
implemented an appropriate process for
meeting the requirements of this
section.
§ 2638.307 Annual ethics training for
confidential filers and certain other
employees.
Each calendar year, employees
covered by this section must complete
ethics training that meets the following
requirements.
(a) Coverage. In any calendar year,
this section applies to the following
employees, unless they are public filers:
(1) Each employee who is required to
file an annual confidential financial
disclosure report pursuant to § 2634.904
of this chapter during that calendar
year, except an employee who ceases to
be a confidential filer before the end of
the calendar year;
(2) Employees appointed by the
President and employees of the
Executive Office of the President;
(3) Contracting officers described in
41 U.S.C. 2101; and
(4) Other employees designated by the
head of the agency.
(b) Deadline. The employee must
complete required annual ethics
training before the end of the calendar
year.
(c) Duration. Agencies must provide
employees with one hour of duty time
to complete interactive training and
review any written materials.
(d) Format. The following formatting
requirements apply.
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(1) Except as provided in paragraph
(d)(2) of this section, employees covered
by this section are required to complete
interactive training.
(2) If the DAEO determines that it is
impracticable to provide interactive
training to a special Government
employee covered by this section who is
expected to work no more than 60 days
in a calendar year, or to an employee
who is an officer in the uniformed
services serving on active duty for no
more 30 consecutive days, only the
requirement to provide the written
materials required by this section will
apply to that employee each year. The
DAEO may make the determination as
to individual employees or a group of
employees.
(e) Content. The following content
requirements apply to annual ethics
training for employees covered by this
section.
(1) Training presentation. The
training presentation must focus on
government ethics laws and regulations
that the DAEO deems appropriate for
the employees participating in the
training. The presentation must address
concepts related to the following
subjects:
(i) Financial conflicts of interest;
(ii) Impartiality;
(iii) Misuse of position; and
(iv) Gifts.
(2) Written materials. In addition to
the training presentation, the agency
must provide the employee with either
the following written materials or
written instructions for accessing them:
(i) The summary of the Standards of
Conduct distributed by the Office of
Government Ethics or an equivalent
summary prepared by the agency;
(ii) Provisions of any supplemental
agency regulations that the DAEO
determines to be relevant or a summary
of those provisions;
(iii) Such other written materials as
the DAEO determines should be
included; and
(iv) Instructions for contacting the
agency’s ethics office.
(f) Tracking. The following tracking
requirements apply to training
conducted pursuant to this section. An
employee covered by this section must
confirm in writing the completion of
annual ethics training and must comply
with any procedures established by the
DAEO for such confirmation. If the
DAEO or other presenter has knowledge
that an employee completed required
training, that individual may record the
employee’s completion of the training,
in lieu of requiring the employee to
provide written confirmation. In the
case of an automated system that
delivers interactive training, the DAEO
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may deem the employee to have
confirmed the completion of the
training if the system tracks completion
automatically.
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§ 2638.308 Annual ethics training for
public filers.
Each calendar year, public filers and
other employees specified in this
section must complete ethics training
that meets the following requirements.
(a) Coverage. In any calendar year,
this section applies to each employee
who is required to file an annual public
financial disclosure report pursuant to
§ 2634.201(a) of this chapter during that
calendar year, except for an employee
who ceases to be a public filer during
that calendar year.
(b) Deadline. A public filer must
complete required annual ethics
training before the end of the calendar
year.
(c) Qualifications of presenter. The
employee conducting any live training
presentation must have knowledge of
government ethics laws and regulations
and must be qualified, as the DAEO
deems appropriate, to answer the types
of basic and advanced questions that are
likely to arise regarding the required
content.
(d) Duration. The duration of training
must be sufficient for the agency to
communicate the required content, but
at least one hour. Agencies must
provide employees with one hour of
duty time complete interactive training
and review any written materials.
(e) Format. The annual ethics training
must meet the following formatting
requirements.
(1) Employees whose pay is set at
Level I or Level II of the Executive
Schedule must complete one hour of
live training each year, unless a matter
of vital national interest makes it
necessary for an employee to complete
interactive training in lieu of live
training in a particular year.
(2) Other civilian employees
identified in section 103(c) of the Act
who are stationed in the United States
must complete live training once every
2 years and interactive training in
alternate years. In extraordinary
circumstances, the DAEO may grant
written authorization for an employee
who is required to complete live
training in a particular year to complete
interactive training.
(3) All other employees covered by
this section must complete interactive
training.
(f) Content. The following content
requirements apply to annual ethics
training for employees covered by this
section.
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(1) Training presentation. The
training presentation must focus on
government ethics laws and regulations
that the DAEO deems appropriate for
the employees participating in the
training. The presentation must address
concepts related to the following
subjects:
(i) Financial conflicts of interest;
(ii) Impartiality;
(iii) Misuse of position; and
(iv) Gifts.
(2) Written materials. In addition to
the training presentation, the agency
must provide the employee with either
the following written materials or
written instructions for accessing them:
(i) The summary of the Standards of
Conduct distributed by the Office of
Government Ethics or an equivalent
summary prepared by the agency;
(ii) Provisions of any supplemental
agency regulations that the DAEO
determines to be relevant or a summary
of those provisions;
(iii) Such other written materials as
the DAEO determines should be
included; and
(iv) Instructions for contacting the
agency’s ethics office.
(g) Tracking. The following tracking
requirements apply to training
conducted pursuant to this section. An
employee covered by this section must
confirm in writing the completion of
annual ethics training and must comply
with any procedures established by the
DAEO for such confirmation. If the
DAEO or other presenter has knowledge
that an employee completed required
training, that individual may record the
employee’s completion of the training,
in lieu of requiring the employee to
provide written confirmation. In the
case of an automated system that
delivers interactive training, the DAEO
may deem the employee to have
confirmed the completion of the
training if the system tracks completion
automatically.
Example 1. The DAEO of a small agency
distributes the written materials for annual
training by emailing a link to a Web site that
contains the required materials. He then
conducts a live training session for all of the
agency’s public filers. He spends the first 15
minutes of the training addressing concepts
related to financial conflicts of interest,
impartiality, misuse of position, and gifts.
Because several participants are published
authors, he spends the next 15 minutes
covering restrictions on compensation for
speaking, teaching, and writing. He then
spends 20 minutes discussing hypothetical
examples related to the work of the agency
and 10 minutes answering questions. The
training meets the content requirements of
this section. Further, because live training
satisfies the requirements for interactive
training, this training meets the formatting
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requirements for all public filers, including
those required to complete interactive
training.
Example 2. An ethics official personally
appears at each monthly senior staff meeting
to conduct a 10-minute training session on
government ethics. Across the year, he
addresses concepts related to financial
conflicts of interest, impartiality, misuse of
position, gifts, and other subjects related to
government ethics laws and regulations,
although no one session covers all of these
subjects. During each meeting, he distributes
a one-page handout summarizing the key
points of his presentation, takes questions,
and provides contact information for
employees who wish to pose additional
questions. He records the names of the public
filers in attendance at each meeting. Once a
year, he emails them the required written
materials, as well as the one-page summaries.
While many of these public filers do not
attend all 12 meetings, each attends at least
six sessions during the calendar year.
Although some of the filers missed the
sessions that addressed gifts, they all
received the handout summarizing the
presentation on gifts. The training satisfies
the annual training requirement for the
public filers who attended the meetings,
including those required to complete
interactive training. Moreover, because the
ethics official recorded the names of the
public filers who attended, the filers are not
required to separately confirm their
completion of the training.
Example 3. One of the Presidentially
appointed, Senate-confirmed employees in
Example 2 was required to complete live
training that year. Because she attended only
four senior staff meetings during the year, she
completed only 40 minutes of annual ethics
training. The DAEO allows the employee to
spend 20 minutes reviewing the handouts
and written materials and send an email
confirming that she completed her review
before the end of the calendar year. This
arrangement satisfies the requirements for
live annual training because a substantial
portion of the training was live.
§ 2638.309 Agency-specific ethics
education requirements.
The DAEO may establish additional
requirements for the agency’s ethics
education program, with or without a
supplemental agency regulation under
§ 2635.105 of this chapter.
(a) Groups of employees. The DAEO
may establish specific government
ethics training requirements for groups
of agency employees.
(b) Employees performing ethics
duties. The DAEO has an obligation to
ensure that employees performing
assigned ethics duties have the
necessary expertise with regard to
government ethics laws and regulations.
If the DAEO determines that employees
engaged in any activities described in
§§ 2638.104 and 2638.105 require
training, the DAEO may establish
specific training requirements for them
either as a group or individually.
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(c) Procedures. The DAEO may
establish specific procedures for
training that the DAEO requires under
paragraph (a) or (b) of this section,
including any certification procedures
the DAEO deems necessary. Agency
employees must comply with the
requirements and procedures that the
DAEO establishes under this section.
§ 2638.310 Coordinating the agency’s
ethics education program.
In an agency with 1,000 or more
employees, any office that is not under
the supervision of the DAEO but has
been delegated responsibility for issuing
notices, pursuant to § 2638.303 or
§ 2638.306, or conducting training,
pursuant to § 2638.304, must submit the
following materials to the DAEO by
January 15 each year:
(a) A written summary of procedures
that office has established to ensure
compliance with this subpart; and
(b) Written confirmation that there is
a reasonable basis for concluding that
the procedures have been implemented.
Subpart D—Correction of Executive
Branch Agency Ethics Programs
§ 2638.401
In general.
The Office of Government Ethics has
authority, pursuant to sections 402(b)(9)
and 402(f)(1) of the Act, to take the
action described in this subpart with
respect to deficiencies in agency ethics
programs. Agency ethics programs
comprise the matters described in this
subchapter for which agencies are
responsible.
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§ 2638.402
Informal action.
If the Director has information
indicating that an agency ethics program
is not compliant with the requirements
set forth in applicable government
ethics laws and regulations, the Director
is authorized to take any or all of the
measures described in this section. The
Director may:
(a) Contact agency ethics officials
informally to identify the relevant issues
and resolve them expeditiously;
(b) Issue a notice of deficiency to
make the agency aware of its possible
noncompliance with an applicable
government ethics law or regulation;
(c) Require the agency to respond in
writing to the notice of deficiency;
(d) Require the agency to provide
such additional information or
documentation as the Director
determines to be necessary;
(e) Issue an initial decision with
findings as to the existence of a
deficiency in the agency’s ethics
program;
(f) Require the agency to correct or, at
the Director’s discretion, satisfactorily
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mitigate any deficiency in its ethics
program;
(g) Provide the agency with guidance
on measures that would correct or
satisfactorily mitigate any program
deficiency;
(h) Monitor the agency’s efforts to
correct or satisfactorily mitigate the
deficiency and require the agency to
submit progress reports; or
(i) Take other actions authorized
under the Act to resolve the matter
informally.
§ 2638.403
Formal action.
If the Director determines that
informal action, pursuant to § 2638.402,
has not produced an acceptable
resolution, the Director may issue an
order directing the agency to take
specific corrective action.
(a) Before issuing such an order, the
Director will:
(1) Advise the agency in writing of the
deficiency in its ethics program;
(2) Describe the action that the
Director is considering taking;
(3) Provide the agency with 30 days
to respond in writing; and
(4) Consider any timely written
response submitted by the agency.
(b) If the Director is satisfied with the
agency’s response, no order will be
issued.
(c) If the Director decides to issue an
order, the order will describe the
corrective action to be taken.
(d) If the agency does not comply with
the order within a reasonable time, the
Director will:
(1) Notify the head of the agency of
intent to furnish a report of
noncompliance to the President and the
Congress;
(2) Provide the agency 14 calendar
days within which to furnish written
comments for submission with the
report of noncompliance; and
(3) Report the agency’s
noncompliance to the President and to
the Congress.
Subpart E—Corrective Action
Involving Individual Employees
§ 2638.501
In general.
This subpart addresses the Director’s
limited authority, pursuant to sections
402(b)(9) and 402(f)(2) of the Act, to take
certain actions with regard to individual
employees if the Director suspects a
violation of a noncriminal government
ethics law or regulation. Section
402(f)(5) of the Act prohibits the
Director from making any finding
regarding a violation of a criminal law.
Therefore, the Director will refer
possible criminal violations to an
Inspector General or the Department of
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Justice, pursuant to § 2638.502. If,
however, the Director is concerned
about a possible violation of a
noncriminal government ethics law or
regulation by an employee, the Director
may notify the employee’s agency,
pursuant to § 2638.503. In the rare
circumstance that an agency does not
address a matter after receiving this
notice, the Director may use the
procedures in § 2638.504 to issue a
nonbinding recommendation of a
disciplinary action or an order to
terminate an ongoing violation. Nothing
in this subpart relieves an agency of its
primary responsibility to ensure
compliance with government ethics
laws and regulations.
§ 2638.502 Violations of criminal
provisions related to government ethics.
Consistent with section 402(f) of the
Act, nothing in this subpart authorizes
the Director or any agency official to
make a finding as to whether a
provision of title 18, United States Code,
or any other criminal law of the United
States outside of such title, has been or
is being violated. If the Director has
information regarding the violation of a
criminal law by an individual
employee, the Director will notify an
Inspector General or the Department of
Justice.
§ 2638.503 Recommendations and advice
to employees and agencies.
The Director may make such
recommendations and provide such
advice to employees or agencies as the
Director deems necessary to ensure
compliance with applicable government
ethics laws and regulations. The
Director’s authority under this section
includes the authority to communicate
with agency heads and other officials
regarding government ethics and to
recommend that the agency investigate
a matter or consider taking disciplinary
or corrective action against individual
employees.
§ 2638.504 Violations of noncriminal
provisions related to government ethics.
In the rare case that consultations
made pursuant to § 2638.503 have not
resolved the matter, the Director may
use the procedures in this section if the
Director has reason to believe that an
employee is violating, or has violated,
any noncriminal government ethics law
or regulation. Any proceedings pursuant
to this section will be conducted in
accordance with applicable national
security requirements.
(a) Agency investigation. The Director
may recommend that the agency head or
the Inspector General conduct an
investigation. If the Director determines
that an investigation has not been
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conducted within a reasonable time, the
Director will notify the President.
(b) Initiating further proceedings.
Following an investigation pursuant to
paragraph (a) of this section or a
determination by the Director that an
investigation has not been conducted
within a reasonable time, the Director
may either initiate further proceedings
under this section or close the matter.
(1) If the Director initiates further
proceedings, the Director will notify the
employee in writing of the suspected
violation, the right to respond orally and
in writing, and the right to be
represented. The notice will include
instructions for submitting a written
response and requesting an opportunity
to present an oral response, copies of
this section and sections 401–403 of the
Act, and copies of the material relied
upon by the Office of Government
Ethics.
(2) If the Director is considering
issuing an order directing the employee
to take specific action to terminate an
ongoing violation, the Director will also
provide notice of the potential issuance
of an order and the right to request a
hearing, pursuant to paragraph (f) of this
section.
(c) Employee’s response. The
employee will be provided with a
reasonable opportunity to present an
oral response to the General Counsel of
the Office of Government Ethics within
30 calendar days of the date of the
employee’s receipt of the notice
described in paragraph (b) of this
section. If the employee fails to timely
request an opportunity to present an
oral response or fails to cooperate with
reasonable efforts to schedule the oral
response, only a timely submitted
written response will be considered.
(d) General Counsel’s
recommendation. After affording the
employee 30 calendar days to respond,
the General Counsel will provide the
Director with a written recommendation
as to the action warranted by the
circumstances. However, if the
employee has timely exercised an
applicable right to request a hearing
pursuant to paragraph (g) of this section,
the provisions of paragraph (g) will
apply instead of the provisions of this
paragraph.
(1) If the employee has not had an
opportunity to comment on any newly
obtained material relied upon for the
recommendation, the General Counsel
will provide the employee with an
opportunity to comment on that
material before submitting the
recommendation to the Director.
(2) The recommendation will include
findings of fact and a conclusion as to
whether it is more likely than not that
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a violation has occurred. The General
Counsel will provide the Director with
copies of the material relied upon for
the recommendation, including any
timely written response and a transcript
of any oral response of the employee.
(3) In the case of an ongoing violation,
the General Counsel may recommend an
order directing the employee to take
specific action to terminate the
violation, provided that the employee
has been afforded the notice required
under paragraph (f) of this section and
an opportunity for a hearing.
(e) Decisions and orders of the
Director. After reviewing the
recommendation of the General Counsel
pursuant to paragraph (d) of this section
or, in the event of a hearing, the
recommendation of the administrative
law judge pursuant to paragraph (g)(7)
of this section, the Director may issue a
decision and, if applicable, an order.
The authority of the Director to issue
decisions and orders under this
paragraph may not be delegated to any
other official. The Director’s decision
will include written findings and
conclusions with respect to all material
issues and will be supported by
substantial evidence of record.
(1) A copy of the decision and order
will be furnished to the employee and,
if applicable, the employee’s
representative. Copies will also be
provided to the DAEO and the head of
the agency or, where the employee is
the head of an agency, to the President.
The Director’s decision and any order
will be posted on the official Web site
of the Office of Government Ethics,
except to the extent prohibited by law.
(2) The Director’s decision may
include a nonbinding recommendation
that appropriate disciplinary or
corrective action be taken against the
employee. If the agency head does not
take the action recommended within a
reasonable period of time, the Director
may notify the President.
(3) In the case of an ongoing violation,
the Director may issue an order
directing the employee to take specific
action to terminate the violation,
provided that the employee has been
afforded the notice required under
paragraph (f) of this section and an
opportunity for a hearing.
(f) Notice of the right to request a
hearing regarding an order to terminate
a violation. Before an order to terminate
an ongoing violation may be
recommended or issued under this
section, the employee must be provided
with written notice of the potential
issuance of an order, the right to request
a hearing, and instructions for
requesting a hearing.
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(1) If the employee submits a written
request for a hearing within 30 calendar
days of the date of the employee’s
receipt of the notice, the hearing will be
conducted pursuant to paragraph (g) of
this section;
(2) If the employee does not submit a
written request for a hearing within 30
days of receipt of the notice, the General
Counsel may issue a recommendation,
pursuant to paragraph (d) of this
section, in lieu of a hearing after first
considering any timely response of the
employee, pursuant to paragraph (c) of
this section; and
(3) If the employee timely submits
written requests for both a hearing,
pursuant to paragraph (f) of this section,
and an oral response, pursuant to
paragraph (c) of this section, only a
hearing will be conducted, pursuant to
paragraph (g).
(g) Hearings. If, after receiving a
notice required pursuant to paragraph
(f) of this section, the employee submits
a timely request for a hearing, an
administrative law judge who has been
appointed under 5 U.S.C. 3105 will
serve as the hearing officer, and the
following procedures will apply to the
hearing. An employee of the Office of
Government Ethics will be assigned to
provide the administrative law judge
with logistical support in connection
with the hearing.
(1) The General Counsel of the Office
of Government Ethics will designate
attorneys to present evidence and
argument at the hearing in support of a
possible finding that the employee is
engaging in an ongoing violation. The
General Counsel will serve as Advisor to
the Director and will not, in connection
with the presentation of evidence and
argument against the employee, direct
or supervise these attorneys. Any
attorney who presents evidence,
argument, or testimony against the
employee at the hearing will be recused
from assisting the Director or the
General Counsel in connection with the
contemplated order.
(2) The administrative law judge will
issue written instructions for the
conduct of the hearing, including
deadlines for submitting lists of
proposed witnesses and exchanging
copies of documentary evidence. The
hearing will be conducted informally,
and the administrative law judge may
make such rulings as are necessary to
ensure that the hearing is conducted
equitably and expeditiously.
(3) The parties to the hearing will be
the employee and the attorneys of the
Office of Government Ethics designated
to present evidence and arguments
supporting a finding that a violation is
ongoing, respectively. The parties will
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not engage in ex parte communications
with the administrative law judge,
unless the administrative law judge
authorizes limited ex parte
communications regarding scheduling
and logistical matters.
(4) If either party requests assistance
in securing the appearance of an
approved witness who is an employee,
the administrative law judge may, at his
or her discretion, notify the General
Counsel, who will assist the Director in
requesting that the head of the
employing agency produce the witness,
pursuant to section 403(a)(1) of the Act.
The Director will notify the President if
an agency head fails to produce the
approved witness.
(5) The hearing will be conducted on
the record and witnesses will be placed
under oath and subject to crossexamination. Following the hearing, the
administrative law judge will provide
each party with a copy of the hearing
transcript.
(6) Hearings will generally be open to
the public, but the administrative law
judge may issue a written order closing,
in whole or in part, the hearing in the
best interests of national security, the
employee, a witness, or an affected
person. The order will set forth the
reasons for closing the hearing and,
along with any objection to the order by
a party, will be made a part of the
record. Unless specifically excluded by
the administrative law judge, the DAEO
of the employee’s agency will be
permitted to attend a closed hearing. If
the administrative law judge denies a
request by a party or an affected person
to close the hearing, in whole or in part,
that denial will be immediately
appealable by the requester. The
requester must file a notice of appeal
with the Director within 3 working
days. In the event that such a notice is
filed, the hearing will be held in
abeyance pending resolution of the
appeal. The notice of appeal, exclusive
of attachments, may not exceed 10 pages
of double-spaced type. The Director will
afford the parties and, if not a party, the
requester the opportunity to make an
oral presentation in person or via
telecommunications technology within
3 working days of the filing of the
appeal. The oral presentation will be
conducted on the record. If the
appellant or either party is unavailable
to participate in the oral presentation
within the 3-working-day period, the
Director will convene the oral
presentation without that party or
affected person. The Director will issue
a decision on the appeal within 3
working days of the oral presentation. If
the Director is unavailable during this
time period, the Director may designate
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a senior executive of the Office of
Government Ethics to hear the oral
presentation and decide the appeal. The
notice of appeal, the record of the oral
presentation, the decision on the appeal,
and any other document considered by
the Director or the Director’s designee in
connection with the appeal will be
made a part of the record of the hearing.
(7) After closing the record, the
administrative law judge will certify the
entire record to the Director for
decision. When so certifying the record,
the administrative law judge will make
a recommended decision, which will
include his or her written findings of
fact and conclusions of law with respect
to material issues. After considering the
certified record, the Director may issue
a decision and an order, pursuant to
paragraph (e) of this section.
(h) Dismissal. The Director may
dismiss a proceeding under this section
at any time, without a finding as to the
alleged violation, upon a finding that:
(1) The employee or the agency has
taken appropriate action to address the
Director’s concerns;
(2) The employee has undertaken, or
agreed in writing to undertake,
measures the Director deems
satisfactory; or
(3) A question has arisen involving
the potential application of a criminal
law.
(i) Notice procedure. The notices
required by paragraphs (b)(1) and (f) of
this section may be delivered by U.S.
mail, electronic mail or personal
delivery. There will be a rebuttable
presumption that notice sent by U.S.
mail is received within 5 working days.
If the agency does not promptly provide
the Office of Government Ethics with an
employee’s contact information upon
request, the notice may be sent to the
agency’s DAEO, who will bear
responsibility for promptly delivering
that notice to the employee and
promptly notifying the Director after its
delivery.
Subpart F—General Provisions
§ 2638.601
Authority and purpose.
(a) Authority. The regulations of this
part are issued pursuant to the authority
of titles I and IV of the Ethics in
Government Act of 1978 (Pub. L. 95–
521, as amended) (‘‘the Act’’).
(b) Purpose. These executive branch
regulations supplement and implement
titles I, IV and V of the Act and set forth
more specifically certain procedures
provided in those titles, and furnish
examples, where appropriate.
(c) Agency authority. Subject only to
the authority of the Office of
Government Ethics as the supervising
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ethics office for the executive branch, all
authority conferred on agencies in this
subchapter B of chapter XVI of title 5 of
the Code of Federal Regulations is sole
and exclusive authority.
§ 2638.602
Agency regulations.
Each agency may, subject to the prior
approval of the Office of Government
Ethics, issue regulations not
inconsistent with this part and this
subchapter, using the procedures set
forth in § 2635.105 of this chapter.
§ 2638.603
Definitions.
For the purposes of this part:
Act means the Ethics in Government
Act of 1978 (Pub. L. 95–521, as
amended).
ADAEO or Alternate Designated
Agency Ethics Official means an officer
or employee who is designated by the
head of the agency as the primary
deputy to the DAEO in coordinating and
managing the agency’s ethics program in
accordance with the provisions of
§ 2638.104.
Agency or agencies means any
executive department, military
department, Government corporation,
independent establishment, board,
commission, or agency, including the
United States Postal Service and Postal
Regulatory Commission, of the
executive branch.
Agency head means the head of an
agency. In the case of a department, it
means the Secretary of the department.
In the case of a board or commission, it
means the Chair of the board or
commission.
Confidential filer means an employee
who is required to file a confidential
financial disclosure report pursuant to
§ 2634.904 of this chapter.
Conflict of interest laws means 18
U.S.C. 202–209, and conflict of interest
law means any provision of 18 U.S.C.
202–209.
Corrective action means any action
necessary to remedy a past violation or
prevent a continuing violation of this
part, including but not limited to
restitution, change of assignment,
disqualification, divestiture, termination
of an activity, waiver, the creation of a
qualified diversified or blind trust, or
counseling.
DAEO or Designated Agency Ethics
Official means an officer or employee
who is designated by the head of the
agency to coordinate and manage the
agency’s ethics program in accordance
with the provisions of § 2638.104.
Department means a department of
the executive branch.
Director means the Director of the
Office of Government Ethics.
Disciplinary action means those
disciplinary actions referred to in Office
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of Personnel Management regulations
and instructions implementing
provisions of title 5 of the United States
Code or provided for in comparable
provisions applicable to employees not
subject to title 5, including but not
limited to reprimand, suspension,
demotion, and removal. In the case of a
military officer, comparable provisions
may include those in the Uniform Code
of Military Justice.
Employee means any officer or
employee of an agency, including a
special Government employee. It
includes officers but not enlisted
members of the uniformed services. It
includes employees of a state or local
government or other organization who
are serving on detail to an agency,
pursuant to 5 U.S.C. 3371, et seq. It does
not include the President or Vice
President. Status as an employee is
unaffected by pay or leave status or, in
the case of a special Government
employee, by the fact that the individual
does not perform official duties on a
given day.
Executive branch includes each
executive agency as defined in 5 U.S.C.
105 and any other entity or
administrative unit in the executive
branch. However, it does not include
any agency, entity, office, or
commission that is defined by or
referred to in 5 U.S.C. app. sections
109(8)–(11) of the Act as within the
judicial or legislative branch.
Government ethics laws and
regulations include, among other
applicable authorities, the provisions
related to government ethics or financial
disclosure of the following authorities:
(1) Chapter 11 of title 18 of the United
States Code;
(2) The Ethics in Government Act of
1978 (Pub. L. 95–521, as amended);
(3) The Stop Trading on
Congressional Knowledge Act of 2012
(STOCK Act) (Public Law 112–105, as
amended);
(4) Executive Order 12674 (Apr. 12,
1989) as amended by Executive Order
12731 (Oct. 17, 1990); and
(5) Subchapter B of this chapter.
Lead human resources official means
the agency’s chief policy advisor on all
human resources management issues
who is charged with selecting,
developing, training, and managing a
high-quality, productive workforce. For
agencies covered by the Chief Human
Capital Officers Act of 2002 (Pub. L.
107–296), the Chief Human Capital
Officer is the lead human resources
official.
Person includes an individual,
partnership, corporation, association,
government agency, or public or private
organization.
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Principles of Ethical Conduct means
the collection of general principles set
forth in § 2635.101(b) of this chapter.
Public filer means an employee,
former employee, or nominee who is
required to file a public financial
disclosure report, pursuant to
§ 2634.202 of this chapter.
Senior Executive means a career or
noncareer appointee in the Senior
Executive Service or equivalent Federal
executive service. It also includes
employees in Senior Level (SL) and
Senior Technical (ST) positions. In
addition, it includes equivalent
positions in agencies that do not have a
Federal executive service.
Special Government employee means
an employee who meets the definition
at 18 U.S.C. 202(a). The term does not
relate to a specific category of employee,
and 18 U.S.C. 202(a) is not an
appointment authority. The term
describes individuals appointed to
positions in the executive branch, the
legislative branch, any independent
agency of the United States, or the
District of Columbia who are covered
less expansively by conflict of interest
laws at 18 U.S.C. 202–209. As a general
matter, an individual appointed to a
position in the legislative or executive
branch who is expected to serve for 130
days or less during any period of 365
consecutive days is characterized as a
special Government employee. The
appointment of special Government
employees is not administered or
overseen by the Office of Government
Ethics but is carried out under legal
authorities administered by the Office of
Personnel Management and other
agencies.
Standards of Conduct means the
Standards of Ethical Conduct for
Employees of the Executive Branch set
forth in part 2635 of this chapter.
§ 2638.604
Key program dates.
Except as amended by program
advisories of the Office of Government
Ethics, the following list summarizes
key deadlines of the executive branch
ethics program:
(a) January 15 is the deadline for:
(1) The Office of Government Ethics
to issue its year-end status reports,
pursuant to § 2638.108(a)(11); and
(2) In an agency with 1,000 or more
employees, any office not under the
supervision of the DAEO that provides
notices or training required under
subpart C of this part to provide a
written summary and confirmation,
pursuant to § 2638.310.
(b) February 1 is the deadline for the
DAEO to submit the annual report on
the agency’s ethics program, pursuant to
§ 2638.207.
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(c) February 15 is the deadline for
employees to file annual confidential
financial disclosure reports, pursuant to
§ 2634.903(a) of this chapter.
(d) May 15 is the deadline for
employees to file annual public
financial disclosure reports, pursuant to
§ 2634.201(a) of this chapter.
(e) May 31 is the deadline for the
agency to submit required travel reports
to the Office of Government Ethics,
pursuant to § 2638.107(g).
(f) July 1 is the deadline for the DAEO
to submit a letter stating whether
components currently designated
should remain designated, pursuant to
§ 2641.302(e)(2) of this chapter.
(g) November 30 is the deadline for
the agency to submit required travel
reports to the Office of Government
Ethics, pursuant to § 2638.107(h).
(h) December 31 is the deadline for
completion of annual ethics training for
employees covered by §§ 2638.307 and
2638.308.
(i) By the deadline specified in the
request is the deadline, pursuant to
§ 2638.202, for submission of all
documents and information requested
by the Office of Government Ethics in
connection with a review of the
agency’s ethics program, except when
the submission of the information or
reports would be prohibited by law.
(j) Prior to appointment whenever
practicable but in no case more than 15
days after appointment is the deadline,
pursuant to § 2638.105(a)(1), for the lead
human resources official to notify the
DAEO that the agency has appointed a
confidential or public financial
disclosure filer.
(k) Prior to termination whenever
practicable but in no case more than 15
days after termination is the deadline,
pursuant to § 2638.105(a)(2), for the lead
human resources official to notify the
DAEO of the termination of a public
financial disclosure filer.
(l) Within 15 days of appointment is
the deadline for certain agency leaders
to complete ethics briefings, pursuant to
§ 2638.305(b).
(m) Within 30 days of designation is
the deadline for the agency head to
notify the Director of the designation of
any DAEO or ADAEO, pursuant to
§ 2638.107(a).
(n) Within 30 days of referral is the
deadline for the Inspector General or the
DAEO to submit notice to the Director
of certain referrals to the Department of
Justice, pursuant to § 2638.206(a).
(o) Within 3 months of appointment is
the deadline for new employees to
complete initial ethics training,
pursuant to § 2638.304(b).
(p) Within 1 year of appointment is
the deadline for new supervisors to
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receive supervisory ethics notices,
pursuant to § 2638.306(b).
(q) Not later than 12 months before
any Presidential election is the deadline
for the agency head or the DAEO to
evaluate whether the agency’s ethics
program has an adequate number of
trained agency ethics officials to deliver
effective support in the event a
Presidential transition, pursuant to
§ 2638.210(a).
[FR Doc. 2016–13152 Filed 6–3–16; 8:45 am]
BILLING CODE 6345–03–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2015–3631; Directorate
Identifier 2015–NM–060–AD]
RIN 2120–AA64
Airworthiness Directives; Airbus
Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Supplemental notice of
proposed rulemaking (NPRM);
reopening of comment period.
AGENCY:
sradovich on DSK3TPTVN1PROD with PROPOSALS
Examining the AD Docket
We are revising an earlier
proposed airworthiness directive (AD)
for certain Airbus Model A330–200 and
–300 series airplanes; Model A330–200
Freighter series airplanes; and Model
A340–200, –300, –500, and –600 series
airplanes. The NPRM proposed to
require modifying the cockpit door
frame structure, installing bonding-leads
to the upper cockpit door frame, and
modifying the upper cockpit door plate
cover. The NPRM was prompted by
reports of chafed wiring at the upper left
corner of the cockpit door. The affected
wire bundle was not grounded on the
cockpit door frame. This action revises
the NPRM by also requiring, for certain
airplanes, installing a noise-reduced
cockpit door locking system (CDLS). We
are proposing this supplemental NPRM
(SNPRM) to prevent electrical shock
injury to persons contacting the cockpit
door. Since these actions impose an
additional burden over those proposed
in the NPRM, we are reopening the
comment period to allow the public the
chance to comment on these proposed
changes.
DATES: We must receive comments on
this SNPRM by July 21, 2016.
ADDRESSES: You may send comments,
using the procedures found in 14 CFR
11.43 and 11.45, by any of the following
methods:
SUMMARY:
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• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 202–493–2251.
• Mail: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
Washington, DC 20590.
• Hand Delivery: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
For service information identified in
this SNPRM, contact Airbus SAS,
Airworthiness Office—EAL, 1 Rond
Point Maurice Bellonte, 31707 Blagnac
Cedex, France; telephone +33 5 61 93 36
96; fax +33 5 61 93 45 80; email
airworthiness.A330-A340@airbus.com;
Internet https://www.airbus.com. You
may view this referenced service
information at the FAA, Transport
Airplane Directorate, 1601 Lind Avenue
SW., Renton, WA. For information on
the availability of this material at the
FAA, call 425–227–1221.
You may examine the AD docket on
the Internet at https://
www.regulations.gov by searching for
and locating Docket No. FAA–2015–
3631; or in person at the Docket
Management Facility between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. The AD docket
contains this proposed AD, the
regulatory evaluation, any comments
received, and other information. The
street address for the Docket Office
(telephone: 800–647–5527) is in the
ADDRESSES section. Comments will be
available in the AD docket shortly after
receipt.
FOR FURTHER INFORMATION CONTACT:
Vladimir Ulyanov, Aerospace Engineer,
International Branch, ANM–116,
Transport Airplane Directorate, FAA,
1601 Lind Avenue SW., Renton, WA
98057–3356; telephone 425–227–1138;
fax 425–227–1149.
SUPPLEMENTARY INFORMATION:
Comments Invited
We invite you to send any written
relevant data, views, or arguments about
this proposed AD. Send your comments
to an address listed under the
ADDRESSES section. Include ‘‘Docket No.
FAA–2015–3631; Directorate Identifier
2015–NM–060–AD’’ at the beginning of
your comments. We specifically invite
comments on the overall regulatory,
economic, environmental, and energy
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Fmt 4702
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36211
aspects of this proposed AD. We will
consider all comments received by the
closing date and may amend this
proposed AD based on those comments.
We will post all comments we
receive, without change, to https://
www.regulations.gov, including any
personal information you provide. We
will also post a report summarizing each
substantive verbal contact we receive
about this proposed AD.
Discussion
We issued a notice of proposed
rulemaking (NPRM) to amend 14 CFR
part 39 by adding an AD that would
apply to certain Airbus Model A330–
200 and –300 series airplanes; Model
A330–200 Freighter series airplanes;
and Model A340–200, –300, –500, and
–600 series airplanes. The NPRM
published in the Federal Register on
September 18, 2015 (80 FR 56405) (‘‘the
NPRM’’). The NPRM was prompted by
reports of chafed wiring at the upper left
corner of the cockpit door. The affected
wire bundle was not grounded on the
cockpit door frame. The NPRM
proposed to require modifying the
cockpit door frame structure, installing
bonding–leads to the upper cockpit door
frame, and modifying the upper cockpit
door plate cover.
Actions Since Previous NPRM Was
Issued
Since we issued the NPRM, new
service information has been issued that
specifies, for certain airplanes, prior or
concurrent actions of installing a noisereduced CDLS. We have determined this
installation is necessary to address the
identified unsafe condition.
The European Aviation Safety Agency
(EASA), which is the Technical Agent
for the Member States of the European
Union, has issued EASA Airworthiness
Directive 2015–0037, dated March 2,
2015 (referred to after this as the
Mandatory Continuing Airworthiness
Information, or ‘‘the MCAI’’), to correct
an unsafe condition for certain Airbus
Model A330–200 and –300 series
airplanes; Model A330–200 Freighter
series airplanes; and Model A340–200,
–300, –500, and –600 series airplanes.
The MCAI states:
An operator has reported chafed wiring at
the upper left corner of the cockpit door. The
investigation concluded that the affected
wire bundle, which supplies a voltage of
115V [volt] AC [alternating current], was not
grounded on the cockpit door frame as part
of the design of A330 and A340 aeroplanes.
This condition, if not corrected, could
result in injury [electrical shock], in case any
person gets in contact with the door frame.
Prompted by these findings, Airbus issued
SB [service bulletin] A330–25–3534, SB
A340–25–4349 and SB A340–25–5212 to
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Agencies
[Federal Register Volume 81, Number 108 (Monday, June 6, 2016)]
[Proposed Rules]
[Pages 36193-36211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13152]
=======================================================================
-----------------------------------------------------------------------
OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2638
RIN 3209-AA42
Executive Branch Ethics Program Amendments
AGENCY: Office of Government Ethics.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Government Ethics is proposing to amend the
[[Page 36194]]
regulation that sets forth the elements and procedures of the executive
branch ethics program. This comprehensive revision of 5 CFR part 2638
is informed by the experience gained over the last several decades
administering the program, and was developed in consultation with
agency ethics officials, the inspector general community, the Office of
Personnel Management, and the Department of Justice. The proposed
regulation defines and describes the executive branch ethics program,
delineates the responsibilities of various stakeholders, and enumerates
key executive branch ethics procedures.
DATES: Comments are invited and must be received on or before August
5, 2016.
ADDRESSES: You may submit comments, in writing, on this proposed rule,
identified by RIN 3209-AA42, by any of the following methods:
Email: usoge@oge.gov. Include the reference ``Proposed Amendment to
the Executive Branch Ethics Program Regulation, 3209-AA42'' in the
subject line of the message.
Fax: 202-482-9237.
Mail/Hand Delivery/Courier: Office of Government Ethics, Suite 500,
1201 New York Avenue NW., Washington, DC 20005-3917, Attention: Monica
Ashar, Assistant Counsel.
Instructions: All submissions must include the agency name of the
Office of Government Ethics and the Regulation Identifier Number (RIN),
3209-AA42, for this proposed rulemaking. All comments, including
attachments and other supporting materials, will become part of the
public record and be subject to public disclosure. Comments may be
posted at www.oge.gov. Sensitive personal information, such as account
numbers or Social Security numbers, should not be included. Comments
generally will not be edited to remove any identifying or contact
information.
FOR FURTHER INFORMATION CONTACT: Monica Ashar, Assistant Counsel;
Telephone: 202-482-9300; TTY: 800-877-8339; FAX: 202-482-9237.
SUPPLEMENTARY INFORMATION:
A. Background and Analysis of Proposed Rule Changes
Title IV of the Ethics in Government Act of 1978 as amended (the
Act), sets forth the responsibilities of the Director of the U.S.
Office of Government Ethics in providing overall direction of executive
branch policies related to preventing conflicts of interest on the part
of officers and employees of any executive agency. On January 9, 1981,
a final rule was published which set forth the elements of an agency's
ethics program, the responsibilities of an agency head with regard to
that program, and the duties of a Designated Agency Ethics Official. It
also established the formal advisory opinion service of the Office of
Government Ethics. See 46 FR 2582-2587 (January 9, 1981). These
provisions, which are now codified at subparts A through C of 5 CFR
part 2638, have remained largely unchanged since they were first
issued, despite having been developed when the executive branch-wide
ethics program was in its infancy.
The next substantive addition to part 2638 occurred in 1990. The
Office of Government Ethics Reauthorization Act of 1988, Public Law
100-598, granted the Director of the Office of Government Ethics the
authority to order corrective action on the part of individuals and
agencies, and to require certain reports from agencies. On January 18,
1990, the Office of Government Ethics issued interim regulations, as
later modified by the final rule, which established procedures to
correct deficiencies in executive branch ethics programs; to bring
individual agency employees into compliance with rules, regulations,
and executive orders relating to standards of conduct and conflicts of
interest; and to specify requirements for executive agency reports. See
55 FR 1665-1670 (January 18, 1990) and 55 FR 21845-21847 (May 30,
1990). These procedures, which are codified at subparts D through F of
part 2638, have remained unchanged since the final rule was issued 26
years ago.
That same year, the Office of Government Ethics issued a proposed
new subpart G to require executive branch ethics programs to maintain
ethics training programs for their employees. See 55 FR 38335-38337
(September 18, 1990). After the final rule was promulgated in 1992, the
Office of Government Ethics made several revisions to the training
regulations, based in part on feedback from agency ethics officials.
See 62 FR 11307 (March 12, 1997). The most recent amendment occurred 16
years ago, and was done to rewrite the regulation in plain language.
See 65 FR 7275-7281 (February 14, 2000).
The proposed revisions, which are described in further detail
below, draw upon the collective experience of agency ethics officials
across the executive branch and the Office of Government Ethics as the
supervising ethics office. They reflect the extensive input that the
executive branch ethics community provided throughout the drafting
process. In short, they present a comprehensive picture of the
executive branch ethics program, its responsibilities and its
procedures, as reflected through 35 years of interpreting and
implementing the Ethics in Government Act of 1978, as amended, as well
as other applicable statutes, regulations, executive orders and
authorities.
Mission and Responsibilities
The proposed subpart A, titled ``Mission and Responsibilities,''
presents an overarching view of the executive branch ethics program and
establishes context for part 2638. It opens by setting forth the
program's core principles: Its mission of preventing conflicts of
interest, the breadth of conflicts prevention, and the scope of a
conflicts-based program. Whereas the current regulation necessarily
focuses on the granular operations of the executive branch ethics
program, the proposed rule seeks also to articulate the core goals that
guide the program's work.
Subpart A then expands upon the regulations that currently exist at
subpart B and that have remained largely unchanged since their issuance
in 1981. The existing provisions, collected under the heading
``Designated Agency Ethics Official,'' enumerate the responsibilities
of the agency head, the duties of the Designated Agency Ethics Official
(DAEO), and the delegation of those duties by the DAEO to one or more
deputy agency ethics officials. However, as the Office of Government
Ethics and agency ethics officials have experienced in the time since
issuance of those provisions, there are several agency operations
outside of the DAEO's control that are nonetheless critical to the
success of an agency ethics program. Further, while the agency head is
ultimately responsible for the ethics program, the structure of the
existing subpart B serves to understate the agency head's role. The
proposed subpart A improves upon the current regulation by identifying
key constituencies individually and delineating their responsibilities.
Subpart A concludes by defining the role and responsibilities of
the Office of Government Ethics as the supervising ethics office for
the executive branch. It expands upon the provision presently located
at Sec. 2638.102 to provide a more comprehensive list of the
authorities and functions of the agency. It also institutionalizes
certain practices, such as convening quarterly meetings, that the
Office of Government Ethics otherwise plans to continue indefinitely.
[[Page 36195]]
Procedures of the Executive Branch Ethics Program
The proposed subpart B centralizes the procedures of the executive
branch ethics program. At present, these procedures are found in the
existing subpart C (Formal Advisory Opinion Service), the existing
subpart F (Executive Branch Agency Reports), and in several advisories
that are available on the public-facing Web site of the Office of
Government Ethics. These procedures concern the furnishing of
information, records and reports to the Office of Government Ethics;
the executive branch's collection of financial disclosure reports; and
the issuance of formal advisory opinions and other written guidance by
the Office of Government Ethics. Further, the proposed subpart B will
include one new procedure, which pertains to ethics preparations for
presidential transitions.
With respect to financial disclosure reports, Sec. Sec. 2638.203
through 2638.205 establish the procedures that the executive branch
ethics program will use to collect public and confidential financial
disclosure reports. Part 2634 of this chapter addresses the substantive
requirements of public and confidential financial disclosure, as well
as the processes for individual agencies' review, maintenance, and,
where applicable, release of financial disclosure reports.
Government Ethics Education
Subpart C further modernizes the ethics training regulations
currently located at subpart G. This revision is one of several that
have occurred since the training regulations were first issued in 1992.
Most notably, it acknowledges the increased use of technology to
fulfill existing training requirements and updates the current
framework, which distinguishes between ``verbal training'' and
``written training,'' so that the key distinction will be between
``live training'' and ``interactive training.'' Interactive training
may take a variety of forms, and training that satisfies the
requirements for live training will also always satisfy the
requirements for interactive training.
Additionally, it creates greater flexibility for agency ethics
officials--who are in the best position to know their agencies'
programs and operations--to tailor the content of the training to meet
the needs of their employees. For example, for employees who are
required to receive annual training, the current subpart C has required
the agency's training to cover each of the principles of ethical
conduct, each of the standards of ethical conduct, and each of the
Federal conflict of interest statutes, in addition to any agency
supplemental standards of conduct. The proposed rule distills this
broad range of topics into four key topic areas and provides the DAEO
with broad discretion to determine how much of the training to devote
to each of these four topic areas. After covering these four required
topic areas, as briefly or extensively as the circumstances warrant, an
agency's training may focus on other government ethics topics that the
DAEO deems relevant to the audience being trained.
As part of this modernization, subpart C also makes adjustments to
the existing requirements for initial ethics orientation and annual
training. At the same time, it introduces a new requirement to brief
certain agency leaders around the time of appointment. This briefing
must occur after confirmation but no later than 15 days after
appointment, unless the DAEO grants a 15-day extension. A limited
exception permits the DAEO to grant an individual an additional
extension, but only in extraordinary circumstances. An individual's
workload, meeting schedule, or travel schedule will normally not,
without more, constitute extraordinary circumstances. Extraordinary
circumstances necessitating an additional extension might include a
natural or manmade disaster, an imminent threat to national security,
the individual's physical incapacity, the individual's absence from the
office in connection with the death of a family member, and other
circumstances of a similarly disruptive magnitude.
Subpart C also introduces requirements for agencies to inform
prospective employees, in any written employment offers, of the ethical
obligations associated with the positions being offered, and to notify
newly appointed supervisors of their unique role in the agency ethics
program. By taking advantage of existing personnel systems for issuing
written offers of employment and for training new supervisors, agencies
can, with little additional effort, inform employees of their newly
acquired ethical responsibilities. For example, the notice to new
supervisors that is required under Sec. 2638.306 could be provided to
new supervisors either in the written notice that they are subject to
the requirements of 5 CFR 412.202(b) or during the training they
receive pursuant to 5 CFR 412.202(b).
Subpart C acknowledges that ethics officials may coordinate with
other offices to fulfill certain programmatic requirements. For
example, an agency's Office of Human Resources may be delegated the
responsibility to inform prospective employees, in written employment
offers, of their ethical obligations. With respect to the tracking of
specified activities performed by offices that are not supervised by
the DAEO, as described in Sec. 2638.310, the Office of Government
Ethics requires only that the DAEO receive a written summary of the
established procedures, and a written confirmation that these
procedures are being properly implemented. Where Sec. 2638.310
applies, agencies need not track the completion of each particular
action taken with respect to individual employees.
Finally, subpart C eliminates the formal requirement for agencies
to develop training plans, which largely consist of inordinately
detailed estimates of various categories of employees required to
complete annual training in a particular year. In the experience of the
Office of Government Ethics, these plans appear to contribute little to
the success of agency training programs while requiring a
disproportionately large effort from agency ethics officials. The
requirement to engage in reasonable planning efforts still applies, but
the Office of Government Ethics will no longer prescribe the form these
efforts must take. See Executive Order 12674 of April 12, 1989, as
modified by Executive Order 12731 of October 17, 1990.
Correction of Executive Branch Agency Ethics Programs
The proposed subpart D modifies the current subpart D, which
establishes procedures for the correction of executive branch ethics
programs. These procedures are implemented when there are indications
that an agency ethics program is not in compliance with the
requirements set forth in applicable government ethics laws and
regulations. The proposed subpart D improves the current procedures by
enumerating several informal actions that the Director may take in
order to bring the agency into compliance. These informal procedures
reflect the practice of the Office of Government Ethics over the past
several decades. The Office of Government Ethics has found that
informal resolution is often an appropriate and effective alternative
to formal action because it involves agency ethics officials and other
stakeholders in actively crafting and implementing a resolution.
However, in the event that informal action does not resolve the
deficiency, the Director will take formal
[[Page 36196]]
action with respect to the agency's ethics program, as required by the
Act.
Corrective Action Involving Individual Employees
The proposed subpart E modifies the current subpart E, which
contains procedures for addressing potential violations of noncriminal
ethics laws and regulations by individual employees. These corrective
action procedures, which were established in 1990, have generated
considerable confusion among external stakeholders over the past 26
years. The proposed subpart E therefore seeks to clarify three
fundamental elements. First, it clarifies the meaning and effect of
subpart E, particularly with respect to the limits on the authority of
the Office of Government Ethics to direct employees to take corrective
action. Second, it emphasizes that, in practice, suspected violations
of noncriminal government ethics laws or regulations are generally
resolved without the need for formal action on the part of the Office
of Government Ethics. Third, it makes clear that, as a matter of law,
the formal procedures may be used only when no criminal law is or has
been implicated.
General Provisions
The proposed subpart F, which comprises general provisions, largely
incorporates subpart A of the current regulation. Additionally, the
proposed subpart F provides a comprehensive list of key ethics dates
and deadlines that are otherwise dispersed throughout this part and
other statutes and regulations.
B. Matters of Regulatory Procedure
Regulatory Flexibility Act
As Director of the Office of Government Ethics, I certify under the
Regulatory Flexibility Act (5 U.S.C. chapter 6) that this proposed rule
would not have a significant economic impact on a substantial number of
small entities because it primarily affects current and former Federal
executive branch employees.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply
because this regulation does not contain information collection
requirements that require approval of the Office of Management and
Budget.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
chapter 5, subchapter II), this proposed rule would not significantly
or uniquely affect small governments and will not result in increased
expenditures by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more (as adjusted for
inflation) in any one year.
Executive Order 13563 and Executive Order 12866
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select the regulatory approaches that
maximize net benefits (including economic, environmental, public health
and safety effects, distributive impacts, and equity). Executive Order
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This rulemaking has been designated as a ``significant regulatory
action'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly this proposed rule has been reviewed
by the Office of Management and Budget.
Executive Order 12988
As Director of the Office of Government Ethics, I have reviewed
this proposed rule in light of section 3 of Executive Order 12988,
Civil Justice Reform, and certify that it meets the applicable
standards provided therein.
List of Subjects in 5 CFR Part 2638
Administrative practice and procedure, Conflict of interests,
Government employees, Reporting and recordkeeping requirements.
Approved: May 31, 2016.
Walter M. Shaub, Jr.,
Director, Office of Government Ethics.
Accordingly, for the reasons set forth in the preamble, the Office
of Government Ethics proposes to revise 5 CFR part 2638 to read as
follows:
PART 2638--EXECUTIVE BRANCH ETHICS PROGRAM
Subpart A--Mission and Responsibilities
Sec.
2638.101 Mission.
2638.102 Government ethics responsibilities of employees.
2638.103 Government ethics responsibilities of supervisors.
2638.104 Government ethics responsibilities of agency ethics
officials.
2638.105 Government ethics responsibilities of lead human resources
officials.
2638.106 Government ethics responsibilities of responsibilities of
Inspectors General.
2638.107 Government ethics responsibilities of agency heads.
2638.108 Government ethics responsibilities of the Office of
Government Ethics.
Subpart B--Procedures of the Executive Branch Ethics Program
2638.201 In general.
2638.202 Furnishing records and information generally.
2638.203 Collection of public financial disclosure reports required
to be submitted to the Office of Government Ethics.
2638.204 Collection of other public financial disclosure reports.
2638.205 Collection of confidential financial disclosure reports.
2638.206 Notice to the Director of certain referrals to the
Department of Justice.
2638.207 Annual report on the agency's ethics program.
2638.208 Written guidance on the executive branch ethics program.
2638.209 Formal advisory opinions.
2638.210 Presidential transition planning.
Subpart C--Government Ethics Education
2638.301 In general.
2638.302 Definitions.
2638.303 Notice to prospective employees.
2638.304 Initial ethics training.
2638.305 Additional ethics briefing for certain agency leaders.
2638.306 Notice to new supervisors.
2638.307 Annual ethics training for confidential filers and certain
other employees.
2638.308 Annual ethics training for public filers.
2638.309 Agency-specific ethics education requirements.
2638.310 Coordinating the agency's ethics education program.
Subpart D--Correction of Executive Branch Agency Ethics Programs
2638.401 In general.
2638.402 Informal action.
2638.403 Formal action.
Subpart E--Corrective Action Involving Individual Employees
2638.501 In general.
2638.502 Violations of criminal provisions related to government
ethics.
2638.503 Recommendations and advice to employees and agencies.
2638.504 Violations of noncriminal provisions related to government
ethics.
Subpart F--General Provisions
2638.601 Authority and purpose.
2638.602 Agency regulations.
2638.603 Definitions.
2638.604 Key program dates.
Authority: 5 U.S.C. App. 101-505; E.O. 12674, 54 FR 15159, 3
CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3
CFR, 1990 Comp., p. 306.
Subpart A--Mission and Responsibilities
Sec. 2638.101 Mission.
(a) Mission. The primary mission of the executive branch ethics
program is
[[Page 36197]]
to prevent conflicts of interest on the part of executive branch
employees.
(b) Breadth. The executive branch ethics program works to ensure
that public servants make impartial decisions based on the interests of
the public when carrying out the governmental responsibilities
entrusted to them, serve as good stewards of public resources, and
loyally adhere to the Constitution and laws of the United States. The
program's mission includes preventing conflicts of interest that stem
from: Financial interests; business or personal relationships; misuses
of official position, official time, or public resources; and the
receipt of gifts. The mission is focused on both conflicts of interest
and the appearance of conflicts of interest.
(c) Conflicts-based program. The executive branch ethics program is
a conflicts-based program, rather than a solely disclosure-based
program. While transparency is an invaluable tool for promoting and
monitoring ethical conduct, the executive branch ethics program
requires more than transparency. This program seeks to ensure the
integrity of governmental decision-making and to promote public
confidence by preventing conflicts of interest. Taken together, the
systems in place to identify and address conflicts of interest
establish a foundation on which to build and sustain an ethical culture
in the executive branch.
Sec. 2638.102 Government ethics responsibilities of employees.
Consistent with the fundamental principle that public service is a
public trust, every employee in the executive branch plays a critical
role in the executive branch ethics program. As provided in the
Standards of Conduct at part 2635 of this chapter, employees must
endeavor to act at all times in the public's interest, avoid losing
impartiality or appearing to lose impartiality in carrying out official
duties, refrain from misusing their offices for private gain, serve as
good stewards of public resources, and comply with the requirements of
government ethics laws and regulations, including any applicable
financial disclosure requirements. Employees must refrain from
participating in particular matters in which they have financial
interests and, pursuant to Sec. 2635.402(f) of this chapter, should
notify their supervisors or ethics officials when their official duties
create the substantial likelihood of such conflicts of interest.
Collectively, the charge of employees is to make ethical conduct the
hallmark of government service.
Sec. 2638.103 Government ethics responsibilities of supervisors.
Every supervisor in the executive branch has a heightened personal
responsibility for advancing government ethics. It is imperative that
supervisors serve as models of ethical behavior for subordinates.
Supervisors have a responsibility to help ensure that subordinates are
aware of their ethical obligations under the Standards of Conduct and
that subordinates know how to contact agency ethics officials.
Supervisors are also responsible for working with agency ethics
officials to help resolve conflicts of interest and enforce government
ethics laws and regulations, including those requiring certain
employees to file financial disclosure reports. In addition,
supervisors are responsible, when requested, for assisting agency
ethics officials in evaluating potential conflicts of interest and
identifying positions subject to financial disclosure requirements.
Sec. 2638.104 Government ethics responsibilities of agency ethics
officials.
(a) Appointment of a Designated Agency Ethics Official. Each agency
head must appoint a Designated Agency Ethics Official (DAEO). The DAEO
is the employee with primary responsibility for directing the daily
activities of the agency's ethics program and coordinating with the
Office of Government Ethics.
(b) Qualifications necessary to serve as DAEO. The following are
necessary qualifications of an agency's DAEO:
(1) The DAEO must be an employee at an appropriate level in the
organization, such that the DAEO is able to coordinate effectively with
officials in relevant agency components and gain access to the agency
head when necessary to discuss important matters related to the
agency's ethics program.
(2) The DAEO must be an employee who has demonstrated the
knowledge, skills, and abilities necessary to manage a significant
agency program, to understand and apply complex legal requirements, and
to generate support for building and sustaining an ethical culture in
the organization.
(3) On an ongoing basis, the DAEO must demonstrate the capacity to
serve as an effective advocate for the executive branch ethics program,
show support for the mission of the executive branch ethics program,
prove responsive to the Director's requests for documents and
information related to the ethics program, and serve as an effective
liaison with the Office of Government Ethics.
(4) In any agency with 1,000 or more employees, any DAEO appointed
after the effective date of this regulation must be an employee at the
senior executive level or higher, unless the agency has fewer than 10
positions at that level.
(c) Responsibilities of the DAEO. Acting directly or through other
officials, the DAEO is responsible for taking actions authorized or
required under this subchapter, including the following:
(1) Serving as an effective liaison to the Office of Government
Ethics;
(2) Maintaining records of agency ethics program activities;
(3) Promptly and timely furnishing the Office of Government Ethics
with all documents and information requested or required under subpart
B of this part;
(4) Providing advice and counseling to prospective and current
employees regarding government ethics laws and regulations, and
providing former employees with advice and counseling regarding post-
employment restrictions applicable to them;
(5) Carrying out an effective government ethics education program
under subpart C of this part;
(6) Taking appropriate action to resolve conflicts of interest and
the appearance of conflicts of interest, through recusals, directed
divestitures, waivers, authorizations, reassignments, and other
appropriate means;
(7) Consistent with Sec. 2640.303 of this chapter, consulting with
the Office of Government Ethics regarding the issuance of waivers
pursuant to 18 U.S.C. 208(b);
(8) Carrying out an effective financial disclosure program, by:
(i) Establishing such written procedures as are appropriate
relative to the size and complexity of the agency's financial
disclosure program for the filing, review, and, when applicable, public
availability of financial disclosure reports;
(ii) Requiring public and confidential filers to comply with
deadlines and requirements for financial disclosure reports under part
2634 of this chapter and, in the event of noncompliance, taking
appropriate action to address such noncompliance;
(iii) Imposing late fees in appropriate cases involving untimely
filing of public financial disclosure reports;
(iv) Making referrals to the Inspector General or the Department of
Justice in appropriate cases involving knowing and willful
falsification of financial disclosure reports or knowing and willful
failure to file financial disclosure reports;
[[Page 36198]]
(v) Reviewing financial disclosure reports, with an emphasis on
preventing conflicts of interest;
(vi) Consulting, when necessary, with financial disclosure filers
and their supervisors to evaluate potential conflicts of interest;
(vii) Timely certifying financial disclosure reports and taking
appropriate action with regard to financial disclosure reports that
cannot be certified; and
(viii) Using the information disclosed in financial disclosure
reports to prevent and resolve potential conflicts of interest.
(9) Assisting the agency in its enforcement of ethics laws and
regulations when agency officials:
(i) Make appropriate referrals to the Inspector General or the
Department of Justice;
(ii) Take disciplinary or corrective action; and
(iii) Employ other means available to them.
(10) Upon request of the Office of Inspector General, providing
that office with ready and active assistance with regard to the
interpretation and application of government ethics laws and
regulations, as well as the procedural requirements of the ethics
program;
(11) Ensuring that the agency has a process for notifying the
Office of Government Ethics upon referral, made pursuant to 28 U.S.C.
535, to the Department of Justice regarding a potential violation of a
conflict of interest law, unless such notification would be prohibited
by law;
(12) Providing agency officials with advice on the applicability of
government ethics laws and regulations to special Government employees;
(13) Requiring timely compliance with ethics agreements, pursuant
to part 2634, subpart H of this chapter;
(14) Conducting ethics briefings for certain agency leaders,
pursuant to Sec. 2638.305;
(15) Prior to any Presidential election, preparing the agency's
ethics program for a potential Presidential transition; and
(16) Periodically evaluating the agency's ethics program and making
recommendations to the agency regarding the resources available to the
ethics program.
(d) Appointment of an Alternate Designated Agency Ethics Official.
Each agency head must appoint an Alternate Designated Agency Ethics
Official (ADAEO). The ADAEO serves as the primary deputy to the DAEO in
the administration of the agency's ethics program. Together, the DAEO
and the ADAEO direct the daily activities of an agency's ethics program
and coordinate with the Office of Government Ethics. The ADAEO must be
an employee who has demonstrated the skills necessary to assist the
DAEO in the administration of the agency's ethics program.
(e) Program support by additional ethics officials and other
individuals. Subject to approval by the DAEO or the agency head, an
agency may designate additional ethics officials and other employees to
assist the DAEO in carrying out the responsibilities of the ethics
program, some of whom may be designated ``deputy ethics officials'' for
purposes of parts 2635 and 2636 of this chapter. The agency is
responsible for ensuring that these employees have the skills and
expertise needed to perform their assigned duties related to the ethics
program and must provide appropriate training to them for this purpose.
Although the agency may appoint such officials as are necessary to
assist in carrying out functions of the agency's ethics program, they
will be subject to the direction of the DAEO with respect to the
functions of the agency's ethics program described in this chapter. The
DAEO retains authority to make final decisions regarding the agency's
ethics program and its functions, subject only to the authority of the
agency head and the Office of Government Ethics.
(f) Ethics responsibilities that may be performed only by the DAEO
or ADAEO. In addition to any items reserved for action by the DAEO or
ADAEO in other parts of this chapter, only the DAEO or ADAEO may carry
out the following responsibilities:
(1) Request approval of supplemental agency regulations, pursuant
to Sec. 2635.105 of this chapter;
(2) Recommend a separate component designation, pursuant to Sec.
2641.302(e) of this chapter;
(3) Request approval of an alternative means for collecting certain
public financial disclosure reports, pursuant to Sec. 2638.204(c);
(4) Request determinations regarding public reporting requirements,
pursuant to Sec. Sec. 2634.202(c), 2634.203, 2634.205, and 2634.304(f)
of this chapter;
(5) Make determinations, other than exceptions in individual cases,
regarding the means the agency will use to collect public or
confidential financial disclosure reports, pursuant to Sec. Sec.
2638.204 and 2638.205;
(6) Request an alternative procedure for filing confidential
financial disclosure reports, pursuant to Sec. 2634.905(a) of this
chapter;
(7) Request a formal advisory opinion on behalf of the agency or a
prospective, current, or former employee of that agency, pursuant to
Sec. 2638.209(d); and
(8) Request a certificate of divestiture, pursuant to Sec.
2634.1005(b) of this chapter.
Sec. 2638.105 Government ethics responsibilities of lead human
resources officials.
(a) The lead human resources official, as defined in Sec.
2638.603, acting directly or through delegees, is responsible for:
(1) Promptly notifying the DAEO of all appointments to positions
that require incumbents to file public or confidential financial
disclosure reports, with the notification occurring prior to
appointment whenever practicable but in no case occurring more than 15
days after appointment; and
(2) Promptly notifying the DAEO of terminations of employees in
positions that require incumbents to file public financial disclosure
reports, with the notification occurring prior to termination whenever
practicable but in no case occurring more than 15 days after
termination.
(b) The lead human resources official may be assigned certain
additional ethics responsibilities by the agency.
(1) If an agency elects to assign such responsibilities to human
resources officials, the lead human resources official is responsible
for coordinating, to the extent necessary and practicable, with the
DAEO to support the agency's ethics program;
(2) If the lead human resources official is responsible for
conducting ethics training pursuant to subpart C of this part, that
official must follow the DAEO's directions regarding applicable
requirements, procedures, and the qualifications of any presenters,
consistent with the requirements of this chapter;
(3) If the lead human resources official is responsible for issuing
the required government ethics notices in written offers of employment,
pursuant to Sec. 2638.303, or providing supervisory ethics notices,
pursuant to Sec. 2638.306, that official must comply with any
substantive and procedural requirements established by the DAEO,
consistent with the requirements of this chapter; and
(4) To the extent applicable, the lead human resources official is
required to provide the DAEO with a written summary and confirmation
regarding procedures for implementing certain requirements of subpart C
of this part by January 15 each year, pursuant to Sec. 2638.310.
(c) Nothing in this section prevents an agency head from delegating
the duties described in paragraph (b) of this
[[Page 36199]]
section to another agency official. In the event that an agency head
delegates the duties described in paragraph (b) of this section to an
agency official other than the lead human resources official, the
requirements of paragraph (b) of this section will apply to that
official.
Sec. 2638.106 Government ethics responsibilities of Inspectors
General.
An agency's Inspector General has authority to conduct
investigations of suspected violations of conflict of interest laws and
other government ethics laws and regulations. An Inspector General is
responsible for giving serious consideration to a request made pursuant
to section 403 of the Ethics in Government Act of 1978 (the ``Act'') by
the Office of Government Ethics for investigation of a possible
violation of a government ethics law or regulation. In addition, an
Inspector General is responsible for providing the Office of Government
Ethics information about certain referrals to the Department of
Justice, pursuant to Sec. 2638.206. An Inspector General may consult
with the Director for legal guidance on the application of government
ethics laws and regulations, except that the Director may not make any
finding as to whether a provision of title 18, United States Code, or
any criminal law of the United States outside of such title, has been
or is being violated.
Sec. 2638.107 Government ethics responsibilities of agency heads.
The agency head is responsible for, and will exercise personal
leadership in, establishing and maintaining an effective agency ethics
program and fostering an ethical culture in the agency. The agency head
is also responsible for:
(a) Designating employees to serve as the DAEO and ADAEO and
notifying the Director in writing within 30 days of such designation;
(b) Providing the DAEO with sufficient resources, including
staffing, to sustain an effective ethics program;
(c) Requiring agency officials to provide the DAEO with the
information, support, and cooperation necessary for the accomplishment
of the DAEO's responsibilities;
(d) When action is warranted, enforcing government ethics laws and
regulations through appropriate referrals to the Inspector General or
the Department of Justice, investigations, and disciplinary or
corrective action;
(e) Requiring that violations of government ethics laws and
regulations, or interference with the functioning of the agency ethics
program, be appropriately considered in evaluating the performance of
senior executives;
(f) Requiring the Chief Information Officer and other appropriate
agency officials to support the DAEO in using technology, to the extent
practicable, to carry out ethics program functions such as delivering
interactive training and tracking ethics program activities;
(g) Requiring appropriate agency officials to submit to the Office
of Government Ethics, by May 31 each year, required reports of travel
accepted by the agency under 31 U.S.C. 1353 during the period from
October 1 through March 31;
(h) Requiring appropriate agency officials to submit to the Office
of Government Ethics, by November 30 each year, required reports of
travel accepted by the agency under 31 U.S.C. 1353 during the period
from April 1 through September 30; and
(i) Prior to any Presidential election, supporting the agency's
ethics program in preparing for a Presidential transition.
Sec. 2638.108 Government ethics responsibilities of the Office of
Government Ethics.
The Office of Government Ethics is the supervising ethics office
for the executive branch, providing overall leadership and oversight of
the executive branch ethics program designed to prevent and resolve
conflicts of interest. The Office of Government Ethics has the
authorities and functions established in the Act.
(a) Authorities and functions. Among other authorities and
functions, the Office of Government Ethics has the authorities and
functions described in this section.
(1) The Office of Government Ethics issues regulations regarding
conflicts of interest, standards of conduct, financial disclosure,
requirements for agency ethics programs, and executive branch-wide
systems of records for government ethics records. In issuing any such
regulations, the Office of Government Ethics will, to the full extent
required under the Act and any Executive Order, coordinate with the
Department of Justice and the Office of Personnel Management. When
practicable, the Office of Government Ethics will also consult with a
diverse group of selected agency ethics officials that represent a
cross section of executive branch agencies to ascertain representative
views of the DAEO community when developing substantive revisions to
this chapter.
(2) The Office of Government Ethics reviews and approves or
disapproves agency supplemental ethics regulations.
(3) The Office of Government Ethics issues formal advisory opinions
to interested parties, pursuant to Sec. 2638.209. When developing a
formal advisory opinion, the Office of Government Ethics will provide
interested parties with an opportunity to comment.
(4) The Office of Government Ethics issues guidance and informal
advisory opinions, pursuant to Sec. 2638.208. When practicable, the
Office of Government Ethics will consult with selected agency ethics
officials to ascertain representative views of the DAEO community when
developing guidance or informal advisory opinions that the Director
determines to be of significant interest to a broad segment of the DAEO
community.
(5) The Office of Government Ethics supports agency ethics
officials through such training, advice, and counseling as the Director
deems necessary.
(6) The Office of Government Ethics provides assistance in
interpreting government ethics laws and regulations to executive branch
Offices of Inspector General and other executive branch entities.
(7) When practicable, the Office of Government Ethics convenes
quarterly executive branch-wide meetings of key agency ethics
officials. When the Office of Government Ethics convenes a major
executive branch-wide training event, the event normally serves in
place of a quarterly meeting.
(8) Pursuant to sections 402(b)(10) and 403 of the Act, the
Director requires agencies to furnish the Office of Government Ethics
with all information, reports, and records which the Director
determines to be necessary for the performance of the Director's
duties, except when such a release is prohibited by law.
(9) The Office of Government Ethics conducts reviews of agency
ethics programs in order to ensure their compliance with program
requirements and to ensure their effectiveness in advancing the mission
of the executive branch-wide ethics program. The Office of Government
Ethics also conducts single-issue reviews of individual agencies,
groups of agencies, or the executive branch ethics program as a whole.
(10) The Office of Government Ethics reviews financial disclosure
reports filed by employees, former employees, nominees, candidates for
the Office of the President of the United States, and candidates for
the Office of the Vice President of the United States who are required
to file executive branch financial disclosure reports with the Office
of Government Ethics pursuant to
[[Page 36200]]
sections 101, 103(c), and 103(l) of the Act.
(11) By January 15 each year, the Office of Government Ethics
issues year-end reports to agencies regarding their compliance with the
obligations, pursuant to section 103(c) of the Act and part 2634 of
this chapter:
(i) To timely transmit the annual public financial disclosure
reports of certain high-level officials to the Office of Government
Ethics; and
(ii) To promptly submit such additional information as is necessary
to obtain the Director's certification of the reports.
(12) The Office of Government Ethics oversees the development of
ethics agreements between agencies and Presidential nominees for
positions in the executive branch requiring Senate confirmation and
tracks compliance with such agreements. The Office of Government Ethics
also maintains a guide that provides sample language for ethics
agreements of Presidential nominees requiring Senate confirmation.
(13) The Office of Government Ethics proactively assists
Presidential Transition Teams in support of effective and efficient
Presidential transitions and, to the extent practicable, may provide
Presidential campaigns with advice and counsel on preparing for
Presidential transitions.
(14) The Office of Government Ethics orders such corrective action
on the part of an agency as the Director deems necessary, pursuant to
subpart D of this part, and such corrective action on the part of
individual executive branch employees as the Director deems necessary,
pursuant to subpart E of this part.
(15) The Office of Government Ethics makes determinations regarding
public financial disclosure requirements, pursuant to Sec. Sec.
2634.202(c), 2634.203, 2634.205, and 2634.304(f) of this chapter.
(16) The Office of Government Ethics conducts outreach to inform
the public of matters related to the executive branch ethics program.
(17) The Director and the Office of Government Ethics take such
other actions as are necessary and appropriate to carry out their
responsibilities under the Act.
(b) Other authorities and functions. Nothing in this subpart or
this chapter limits the authority of the Director or the Office of
Government Ethics under the Act.
Subpart B--Procedures of the Executive Branch Ethics Program
Sec. 2638.201 In general.
This subpart establishes certain procedures of the executive branch
ethics program. The procedures set forth in this subpart are in
addition to procedures established elsewhere in this chapter and in the
program advisories and other issuances of the Office of Government
Ethics.
Sec. 2638.202 Furnishing records and information generally.
Consistent with sections 402 and 403 of the Act, each agency must
furnish to the Director all information and records in its possession
which the Director deems necessary to the performance of the Director's
duties, except to the extent prohibited by law. All such information
and records must be provided to the Office of Government Ethics in a
complete and timely manner.
Sec. 2638.203 Collection of public financial disclosure reports
required to be submitted to the Office of Government Ethics.
The public financial disclosure reports of individuals, other than
candidates for elected office and elected officials, whose reports are
required by section 103 of the Act to be transmitted to the Office of
Government Ethics will be transmitted through the executive branch-wide
electronic filing system of the Office of Government Ethics, except in
cases in which the Director determines that using that system would be
impracticable.
Sec. 2638.204 Collection of other public financial disclosure
reports.
This section establishes the procedure that the executive branch
ethics program will use to collect, pursuant to section 101 of the Act,
public financial disclosure reports of individuals whose reports are
not required by section 103 of the Act to be transmitted to the Office
of Government Ethics.
(a) General. Subject to the exclusions and exceptions in paragraphs
(b) through (d) of this section, the public financial disclosure
reports required by part 2634 of this chapter will be collected through
the executive branch-wide electronic filing system of the Office of
Government Ethics.
(b) Exclusions. This section does not apply to persons whose
financial disclosure reports are covered by section 105(a)(1) or (2) of
the Act, persons whose reports are required by section 103 of the Act
to be transmitted to the Office of Government Ethics, or such other
persons as the Director may exclude from the coverage of this section
in the interest of the executive branch ethics program.
(c) Authorization to collect public reports in paper format or
through a legacy electronic filing system. Upon written request signed
by the DAEO or ADAEO and by the Chief Information Officer, the Director
of the Office of Government Ethics may authorize an agency in the
interest of the executive branch ethics program to collect public
financial disclosure reports in paper format or through a legacy
electronic filing system other than the executive branch-wide
electronic filing system of the Office of Government Ethics. The
Director may rescind any such authorization based on a written
determination that the rescission promotes the efficiency or
effectiveness of the executive branch ethics program, but only after
providing the agency with advance written notice and an opportunity to
respond. The rescission will become effective on January 1 of a
subsequent calendar year, but not less than 24 months after notice is
provided.
(d) Exceptions in cases of extraordinary circumstances or temporary
technical difficulties. Based on a determination that extraordinary
circumstances or temporary technical difficulties make the use of an
electronic filing system impractical, the DAEO or ADAEO may authorize
an individual to file a public financial disclosure report using such
alternate means of filing as are authorized in the program advisories
of the Office of Government Ethics. To the extent practicable, agencies
should limit the number of exceptions they grant under this paragraph
each year. The Director may suspend an agency's authority to grant
exceptions under this paragraph when the Director is concerned that the
agency may be granting exceptions unnecessarily or in a manner that is
inconsistent with Sec. 2638.601(c). Nothing in this paragraph limits
the authority of the agency to excuse an employee from filing
electronically to the extent necessary to provide reasonable
accommodations under the Rehabilitation Act of 1973 (Public Law 93-
112), as amended, or other applicable legal authority.
Sec. 2638.205 Collection of confidential financial disclosure
reports.
This section establishes the procedure that the executive branch
will use to collect confidential financial disclosure reports from
employees of the executive branch. To the extent not inconsistent with
part 2634 of this chapter or with the approved forms, instructions, and
other guidance of the Office of Government Ethics, the DAEO of each
agency will determine the means by
[[Page 36201]]
which the agency will collect confidential financial disclosure
reports, including a determination as to whether the agency will
collect such reports in either paper or electronic format. Nothing in
this paragraph limits the authority of the agency to provide reasonable
accommodations under the Rehabilitation Act of 1973 (Public Law 93-
112), as amended, or other applicable legal authority.
Sec. 2638.206 Notice to the Director of certain referrals to the
Department of Justice.
This section establishes procedures implementing the requirement to
provide the Director with notice of certain referrals, pursuant to
sections 402(e)(2) and 403(a)(2) of the Act.
(a) Upon any referral made by an agency pursuant to 28 U.S.C. 535
to the Department of Justice regarding a potential violation of a
conflict of interest law, the referring agency must notify the Director
of the referral by filing a completed OGE Form 202 with the Director,
as soon as practicable after the referral but in no case more than 30
days after the referral, unless prohibited by law.
(b) Thereafter, unless prohibited by law, the referring agency must
promptly provide the Director with such other information as requested
regarding the matter and any related prosecution, civil action,
disciplinary action, or other corrective measure.
(c) If an agency's procedures authorize an official outside the
Office of Inspector General to make a referral covered by this section,
that official must provide the Inspector General and the DAEO with
copies of documents provided to the Director pursuant this section,
unless prohibited by law. If an Inspector General makes a referral
covered by this section, the Inspector General should provide the DAEO
with copies of documents provided to the Director pursuant to this
section, unless the Inspector General determines that disclosure to the
DAEO would be inappropriate or prohibited by law.
Sec. 2638.207 Annual report on the agency's ethics program.
(a) By February 1 of each year, the agency must file with the
Office of Government Ethics, pursuant to section 402(e)(1) of the Act,
a report containing such information about the agency's ethics program
as is requested by the Office of Government Ethics. The report must be
filed electronically and in a manner consistent with the instructions
of the Office of Government Ethics.
(b) In order to facilitate the collection of required information
by agencies, the Office of Government Ethics will provide agencies with
advance notice regarding the contents of the report prior to the
beginning of the reporting period for information that would be
expected to be tracked over the course of the reporting period.
Otherwise, it will provide as much notice as practicable, taking in
consideration the effort required to collect the information.
Sec. 2638.208 Written guidance on the executive branch ethics
program.
This section describes several means by which the Office of
Government Ethics provides agencies, employees, and the public with
guidance regarding its legal interpretations, program requirements, and
educational offerings. Normally, guidance documents are published on
the official Web site of the Office of Government Ethics.
(a) Legal advisories. The Office of Government Ethics issues legal
advisories, which are memoranda regarding the interpretation of
government ethics laws and regulations. They are intended primarily to
provide education and notice to executive branch ethics officials;
prospective, current, and former executive branch employees; and
individuals who interact with the executive branch.
(b) Program advisories. The Office of Government Ethics issues
program advisories, which are memoranda regarding the requirements or
procedures applicable to the executive branch ethics program and
individual agency ethics programs. They are intended primarily to
instruct agencies on uniform procedures for the executive branch ethics
program.
(c) Informal advisory opinions. Upon request or upon its own
initiative, the Office of Government Ethics issues informal advisory
opinions. Informal advisory opinions address subjects that in the
opinion of the Director do not meet the criteria for issuance of formal
advisory opinions. They are intended primarily to provide guidance to
individuals and illustrate the application of government ethics laws
and regulations to specific circumstances.
Sec. 2638.209 Formal advisory opinions.
This section establishes the formal advisory opinion service of the
Office of Government Ethics.
(a) General. The Office of Government Ethics renders formal
advisory opinions pursuant to section 402(b)(8) of the Act. A formal
advisory opinion will be issued when the Director determines that the
criteria and requirements established in this section are met.
(b) Subjects of formal advisory opinions. Formal advisory opinions
may be rendered on matters of general applicability or important
matters of first impression concerning the application of the Act;
Executive Order 12674 of April 12, 1989, as modified by Executive Order
12731 of October 17, 1990; 18 U.S.C. 202-209; and regulations
interpreting or implementing these authorities. In determining whether
to issue a formal advisory opinion, the Director will consider:
(1) The unique nature of the question and its precedential value;
(2) The potential number of employees throughout the government
affected by the question;
(3) The frequency with which the question arises;
(4) The likelihood or presence of inconsistent interpretations on
the same question by different agencies; and
(5) The interests of the executive branch ethics program.
(c) Role of the formal advisory opinion service. The formal
advisory opinion service of the Office of Government Ethics is not
intended to replace the government ethics advice and counseling
programs maintained by executive branch agencies. Normally, formal
advisory opinions will not be issued with regard to the types of
questions appropriately directed to an agency's DAEO. If a DAEO
receives a request that the DAEO believes might appropriately be
answered by the Office of Government Ethics through a formal advisory
opinion, the DAEO will consult informally with the General Counsel of
the Office of Government Ethics for instructions as to whether the
matter should be referred to the Office of Government Ethics or
retained by the agency for handling. Except in unusual circumstances,
the Office of Government Ethics will not render formal advisory
opinions with respect to hypothetical situations posed in requests for
formal advisory opinions. At the discretion of the Director, however,
the Office of Government Ethics may render formal advisory opinions on
certain proposed activities or financial transactions.
(d) Eligible persons. Any person may request an opinion with
respect to a situation in which that person is directly involved, and
an authorized representative may request an opinion on behalf of that
person. However, an employee will normally be required to seek an
opinion from the agency's DAEO before requesting a formal advisory
opinion from the Office of Government Ethics. In addition, a DAEO may
request a formal advisory opinion
[[Page 36202]]
on behalf of the agency or a prospective, current, or former employee
of that agency.
(e) Submitting a request for a formal advisory opinion. The request
must be submitted either by electronic mail addressed to
ContactOGE@oge.gov or by mail, through either the United States Postal
Service or a private shipment service, to the Director of the Office of
Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC
20005-3917. Personal deliveries will not be accepted.
(f) Requirements for request. The request must include:
(1) An express statement indicating that the submission is a
request for a formal advisory opinion;
(2) The name, street address, and telephone number of the person
requesting the opinion;
(3) The name, street address, and telephone number of any
representative of that person;
(4) All material facts necessary for the Director to render a
complete and correct opinion;
(5) The date of the request and the signature of either the
requestor or the requestor's representative; and
(6) In the case of a request signed by a representative, a written
designation of the representative that is dated and signed by the
requestor.
(g) Optional materials. At the election of the requestor, the
request may also include legal memoranda or other material relevant to
the requested formal advisory opinion.
(h) Additional information. The Director may request such
additional information or documentation as the Director deems necessary
to the development of a formal advisory opinion, from either the
requestor or other sources. If the requestor or the requestor's
representative fails to cooperate with such a request, the Office of
Government Ethics normally will close the matter without issuing a
formal advisory opinion.
(i) Comments from interested parties. The Office of Government
Ethics will, to the extent practicable, solicit written comments on a
request by posting a prominent notice on its official Web site. Any
such notice will summarize relevant information in the request, provide
interested parties 30 days to submit written comments, and include
instructions for submitting written comments. Written comments
submitted after the deadline will be considered only at the discretion
of the Director.
(j) Consultation with the Department of Justice. Whenever the
Office of the Government Ethics is considering rendering a formal
advisory opinion, the Director will consult with the Office of Legal
Counsel of the Department of Justice sufficiently in advance to afford
that office an opportunity to review the matter. In addition, whenever
a request involves an actual or apparent violation of any provision of
18 U.S.C. 202-209, the Director will consult with the Criminal Division
of the Department of Justice. If the Criminal Division determines that
an investigation or prosecution will be undertaken, the Director will
take no further action on the request, unless the Criminal Division
makes a determination not to prosecute.
(k) Consultation with other executive branch officials. The
Director will consult with such other executive branch officials as the
Director deems necessary to ensure thorough consideration of issues and
information relevant to the request by the Office of Government Ethics.
In the case of a request submitted by a prospective or current
employee, the Director will share a copy of the request with the DAEO
of the employee's agency.
(l) Publication. The Office of Government Ethics will publish each
formal advisory opinion on its official Web site. Prior to publishing a
formal advisory opinion on its Web site, the Office of Government
Ethics will delete information that identifies individuals involved and
that is unnecessary to a complete understanding of the opinion.
(m) Reliance on formal advisory opinions. (1) Any formal advisory
opinion referred to in this section or any provisions or finding of a
formal advisory opinion involving the application of the Act or the
regulations promulgated pursuant to the Act or Executive Order may be
relied upon by:
(i) Any person directly involved in the specific transaction or
activity with respect to which such advisory opinion has been rendered;
and
(ii) Any person directly involved in any specific transaction or
activity which is indistinguishable in all its material aspects from
the transaction or activity with respect to which such formal advisory
opinion was rendered.
(2) Any person who relies upon any provision or finding of any
formal advisory opinion in accordance with this paragraph and who acts
in good faith in accordance with the provisions and findings of such
opinion, will not, as a result of such act, be subject to prosecution
under 18 U.S.C. 202-209 or, when the opinion is exculpatory, be subject
to any disciplinary action or civil action based upon legal authority
cited in that opinion.
Sec. 2638.210 Presidential transition planning.
Prior to any Presidential election, each agency has a
responsibility to prepare its agency ethics program for a Presidential
transition. Such preparations do not constitute support for a
particular candidate and are not reflective of a belief regarding the
likely outcome of the election; rather, they reflect an understanding
that agencies are responsible for ensuring the continuity of
governmental operations.
(a) Preparing the ethics program for a transition. The agency head
or the DAEO must, not later than 12 months before any Presidential
election, evaluate whether the agency's ethics program has an adequate
number of trained agency ethics officials to effectively support a
Presidential transition.
(b) Support by the Office of Government Ethics. In connection with
any Presidential election, the Office of Government Ethics will:
(1) Prior to the election, offer training opportunities for agency
ethics officials on counseling departing noncareer appointees on post-
employment restrictions, reviewing financial disclosure reports,
drafting ethics agreements for Presidential nominees, and counseling
new noncareer appointees on conflict of interest laws and the Standards
of Conduct; and
(2) After the election, in the event of a Presidential transition,
proactively assist the Presidential Transition Team in preparing for
Presidential nominations, coordinate with agency ethics officials, and
develop plans to implement new initiatives related to government
ethics.
Subpart C--Government Ethics Education
Sec. 2638.301 In general.
Every agency must carry out a government ethics education program
to teach employees how to identify government ethics issues and obtain
assistance in complying with government ethics laws and regulations. An
agency's failure to comply with any of the education or notice
requirements set forth in this subpart does not exempt an employee from
applicable government ethics requirements.
Sec. 2638.302 Definitions.
The following definitions apply to the format of the various types
of training required in this subpart. The agency may deviate from these
prescribed formats to the extent necessary to provide reasonable
accommodations to participants under the Rehabilitation
[[Page 36203]]
Act of 1973 (Pub. L. 93-112), as amended, or other applicable legal
authority.
(a) Live. A training presentation is considered live if the
presenter personally communicates a substantial portion of the material
at the same time as the employees being trained are receiving the
material, even if part of the training is prerecorded or automated. The
training may be delivered in person or through video or audio
technology. The presenter must respond to questions posed during the
training and provide instructions for participants to submit questions
after the training.
Example 1. An agency ethics official provides a presentation
regarding government ethics and takes questions from participants
who are assembled in a training room with the ethics official. At
the end of the session, the ethics official provides contact
information for participants who wish to pose additional questions.
This training is considered live.
Example 2. An agency ethics official provides a presentation to
a group of employees in an auditorium. She presents an introduction
and a brief overview of the material that will be covered in the
training. She has participants watch a prerecorded video regarding
government ethics. She stops the video frequently to elaborate on
key concepts and offer participants opportunities to pose questions
before resuming the video. At the end of the session, she recaps key
concepts and answers additional questions. She then provides contact
information for employees who wish to pose additional questions.
This training is considered live.
Example 3. The ethics official in Example 2 arranges for several
Senate-confirmed public filers stationed outside of headquarters to
participate in the live training via streaming video or telephone.
For these remote participants, the ethics official also establishes
a means for them to pose questions during the training, such as by
emailing questions to her assistant. She also provides these remote
participants with instructions for contacting the ethics office to
pose additional questions after the training. This training is also
considered live for the remote participants.
Example 4. Agency ethics officials present training via a
telephone conference. A few dozen agency employees dial into the
conference call. The ethics officials take questions that are
submitted by email and provide contact information for employees who
wish to pose additional questions later. This training is considered
live.
Example 5. Several Senate-confirmed public filers required to
complete live training in a particular year are stationed at various
facilities throughout the country. For these filers, an ethics
official schedules a 20-minute conference call, emails them copies
of the written materials and a link to a 40-minute video on
government ethics, and instructs them to view the video before the
conference call. During the conference call, the ethics official
recaps key concepts, takes questions, and provides his contact
information in case participants have additional questions. The
public filers then confirm by email that they watched the video and
participated in the conference call. This training is considered
live because a substantial portion of the training was live.
(b) Interactive. A training presentation is considered interactive
if the employee being trained is required to take an action with regard
to the subject of the training. The required action must involve the
employee's use of knowledge gained through the training and may not be
limited to merely advancing from one section of the training to another
section. Training that satisfies the requirements of paragraph (a) of
this section will also satisfy the requirements of this paragraph.
Example 1. An automated system allows employees to view a
prerecorded video in which an agency ethics official provides
training. At various points, the system poses questions and an
employee selects from among a variety of possible answers. The
system provides immediate feedback as to whether the selections are
correct or incorrect. When the employee's selections are incorrect,
the system displays the correct answer and explains the relevant
concepts. This training is considered interactive.
Example 2. If, instead of a video, the training described in
Example 1 were to include animated or written materials interspersed
with questions and answers, the training would still be considered
interactive.
Example 3. A DAEO emails materials to employees who are
permitted under part 2638 to complete interactive training. The
materials include a written training presentation, questions, and
space for employees to provide written responses. Employees are
instructed to submit their answers to agency ethics officials, who
provide individualized feedback. This training is considered
interactive.
Example 4. A DAEO emails materials to employees who are
permitted under part 2638 to complete interactive training. The
materials include a written training presentation, questions, and an
answer key. The DAEO also distributes instructions for contacting an
ethics official with any questions about the subjects covered. This
training meets the minimum requirements to be considered
interactive, even though the employees are not required to submit
their answers for review and feedback. However, any DAEO who uses
this minimally interactive format is encouraged to provide employees
with other opportunities for more direct and personalized feedback.
Sec. 2638.303 Notice to prospective employees.
Written offers of employment for positions covered by the Standards
of Conduct must include the information required in this section to
provide prospective employees with notice of the ethical obligations
associated with the positions.
(a) Content. The written offer must include, in either the body of
the offer or an attachment:
(1) A statement regarding the agency's commitment to government
ethics;
(2) Notice that the individual will be subject to the Standards of
Conduct and the criminal conflict of interest statutes as an employee;
(3) Contact information for an appropriate agency ethics office or
an explanation of how to obtain additional information on applicable
ethics requirements;
(4) Where applicable, notice of the time frame for completing
initial ethics training; and
(5) Where applicable, a statement regarding financial disclosure
requirements and an explanation that new entrant reports must be filed
within 30 days of appointment.
(b) DAEO's authority. At the election of the DAEO, the DAEO may
specify the language that the agency will use in the notice required
under paragraph (a) of this section or may approve, disapprove, or
revise language drafted by other agency officials.
(c) Tracking. Each agency must establish written procedures, which
the DAEO must review each year, for issuing the notice required in this
section. In the case of an agency with 1,000 or more employees, the
DAEO must review any submissions under Sec. 2638.310 each year to
confirm that the agency has implemented an appropriate process for
meeting the requirements of this section.
Sec. 2638.304 Initial ethics training.
Each new employee of the agency subject to the Standards of Conduct
must complete initial ethics training that meets the requirements of
this section.
(a) Coverage. (1) This section applies to each employee appointed
to a position in an agency who was not an employee of the agency
immediately prior to that appointment. This section also permits
Presidential nominees for Senate-confirmed positions to complete the
initial ethics training prior to appointment.
(2) The DAEO may exclude a non-supervisory position at or below the
GS-8 grade level, or the equivalent, from the requirement to complete
the training presentation described in paragraph (e)(1) of this
section, provided that:
(i) The DAEO signs a written determination that the duties of the
position do not create a substantial likelihood that conflicts of
interest will arise;
[[Page 36204]]
(ii) The position does not meet the criteria set forth at Sec.
2634.904 of this chapter; and
(iii) The agency provides an employee described in paragraph (a)(1)
of this section who is appointed to the position with the written
materials required under paragraph (e)(2) of this section within 90
days of appointment.
(b) Deadline. Except as provided in this paragraph, each new
employee must complete initial ethics training within 3 months of
appointment.
(1) In the case of a Presidential nominee for a Senate-confirmed
position, the nominee may complete the ethics training before or after
appointment, but not later than 3 months after appointment.
(2) In the case of a special Government employee who is reasonably
expected to serve for less than 60 days in a calendar year on a board,
commission, or committee, the agency may provide the initial ethics
training at any time before, or at the beginning of, the employee's
first meeting of the board, commission, or committee.
(c) Duration. The duration of the training must be sufficient for
the agency to communicate the basic ethical obligations of Federal
service and to present the content described in paragraph (e) of this
section.
(d) Format. Employees covered by this section are required to
complete interactive initial ethics training.
(e) Content. The following content requirements apply to initial
ethics training.
(1) Training presentation. The training presentation must focus on
government ethics laws and regulations that the DAEO deems appropriate
for the employees participating in the training. The presentation must
address concepts related to the following subjects:
(i) Financial conflicts of interest;
(ii) Impartiality;
(iii) Misuse of position; and
(iv) Gifts.
(2) Written materials. In addition to the training presentation,
the agency must provide the employee with either the following written
materials or written instructions for accessing them:
(i) The summary of the Standards of Conduct distributed by the
Office of Government Ethics or an equivalent summary prepared by the
agency;
(ii) Provisions of any supplemental agency regulations that the
DAEO determines to be relevant or a summary of those provisions;
(iii) Such other written materials as the DAEO determines should be
included; and
(iv) Instructions for contacting the agency's ethics office.
(f) Tracking. Each agency must establish written procedures, which
the DAEO must review each year, for initial ethics training. In the
case of an agency with 1,000 or more employees, the DAEO must review
any submissions under Sec. 2638.310 each year to confirm that the
agency has implemented an appropriate process for meeting the
requirements of this section.
Example 1. The DAEO of a large agency decides that the agency's
ethics officials will conduct live initial ethics training for high-
level employees and certain procurement officials. The DAEO directs
ethics officials to cover concepts related to financial conflicts of
interest, impartiality, misuse of position, and gifts during the
live training sessions. She also coordinates with the agency's Chief
Information Officer to develop computerized training for all other
new employees, and she directs her staff to include concepts related
to financial conflicts of interest, impartiality, misuse of
position, and gifts in the computerized training. The computerized
training poses multiple-choice questions and provides feedback when
employees answer the questions. At the DAEO's request, the agency's
human resources officials distribute the required written materials
as part of the onboarding procedures for new employees. The
computerized training automatically tracks completion of the
training, and the ethics officials use sign-in sheets to track
participation in the live training. After the end of the calendar
year, the DAEO reviews the materials submitted by the Office of
Human Resources under Sec. 2638.310 to confirm that the agency has
implemented procedures for identifying new employees, distributing
the written materials, and providing their initial ethics training.
The agency's program for initial ethics training complies with the
requirements of Sec. 2638.304.
Example 2. The agency head, the DAEO, and the lead human
resources official of an agency with more than 1,000 employees have
agreed that human resources officials will conduct initial ethics
training. The DAEO provides the lead human resources official with
written materials for use during the training, approves the content
of the presentations, and trains the human resources officials who
will conduct the initial ethics training. After the end of the
calendar year, the lead human resources official provides the DAEO
with a copy of the agency's procedures for identifying new employees
and providing initial ethics training, and the lead human resources
official confirms that there is a reasonable basis for concluding
that the procedures have been implemented. The DAEO reviews these
procedures and finds them satisfactory. The agency has complied with
its tracking obligations with regard to initial ethics training.
Sec. 2638.305 Additional ethics briefing for certain agency leaders.
In addition to other applicable requirements, each individual
covered by this section must complete an ethics briefing to discuss the
individual's immediate ethics obligations. Although the ethics briefing
is separate from the initial ethics training, the agency may elect to
combine the ethics briefing and the initial ethics training, provided
that the requirements of both this section and Sec. 2638.304 are met.
(a) Coverage. This section applies to public filers who are Senate-
confirmed Presidential nominees and appointees, except for those in
positions identified in Sec. 2634.201(c)(2) of this chapter.
(b) Deadline. The following deadlines apply to the ethics briefing.
(1) Except as provided in paragraph (b)(2) of this section, each
individual covered by this section must complete the ethics briefing
after confirmation but not later than 15 days after appointment. The
DAEO may grant an extension of the deadline not to exceed 30 days after
appointment.
(2)(i) In extraordinary circumstances, the DAEO may grant an
additional extension to an individual by issuing a written
determination that an extension is necessary. The determination must
describe the extraordinary circumstances necessitating the extension,
caution the individual to be vigilant for conflicts of interest created
by any newly acquired financial interests, remind the individual to
comply with any applicable ethics agreement, and be accompanied by a
copy of the ethics agreement(s). The DAEO must send a copy of the
determination to the individual before expiration of the time period
established in paragraph (b)(1) of this section. The agency must
conduct the briefing at the earliest practicable date thereafter. The
written determination must be retained with the record of the
individual's briefing.
(ii) In the case of a special Government employee who is expected
to serve for less than 60 days in a calendar year on a board,
commission, or committee, the agency must provide the ethics briefing
before the first meeting of the board, commission, or committee.
(c) Qualifications of presenter. The employee conducting the
briefing must have knowledge of government ethics laws and regulations
and must be qualified, as the DAEO deems appropriate, to answer the
types of basic and advanced questions that are likely to arise
regarding the required content.
(d) Duration. The duration of the ethics briefing must be
sufficient for the
[[Page 36205]]
agency to communicate the required content.
(e) Format. The ethics briefing must be conducted live.
(f) Content. The ethics briefing must include the following
activities.
(1) If the individual acquired new financial interests reportable
under section 102 of the Act after filing the nominee financial
disclosure report, the agency ethics official must appropriately
address the potential for conflicts of interest arising from those
financial interests.
(2) The agency ethics official must counsel the individual on the
basic recusal obligation under 18 U.S.C. 208(a).
(3) The agency ethics official must explain the recusal obligations
and other commitments addressed in the individual's ethics agreement
and ensure that the individual understands what is specifically
required in order to comply with each of them, including any deadline
for compliance. The ethics official and the individual must establish a
process by which the recusals will be achieved, which may consist of a
screening arrangement or, when the DAEO deems appropriate, vigilance on
the part of the individual with regard to recusal obligations as they
arise in particular matters.
(4) The agency ethics official must provide the individual with
instructions and the deadline for completing initial ethics training,
unless the individual completes the initial ethics training either
before or during the ethics briefing.
(g) Tracking. The DAEO must maintain a record of the date of the
ethics briefing for each current employee covered by this section.
Example 1. A group of ethics officials conducts initial ethics
training for six Senate-confirmed Presidential appointees within 15
days of their appointments. At the end of the training, ethics
officials meet individually with each of the appointees to conduct
their ethics briefings. The agency and the appointees have complied
with both Sec. 2638.304 and Sec. 2638.305.
Example 2. The Senate confirms a nominee for a position as an
Assistant Secretary. After the nominee's confirmation but several
days before her appointment, the nominee completes her initial
ethics briefing during a telephone call with an agency ethics
official, and the ethics official records the date of the briefing.
The agency and the nominee have complied with Sec. 2638.305. During
the telephone call, the ethics official also discusses the content
required for initial ethics training and provides the nominee with
instructions for accessing the required written materials online.
The agency and the nominee have also complied with Sec. 2638.304.
Sec. 2638.306 Notice to new supervisors.
The agency must provide each employee upon initial appointment to a
supervisory position with the written information required under this
section.
(a) Coverage. This requirement applies to each civilian employee
who is required to receive training pursuant to 5 CFR 412.202(b).
(b) Deadline. The agency must provide the written materials
required by this section within one year of the employee's initial
appointment to the supervisory position.
(c) Written materials. The written materials must include contact
information for the agency's ethics office and the text of Sec.
2638.103. In addition, a copy of, a hyperlink to, or the address of a
Web site containing the Principles of Ethical Conduct must be included,
as well as such other information as the DAEO deems necessary for new
supervisors.
(d) Tracking. Each agency must establish written procedures, which
the DAEO must review each year, for supervisory ethics notices. In the
case of an agency with 1,000 or more employees, the DAEO must review
any submissions under Sec. 2638.310 each year to confirm that the
agency has implemented an appropriate process for meeting the
requirements of this section.
Sec. 2638.307 Annual ethics training for confidential filers and
certain other employees.
Each calendar year, employees covered by this section must complete
ethics training that meets the following requirements.
(a) Coverage. In any calendar year, this section applies to the
following employees, unless they are public filers:
(1) Each employee who is required to file an annual confidential
financial disclosure report pursuant to Sec. 2634.904 of this chapter
during that calendar year, except an employee who ceases to be a
confidential filer before the end of the calendar year;
(2) Employees appointed by the President and employees of the
Executive Office of the President;
(3) Contracting officers described in 41 U.S.C. 2101; and
(4) Other employees designated by the head of the agency.
(b) Deadline. The employee must complete required annual ethics
training before the end of the calendar year.
(c) Duration. Agencies must provide employees with one hour of duty
time to complete interactive training and review any written materials.
(d) Format. The following formatting requirements apply.
(1) Except as provided in paragraph (d)(2) of this section,
employees covered by this section are required to complete interactive
training.
(2) If the DAEO determines that it is impracticable to provide
interactive training to a special Government employee covered by this
section who is expected to work no more than 60 days in a calendar
year, or to an employee who is an officer in the uniformed services
serving on active duty for no more 30 consecutive days, only the
requirement to provide the written materials required by this section
will apply to that employee each year. The DAEO may make the
determination as to individual employees or a group of employees.
(e) Content. The following content requirements apply to annual
ethics training for employees covered by this section.
(1) Training presentation. The training presentation must focus on
government ethics laws and regulations that the DAEO deems appropriate
for the employees participating in the training. The presentation must
address concepts related to the following subjects:
(i) Financial conflicts of interest;
(ii) Impartiality;
(iii) Misuse of position; and
(iv) Gifts.
(2) Written materials. In addition to the training presentation,
the agency must provide the employee with either the following written
materials or written instructions for accessing them:
(i) The summary of the Standards of Conduct distributed by the
Office of Government Ethics or an equivalent summary prepared by the
agency;
(ii) Provisions of any supplemental agency regulations that the
DAEO determines to be relevant or a summary of those provisions;
(iii) Such other written materials as the DAEO determines should be
included; and
(iv) Instructions for contacting the agency's ethics office.
(f) Tracking. The following tracking requirements apply to training
conducted pursuant to this section. An employee covered by this section
must confirm in writing the completion of annual ethics training and
must comply with any procedures established by the DAEO for such
confirmation. If the DAEO or other presenter has knowledge that an
employee completed required training, that individual may record the
employee's completion of the training, in lieu of requiring the
employee to provide written confirmation. In the case of an automated
system that delivers interactive training, the DAEO
[[Page 36206]]
may deem the employee to have confirmed the completion of the training
if the system tracks completion automatically.
Sec. 2638.308 Annual ethics training for public filers.
Each calendar year, public filers and other employees specified in
this section must complete ethics training that meets the following
requirements.
(a) Coverage. In any calendar year, this section applies to each
employee who is required to file an annual public financial disclosure
report pursuant to Sec. 2634.201(a) of this chapter during that
calendar year, except for an employee who ceases to be a public filer
during that calendar year.
(b) Deadline. A public filer must complete required annual ethics
training before the end of the calendar year.
(c) Qualifications of presenter. The employee conducting any live
training presentation must have knowledge of government ethics laws and
regulations and must be qualified, as the DAEO deems appropriate, to
answer the types of basic and advanced questions that are likely to
arise regarding the required content.
(d) Duration. The duration of training must be sufficient for the
agency to communicate the required content, but at least one hour.
Agencies must provide employees with one hour of duty time complete
interactive training and review any written materials.
(e) Format. The annual ethics training must meet the following
formatting requirements.
(1) Employees whose pay is set at Level I or Level II of the
Executive Schedule must complete one hour of live training each year,
unless a matter of vital national interest makes it necessary for an
employee to complete interactive training in lieu of live training in a
particular year.
(2) Other civilian employees identified in section 103(c) of the
Act who are stationed in the United States must complete live training
once every 2 years and interactive training in alternate years. In
extraordinary circumstances, the DAEO may grant written authorization
for an employee who is required to complete live training in a
particular year to complete interactive training.
(3) All other employees covered by this section must complete
interactive training.
(f) Content. The following content requirements apply to annual
ethics training for employees covered by this section.
(1) Training presentation. The training presentation must focus on
government ethics laws and regulations that the DAEO deems appropriate
for the employees participating in the training. The presentation must
address concepts related to the following subjects:
(i) Financial conflicts of interest;
(ii) Impartiality;
(iii) Misuse of position; and
(iv) Gifts.
(2) Written materials. In addition to the training presentation,
the agency must provide the employee with either the following written
materials or written instructions for accessing them:
(i) The summary of the Standards of Conduct distributed by the
Office of Government Ethics or an equivalent summary prepared by the
agency;
(ii) Provisions of any supplemental agency regulations that the
DAEO determines to be relevant or a summary of those provisions;
(iii) Such other written materials as the DAEO determines should be
included; and
(iv) Instructions for contacting the agency's ethics office.
(g) Tracking. The following tracking requirements apply to training
conducted pursuant to this section. An employee covered by this section
must confirm in writing the completion of annual ethics training and
must comply with any procedures established by the DAEO for such
confirmation. If the DAEO or other presenter has knowledge that an
employee completed required training, that individual may record the
employee's completion of the training, in lieu of requiring the
employee to provide written confirmation. In the case of an automated
system that delivers interactive training, the DAEO may deem the
employee to have confirmed the completion of the training if the system
tracks completion automatically.
Example 1. The DAEO of a small agency distributes the written
materials for annual training by emailing a link to a Web site that
contains the required materials. He then conducts a live training
session for all of the agency's public filers. He spends the first
15 minutes of the training addressing concepts related to financial
conflicts of interest, impartiality, misuse of position, and gifts.
Because several participants are published authors, he spends the
next 15 minutes covering restrictions on compensation for speaking,
teaching, and writing. He then spends 20 minutes discussing
hypothetical examples related to the work of the agency and 10
minutes answering questions. The training meets the content
requirements of this section. Further, because live training
satisfies the requirements for interactive training, this training
meets the formatting requirements for all public filers, including
those required to complete interactive training.
Example 2. An ethics official personally appears at each
monthly senior staff meeting to conduct a 10-minute training session
on government ethics. Across the year, he addresses concepts related
to financial conflicts of interest, impartiality, misuse of
position, gifts, and other subjects related to government ethics
laws and regulations, although no one session covers all of these
subjects. During each meeting, he distributes a one-page handout
summarizing the key points of his presentation, takes questions, and
provides contact information for employees who wish to pose
additional questions. He records the names of the public filers in
attendance at each meeting. Once a year, he emails them the required
written materials, as well as the one-page summaries. While many of
these public filers do not attend all 12 meetings, each attends at
least six sessions during the calendar year. Although some of the
filers missed the sessions that addressed gifts, they all received
the handout summarizing the presentation on gifts. The training
satisfies the annual training requirement for the public filers who
attended the meetings, including those required to complete
interactive training. Moreover, because the ethics official recorded
the names of the public filers who attended, the filers are not
required to separately confirm their completion of the training.
Example 3. One of the Presidentially appointed, Senate-confirmed
employees in Example 2 was required to complete live training that
year. Because she attended only four senior staff meetings during
the year, she completed only 40 minutes of annual ethics training.
The DAEO allows the employee to spend 20 minutes reviewing the
handouts and written materials and send an email confirming that she
completed her review before the end of the calendar year. This
arrangement satisfies the requirements for live annual training
because a substantial portion of the training was live.
Sec. 2638.309 Agency-specific ethics education requirements.
The DAEO may establish additional requirements for the agency's
ethics education program, with or without a supplemental agency
regulation under Sec. 2635.105 of this chapter.
(a) Groups of employees. The DAEO may establish specific government
ethics training requirements for groups of agency employees.
(b) Employees performing ethics duties. The DAEO has an obligation
to ensure that employees performing assigned ethics duties have the
necessary expertise with regard to government ethics laws and
regulations. If the DAEO determines that employees engaged in any
activities described in Sec. Sec. 2638.104 and 2638.105 require
training, the DAEO may establish specific training requirements for
them either as a group or individually.
[[Page 36207]]
(c) Procedures. The DAEO may establish specific procedures for
training that the DAEO requires under paragraph (a) or (b) of this
section, including any certification procedures the DAEO deems
necessary. Agency employees must comply with the requirements and
procedures that the DAEO establishes under this section.
Sec. 2638.310 Coordinating the agency's ethics education program.
In an agency with 1,000 or more employees, any office that is not
under the supervision of the DAEO but has been delegated responsibility
for issuing notices, pursuant to Sec. 2638.303 or Sec. 2638.306, or
conducting training, pursuant to Sec. 2638.304, must submit the
following materials to the DAEO by January 15 each year:
(a) A written summary of procedures that office has established to
ensure compliance with this subpart; and
(b) Written confirmation that there is a reasonable basis for
concluding that the procedures have been implemented.
Subpart D--Correction of Executive Branch Agency Ethics Programs
Sec. 2638.401 In general.
The Office of Government Ethics has authority, pursuant to sections
402(b)(9) and 402(f)(1) of the Act, to take the action described in
this subpart with respect to deficiencies in agency ethics programs.
Agency ethics programs comprise the matters described in this
subchapter for which agencies are responsible.
Sec. 2638.402 Informal action.
If the Director has information indicating that an agency ethics
program is not compliant with the requirements set forth in applicable
government ethics laws and regulations, the Director is authorized to
take any or all of the measures described in this section. The Director
may:
(a) Contact agency ethics officials informally to identify the
relevant issues and resolve them expeditiously;
(b) Issue a notice of deficiency to make the agency aware of its
possible noncompliance with an applicable government ethics law or
regulation;
(c) Require the agency to respond in writing to the notice of
deficiency;
(d) Require the agency to provide such additional information or
documentation as the Director determines to be necessary;
(e) Issue an initial decision with findings as to the existence of
a deficiency in the agency's ethics program;
(f) Require the agency to correct or, at the Director's discretion,
satisfactorily mitigate any deficiency in its ethics program;
(g) Provide the agency with guidance on measures that would correct
or satisfactorily mitigate any program deficiency;
(h) Monitor the agency's efforts to correct or satisfactorily
mitigate the deficiency and require the agency to submit progress
reports; or
(i) Take other actions authorized under the Act to resolve the
matter informally.
Sec. 2638.403 Formal action.
If the Director determines that informal action, pursuant to Sec.
2638.402, has not produced an acceptable resolution, the Director may
issue an order directing the agency to take specific corrective action.
(a) Before issuing such an order, the Director will:
(1) Advise the agency in writing of the deficiency in its ethics
program;
(2) Describe the action that the Director is considering taking;
(3) Provide the agency with 30 days to respond in writing; and
(4) Consider any timely written response submitted by the agency.
(b) If the Director is satisfied with the agency's response, no
order will be issued.
(c) If the Director decides to issue an order, the order will
describe the corrective action to be taken.
(d) If the agency does not comply with the order within a
reasonable time, the Director will:
(1) Notify the head of the agency of intent to furnish a report of
noncompliance to the President and the Congress;
(2) Provide the agency 14 calendar days within which to furnish
written comments for submission with the report of noncompliance; and
(3) Report the agency's noncompliance to the President and to the
Congress.
Subpart E--Corrective Action Involving Individual Employees
Sec. 2638.501 In general.
This subpart addresses the Director's limited authority, pursuant
to sections 402(b)(9) and 402(f)(2) of the Act, to take certain actions
with regard to individual employees if the Director suspects a
violation of a noncriminal government ethics law or regulation. Section
402(f)(5) of the Act prohibits the Director from making any finding
regarding a violation of a criminal law. Therefore, the Director will
refer possible criminal violations to an Inspector General or the
Department of Justice, pursuant to Sec. 2638.502. If, however, the
Director is concerned about a possible violation of a noncriminal
government ethics law or regulation by an employee, the Director may
notify the employee's agency, pursuant to Sec. 2638.503. In the rare
circumstance that an agency does not address a matter after receiving
this notice, the Director may use the procedures in Sec. 2638.504 to
issue a nonbinding recommendation of a disciplinary action or an order
to terminate an ongoing violation. Nothing in this subpart relieves an
agency of its primary responsibility to ensure compliance with
government ethics laws and regulations.
Sec. 2638.502 Violations of criminal provisions related to government
ethics.
Consistent with section 402(f) of the Act, nothing in this subpart
authorizes the Director or any agency official to make a finding as to
whether a provision of title 18, United States Code, or any other
criminal law of the United States outside of such title, has been or is
being violated. If the Director has information regarding the violation
of a criminal law by an individual employee, the Director will notify
an Inspector General or the Department of Justice.
Sec. 2638.503 Recommendations and advice to employees and agencies.
The Director may make such recommendations and provide such advice
to employees or agencies as the Director deems necessary to ensure
compliance with applicable government ethics laws and regulations. The
Director's authority under this section includes the authority to
communicate with agency heads and other officials regarding government
ethics and to recommend that the agency investigate a matter or
consider taking disciplinary or corrective action against individual
employees.
Sec. 2638.504 Violations of noncriminal provisions related to
government ethics.
In the rare case that consultations made pursuant to Sec. 2638.503
have not resolved the matter, the Director may use the procedures in
this section if the Director has reason to believe that an employee is
violating, or has violated, any noncriminal government ethics law or
regulation. Any proceedings pursuant to this section will be conducted
in accordance with applicable national security requirements.
(a) Agency investigation. The Director may recommend that the
agency head or the Inspector General conduct an investigation. If the
Director determines that an investigation has not been
[[Page 36208]]
conducted within a reasonable time, the Director will notify the
President.
(b) Initiating further proceedings. Following an investigation
pursuant to paragraph (a) of this section or a determination by the
Director that an investigation has not been conducted within a
reasonable time, the Director may either initiate further proceedings
under this section or close the matter.
(1) If the Director initiates further proceedings, the Director
will notify the employee in writing of the suspected violation, the
right to respond orally and in writing, and the right to be
represented. The notice will include instructions for submitting a
written response and requesting an opportunity to present an oral
response, copies of this section and sections 401-403 of the Act, and
copies of the material relied upon by the Office of Government Ethics.
(2) If the Director is considering issuing an order directing the
employee to take specific action to terminate an ongoing violation, the
Director will also provide notice of the potential issuance of an order
and the right to request a hearing, pursuant to paragraph (f) of this
section.
(c) Employee's response. The employee will be provided with a
reasonable opportunity to present an oral response to the General
Counsel of the Office of Government Ethics within 30 calendar days of
the date of the employee's receipt of the notice described in paragraph
(b) of this section. If the employee fails to timely request an
opportunity to present an oral response or fails to cooperate with
reasonable efforts to schedule the oral response, only a timely
submitted written response will be considered.
(d) General Counsel's recommendation. After affording the employee
30 calendar days to respond, the General Counsel will provide the
Director with a written recommendation as to the action warranted by
the circumstances. However, if the employee has timely exercised an
applicable right to request a hearing pursuant to paragraph (g) of this
section, the provisions of paragraph (g) will apply instead of the
provisions of this paragraph.
(1) If the employee has not had an opportunity to comment on any
newly obtained material relied upon for the recommendation, the General
Counsel will provide the employee with an opportunity to comment on
that material before submitting the recommendation to the Director.
(2) The recommendation will include findings of fact and a
conclusion as to whether it is more likely than not that a violation
has occurred. The General Counsel will provide the Director with copies
of the material relied upon for the recommendation, including any
timely written response and a transcript of any oral response of the
employee.
(3) In the case of an ongoing violation, the General Counsel may
recommend an order directing the employee to take specific action to
terminate the violation, provided that the employee has been afforded
the notice required under paragraph (f) of this section and an
opportunity for a hearing.
(e) Decisions and orders of the Director. After reviewing the
recommendation of the General Counsel pursuant to paragraph (d) of this
section or, in the event of a hearing, the recommendation of the
administrative law judge pursuant to paragraph (g)(7) of this section,
the Director may issue a decision and, if applicable, an order. The
authority of the Director to issue decisions and orders under this
paragraph may not be delegated to any other official. The Director's
decision will include written findings and conclusions with respect to
all material issues and will be supported by substantial evidence of
record.
(1) A copy of the decision and order will be furnished to the
employee and, if applicable, the employee's representative. Copies will
also be provided to the DAEO and the head of the agency or, where the
employee is the head of an agency, to the President. The Director's
decision and any order will be posted on the official Web site of the
Office of Government Ethics, except to the extent prohibited by law.
(2) The Director's decision may include a nonbinding recommendation
that appropriate disciplinary or corrective action be taken against the
employee. If the agency head does not take the action recommended
within a reasonable period of time, the Director may notify the
President.
(3) In the case of an ongoing violation, the Director may issue an
order directing the employee to take specific action to terminate the
violation, provided that the employee has been afforded the notice
required under paragraph (f) of this section and an opportunity for a
hearing.
(f) Notice of the right to request a hearing regarding an order to
terminate a violation. Before an order to terminate an ongoing
violation may be recommended or issued under this section, the employee
must be provided with written notice of the potential issuance of an
order, the right to request a hearing, and instructions for requesting
a hearing.
(1) If the employee submits a written request for a hearing within
30 calendar days of the date of the employee's receipt of the notice,
the hearing will be conducted pursuant to paragraph (g) of this
section;
(2) If the employee does not submit a written request for a hearing
within 30 days of receipt of the notice, the General Counsel may issue
a recommendation, pursuant to paragraph (d) of this section, in lieu of
a hearing after first considering any timely response of the employee,
pursuant to paragraph (c) of this section; and
(3) If the employee timely submits written requests for both a
hearing, pursuant to paragraph (f) of this section, and an oral
response, pursuant to paragraph (c) of this section, only a hearing
will be conducted, pursuant to paragraph (g).
(g) Hearings. If, after receiving a notice required pursuant to
paragraph (f) of this section, the employee submits a timely request
for a hearing, an administrative law judge who has been appointed under
5 U.S.C. 3105 will serve as the hearing officer, and the following
procedures will apply to the hearing. An employee of the Office of
Government Ethics will be assigned to provide the administrative law
judge with logistical support in connection with the hearing.
(1) The General Counsel of the Office of Government Ethics will
designate attorneys to present evidence and argument at the hearing in
support of a possible finding that the employee is engaging in an
ongoing violation. The General Counsel will serve as Advisor to the
Director and will not, in connection with the presentation of evidence
and argument against the employee, direct or supervise these attorneys.
Any attorney who presents evidence, argument, or testimony against the
employee at the hearing will be recused from assisting the Director or
the General Counsel in connection with the contemplated order.
(2) The administrative law judge will issue written instructions
for the conduct of the hearing, including deadlines for submitting
lists of proposed witnesses and exchanging copies of documentary
evidence. The hearing will be conducted informally, and the
administrative law judge may make such rulings as are necessary to
ensure that the hearing is conducted equitably and expeditiously.
(3) The parties to the hearing will be the employee and the
attorneys of the Office of Government Ethics designated to present
evidence and arguments supporting a finding that a violation is
ongoing, respectively. The parties will
[[Page 36209]]
not engage in ex parte communications with the administrative law
judge, unless the administrative law judge authorizes limited ex parte
communications regarding scheduling and logistical matters.
(4) If either party requests assistance in securing the appearance
of an approved witness who is an employee, the administrative law judge
may, at his or her discretion, notify the General Counsel, who will
assist the Director in requesting that the head of the employing agency
produce the witness, pursuant to section 403(a)(1) of the Act. The
Director will notify the President if an agency head fails to produce
the approved witness.
(5) The hearing will be conducted on the record and witnesses will
be placed under oath and subject to cross-examination. Following the
hearing, the administrative law judge will provide each party with a
copy of the hearing transcript.
(6) Hearings will generally be open to the public, but the
administrative law judge may issue a written order closing, in whole or
in part, the hearing in the best interests of national security, the
employee, a witness, or an affected person. The order will set forth
the reasons for closing the hearing and, along with any objection to
the order by a party, will be made a part of the record. Unless
specifically excluded by the administrative law judge, the DAEO of the
employee's agency will be permitted to attend a closed hearing. If the
administrative law judge denies a request by a party or an affected
person to close the hearing, in whole or in part, that denial will be
immediately appealable by the requester. The requester must file a
notice of appeal with the Director within 3 working days. In the event
that such a notice is filed, the hearing will be held in abeyance
pending resolution of the appeal. The notice of appeal, exclusive of
attachments, may not exceed 10 pages of double-spaced type. The
Director will afford the parties and, if not a party, the requester the
opportunity to make an oral presentation in person or via
telecommunications technology within 3 working days of the filing of
the appeal. The oral presentation will be conducted on the record. If
the appellant or either party is unavailable to participate in the oral
presentation within the 3-working-day period, the Director will convene
the oral presentation without that party or affected person. The
Director will issue a decision on the appeal within 3 working days of
the oral presentation. If the Director is unavailable during this time
period, the Director may designate a senior executive of the Office of
Government Ethics to hear the oral presentation and decide the appeal.
The notice of appeal, the record of the oral presentation, the decision
on the appeal, and any other document considered by the Director or the
Director's designee in connection with the appeal will be made a part
of the record of the hearing.
(7) After closing the record, the administrative law judge will
certify the entire record to the Director for decision. When so
certifying the record, the administrative law judge will make a
recommended decision, which will include his or her written findings of
fact and conclusions of law with respect to material issues. After
considering the certified record, the Director may issue a decision and
an order, pursuant to paragraph (e) of this section.
(h) Dismissal. The Director may dismiss a proceeding under this
section at any time, without a finding as to the alleged violation,
upon a finding that:
(1) The employee or the agency has taken appropriate action to
address the Director's concerns;
(2) The employee has undertaken, or agreed in writing to undertake,
measures the Director deems satisfactory; or
(3) A question has arisen involving the potential application of a
criminal law.
(i) Notice procedure. The notices required by paragraphs (b)(1) and
(f) of this section may be delivered by U.S. mail, electronic mail or
personal delivery. There will be a rebuttable presumption that notice
sent by U.S. mail is received within 5 working days. If the agency does
not promptly provide the Office of Government Ethics with an employee's
contact information upon request, the notice may be sent to the
agency's DAEO, who will bear responsibility for promptly delivering
that notice to the employee and promptly notifying the Director after
its delivery.
Subpart F--General Provisions
Sec. 2638.601 Authority and purpose.
(a) Authority. The regulations of this part are issued pursuant to
the authority of titles I and IV of the Ethics in Government Act of
1978 (Pub. L. 95-521, as amended) (``the Act'').
(b) Purpose. These executive branch regulations supplement and
implement titles I, IV and V of the Act and set forth more specifically
certain procedures provided in those titles, and furnish examples,
where appropriate.
(c) Agency authority. Subject only to the authority of the Office
of Government Ethics as the supervising ethics office for the executive
branch, all authority conferred on agencies in this subchapter B of
chapter XVI of title 5 of the Code of Federal Regulations is sole and
exclusive authority.
Sec. 2638.602 Agency regulations.
Each agency may, subject to the prior approval of the Office of
Government Ethics, issue regulations not inconsistent with this part
and this subchapter, using the procedures set forth in Sec. 2635.105
of this chapter.
Sec. 2638.603 Definitions.
For the purposes of this part:
Act means the Ethics in Government Act of 1978 (Pub. L. 95-521, as
amended).
ADAEO or Alternate Designated Agency Ethics Official means an
officer or employee who is designated by the head of the agency as the
primary deputy to the DAEO in coordinating and managing the agency's
ethics program in accordance with the provisions of Sec. 2638.104.
Agency or agencies means any executive department, military
department, Government corporation, independent establishment, board,
commission, or agency, including the United States Postal Service and
Postal Regulatory Commission, of the executive branch.
Agency head means the head of an agency. In the case of a
department, it means the Secretary of the department. In the case of a
board or commission, it means the Chair of the board or commission.
Confidential filer means an employee who is required to file a
confidential financial disclosure report pursuant to Sec. 2634.904 of
this chapter.
Conflict of interest laws means 18 U.S.C. 202-209, and conflict of
interest law means any provision of 18 U.S.C. 202-209.
Corrective action means any action necessary to remedy a past
violation or prevent a continuing violation of this part, including but
not limited to restitution, change of assignment, disqualification,
divestiture, termination of an activity, waiver, the creation of a
qualified diversified or blind trust, or counseling.
DAEO or Designated Agency Ethics Official means an officer or
employee who is designated by the head of the agency to coordinate and
manage the agency's ethics program in accordance with the provisions of
Sec. 2638.104.
Department means a department of the executive branch.
Director means the Director of the Office of Government Ethics.
Disciplinary action means those disciplinary actions referred to in
Office
[[Page 36210]]
of Personnel Management regulations and instructions implementing
provisions of title 5 of the United States Code or provided for in
comparable provisions applicable to employees not subject to title 5,
including but not limited to reprimand, suspension, demotion, and
removal. In the case of a military officer, comparable provisions may
include those in the Uniform Code of Military Justice.
Employee means any officer or employee of an agency, including a
special Government employee. It includes officers but not enlisted
members of the uniformed services. It includes employees of a state or
local government or other organization who are serving on detail to an
agency, pursuant to 5 U.S.C. 3371, et seq. It does not include the
President or Vice President. Status as an employee is unaffected by pay
or leave status or, in the case of a special Government employee, by
the fact that the individual does not perform official duties on a
given day.
Executive branch includes each executive agency as defined in 5
U.S.C. 105 and any other entity or administrative unit in the executive
branch. However, it does not include any agency, entity, office, or
commission that is defined by or referred to in 5 U.S.C. app. sections
109(8)-(11) of the Act as within the judicial or legislative branch.
Government ethics laws and regulations include, among other
applicable authorities, the provisions related to government ethics or
financial disclosure of the following authorities:
(1) Chapter 11 of title 18 of the United States Code;
(2) The Ethics in Government Act of 1978 (Pub. L. 95-521, as
amended);
(3) The Stop Trading on Congressional Knowledge Act of 2012 (STOCK
Act) (Public Law 112-105, as amended);
(4) Executive Order 12674 (Apr. 12, 1989) as amended by Executive
Order 12731 (Oct. 17, 1990); and
(5) Subchapter B of this chapter.
Lead human resources official means the agency's chief policy
advisor on all human resources management issues who is charged with
selecting, developing, training, and managing a high-quality,
productive workforce. For agencies covered by the Chief Human Capital
Officers Act of 2002 (Pub. L. 107-296), the Chief Human Capital Officer
is the lead human resources official.
Person includes an individual, partnership, corporation,
association, government agency, or public or private organization.
Principles of Ethical Conduct means the collection of general
principles set forth in Sec. 2635.101(b) of this chapter.
Public filer means an employee, former employee, or nominee who is
required to file a public financial disclosure report, pursuant to
Sec. 2634.202 of this chapter.
Senior Executive means a career or noncareer appointee in the
Senior Executive Service or equivalent Federal executive service. It
also includes employees in Senior Level (SL) and Senior Technical (ST)
positions. In addition, it includes equivalent positions in agencies
that do not have a Federal executive service.
Special Government employee means an employee who meets the
definition at 18 U.S.C. 202(a). The term does not relate to a specific
category of employee, and 18 U.S.C. 202(a) is not an appointment
authority. The term describes individuals appointed to positions in the
executive branch, the legislative branch, any independent agency of the
United States, or the District of Columbia who are covered less
expansively by conflict of interest laws at 18 U.S.C. 202-209. As a
general matter, an individual appointed to a position in the
legislative or executive branch who is expected to serve for 130 days
or less during any period of 365 consecutive days is characterized as a
special Government employee. The appointment of special Government
employees is not administered or overseen by the Office of Government
Ethics but is carried out under legal authorities administered by the
Office of Personnel Management and other agencies.
Standards of Conduct means the Standards of Ethical Conduct for
Employees of the Executive Branch set forth in part 2635 of this
chapter.
Sec. 2638.604 Key program dates.
Except as amended by program advisories of the Office of Government
Ethics, the following list summarizes key deadlines of the executive
branch ethics program:
(a) January 15 is the deadline for:
(1) The Office of Government Ethics to issue its year-end status
reports, pursuant to Sec. 2638.108(a)(11); and
(2) In an agency with 1,000 or more employees, any office not under
the supervision of the DAEO that provides notices or training required
under subpart C of this part to provide a written summary and
confirmation, pursuant to Sec. 2638.310.
(b) February 1 is the deadline for the DAEO to submit the annual
report on the agency's ethics program, pursuant to Sec. 2638.207.
(c) February 15 is the deadline for employees to file annual
confidential financial disclosure reports, pursuant to Sec.
2634.903(a) of this chapter.
(d) May 15 is the deadline for employees to file annual public
financial disclosure reports, pursuant to Sec. 2634.201(a) of this
chapter.
(e) May 31 is the deadline for the agency to submit required travel
reports to the Office of Government Ethics, pursuant to Sec.
2638.107(g).
(f) July 1 is the deadline for the DAEO to submit a letter stating
whether components currently designated should remain designated,
pursuant to Sec. 2641.302(e)(2) of this chapter.
(g) November 30 is the deadline for the agency to submit required
travel reports to the Office of Government Ethics, pursuant to Sec.
2638.107(h).
(h) December 31 is the deadline for completion of annual ethics
training for employees covered by Sec. Sec. 2638.307 and 2638.308.
(i) By the deadline specified in the request is the deadline,
pursuant to Sec. 2638.202, for submission of all documents and
information requested by the Office of Government Ethics in connection
with a review of the agency's ethics program, except when the
submission of the information or reports would be prohibited by law.
(j) Prior to appointment whenever practicable but in no case more
than 15 days after appointment is the deadline, pursuant to Sec.
2638.105(a)(1), for the lead human resources official to notify the
DAEO that the agency has appointed a confidential or public financial
disclosure filer.
(k) Prior to termination whenever practicable but in no case more
than 15 days after termination is the deadline, pursuant to Sec.
2638.105(a)(2), for the lead human resources official to notify the
DAEO of the termination of a public financial disclosure filer.
(l) Within 15 days of appointment is the deadline for certain
agency leaders to complete ethics briefings, pursuant to Sec.
2638.305(b).
(m) Within 30 days of designation is the deadline for the agency
head to notify the Director of the designation of any DAEO or ADAEO,
pursuant to Sec. 2638.107(a).
(n) Within 30 days of referral is the deadline for the Inspector
General or the DAEO to submit notice to the Director of certain
referrals to the Department of Justice, pursuant to Sec. 2638.206(a).
(o) Within 3 months of appointment is the deadline for new
employees to complete initial ethics training, pursuant to Sec.
2638.304(b).
(p) Within 1 year of appointment is the deadline for new
supervisors to
[[Page 36211]]
receive supervisory ethics notices, pursuant to Sec. 2638.306(b).
(q) Not later than 12 months before any Presidential election is
the deadline for the agency head or the DAEO to evaluate whether the
agency's ethics program has an adequate number of trained agency ethics
officials to deliver effective support in the event a Presidential
transition, pursuant to Sec. 2638.210(a).
[FR Doc. 2016-13152 Filed 6-3-16; 8:45 am]
BILLING CODE 6345-03-P