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[Federal Register Volume 76, Number 197 (Wednesday, October 12, 2011)]
[Proposed Rules]
[Pages 63206-63210]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-26160]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 76, No. 197 / Wednesday, October 12, 2011 / 
Proposed Rules

[[Page 63206]]

DEPARTMENT OF HOMELAND SECURITY

5 CFR Chapter XXXVI

[Docket No. DHS-2008-0168]
RIN 1601-AA17; 3209-AA15

Supplemental Standards of Ethical Conduct for Employees of the 
Department of Homeland Security

AGENCY: Office of the Secretary, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security (DHS), with the 
concurrence of the Office of Government Ethics (OGE), is proposing 
supplemental standards of ethical conduct for DHS employees. The 
proposed regulations would supplement the OGE Standards of Ethical 
Conduct for Employees of the Executive Branch (OGE Standards) and, 
among other things, would set forth employee restrictions on the 
purchase of certain Government-owned property, require employees to 
report allegations of waste, fraud, and abuse, require employees to 
seek prior approval for certain outside employment and activities, 
prohibit employees in some DHS components from engaging in certain 
types of outside employment and activities, require designated 
components to develop instructions regarding the procedures for 
obtaining prior approval for outside employment and activities, and 
designate components within DHS as a separate agency for purposes of 
determining whether the donor of a gift is a ``prohibited source'' and 
of identifying an employee's agency for the regulations governing 
teaching, speaking, and writing.

DATES: Comments on this proposed rule are invited and must be received 
by December 12, 2011.

ADDRESSES: You may submit comments, in writing, to DHS on this proposed 
rule, identified by docket number DHS-2008-0168, by any of the 
following methods:
     On-line: http://www.regulations.gov.
     E-mail: ferne.mosley@dhs.gov. Include the reference 
``Proposed DHS Supplemental Standards'' in the subject line of the 
message.
     Fax: 202-282-9099.
     Mail: Ferne L. Mosley, Deputy Ethics Official, OGC MAIL 
STOP 0485, Department of Homeland Security, 245 Murray Lane, 
Washington, DC 20528-0485.

FOR FURTHER INFORMATION CONTACT: Ferne L. Mosley, Deputy Ethics 
Official, Department of Homeland Security, 202-447-3302.

SUPPLEMENTARY INFORMATION:

I. Background

    On August 7, 1992, at 57 FR 35006-35087, OGE issued a final rule 
setting forth the uniform Standards of Ethical Conduct for Employees of 
the Executive Branch (the ``OGE Standards''), which, as corrected and 
amended, are codified at 5 CFR part 2635. Effective on February 3, 
1993, the OGE Standards established uniform ethics rules applicable to 
all executive branch personnel.
    Pursuant to 5 CFR 2635.105, executive branch agencies are 
authorized to publish, with the concurrence of OGE, supplemental 
regulations deemed necessary to implement their respective ethics 
programs. The following proposed supplemental regulations are necessary 
and appropriate in view of DHS programs and operations, in view of the 
consolidation of numerous legacy agencies with varying or no 
supplemental ethics regulations, and to fulfill the purposes of the OGE 
Standards. In addition, some outside employment interests and 
activities, if held by employees of certain DHS components, could cause 
a reasonable person to question an employee's impartiality and 
objectivity; this rule would prohibit those outside employment 
activities. DHS, with the concurrence of OGE, would issue the 
supplemental DHS regulations in a new chapter XXXVI, consisting of part 
4601 of 5 CFR.

II. Analysis of the Proposed Regulations

A. Proposed Sec.  4601.101 General

    This section would identify to whom the supplemental regulations 
apply. It would also cross-reference to other ethics regulations and 
guidance applicable to DHS employees--including regulations on 
financial disclosure, financial interests, and employee 
responsibilities and conduct--and implementing DHS guidance and 
procedures issued in accordance with the OGE Standards.
    This section would further define the term ``agency designee'' as 
it appears in Sec.  2635.102(b) of 5 CFR, to identify those persons 
within DHS who are designated to act on requests and make 
determinations relating to 5 CFR part 2635 and this part. The section 
would also define the term ``outside employment'' and list the types of 
employment and activities that would require prior approval. It also 
lists activities for which prior approval would not be required, such 
as the uncompensated activities on behalf of a charitable or nonprofit 
organization (other than the reimbursement of expenses) that do not 
involve fiduciary duties and do not relate to the employee's official 
duties as defined by 5 CFR 2635.802. In addition, this section would 
define the term ``Chief Deputy Ethics Official'' as the persons within 
DHS who are delegated authority by the DHS Designated Agency Ethics 
Official (DAEO) to manage and coordinate the ethics programs within the 
Department's components and offices.

B. Proposed Sec.  4601.102 Designation of DHS Components as Separate 
Agencies

    This section would identify certain components within DHS as 
separate agencies for the purposes of the provisions governing prior 
approval for outside activities, accepting gifts from non-Federal 
sources, outside teaching, speaking, and writing activities, and 
issuing prior approval instructions. For those specified purposes, DHS 
has designated eight DHS components as separate agencies and has 
designated the remainder of the DHS components as a single agency. For 
the limited purpose of issuing prior approval instructions, DHS has 
designated the Office of the Inspector General as a separate agency.
    In addition, paragraph c of this section explains the applicability 
of these requirements to detailed employees within the Department. An 
employee on detail from his employing agency to another agency for a 
period in excess of 30 calendar days is subject to the supplemental 
regulations and

[[Page 63207]]

instructions of the agency to which he is detailed rather than his 
employing agency. For example, if a U.S. Customs and Border Protection 
(CBP) employee is detailed to U.S. Immigration and Customs Enforcement 
(ICE) for 60 days, the CBP employee will be subject to ICE's 
supplemental regulations and instructions during the period of his 
detail with ICE.

C. Proposed Sec.  4601.103 Prior Approval for Outside Employment and 
Activities

    This section would require employees to obtain written approval 
prior to engaging in certain outside employment and activities. This 
prior approval requirement would be an integral part of DHS's ethics 
program. The prior approval requirement is necessary to ensure that an 
employee's participation in certain outside employment or activities 
does not adversely affect operations within the employing agency or 
place the employee at risk of violating applicable Federal conduct 
statutes and regulations. In addition, prior approval is necessary to 
avoid the appearance that an outside employment or activity was 
obtained through a misuse of the employee's official position and to 
address a number of other potential ethics concerns.
    Because DHS provides millions of dollars in grants and engages in 
enforcement, regulatory, and security functions across a multitude of 
industry sectors, requiring prior approval is necessary to ensure that 
a reasonable person will not question the integrity of DHS programs and 
operations. In fulfilling its mission, DHS would be hindered if members 
of the public did not have confidence in DHS employees' ability to act 
impartially while performing their official duties.
    Proposed Sec.  4601.103(a) would require employees to obtain 
approval from the DHS employee's agency for certain outside employment 
or activities, with or without compensation, unless the employing 
agency issues an instruction or manual exempting such outside 
employment or activities. Proposed Sec.  4601.104(b) would describe the 
standard the agency must follow for approval of requests for outside 
employment and activities. Proposed Sec.  4601.103(c) would describe 
the responsibilities of DHS agencies for issuing instructions to 
employees on how to request prior approval of outside employment and 
activities.
    Because Special Government Employees may serve at the Department 
only for a limited time during a 365-day period and for a limited 
purpose (such as service on a Federal Advisory Committee or service as 
a consultant), the nature of their service to the Department does not 
require that they be subject to the prior approval requirement for 
outside employment or the additional restrictions applicable to CBP, 
Federal Emergency Management Agency (FEMA), or ICE employees.

D. Proposed Sec.  4601.104 Additional Rules for U.S. Customs and Border 
Protection (CBP) Employees

    This section would prohibit CBP employees, except Special 
Government Employees, from being employed by, or from engaging in, 
activities in support of or on behalf of, an entity that engages in a 
trade or business performing specified customs, immigration, or 
agriculture activities or services. This section would also require a 
CBP employee with a spouse, a relative who is a financial dependent or 
household member, or another household member or financial dependent 
who is employed in a position that the CBP employee is prohibited from 
occupying to notify his or her agency designee in writing of the above-
described employment circumstances. In addition, the employee is 
disqualified from participating in an official capacity in any 
particular matter involving such person or the person's employer unless 
authorized to do so by the agency designee, with the advice and 
clearance of the CBP Chief Deputy Ethics Official.

E. Proposed Sec.  4601.105 Additional Rules for Federal Emergency 
Management Agency (FEMA) Employees

    This section would prohibit certain FEMA employees, except Special 
Government Employees, both intermittent and non-intermittent, from 
working for a FEMA contractor. It also provides the procedures for 
requesting a waiver of these additional restrictions.

F. Proposed Sec.  4601.106 Additional Rules for U.S. Immigration and 
Customs Enforcement (ICE) Employees

    This section would prohibit ICE employees, except Special 
Government Employees, from being employed by, or from engaging in 
activities in support of or on behalf of, an entity that engages in a 
trade or business performing specified customs, immigration, or 
agriculture activities or services. This section would also require an 
ICE employee with a spouse, a relative who is a financial dependent or 
household member, or another household member or financial dependent 
who is employed in a position that the ICE employee is prohibited from 
occupying to notify his or her agency designee in writing of the above-
described employment circumstances. In addition, the employee is 
disqualified from participating in an official capacity in any 
particular matter involving such person or the person's employer unless 
authorized to do so by the agency designee, with the advice and 
clearance of the ICE Chief Deputy Ethics Official.

G. Proposed Sec.  4601.107 Prohibited Purchases of Property

    This section would prohibit the purchase by employees of certain 
Government property under the control of, seized by, forfeited, under 
the direction of, or incident to, the employee's agency. It would also 
set forth the exception and waiver provisions under this section.

H. Proposed Sec.  4601.108 Reporting Waste, Fraud, Abuse, and 
Corruption

    This section would require all DHS employees to report allegations 
of waste, fraud, abuse, or corruption to the appropriate authorities 
within DHS, such as the DHS Office of Inspector General, the 
appropriate Office of Internal Affairs, or Office of Professional 
Responsibility. Employee responsibilities for reporting suspicions of 
violations of law or regulation to the DHS Office of Inspector General 
are found in DHS Directive 0810.1, and these regulations complement but 
do not displace those responsibilities.

III. Regulatory Analyses

A. Executive Orders 12866 and 13563

    This proposed rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
as supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of that Order. Accordingly, 
the Office of Management and Budget has not reviewed it.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), DHS has 
considered whether this proposed rule will have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. DHS certifies that this proposed rule would not have a 
significant economic impact on a substantial number of small entities, 
because it would only affect DHS employees.

[[Page 63208]]

List of Subjects in 5 CFR Part 4601

    Conflict of interests, Government employees.

    For the reasons set forth in the preamble, the Department of 
Homeland Security, with the concurrence of the Office of Government 
Ethics, is proposing to amend title 5 of the Code of Federal 
Regulations by adding a new chapter XXXVI, consisting of part 4601, to 
read as follows:

TITLE 5--ADMINISTRATIVE PERSONNEL

CHAPTER XXXVI--DEPARTMENT OF HOMELAND SECURITY

PART 4601--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES 
OF THE DEPARTMENT OF HOMELAND SECURITY

Sec.
4601.101 General.
4601.102 Designation of DHS components as separate agencies.
4601.103 Prior approval for outside employment and activities.
4601.104 Additional rules for United States Customs and Border 
Protection (CBP) employees.
4601.105 Additional rules for Federal Emergency Management Agency 
(FEMA) employees.
4601.106 Additional rules for United States Immigration and Customs 
Enforcement (ICE) employees.
4601.107 Prohibited purchases of property.
4601.108 Reporting waste, fraud, abuse and corruption.

    Authority:  5 U.S.C. 301, 7301, 7353; 5 U.S.C. App. (Ethics in 
Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., 
p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., 
p. 306; 5 CFR 2635.105, 2635.203(a), 2635.403(a), 2635.702, 
2635.703, 2635.802(a), 2635.803, 2635.807(a)(2)(ii).

Sec.  4601.101  General.

    (a) Applicability. In accordance with 5 CFR 2635.105, the 
regulations in this part apply to employees of the Department of 
Homeland Security (DHS) and supplement the Standards of Ethical Conduct 
for Employees of the Executive Branch (OGE Standards) in 5 CFR part 
2635.
    (b) Cross-references to other ethics regulations and guidance. In 
addition to the OGE Standards in 5 CFR part 2635 and this part, DHS 
employees are subject to the executive branch financial disclosure 
regulations contained in 5 CFR parts 2634, the executive branch 
financial interests regulations contained in 5 CFR part 2640, the 
executive branch employee responsibilities and conduct regulations 
contained in 5 CFR part 735, and DHS guidance and procedures on 
employee conduct, including those issued under paragraph (c) of this 
section.
    (c) DHS agency instructions. Prior to publication, the DHS 
Designated Agency Ethics Official (DAEO) must approve any instructions 
or manuals that DHS agencies, as designated in Sec.  4601.102 of this 
part, issue to provide explanatory ethics-related guidance and to 
establish procedures necessary to implement this part and part 2635 of 
this title.
    (d) Definitions. (1) Agency designee as used in this part and in 
part 2635 of this title, means an employee who has been identified in 
an instruction or manual issued by an agency under paragraph (c) of 
this section to make a determination, give an approval, or take other 
action required or permitted by this part or part 2635 of this title 
with respect to another employee.
    (2) Outside employment as used in this part means any form of non-
Federal employment, activity, or business relationship involving the 
provision of personal services by the employee. It includes, but is not 
limited to, personal services as an officer, director, employee, agent, 
attorney, advisor, consultant, contractor, general partner, trustee, 
teacher, or speaker. It includes any writing when done under an 
arrangement with another person for production or publication of the 
written product. It does not, however, include participation in the 
activities of a nonprofit charitable, religious, professional, social, 
fraternal, educational, recreational, public service, or civic 
organization, unless the participation involves acting in a fiduciary 
capacity, providing professional services or the rendering of advice 
for compensation other than the reimbursement of expenses, or the 
activity relates to the employee's official duties within the meaning 
of 5 CFR 2635.802.
    (3) Chief Deputy Ethics Official (CDEO) as used in this part shall 
be the persons delegated authority by the DHS DAEO to manage and 
coordinate the ethics programs within the DHS components pursuant to 
the DAEO's authority in 5 CFR 2638.204.

Sec.  4601.102  Designation of DHS components as separate agencies.

    (a) Pursuant to 5 CFR 2635.203(a), DHS designates each of the 
following components as a separate agency for purposes of the 
regulations in subpart B of 5 CFR part 2635 governing gifts from 
outside sources, including determining whether the donor of a gift is a 
prohibited source under 5 CFR 2635.203(d); for purposes of the 
regulations in Sec.  4601.103(c) of this part governing the 
establishment of procedures for obtaining prior approval for outside 
employment; for purposes of the regulations in Sec.  4601.103(c) of 
this part governing the designation of officials; and for the purposes 
of the regulations in 5 CFR 2635.807 governing teaching, speaking, and 
writing:
    (1) Federal Emergency Management Agency (FEMA);
    (2) Federal Law Enforcement Training Center;
    (3) Transportation Security Administration;
    (4) United States Citizenship and Immigration Services;
    (5) United States Coast Guard;
    (6) United States Customs and Border Protection (CBP);
    (7) United States Immigration and Customs Enforcement (ICE); and
    (8) United States Secret Service.
    (b)(1) DHS will treat employees of DHS components not designated as 
separate agencies in paragraph (a) of this section, including employees 
of the Office of the Secretary, as employees of the remainder of DHS. 
For purposes of the regulations in subpart B of 5 CFR part 2635 
governing gifts from outside sources, including determining whether the 
donor of a gift is a prohibited source under 5 CFR 2635.203(d); for 
purposes of the regulations in Sec.  4601.103(c) of this part governing 
the establishment of procedures for obtaining prior approval for 
outside employment; for purposes of the regulations in Sec.  
4601.103(c) of this part governing the designation of officials; and 
for purposes of the regulations in 5 CFR 2635.807 governing teaching, 
speaking, and writing, DHS will treat the remainder of DHS as a single 
agency that is separate from the components designated as separate 
agencies in paragraph (a) of this section.
    (2) For the limited purposes of establishing procedures for 
obtaining prior approval for outside employment and designating 
officials pursuant to Sec.  4601.103 of this part, DHS will treat the 
DHS Office of the Inspector General as a separate agency.
    (c) An employee on detail from his employing agency to another 
agency for a period in excess of 30 calendar days is subject to the 
supplemental regulations and instructions of the agency to which he is 
detailed rather than his employing agency.

Sec.  4601.103  Prior approval for outside employment and activities.

    (a) General requirement for approval. A DHS employee, other than a 
Special Government Employee, shall obtain prior written approval before 
engaging in any outside employment or activity,

[[Page 63209]]

with or without compensation, unless the employee's agency has exempted 
the employment, activity, or class of employment or activities from 
this requirement by an instruction or manual issued pursuant to 
paragraph (c) of this section.
    (b) Standard for approval. Approval shall be granted only upon a 
determination that the outside employment is not expected to involve 
conduct prohibited by statute or Federal regulation, including part 
2635 of title 5 and this part.
    (c) Agency responsibilities. (1) With the approval of the DHS DAEO, 
each agency as set forth in Sec.  4601.102 of this part shall issue 
instructions or a manual governing the submission of requests for 
approval of outside employment and activities and designating 
appropriate officials to act on such requests not later than sixty (60) 
days after the effective date of this part.
    (2) The instructions or manual may exempt particular employment or 
activities or categories of employment or activities from the prior 
approval requirement of this section if such employment or activities 
would generally be approved and are not likely to involve conduct 
prohibited by statute or Federal regulation, including 5 CFR part 2635 
and this part. Agencies may include in their instructions or manual 
examples of outside employment or activities that are permissible or 
prohibited consistent with this part and part 2635 of this title.
    (3) In the absence of a manual or instruction identifying a person 
designated to act upon a request for approval for outside employment, 
the Chief Deputy Ethics Official at each agency shall act upon a 
request.

Sec.  4601.104  Additional rules for United States Customs and Border 
Protection (CBP) employees.

    The following rules apply to employees of CBP, except Special 
Government Employees, and are in addition to Sec. Sec.  4601.101 
through 4601.103 and Sec. Sec.  4601.107 and 4601.108 of this part:
    (a) Prohibitions on outside employment and activities. (1) No CBP 
employee shall be employed by or engage in activities in support of or 
on behalf of a customs broker, international carrier, bonded warehouse, 
foreign trade zone as defined in 15 CFR 400.2(e), cartman, law firm 
engaged in the practice of customs, immigration, or agriculture law, 
entity engaged in the enforcement of customs, immigration, or 
agriculture law, importation department of a business, or business or 
other entity which assists aliens or engages in services related to 
customs, immigration, or agriculture matters.
    (2) No CBP employee shall, in any private capacity, engage in 
employment or an activity related to the importation or exportation of 
merchandise or agricultural products requiring inspection, or the entry 
of persons into or departure of persons from the United States.
    (b) Restrictions arising from employment of the spouse, relatives, 
members of the employee's household, or financial dependents. (1) A CBP 
employee shall notify in writing his or her agency designee when any of 
the following circumstances exist:
    (i) The spouse of the CBP employee is employed in a position that 
the CBP employee would be prohibited from occupying by paragraph (a) of 
this section;
    (ii) A relative (as defined in 5 CFR 2634.105(o)), who is 
financially dependent on or who is a member of the household of the CBP 
employee, is employed in a position that the CBP employee would be 
prohibited from occupying by paragraph (a) of this section; or
    (iii) Any person, other than the spouse or relative of the CBP 
employee, who is financially dependent on or who is a member of the 
household of the CBP employee, is employed in a position that the CBP 
employee would be prohibited from occupying by paragraph (a) of this 
section.
    (2) The CBP employee shall be disqualified from participating in an 
official capacity in any particular matter involving the individuals 
identified in paragraph (b)(1) of this section, or the employer 
thereof, unless the agency designee, with the advice and clearance of 
the CBP Chief Deputy Ethics Official, authorizes the CBP employee to 
participate in the matter using the standard in 5 CFR 2635.502(d), or 
the waiver provisions in 18 U.S.C. 208(b)(1), as appropriate.

Sec.  4601.105  Additional rules for Federal Emergency Management 
Agency (FEMA) Employees.

    The following rules apply to employees of FEMA, except Special 
Government Employees, and are in addition to Sec. Sec.  4601.101 
through 4601.103 and Sec. Sec.  4601.107 and 4601.108 of this part:
    (a) Prohibited outside employment (intermittent employees). Except 
as provided in paragraph (c) of this section, no intermittent FEMA 
employees hired under the authority of 42 U.S.C. 5149, which includes 
all Disaster Assistance Employees or Stafford Act Employees and Cadre 
of On-Call Response Employees, shall work for a current FEMA contractor 
while a FEMA employee, whether or not they are on activated status.
    (b) Prohibited outside employment (non-intermittent employees). 
Except as provided in paragraph (c) of this section, no non-
intermittent FEMA employee shall work for any current FEMA contractor 
as an outside employer.
    (c) Waivers. The FEMA Chief Deputy Ethics Official or his or her 
agency designee may grant a written waiver of any prohibition in 
paragraphs (a) and (b) of this section with the DAEO's concurrence. To 
grant the waiver, the FEMA Chief Deputy Ethics Official or his or her 
agency designee must determine that the waiver is consistent with 5 CFR 
part 2635 and not otherwise prohibited by law; that the prohibition is 
not necessary to avoid the appearance of misuse of position or loss of 
impartiality; and that the waiver will not undermine the public's 
confidence in the employee's impartiality and objectivity in 
administering FEMA programs. A waiver under this paragraph may impose 
appropriate conditions, such as requiring execution of a written 
disqualification statement.

Sec.  4601.106  Additional rules for United States Immigration and 
Customs Enforcement (ICE) employees.

    The following rules apply to employees of ICE, except Special 
Government Employees, and are in addition to Sec. Sec.  4601.101 
through 4601.103 and Sec. Sec.  4601.107 and 4601.108 of this part:
    (a) Prohibitions on outside employment and activities. (1) No ICE 
employee shall be employed by or engage in activities in support of or 
on behalf of a customs broker, international carrier, bonded warehouse, 
foreign trade zone as defined in 15 CFR 400.2(e), cartman, law firm 
engaged in the practice of customs, immigration or agriculture law, 
entity engaged in the enforcement of customs, immigration or 
agriculture law, importation department of a business, or business or 
other entity which assists aliens or engages in services related to 
customs, immigration or agriculture matters.
    (2) No ICE employee shall, in any private capacity, engage in 
employment or an activity related to the importation or exportation of 
merchandise or agricultural products requiring inspection, or the entry 
of persons into or the departure of persons from the United States.
    (b) Restrictions arising from employment of spouse, relatives, 
members of the employee's household,

[[Page 63210]]

or financial dependents. (1) An ICE employee shall notify in writing 
his or her agency designee when any of the following circumstances 
exist:
    (i) The spouse of the ICE employee is employed in a position that 
the ICE employee would be prohibited from occupying by paragraph (a) of 
this section;
    (ii) A relative (as defined in 5 CFR 2634.105(o)) who is 
financially dependent on or who is a member of the household of the ICE 
employee is employed in a position that the ICE employee would be 
prohibited from occupying by paragraph (a) of this section; or
    (iii) Any person, other than the spouse or relative of the ICE 
employee, who is financially dependent on or who is a member of the 
household of the ICE employee, is employed in a position that the ICE 
employee would be prohibited from occupying by paragraph (a) of this 
section.
    (2) The ICE employee shall be disqualified from participating in an 
official capacity in any particular matter involving the individuals 
described in paragraph (b)(1) of this section or the employer thereof, 
unless the agency designee, with the advice and clearance of the ICE 
Chief Deputy Ethics Official, authorizes the ICE employee to 
participate in the matter using the standard in 5 CFR 2635.502(d), or 
the waiver provisions in 18 U.S.C. 208(b)(1), as appropriate.

Sec.  4601.107  Prohibited purchases of property.

    (a) General prohibition. Except as provided in paragraph (c) of 
this section, no DHS employee may purchase, directly or indirectly, 
property that is:
    (1) Owned by the Federal Government and under the control of the 
employee's agency, unless the sale of the property is being conducted 
by the General Services Administration; or
    (2) Seized or forfeited under the direction or incident to the 
functions of the employee's agency.
    (b) For purposes of this section, the employee's agency is the 
relevant separate agency component as set forth in Sec.  4601.102 of 
this part.
    (c) Waiver. Employees may make a purchase prohibited by paragraph 
(a) of this section where a written waiver of the prohibition is issued 
in advance by the agency designee with the clearance of the DAEO or his 
designee. A waiver may only be granted if it is not otherwise 
prohibited by law or regulation and the purchase of the property will 
not cause a reasonable person with knowledge of the particular 
circumstances to question the employee's impartiality, or create the 
appearance that the employee has used his official position or 
nonpublic information for his personal gain.

Sec.  4601.108  Reporting waste, fraud, abuse and corruption.

    Employees shall report immediately any suspicions of violations of 
law or regulation involving Department of Homeland Security programs or 
operations to appropriate authorities, such as the Office of the 
Inspector General.

Janet Napolitano,
Secretary, Department of Homeland Security.
Don W. Fox,
Acting Director, Office of Government Ethics.
[FR Doc. 2011-26160 Filed 10-11-11; 8:45 am]
BILLING CODE 9110-9B-P
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