This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

53713

Vol. 62, No. 200

Thursday, October 16, 1997

DEPARTMENT OF THE INTERIOR

5 CFR Chapter XXV

43 CFR Part 20

RINs 1090–AA38, 3209–AA15

Supplemental Standards of Ethical

Conduct for Employees of the

Department of the Interior

AGENCY: Department of the Interior

(Department).

ACTION: Interim rule, with request for

comments.

SUMMARY: The Department of the

Interior, with the concurrence of the

Office of Government Ethics (OGE), is

issuing an interim rule for the

employees of the Department that

supplements the Standards of Ethical

Conduct for Employees of the Executive

Branch issued by OGE. This interim rule

is a necessary supplement to the

Standards because it addresses ethical

issues unique to the Department. The

interim rule designates separate agency

components for purposes of identifying

prohibited sources of gifts and applying

the restrictions on compensated outside

teaching, speaking and writing that

relate to an employee’s official duties;

provides cross-references to certain

statutory prohibitions against the

holding by some Department employees

of certain financial and other interests,

and regulations implementing those

prohibitions; prohibits certain financial

interests and outside employment; and

requires employees to obtain prior

approval for certain outside

employment. The Department is also

revising its employee responsibilities

and conduct regulations by adding a

cross-reference to ethics and other

conduct-related regulations, removing

superseded or redundant provisions,

and redesignating the provisions

remaining in the regulation.

DATES: This rule is effective on October

16, 1997. Comments on the interim rule

must be received on or before December

15, 1997.

ADDRESSES: Send comments to the

Department Ethics Office, Department of

the Interior, 1849 C Street, NW., Room

5013, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT:

Gabe Paone or Mason Tsai, Department

Ethics Office, 202–208–5916; Internet Email address: masonltsai@ios.doi.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On August 7, 1992, the Office of

Government Ethics published the

Standards of Ethical Conduct for

Employees of the Executive Branch

(Standards). See 57 FR 35006–35067, as

corrected at 57 FR 48557, 57 FR 52583,

and 60 FR 51667, and amended at 61 FR

42965–42970 (as corrected at 61 FR

48733), 61 FR 50689–50691 (interim

rule revisions adopted as final at 62 FR

12531), and 62 FR 48746–48748, with

additional grace period extensions at 59

FR 4779–4780, 60 FR 6390–6391, 60 FR

66857–66858, and 61 FR 40950–40952.

The Standards, codified at 5 CFR part

2635 and effective February 3, 1993,

establish uniform standards of ethical

conduct for executive branch personnel.

On June 10, 1993, the Department

issued a final rule which removed

certain provisions of its employee

responsibilities and conduct regulations

at 43 CFR part 20 that had been

superseded by 5 CFR part 2635 or by

OGE’s executive branch financial

disclosure regulations at 5 CFR part

2634. See 58 FR 32446–32449. Along

with portions of 43 CFR part 20 that the

Department retained under authority

separate from 5 CFR parts 2634 and

2635, the Department retained in 43

CFR part 20 provisions regarding

prohibited financial interests and

outside employment which were

temporarily preserved, respectively, by

the notes following 5 CFR 2635.403(a)

and 2635.803, as extended at 59 FR

4779–4780, 60 FR 6390–6391, 60 FR

66857–66858, and 61 FR 40950–40952.

The Standards, at 5 CFR 2635.105,

authorize executive branch agencies,

with the concurrence of OGE, to publish

agency-specific supplemental

regulations that are necessary to

implement their respective ethics

programs. The Department, with OGE’s

concurrence, has determined that the

following supplemental regulations,

being codified in new chapter XXV of 5

CFR, are necessary to the success of its

ethics program. Also, upon issuance of

the supplemental regulation, the

Department is removing those

remaining provisions in 43 CFR part 20

that now have been superseded, and

other provisions as explained in part III

of this supplementary information.

II. Analysis of the Regulations

Section 3501.101 General

Section 3501.101(a) provides that the

regulations contained in the interim rule

apply to employees of the Department of

the Interior and supplement the

executive branch-wide Standards in 5

CFR part 2635. This section also notes

that employees of the Department are

subject to the responsibilities and

conduct regulations for executive

branch employees, at 5 CFR part 735;

the executive branch financial

disclosure regulations, at 5 CFR 2634;

and the Department’s regulations

regarding employee responsibilities and

conduct, at 43 CFR part 20.

Section 3501.101(b) includes

definitions for various terms used in the

regulation, and provides information

about ethics program responsibilities

within the Department.

Section 3501.101(c) authorizes the

Designated Agency Ethics Official

(DAEO), or the Ethics Counselor for

each major operating component of the

Department, to issue explanatory

guidance and implementing procedures

to assist the employees in the

Department to understand and comply

with the executive branch-wide

Standards and these supplemental

regulations. In accordance with 5 CFR

2635.105(c), these issuances themselves

will neither supplement nor amend the

executive branch-wide Standards in 5

CFR part 2635 or this interim rule.

Section 3501.102 Designation of

Separate Agency Components

The Standards, at 5 CFR 2635.202(a),

prohibit an employee from soliciting or

accepting a gift from a prohibited

source. A prohibited source is defined

by 5 CFR 2635.203(d) to include a

person who has a specific relationship

with an employee’s agency. For

purposes of identifying an employee’s

agency, 5 CFR 2635.203(a) authorizes an

executive department, by supplemental

regulation, to designate as separate
53714 Federal Register / Vol. 62, No. 200 / Thursday, October 16, 1997 / Rules and Regulations

agencies components of the department

that exercise distinct and separate

functions. Designations made pursuant

to § 2635.203(a) are used also for

purposes of applying the restrictions in

5 CFR 2635.807(a) on receipt of

compensation for teaching, speaking or

writing related to an employee’s official

duties. Since the Department is

establishing in § 3501.105(c) a prior

approval requirement for outside

employment with a prohibited source,

the designations in this section will also

be used for purposes of applying the

supplemental regulation’s requirement

for prior approval of outside

employment.

Section 3501.102(a) of the interim

rule designates ten of the Department’s

bureaus and offices as separate agencies.

The Department has determined that

each of bureaus and offices exercises

separate and distinct functions. As

further amplified in § 3501.102(c),

employees of the Department not

employed in one of the ten separate

agency components are deemed to be

employees of the entire Department,

which for those employees includes any

parts of the Department that are not

included in the ten separate agency

components as well as those parts that

are so included.

Examples at the end of this section

illustrate how the separate agency

designations are applied.

Section 3501.103 Prohibited Interests

in Federal Lands

Section 3501.103(a) contains crossreferences to the statutory prohibitions

at 43 U.S.C. 11 and 31(a), which provide

respectively that ‘‘[t]he officers, clerks,

and employees of the Bureau of Land

Management are prohibited from

directly or indirectly purchasing or

becoming interested in the purchase of

any of the public land,’’ and ‘‘[t]he

Director and members of the United

States Geological Survey shall have no

personal or private interests in the lands

or mineral wealth of the region under

survey * * *.’’ The Department’s

responsibilities and conduct rules, at 43

CFR 20.735–23(b)(1) (being partially

retained and redesignated by this

interim rule-making as 43 CFR 20.401),

implement these long standing statutory

prohibitions and also are crossreferenced in § 3501.103(a).

The prohibitions at 43 U.S.C. 11 and

31(a) has been extended by the

Department’s regulations in 43 CFR part

20 to employees of the Minerals

Management Service (MMS) and certain

other Department employees. The

statutory prohibitions’ regulatory

extension to MMS employees followed

the establishment of MMS in October

1982. The MMS was initially staffed

with natural resource employees from

the United States Geological Survey

(USGS) and the Bureau of Land

Management (BLM). At the time, many

of the new MMS employees were to be

performing duties regarding Federal

lands similar to those for which they

were responsible when they were USGS

OR BLM employees. This created an

ethics concern for MMS and the

Department, since the MMS employees

transferring from USGS and BLM would

no longer be covered by the organic

prohibitions of their former bureaus. To

address this concern the Department

decided to extend, in its employee

responsibilities and conduct regulations

at 43 CFR part 20, those organic

prohibitions to MMS employees.

The other Department employees to

whom the prohibitions at 43 U.S.C. 11

and 31(a) were extended in 43 CFR part

20 were the Secretary and employees

‘‘in pay grades equivalent to GS–16 and

above or who are in merit pay positions

as described in 5 U.S.C. 5401(b)(1)’’ in

‘‘the Office of the Secretary and other

Departmental offices reporting directly

to a Secretarial officer.’’ The Department

determined that the prohibitions needed

to be extended to those additional

personnel because they were positions

which could substantially influence the

actions and decisions made by

employees of USGS, BLM, or MMS.

Under 5 CFR 2635.403(a), an agency

may, by supplemental regulation,

prohibit or restrict the acquisition or

holding by its employees of financial

interests that the agency determines

would cause a reasonable person to

question the impartiality or objectivity

with which agency programs are

administered. The Department has made

this determination with respect to the

statutory prohibition’s regulatory

extensions formerly found at 43 CFR

20.735–23, and is reinstituting those

regulatory extensions, in modified form

to conform with the requirements of 5

CFR part 2635, in § 3501.103(b).

In addition to all MMS employees,

§ 3501.103(b) describes the employees

to whom the regulatory prohibition

therein applies as those in ‘‘positions

classified at GS–15 and above’’ in ‘‘the

Office of the Secretary and other

Departmental offices reporting directly

to a Secretarial officer,’’ instead of in

‘‘pay grades equivalent to GS–16 and

above’’ or in ‘‘merit pay positions’’ in

those offices, as the superseded

provision had done. Grades 16 and

above of the General Schedule (GS) no

longer exist, having been abolished by

the Federal Employees Pay

Comparability Act of 1990, Pub. L. 101–

509. Likewise, the statutory basis for

merit pay positions has expired.

Although the coverage of the former

provision reached some employees in

merit pay positions at GS–13 and GS–

14, the Department has determined that

it is not necessary for the prohibition to

reach employees at those grade levels in

order to avoid the appearance of misuse

of position or loss of impartiality and

objectivity with which Department

programs and administered.

As defined in former § 20.735–20(c) of

43 CFR, ‘‘the Office of the Secretary and

other Departmental offices reporting

directly to a Secretarial officer’’

included the Immediate Office of the

Secretary (except for the Office of

Historically Black College and

University Programs and Job Corps);

Office of the Solicitor; Office of the

Inspector General; Office of Hearings

and Appeals; Office of Congressional

and Legislative Affairs; Office of Public

Affairs; all Assistant Secretaries, their

immediate Office staff and heads of

bureaus which are subordinate to an

Assistant Secretary, including the

following offices under the Office of the

Assistant Secretary—Policy,

Management and Budget: Office of

Acquisition & Property Management,

Office of Budget, Office of

Environmental Affairs, and Office of

Program Analysis. This list, modified to

reflect reorganizations and restructuring

at the Department, has been carried

forward as the definition of ‘‘Office of

the Secretary and other Departmental

offices reporting directly to a Secretary

officer’’ in this section.

Paragraph (b)(2) of § 3501.103

contains exceptions to the regulatory

restriction in § 3501.103(b)(1). These

exceptions are being carried forward

from the former regulatory restriction in

43 CFR part 20, and provide that the

restriction does not apply to an

individual employed on an intermittent

or seasonal basis for a period not

exceeding 180 working days in each

calendar year, or a special Government

employee engaged in field work relating

to land, range, forest, and mineral

conservation and management

activities.

Section 3501.103(c)91) provides for

an additional restriction on employees’

interests in Federal lands. Because the

Department has authority to grant

claims, permits, leases, small tract

entries, and other rights in most of the

country’s nationally owned public lands

and natural resources, the Department’s

employee responsibilities and conduct

regulations long included a provision at

43 CFR 20.735–23(b)(3), generally

restricting all employees of the

Department from acquiring or retaining

such rights for commercial or
Federal Register / Vol. 62, No. 200 / Thursday, October 16, 1997 / Rules and Regulations 53715

investment purposes. This prohibition

has been reinstituted, in modified form

to conform with the requirements of 5

CFR part 2635, as § 3501.103(b)(1). The

Department has determined under 5

CFR 2635.403(a) that it is necessary to

continue to restrict all employees from

acquiring or retaining, for commercial or

investment purposes, any claim, permit,

lease, small tract entry, or other right in

lands or resources administered or

controlled by the Department, in order

to maintain public confidence in the

impartiality or objectivity with which

the Department’s programs are

administered. The Department has made

the additional determination under 5

CFR 2635.403(a) with respect to this

prohibition that it is necessary for the

efficiency of the service to extend the

prohibition to employees’ spouses and

minor children.

Paragraph (c)(2) of § 3501.103

contains two exceptions to the

regulatory restriction in

§ 3501.103(c)(1). Both exceptions had

applied to the former restriction in 43

CFR part 20. The first exception is

intended to make it clear that the

prohibition does not apply to acquiring

or holding a right in Federal lands,

administered or controlled by the

Department, for recreational purposes.

The second exception allows employees

working in the Office of the Assistant

Secretary—Indian Affairs or in the

Bureau of Indian Affairs to acquire or

retain interests in Federal lands

controlled by the Department for the

benefit of Indians or Alaska Natives.

Many of those employees are Native

Americans or Alaska Natives who may

have an involuntary interest in tribal

lands simply because of their innate

membership in their home tribes.

Generally, under the exception at 18

U.S.C. 208(b)(4) to the prohibitions

contained in 18 U.S.C. 208(a), such an

interest would not bar an employee’s

participation in a particular matter

affecting the interest.

Under § 3501.103(d), the DAEO may

require divestiture of an interest in

Federal lands that would otherwise be

allowed to be retained under the

exceptions listed in § 3501.103(b)(2),

using the standard of ‘‘substantial

conflict’’ set forth in 5 CFR 2635.403(b).

Under § 3501.103(e), the DAEO may

grant a waiver from the regulatory

restrictions in paragraphs (b) and (c) of

this section based on a determination

that the waiver is not inconsistent with

5 CFR part 2635 or otherwise prohibited

by law and that, under the particular

circumstances, application of the

restriction is not necessary to avoid the

appearance of misuse of position or loss

or impartiality and objectivity with

which Department programs are

administered. An employee may be

required under the waiver to disqualify

himself from a particular matter or take

other appropriate action. Section

3501.103(f) provides that existing

waivers, issued under the Department’s

regulations for employees to whom the

regulatory prohibitions in paragraphs (b)

and (c) of this section applied under the

former provisions in 43 CFR part 20,

remain in effect but may be withdrawn

subject to the standard for waivers in

paragraph (e).

Section 3501.104 Prohibited Interests

in Mining

Section 3501.104(a) provides a crossreference to the prohibition in the

Surface Mining Control and

Reclamation Act of 1977 (Surface

Mining Act), at 30 U.S.C. 1211(f), on

employees of the Office of Surface

Mining Reclamation and Enforcement or

any other employee who performs

functions or duties under the Surface

Mining Act having any financial interest

in underground or surface coal mining

operations, and the Department’s

regulation at 30 CFR part 706 which

implement the prohibition. The

Department has included this crossreference in the supplemental regulation

at the request of OGE, because some of

the interests prohibited by the Surface

Mining Act are financial interest within

the meaning of 5 CFR 2635.403(c).

Section 3501.104(b)(1) prohibits

employees of the U.S. Geological Survey

and their spouses and minor children

from having a direct or indirect

financial interest in mining activities

conducted on privately-owned lands

within the United States. This provision

is being issued under the authority of 5

CFR 2635.403(a), based on the

Department’s determinations that the

acquisition or retention of such interests

would cause a reasonable person to

question the impartiality and objectivity

with which USGS programs are

administered, and that there is a direct

and appropriate nexus between the

prohibition as applied to employees’

spouses and minor children and the

ability of USGS to carry out efficiently

its mission related to the mineral

resources of the national domain. This

provision is based upon the former

provision at 43 CFR 20.735–25(b)(2)

(now superseded), under which neither

the Director nor any member of the

USGS was allowed to hold ‘‘substantial’’

personal or private interests, direct or

indirect, in any private mining activities

in the United States. The Department

found this provision useful in avoiding

conflicts of interest for USGS

employees.

As defined in paragraph (b)(2)(i) of

§ 3501.104, ‘‘financial interest’’ has the

meaning given in the executive branchwide Standards at 5 CFR 2635.403(c).

Also, as defined in paragraph (b)(2)(ii)

of § 3501.104, ‘‘private mining

activities’’ include exploration,

development and production of oil, gas

and other minerals on privately-owned

lands in the United States. Lands owned

by the Federal government or by a State

or local government are not privatelyowned.

Paragraph (b)(3) of § 3501.104

contains exceptions to the regulatory

restriction in § 3501.104(b)(1). These

exceptions are intended to permit the

acquisition or holding of financial

interests that the Department has

determined are unlikely to raise

questions regarding the objective and

impartial performance of USGS

employees’ official duties or the

efficient accomplishment of the

Department’s mission. The exceptions

permit interests of certain de minimis

values. These threshold amounts vary

for employees of different organizational

elements of the USGS, depending on the

extent of the elements’ direct

connection to private mining activities

in the United States. There is also a de

minimis amount set for mineral

royalties and ‘‘overriding royalty

interests’’ (ORRI), i.e., an exclusive

payment that is generally given to a

landowner by an oil exploration

company in return for the right to

explore and produce oil and/or gas from

privately-owned lands. An ORRI is

generally determined by the quantity of

oil and/or gas produced at the surface of

an active well and does not include

production costs. The exceptions also

permit interests in publicly traded or

publicly available investment funds and

qualified profit sharing, retirement, or

similar plans, provided that, in the case

of such a fund, its prospectus does not

indicate the objective or practice of

concentrating its investments in entities

engaged in private mining activities in

the United States, or, in the case of such

a plan, the plan does not invest more

than 25 percent of its funds in debt or

equity instruments of entities engaged

in private mining activities in the

United States, and provided that the

employee neither exercises control nor

has the ability to exercise control over

the financial interests held in the fund

or plan. In addition, for the spouses and

minor children of USGS employees, the

exceptions permit the acquisition or

retention of a financial interest in

mining activities conducted on

privately-owned lands within the

United States when the interest was
53716 Federal Register / Vol. 62, No. 200 / Thursday, October 16, 1997 / Rules and Regulations

obtained under certain circumstances

unrelated to USGS employment.

Under § 3501.104(b)(4), the Director of

the USGS may require divestiture of a

financial interest that would otherwise

be allowed to be retained under the

exceptions listed in § 3501.104(b)(3), if

he or she determines under 5 CFR

2635.403(b) that the financial interest

will require the employee’s

disqualification to a debilitating extent

or will adversely affect the efficient

accomplishment of the Department’s

mission because another employee

cannot be readily assigned to perform

work from which the employee would

be disqualified by reason of the

financial interest. Under

§ 3501.104(b)(5), the Director of the

USGS may grant a waiver from the

regulatory restrictions in paragraph

(b)(1) of this section based on a

determination that the waiver is not

inconsistent with 5 CFR part 2635 or

otherwise prohibited by law and that,

under the particular circumstances,

application of the restriction is not

necessary to avoid the appearance of

misuse of position or loss of impartiality

and objectivity with which Department

programs are administered. An

employee may be required under the

waiver to disqualify himself from a

particular matter or take other

appropriate action.

Section 3501.104(b)(6) provides that a

spouse or minor child of an employee

may retain a financial interest otherwise

prohibited by paragraph (b)(1) of this

section, if the interest was permitted

under criteria and procedures in effect

before November 2, 1996 (pursuant to

provision at 43 CFR 20.735–25(b)(2)

which expired at that time). The

Director of the USGS may, however,

review those retained financial interests

for consistency with the standard for

waivers in paragraph (b)(5) of this

section, and may disallow an interest if

he or she determines in writing that the

waiver standard is not met.

Section 3501.105 Outside Employment

and Activities

5 CFR 2635.802(a) provides that an

employee shall not engage in outside

employment or activities if the outside

employment or activity is prohibited by,

inter alia, an agency supplemental

regulation. To much the same effect, 5

CFR 2635.403 permits an agency, by

supplemental regulation, to prohibit

compensated outside employment on

the same basis that it may prohibit

employees from holding other financial

interests. The Department’s employee

responsibilities and conduct regulation

at 43 CFR part 20 had included various

prohibitions on the outside employment

and activities of specific classes of

Department employees.

To the extent that prohibitions on

employees’ outside employment and

activities were issued by an agency

under authority independent of 5 CFR

part 2635, the prohibitions would not

have to be included in the agency’s

supplemental regulation. Nevertheless,

the Department is including in

§ 3501.105(a)(1) a cross-reference to the

statutory prohibition at 43 U.S.C. 31(a),

under which employees of the U.S.

Geological Survey shall execute no

surveys or examinations for private

parties or corporations. The purpose of

including this cross-reference in the

supplemental regulation is to provide

further notice to employees of the

prohibition.

Also with respect to prohibited

outside employment and activities, the

Department is reinstituting in

§ 3501.105(a)(2) the longstanding

prohibitions, which had been included

in its former regulations at 43 CFR

20.735–22(c), against Bureau of Land

Management employees working as real

estate agents and realty specialists. The

Department has determined this

prohibition is necessary to ensure

public confidence in the impartiality

and objectivity with which the

Department’s programs are

administered, and to avoid any public

perception that Department employees

are using their official positions or

Department connections to advance

their outside real estate careers. In order

to lessen the burden of this prohibition,

such employees are not required to

cancel a real estate license, but may

maintain the license on an inactive basis

as they were allowed to do under the

former regulations.

Finally with respect to prohibited

outside employment and activities, the

Department is reinstituting in

§ 3501.105(a)(4) the longstanding

prohibition which had been included in

its former regulations, at 43 CFR

20.735–27(c)(1), against employees in

the Office of the Assistant Secretary—

Indian Affairs, and in the Bureau of

Indian Affairs (BIA), holding a position

on a tribal election board or on a tribal

school board which oversees BIA

schools. The Department has

determined that this prohibition is

needed to ensure public confidence in

the impartiality and objectivity with

which the Department’s programs are

administered.

Under 5 CFR 2635.803, an agency that

determines it is necessary or desirable

for the purpose of administering its

ethics program may, by supplemental

regulation, require its employees to

obtain written approval before engaging

in outside employment. The

Department’s former regulation at 43

CFR 20.735–22 provided that each

major program operating component of

the Department and other Departmental

offices could require their employees to

obtain approval to engage in outside

work by issuing supplementary

requirements. The prior approval

requirements that were instituted

pursuant to that authority remained in

effect through November 1, 1996, under

the note following 5 CFR 2635.803, as

extended, and appendix D to part 2635.

Those requirements served the

Department well in ensuring that its

employees avoided violations of the

standards of conduct and conflict of

interest statutes. In accordance with 5

CFR 2635.803, the Department has

determined that it is necessary to the

administration of its ethics program to

require prior approval for certain types

of outside employment that pose a

potential for employees to engage in

conduct that might violate applicable

laws and regulations.

Therefore, § 3501.105(b)(1)(i) requires

an employee (other than a U.S.

Geological Survey employee—who

would be subject to a broader

provision—or a special Government

employee) who wishes to engage in

outside employment with a prohibited

source to obtain prior written approval

from his servicing ethics counselor

before engaging in such outside

employment. In identifying a

‘‘prohibited source’’ for purposes of this

prior approval requirement, the

Department will apply the definition of

that term in the Standards at 5 CFR

2635.203(d), a supplemented by the

separate agency component

designations in § 3501.102(a). Thus, an

employee would have to obtain

approval before engaging in outside

employment with any person (including

an organization more than half of whose

members are persons) seeking official

action by the Department, or, in the case

of an employee in one of the separate

agency components designated in

§ 3501.102(a), by that component; doing

business or seeking to do business with

the Department, or, in the case of an

employee in one of the separate agency

components designated in § 3501.102(a),

with that component; conducting

activities regulated by the Department,

or, in the case of an employee in one of

the separate agency components

designated in § 3501.102(a), by that

component; or having interests that may

be substantially affected by the

performance or nonperformance of the

employee’s official duties. Section

3501.105(b)(1) provides further that this
Federal Register / Vol. 62, No. 200 / Thursday, October 16, 1997 / Rules and Regulations 53717

prior approval requirement applies

without regard to whether the outside

employment is to be undertaken for

compensation.

In view of the organic restrictions on

outside activities that apply to U.S.

Geological Survey (USGS) employees,

and USGS’s success in avoiding

violations of those restrictions by having

had a broad prior approval requirement

for its employees, § 3501.105(b)(1)(ii)(A)

provides that notwithstanding the

requirement for prior approval of

outside employment with a prohibited

source in § 3501.105(b)(1)(i), USGS

employees must obtain prior written

approval for any outside employment.

Under § 3501.105(b)(1)(ii)(B), however,

categories of outside employment could

be exempted by USGS from the prior

written approval requirement, provided

the employment exempted is not

prohibited by law, the Standards, or

these supplemental regulations, and

would normally be approved if subject

to the case-by-case requirement for prior

approval.

Section 3501.105(b)(2) lists the basic

items that an employee must include in

an approval request. Section

3501.105(b)(3) sets forth the standard to

be used in evaluating approval requests.

Section 3501.105(b)(4) provides

definitions of terms used in this section.

Under § 3501.105(b)(4)(i),

‘‘employment’’ is broadly defined to

cover any form of non-Federal

employment or business relationship

involving the provision of personal

services, including 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 nonprofit charitable,

religious, professional, social, fraternal

and similar organizations, unless such

activities involve the provision of

professional services or advice and are

for compensation other than

reimbursement of expenses. Paragraph

(b)(4)(ii) of § 3501.105 sets forth for ease

of reference the definition of

‘‘prohibited source’’ at 5 CFR

2635.203(d), as supplemented by the

designation of separate agency

components at § 3501.102.

III. Repeal of Portions of the

Department’s Employee

Responsibilities and Conduct

Regulations and Related Modifications

The interim rule removes those

provisions in the regulations at 43 CFR

part 20 governing Department

employees’ responsibilities and conduct

that had remained in effect through

November 1, 1996, pursuant to the notes

following 5 CFR 2635.403(a) and

2635.803, as extended, and the

appendixes to part 2635. In addition,

the interim rule removes a provision

dealing with use of official title, which

was superseded when the executive

branch-wide Standards went into effect

on February 3, 1993, but which

inadvertently was not removed from 43

CFR part 20 when the Department first

amended that regulation in response to

the issuance of the Standards.

The interim rule also removes

provisions in 43 CFR part 20 which,

based on the United States Bureau of

Mines’ organic legislation at 30 U.S.C. 6,

prohibited certain interests in mining

activities for certain Department

employees. Pub. L. 104–134, the

Omnibus Consolidated Rescissions and

Appropriations Act of 1996, closed the

United States Bureau of Mines on April

26, 1996. Likewise, the interim rule

removes provisions in 43 CFR part 20

that were based on prohibitions in the

Trading with Indians Act, at 18 U.S.C.

437. Pub. L. 104–178 repealed 18 U.S.C.

437 on August 6, 1996.

Additionally, the Department is

removing from 43 CFR part 20 various

sections that are redundant, in light of

other regulations. Those sections, and

the regulations which the Department

has determined make them unnecessary

for inclusion in 43 CFR part 20, are

§ 20.735–2(c) regarding equal

employment opportunity policy, and

§ 20.735–10(a) regarding sexual

harassment, both unnecessary in light of

regulations at 29 CFR part 1614;

§ 20.735–6 regarding gifts and

decoration from foreign governments,

unnecessary in light of regulations at 41

CFR part 101–49; § 20.735–8 regarding

nepotism, unnecessary in light of

regulations at 5 CFR part 310; § 20.735–

9 regarding political activity,

unnecessary in light of regulations at 5

CFR part 734; and § 20.735–10(h)

regarding patents, unnecessary in light

of regulations at 43 CFR part 6.

These removals leave in 43 CFR part

20 only provisions which the

Department has authority to issue

independent of 5 CFR part 2635 or

which for other reasons set forth in 5

CFR 2635.105 do not have to be

included in an agency’s supplemental

standards of ethical conduct regulation.

Among these provisions are rules

regarding acceptance and payment of

travel and related expenses. Revisions to

those provisions are being made to

inform employees of the Department’s

authority under 31 U.S.C. 1353 to accept

payment from non-Federal sources for

employees who are on official travel to

a meeting or similar function. Nonsubstantive changes have been made to

this and other preserved provisions, to

reflect changes in related authorities or

for greater clarity.

The provisions remaining in 43 CFR

part 20 are being redesignated, and are

having added to them a cross-reference

to the executive branch-wide Standards

at 5 CFR part 2635, the Department’s

supplemental standards of ethical

conduct being codified at 5 CFR part

3501, the executive branch financial

disclosure regulations at 5 CFR part

2634, and the employee responsibilities

and conduct regulations at 5 CFR part

735.

IV. Matters of Regulatory Procedure

Executive Order 12866

In promulgating this interim rule, the

Department has adhered to the

regulatory philosophy and the

applicable principles of regulation set

forth in section 1 of Executive Order

12866, Regulatory Planning and Review.

This regulation has not been reviewed

by the Office of Management and

Budget under that Executive Order as it

deals with agency organization,

management, and personnel matters and

is not, in any event, deemed

‘‘significant’’ thereunder.

Administrative Procedure Act

The Department has found good

cause, pursuant to 5 U.S.C. 553(a)(2),

(b), and (d)(3), for waiving, as

unnecessary and contrary to the public

interest, the general notice of proposed

rulemaking and the 30-day delay in

effectiveness as to these interim rules

and repeals. The reason for this

determination is that it is important to

a smooth transition from the

Department’s prior ethics rules to the

new executive branch-wide Standards

that these rulemaking actions become

effective as soon as possible.

Furthermore, this rulemaking is related

to the Department’s organization,

procedure and practice. Nonetheless,

this is an interim rulemaking, with

provision for a 60-day public comment

period. The Department will review all

comments received during the comment

period and will consider any

modifications that appear appropriate in

adopting these rules as final, with the

concurrence and co-signature of the

Office of Government Ethics.

Regulatory Flexibility Act

The Department has determined that

these regulations will not have a

significant economic impact on a

substantial number of small entities

within the meaning of the Regulatory

Flexibility Act (5 U.S.C. 605).
53718 Federal Register / Vol. 62, No. 200 / Thursday, October 16, 1997 / Rules and Regulations

Paperwork Reduction Act

The Department has determined that

these regulations do not contain any

information collection requirements that

require the approval of the Office of

Management and Budget pursuant to the

Paperwork Reduction Act (44 U.S.C.

chapter 35).

List of Subjects in 5 CFR Part 3501 and

43 CFR Part 20

Conflict of interests, Government

employees.

Dated: September 30, 1997.

John R. Garamendi,

Deputy Secretary, Department of the Interior.

Approved: October 7, 1997.

F. Gary Davis,

Deputy Director, Office of Government Ethics.

Accordingly, for the reasons set forth

in the preamble, the Department of the

Interior is amending title 5 of the Code

of Federal Regulations with the

concurrence of the Office of

Government Ethics, and is also

amending title 43 of the Code of Federal

Regulations as follows:

TITLE 5—[AMENDED]

1. A new chapter XXV, consisting of

part 3501, is added to title 5 of the Code

of Federal Regulations to read as

follows:

CHAPTER XXV—DEPARTMENT OF THE

INTERIOR

PART 3501—SUPPLEMENTAL

STANDARDS OF ETHICAL CONDUCT

FOR EMPLOYEES OF THE

DEPARTMENT OF THE INTERIOR

Sec.

3501.101 General.

3501.102 Designation of separate agency

components.

3501.103 Prohibited interests in Federal

lands.

3501.104 Prohibited interests in mining.

3501.105 Outside employment and

activities.

Authority: 5 U.S.C. 301, 7301; 5 U.S.C.

App. (Ethics in Government Act of 1978); 30

U.S.C. 1211; 43 U.S.C. 11, 31(a); E.O. 12674,

3 CFR, 1989 Comp., p. 215, as modified by

E.O. 12731, 3 CFR, 1990 Comp., p. 306; 5

CFR 2635.105, 2635.203(a), 2635.403(a),

2635.803.

§ 3501.101 General.

(a) In accordance with 5 CFR

2635.105, the regulations in this part

apply to employees of the Department of

the Interior and supplement the

Standards of Ethical Conduct for

Employees of the Executive Branch

contained in 5 CFR part 2635. In

addition to the regulations in 5 CFR part

2635 and this part, employees of the

Department are subject to the employee

responsibilities and conduct regulations

at 5 CFR part 735; the executive branch

financial disclosure regulations at 5 CFR

part 2634; and the Department’s

employee responsibilities and conduct

regulations at 43 CFR part 20.

(b) Definitions. As used in this part:

(1) Department means the U.S.

Department of the Interior and any of its

components.

(2) Bureau means each major program

operating component of the Department,

the Office of the Secretary, the Office of

the Solicitor, and the Office of the

Inspector General.

(3) Designated Agency Ethics Official

means the Assistant Secretary—Policy,

Management and Budget.

(4) Ethics Counselor means the head

of each bureau, except that the Deputy

Assistant Secretary for Policy is the

Ethics Counselor for employees within

the Office of the Secretary.

(5) Deputy Ethics Counselor means

the bureau personnel officer or other

qualified headquarters employee who

has been delegated responsibility for the

operational duties of the Ethics

Counselor for the bureau.

(c) Bureau instructions. With the

concurrence of the Designated Agency

Ethics Official, each Ethics Counselor is

authorized, consistent with 5 CFR

2635.105(c), to issue explanatory

guidance and establish procedures

necessary to implement this part and

part 2635 of this title for his or her

bureau.

§ 3501.102 Designation of separate agency

components.

(a) Each of the following ten

components of the Department is

designated as an agency separate from

each of the other nine listed

components and, for employees of that

component, as an agency distinct from

the remainder of the Department, for

purposes of the regulations in subpart B

of 5 CFR 2635 governing gifts from

outside sources, 5 CFR 2635.807

governing teaching, speaking and

writing, and § 3501.105 requiring prior

approval of outside employment.

However, the following ten components

are not deemed to be separate agencies

for purposes of applying any provision

of 5 CFR part 2635 or this part to

employees of the remainder of the

Department:

(1) Bureau of Indian Affairs, including

the Office of Indian Education

Programs;

(2) Bureau of Land Management;

(3) Bureau of Reclamation;

(4) Minerals Management Service;

(5) National Indian Gaming

Commission;

(6) National Park Service;

(7) Office of Surface Mining

Reclamation and Enforcement;

(8) Office of the Special Trustee for

American Indians;

(9) U.S. Fish and Wildlife Service;

and

(10) U.S. Geological Survey.

(b) Employees in components not

listed in paragraph (a) of this section

(including employees within the

immediate office of each Assistant

Secretary) are employees of the

remainder of the Department, which for

those employees shall include the

components designated in this section

as well as those parts of the Department

not designated in this section.

Example 1: A company that conducts

activities regulated by the Bureau of Land

Management would not be a prohibited

source of gifts for an employee of the

National Park Service (NPS), unless that

company seeks official action by the NPS;

does business or seeks to do business with

the NPS; conducts activities that are

regulated by the NPS; or has interests that

may be substantially affected by the

performance or nonperformance of that

employee’s official duties.

Example 2: A paralegal who works parttime in the Office of the Solicitor wants to

take an additional part-time job with a

private company that does business with the

U.S. Geological Survey. The company is a

prohibited source for the paralegal, since the

company does business with a component of

the Department from which his component

has not been listed as separate in

§ 3501.102(a). The paralegal must obtain

prior approval for the outside employment,

because § 3501.105 requires employees to

obtain such approval before engaging in

outside employment with a prohibited

source.

§ 3501.103 Prohibited interests in Federal

lands.

(a) Cross-references to statutory

prohibitions—(1) Prohibited purchases

of public land by Bureau of Land

Management employees. As set forth in

43 CFR 20.401, the officers, clerks, and

employees in the Bureau of Land

Management are prohibited by 43 U.S.C.

11 from directly or indirectly

purchasing or becoming interested in

the purchase of any of the public lands.

(2) Prohibited interests in the lands or

mineral wealth of the region under

survey for U.S. Geological Survey

employees. As set forth in 43 CFR

20.401, the Director and members of the

U.S. Geological Survey are prohibited

by 43 U.S.C. 31(a) from having any

personal or private interests in the lands

or mineral wealth of the region under

survey.

(b) Prohibited financial interests in

Federal lands for Minerals Management

Service employees and for the Secretary

and employees of the Office of the
Federal Register / Vol. 62, No. 200 / Thursday, October 16, 1997 / Rules and Regulations 53719

Secretary and other Departmental

offices reporting directly to a Secretarial

officer who are in positions classified at

GS–15 and above. (1) Except as

provided in paragraph (b)(2) of this

section, the following employees may

not acquire or hold any direct or

indirect financial interest in Federal

lands or resources administered or

controlled by the Department:

(i) All employees of the Minerals

Management Service; and

(ii) The Secretary and employees of

the Office of the Secretary and other

Departmental offices reporting directly

to a Secretarial officer who are in

positions classified at GS–15 and above.

As used in this section, ‘‘Office of the

Secretary and other Departmental

Offices reporting directly to a Secretarial

officer’’ means the Immediate Office of

the Secretary; Office of the Solicitor;

Office of the Inspector General; Office of

Communications; Office of

Congressional and Legislative Affairs;

all Assistant Secretaries, their

immediate Office staff and heads of

bureaus which are subordinate to an

Assistant Secretary. This includes the

following offices under the Office of the

Assistant Secretary—Policy,

Management and Budget: Office of

Budget, Office of Hearings and Appeals,

Office of Acquisition & Property

Management, Office of Environmental

Policy and Compliance, Office of Policy

Analysis, Office of Financial

Management, and Office of Information

Resources Management.

(2) Exceptions. The prohibition in

paragraph (b)(1) of this section does not

apply to:

(i) An individual employed on an

intermittent or seasonal basis for a

period not exceeding 180 working days

in each calendar year; or

(ii) A special Government employee

engaged in field work relating to land,

range, forest, and mineral conservation

and management activities.

(c) Prohibition as to Departmentgranted rights in Federal lands. (1)

Except as provided in paragraph (c)(2)

of this section, employees and their

spouses and their minor children are

prohibited from acquiring or retaining

any claim, permit, lease, small tract

entries, or other rights that are granted

by the Department in Federal lands.

(2) Exceptions. (i) Nothing in

paragraph (c)(1) of this section prohibits

the recreational or other personal and

noncommercial use of Federal lands by

an employee, or the employee’s spouse

or minor child, on the same terms as use

of Federal lands is available to the

general public.

(ii) Unless otherwise prohibited by

law, employees in the Office of the

Assistant Secretary—Indian Affairs, or

in the Bureau of Indian Affairs, and the

spouses and minor children of such

employees, are not prohibited by

paragraph (c)(1) of this section from

acquiring or retaining rights in Federal

lands controlled by the Department for

the benefit of Indians or Alaska Natives.

(d) Divestiture. The Designated

Agency Ethics Official may require an

employee to divest an interest the

employee is otherwise authorized to

retain under an exception listed in this

section, based on a determination of

substantial conflict under § 2635.403(b)

of this title.

(e) Waivers. The Designated Agency

Ethics Official may grant a written

waiver from the prohibitions contained

in paragraphs (b) and (c) of this section,

based on a determination that the

waiver is not inconsistent with 5 CFR

part 2635 or otherwise prohibited by

law and that, under the particular

circumstances, application of the

prohibition is not necessary to avoid the

appearance of misuse of position or loss

of impartially, or otherwise to ensure

confidence in the impartiality and

objectivity with which Department

programs are administered. A waiver

under this paragraph may be

accompanied by appropriate conditions,

such as acquiring execution of a written

statement of disqualification.

Notwithstanding the grant of any

waiver, an employee remains subject to

the disqualification requirements of 5

CFR 2635.402 and 2635.502.

(f) Pre-existing interests. An employee

may retain a financial interest otherwise

prohibited by paragraph (b) or (c) of this

section which was approved in writing

under criteria and procedures in effect

before November 2, 1996, unless the

approval is withdrawn by the

Designated Agency Ethics Official,

subject to the standards for waivers in

paragraph (e) of this section.

§ 3502.104 Prohibited interests in mining.

(a) Cross-referenced to statutory

prohibition. As set forth in 30 CFR part

706 and 43 CFR 20.402, employees of

the Office of Surface Mining

Reclamation and Enforcement and other

employees who perform functions or

duties under the Surface Mining Control

and Reclamation Act of 1977, 30 U.S.C.

1201 et seq., are prohibited by 30 U.S.C.

1211(f) from having a direct or indirect

financial interest in underground or

surface coal mining operations.

(b) Prohibited interests in private

mining activities in the United States for

U.S. Geological Survey employees, their

spouses, and minor children. (1) Except

as provided in this section, no employee

of the U.S. Geological Survey (USGS), or

spouse or minor child of a USGS

employee, shall have a direct or indirect

financial interest in private mining

activities in the United States.

(2) Definitions. For purposes of

applying the prohibition in paragraph

(b)(1) of this section:

(i) Financial interest has the meaning

set forth in 5 CFR 2635.403(c), and

includes an employee’s legal or

beneficial interest in a trust.

(ii) Private mining activities means

exploration, development, and

production of oil, gas, and other

minerals on land in the United States

that is not owned by the Federal

government or by a State or local

government.

(3) Exceptions. The prohibition set

forth in paragraph (b)(1) of this section

does not apply to:

(i)(A) Financial interests worth $5000

or less, for employees (or their spouses

and minor children) of the Office of the

Director and the Geologic Division, or

(B) A single financial interest worth

$5000 or less or an aggregate of financial

interests worth $15,000 or less, for

employees (or their spouses and minor

children) of all other USGS

organizational elements;

(ii) Mineral royalties and overriding

royalty interests of $600 per year or less;

(iii) A publicly traded or publicly

available investment fund (e.g., a

mutual fund) which, in its prospectus,

does not indicate the objective or

practice of concentrating its investments

in entities engaged in private mining

activities in the United States, if the

employee neither exercises control nor

has the ability to exercise control over

the financial interests held in the fund;

(iv) A legal or beneficial interest in a

qualified profit sharing, retirement, or

similar plan, provided that the plan

does not invest more than 25 percent of

its funds in debt or equity instruments

of entities engaged in private mining

activities in the United States, and the

employee neither exercise control nor

has the ability to exercise control over

the financial interests held in the plan;

or

(v) The ownership of a financial

interest by an employee’s spouse or

minor child where the spouse or minor

child obtained the interest through:

(A) A gift from someone other than

the employee or a member of the

employee’s household;

(B) Inheritance;

(C) Acquisition prior to the

employee’s becoming a USGS employee;

(D) Acquisition prior to marriage to a

USGS employee; or

(E) A compensation package in

connection with the employment of the

spouse or minor child.
53720 Federal Register / Vol. 62, No. 200 / Thursday, October 16, 1997 / Rules and Regulations

(4) Divestiture. The Director of the

U.S. Geological Survey may require an

employee to divest an interest the

employee is otherwise authorized to

retain under an exception listed in

paragraph (b)(3) of this section, based on

a determination of substantial conflict

under § 2635.403(b) of this title.

(5) Waivers. The Director of the U.S.

Geological Survey may grant a written

waiver from the prohibition contained

in paragraph (b)(1) of this section, based

on a determination that the waiver is

not inconsistent with 5 CFR part 2635

or otherwise prohibited by law, and

that, under the particular circumstances,

application of the prohibition is not

necessary to avoid the appearance of

misuse of position or loss of

impartiality, or otherwise to ensure

confidence in the impartiality and

objectivity with which Department

programs are administered. A waiver

under this paragraph may be

accompanied by appropriate conditions,

such as requiring execution of a written

statement of disqualification.

Notwithstanding the granting of any

waiver, an employee remains subject to

the disqualification requirements of 5

CFR 2635.402 and 2635.502.

(6) Pre-existing interests. A spouse or

minor child of an employee may retain

a financial interest otherwise prohibited

by paragraph (b)(1) of this section which

was permitted under criteria and

procedures in effect before November 2,

1996, unless the Director of the U.S.

Geological Survey determines in writing

that such retention is inconsistent with

the standards for waivers in paragraph

(b)(5) of this section.

§ 3501.105 Outside employment and

activities.

(a) Prohibited outside employment

and activities. (1) Under 43 U.S.C. 31(a),

employees of the U.S. Geological Survey

shall execute no surveys or

examinations for private parties or

corporations.

(2) Employees in the Bureau of Land

Management may not engage in outside

employment as real estate agents and

realty specialists. Such employees are

not required to cancel a real estate

license, but may maintain the license on

an inactive basis.

(3) Employees in the Office of the

Assistant Secretary—Indian Affairs, or

in the Bureau of Indian Affairs (BIA),

may not hold a position on a tribal

election board or on a tribal school

board which oversees BIA schools.

Note to paragraph (a)(3): Except for

membership on a tribal election board and a

tribal school board which oversees BIA

schools, an eligible person employed in the

Office of the Assistant Secretary—Indian

Affairs or in the BIA may become a candidate

for office in his local tribe or may be

appointed as a representative of his local

tribe if prior approval is obtained from the

Deputy Assistant Secretary—Indian Affairs

pursuant to paragraph (b) of this section.

(b) Prior approval of outside

employment—(1) Prior approval

requirement. (i) An employee of the

Department, other than an employee of

the U.S. Geological Survey or a special

Government employee, shall obtain

written approval from his ethics

counselor or other agency designee

before engaging in outside employment

with a prohibited source.

(ii)(A) An employee of the U.S.

Geological Survey (USGS), other than a

special Government employee, shall

obtain written approval from the USGS

deputy ethics counselor before engaging

in any outside employment.

(B) The USGS may issue instructions

exempting categories of employment

from the prior approval requirement in

paragraph (b)(1)(ii)(A) of this section,

based on a determination that the

employment within those categories

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.

(2) Form of request for approval.

(i) A request for prior approval of

outside employment shall include, at a

minimum, the following:

(A) The employee’s name,

occupational title, office address, and

office telephone number;

(B) A brief description of the

employee’s official duties;

(C) The nature of the outside

employment, including a full

description of the specific duties or

services to be performed;

(D) The name and address of the

prospective outside employer; and

(E) A statement that the employee

currently has no official duties

involving a matter that affects the

outside employer and will disqualify

himself from future participation in

matters that could directly affect the

outside employer.

(ii) Upon a significant change in the

nature of the outside employment or in

the employee’s official position, the

employee shall submit a revised request

for approval.

(3) Standard for approval. Approval

shall be granted unless a determination

is made that the outside employment is

expected to involve conduct prohibited

by statute or Federal regulation,

including 5 CFR part 2635 and this part.

(4) Definitions. As used in this

section:

(i) Employment means any form of

non-Federal business relationship

involving the provision of personal

services by the employee, with or

without compensation. It includes but is

not limited to personal services as an

officer, director, employee, agent,

attorney, consultant, contractor, general

partner, trustee, teacher, or speaker. It

includes writing 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 the provision of

professional services or advice for

compensation other than reimbursement

for actual expenses.

(ii) Prohibited source has the meaning

in 5 CFR 2635.203(d), as supplemented

by § 3501.102, and includes any person

who:

(A) Is seeking official action by the

Department or, in the case of an

employee of one of the separate agency

components designated in § 3501.102(a),

by that component;

(B) Does business or seeks to do

business with the Department, or in the

case of an employee of one of the

separate agency components designated

in § 3501.102(a), with that component;

(C) Conducts activities regulated by

the Department or, in the case of an

employee of one of the separate agency

components designated in § 3501.102(a),

by that component;

(D) Has interests that may be

substantially affected by the

performance or nonperformance of the

employee’s official duties; or

(E) Is an organization a majority of

whose members are described in

paragraphs (c)(4)(ii) (A) through (D) of

this section.

TITLE 43—[AMENDED]

SUBTITLE A—[AMENDED]

2. Part 20 of 43 CFR is revised to read

as follows:

PART 20—EMPLOYEE

RESPONSIBILITIES AND CONDUCT

Subpart A—General Provisions

Sec.

20.101 Cross-references to ethical conduct,

financial disclosure and other applicable

regulations.

20.102 Definitions.

20.103 Employee responsibilities.

Subpart B—Department Ethics Program

20.201 Ethics officials.

20.202 Ethics program responsibilities.

20.203 Exclusion from confidential

financial disclosure requirement for

certain special Government employees.
Federal Register / Vol. 62, No. 200 / Thursday, October 16, 1997 / Rules and Regulations 53721

Subpart C—Acceptance and Payment of

Travel and Related Expenses

20.301 General policy.

20.302 Exclusions.

Subpart D—Special Provisions Governing

Financial and Other Outside Interests of

Certain Employees of the Department

20.401 Interests in Federal lands.

20.402 Interests in underground or surface

coal mining operations.

20.403 Certificates of disclaimer.

Subpart E—Other Employee Conduct

Provisions

20.501 General policy.

20.502 Conformance with policy and

subordination to authority.

20.503 Scope of authority.

20.504 Selling or soliciting.

20.505 Habitual use of intoxicants.

20.506 Appropriations, legislation and

lobbying.

20.507 Unlawful organizations.

20.508 Notary.

20.509 Penalty mail and official stationery.

20.510 Fraud or false statements in a

Government matter.

20.511 Carrying of firearms.

20.512 Labor practices.

Subpart F—Disciplinary and Remedial

Actions

20.601 General.

20.602 Remedial action.

20.603 Appealing an order for remedial

action.

Authority: 5 U.S.C. 301; 5 U.S.C. App.

(Reorganization Plan No. 3 of 1950); 30

U.S.C. 1211; 43 U.S.C. 11, 31; 5 CFR

2634.903, 2634.905.

Subpart A—General Provisions

§ 20.101 Cross-references to ethical

conduct, financial disclosure and other

applicable regulations.

In addition to the rules in this part,

employees of the Department of the

Interior also should refer to the

Standards of Ethical Conduct for

Employees of the Executive Branch, at

5 CFR part 2635; the Department’s

regulations that supplement those

executive branch-wide standards at 5

CFR part 3501; the employee

responsibilities and conduct regulations

at 5 CFR part 735; and the executive

branch financial disclosure regulations

at 5 CFR part 2634.

§ 20.102 Definitions.

(a) The following terms are used

throughout this part and have the

following meanings:

(1) Department means the U.S.

Department of the Interior and any of its

components.

(2) Secretary means the Secretary of

the Interior.

(3) Bureau means each major program

operating component of the Department,

the Office of the Secretary, the Office of

the Solicitor, and the Office of the

Inspector General.

(4) Employee means a regular

employee, a special Government

employee, and a contract education

employee in the Office of the Assistant

Secretary—Indian Affairs or the Bureau

of Indian Affairs, unless the text of a

particular subpart, section, or paragraph

indicates that either regular employees

or special Government employees are

not intended to be covered by that

subpart, section or paragraph.

Volunteers in National Parks whose

services are accepted pursuant to 16

U.S.C. 18g are not employees.

(b) Specific definitions. Additional

definitions of terms specifically

associated with a particular subpart,

section, or paragraph are found in that

subpart, section, or paragraph.

§ 20.103 Employee responsibilities.

It is the responsibility of each

employee:

(a) To be familiar with and to comply

with all Federal statues, Executive

Orders, and regulations that govern his

or her conduct. Employees are expected

to consult with their supervisors and

servicing ethics counselors on questions

they may have regarding the

applicability of any ethics or other

conduct provision. Ethics advice may

also be obtained from the Solicitor’s

Office and the Department Ethics Office.

(b) To report directly or through

appropriate channels to the Office of

Inspector General or other appropriate

authority matters coming to their

attention which do or may involve

violations of law or regulation by

employees, contractors, sub-contractors,

grantees, subgrantees, lessees, licensees

or other persons having official business

with the Department.

Subpart B—Department Ethics

Program

§ 20.201 Ethics officials.

(a) The Designated Agency Ethics

Official is the Assistant Secretary—

Policy, Management and Budget. In

accordance with 5 CFR 2638.203, the

Designated Agency Ethics Official is

responsible for the coordination and

management of the Department’s ethics

program.

(b) The head of each bureau is the

‘‘Ethics Counselor’’ for that bureau,

except that the Deputy Assistant

Secretary for Policy is the Ethics

Counselor for employees in the Office of

the Secretary and related offices. The

Solicitor is the Ethics Counselor for the

Office of the Solicitor and the Inspector

General is the Ethics Counselor for the

Office of Inspector General.

(c) The personnel officer for each

bureau or other qualified employee who

has been delegated responsibility for the

operational duties of the Ethics

Counselor for the bureau, it the ‘‘Deputy

Ethics Counselor’’ for that bureau.

(d) A bureau, regional, or area

personnel officer or other qualified

employee may be assigned to serve as an

‘‘Associate Ethics Counselor’’ or

‘‘Assistant Ethics Counselor,’’ with

delegated responsibility to perform the

operational duties of the Ethics

Counselor at the field level. Associate

Ethics Counselors or Assistant Ethics

Counselors may also be designated

within the bureau headquarters.

§ 20.202 Ethics program responsibilities.

(a) The Designated Agency Ethics

Official (or the alternate agency ethics

official in his or her absence) shall

coordinate and manage the department’s

ethics program in accordance with 5

CFR 2638.203.

(b) Each Ethics Counselor shall, for

his or her bureau:

(1) Order disciplinary or remedial

action in accordance with the

provisions of subpart F of this part. This

authority may not be redelegated.

(2) Designate: (i) The Bureau

Personnel Officer (or other qualified

headquarters employee) as Deputy

Ethics Counselor to carry out

operational duties of the Ethics

Counselor within their bureaus under

the general direction of the Ethics

Counselor; and

(ii) Headquarters bureau, regional, or

area personnel officers (or other

qualified employees) as Associate Ethics

Counselors or Assistant Ethics

Counselors to perform ethics counseling

and the collection and review of

financial disclosure reports.

(3) Ensure that vacancy

announcements for positions which

require a public or confidential financial

disclosure report alert applicants to the

filing requirement.

(4) Establish and maintain internal

procedures and guidelines to adequately

and systematically inform employees of

the content, meaning, and importance of

ethical conduct and other conduct

regulations.

(c) All supervisors may make

decisions as to whether conduct by

employees under their supervision

would result in the appearance that the

employee would violate or is violating

the ethical standards set forth in 5 CFR

2635; all supervisors are expected,

therefore, to be familiar with those

standards. In addition, any supervisor

who grants prior approval of an

employee’s outside employment under

5 CFR 3501.105(b) is expected, at a
53722 Federal Register / Vol. 62, No. 200 / Thursday, October 16, 1997 / Rules and Regulations

minimum, to provide information to the

employee about the prohibitions in 18

U.S.C. 203, 205 and 208 at the time such

approval is granted.

§ 20.203 Exclusion from confidential

financial disclosure requirement for certain

special Government employees.

In an instance involving the proposed

employment of a special Government

employee for highly specialized and

limited duties, the head of the bureau or

office may propose to the Designated

Agency Ethics Official (DAEO) a

reporting of financial interests restricted

to such interests as may be determined

to be relevant to the duties the special

Government employee is to perform.

The DAEO may, under the provisions of

5 CFR 2634.905, exclude the special

Government employee from all or a

portion of the confidential reporting

requirements of the OGE Form 450. Any

confidential financial disclosure

requirement must be satisfied by the

special Government employee before he

begins his employment.

Subpart C—Acceptance and Payment

of Travel and Related Expenses

§ 20.301 General policy.

(a) Except as specifically authorized

by law, when an employee is on official

duty (no leave status), all travel and

accommodations shall be at Government

expense and his or her acceptance of

outside reimbursement for travel

expenses or services in kind from

private sources, either in his or her

behalf or in behalf of the Government,

is not allowed.

(b) Under certain circumstances, the

Department may charge a fee or accept

reimbursement for providing a service

or thing of value to a private source

when the service or thing of value

provided benefits to both the

Government and the particular private

source (31 U.S.C. 9701). In such

instances only a portion of the costs can

be accepted from the private source. The

Department must pay expenses

associated with its usual official

business and for the benefits it receives

from participating in the event. The

private source can be charged or may

reimburse the Department for that

portion of the service provided that

exceeds the Department’s usual

expenses and the benefits to the

Government. Under this provision,

payments from private sources must be

deposited in the U.S. Treasury unless

the bureau receiving the payment is

authorized by statute to accept such

payments.

(c) When a bureau is authorized by

statute other than 31 U.S.C. 1353 to

accept gifts, and 31 U.S.C. 1353 does not

apply, the travel expenses incurred by

an employee directed to participate in a

convention, seminar, or similar meeting

sponsored by a private source for the

mutual interest of the Government and

the private source may be reimbursed to

the bureau and credited to its

appropriation. The employee shall be

paid by the bureau in accordance with

the law relating to reimbursement for

official travel and any accommodations

and goods or services in kind furnished

an employee shall be treated as a

donation to the bureau and an

appropriate reduction shall be made to

the employee’s reimbursement (46 CG

689 (1967)).

(d) When participation at a function is

not in an official capacity, an employee

may accept reimbursement of travel and

accommodation expenses from a private

source, provided that such acceptance is

permitted by law and Federal

regulations. Participation as a private

citizen must occur on one’s own time,

such as while on leave. If participation

should occur during the course of

official travel (i.e., evening or weekend

hours during official travel status), the

travel voucher submitted for

Government reimbursement of official

duty expenses must be adjusted to claim

only that per diem and travel

attributable to official duty. Employees

who are in positions for which the rate

of pay is specified in 5 U.S.C. 5311–

5318 (the Executive Schedule) are on

24-hour duty, and determinations of

what constitutes official duty and what

is private participation should be

carefully made.

§ 20.302 Exclusions.

(a) Where employee travel is for

attendance at a meeting or similar

function (31 U.S.C. 1353(a)), the

Department may accept payment for the

employee and/or the employee’s

spouse’s travel from a non-Federal

source when proper consideration is

given to the conditions in paragraph

(a)(1) of this section and a written

authorization to accept payment is

issued in advance of the travel.

(1) Conditions. Such travel expenses

paid for by a non-Federal source may be

accepted by the Department only if all

of the following conditions are met:

(i) The travel relates to the employee’s

official duties;

(ii) The travel, subsistence and related

expenses are with respect to the

attendance of an employee (and/or the

accompanying spouse of such employee

when applicable) at a meeting or similar

function. This includes a conference,

seminar, speaking engagement,

symposium, training course, or similar

event that takes place away from the

employee’s official station, and is

sponsored or cosponsored by a nonFederal source;

(iii) The non-Federal source is not

disqualified because of a real or

apparent conflict of interest as

determined under paragraph (a)(2) of

this section; and

(iv) The travel event is not required to

carry out the Department’s statutory or

regulatory functions. Examples of

statutory or regulatory functions that are

essential to the Department’s mission

include investigations, inspections,

audits, site visits, compliance reviews or

program evaluations.

(2) Conflict of interest analysis. (i) The

Department’s acceptance of any

payment from a non-Federal source

under the authority of 31 U.S.C. 1353

shall not be approved when an

Authorized Approving Official,

identified in paragraph (a)(2)(iii) of this

section, determines that under the

circumstances, acceptance of the travel

expenses would cause a reasonable

person with knowledge of all relevant

facts to:

(A) Question the integrity of the work

to be performed by the employee

receiving the benefit; or

(B) Question the integrity of the

Department’s other program operations.

(ii) When making these

determinations, an Authorized

Approving Official shall be guided by

all relevant considerations including,

but not limited to:

(A) The identity of the non-Federal

source and the source’s relationship to

the Department;

(B) The purpose of the meeting or

similar function and its relationship to

the Department’s programs or

operations;

(C) The identity of other expected

participants and their relationship to the

Department;

(D) The nature and sensitivity of any

pending Department matter which,

when decided, may affect the interests

of the non-Federal source;

(E) The significance of the employee’s

role in any such pending matter;

(F) The monetary value and character

of the travel benefits offered by the nonFederal source; and

(G) The potential reaction from

Department customers, including the

public, if the acceptance of travel

expenses was made known to them.

(iii) An ‘‘Authorized Approving

Official’’ means that Department official

who has been delegated authority to

approve the usual travel authorizations

of the employee who will benefit from

the non-Federal travel payment.
Federal Register / Vol. 62, No. 200 / Thursday, October 16, 1997 / Rules and Regulations 53723

(iv) The procedures stated below must

be satisfied before the employee (and/or

the accompanying spouse) begin his or

her travel:

(A) Each employee (and/or the

accompanying spouse) must have an

approved Travel Authorization (Form

DI–1020). Section 10 (‘‘Purpose and

Remarks’’) of this Form must contain a

statement that the authority to accept

payment from a non-Federal source for

the specified travel event is 31 U.S.C.

1353, and the travel situation complies

with the conditions for acceptance

under 41 CFR 304–1.4.

(B) The supplementary form entitled,

‘‘Report of Payments Accepted From

Non-Federal Sources Under 31 U.S.C.

1353’’ (Form DI–2000) must also be

completed and signed by the employee

and the Authorized Approving Official.

A copy of Form DI–1020 and Form DI–

2000 must be filed with the employee’s

Deputy Ethics Counselor.

(C) Payment from a non-Federal

source to cover the travel related

expenses of an employee may be made

in the form of a check or similar

instrument made payable to the

Department. Employees should not

accept cash or negotiate checks or

similar instruments payable to them.

Any negotiable instruments received by

an employee shall be transmitted

immediately to the appropriate

accounting office.

(b) When on official duty,

contributions and awards incident to

training in non-Government facilities,

and payment of travel, subsistence, and

other expenses incident to attendance at

meetings may be accepted by an

employee when the payment is made by

a non-profit, tax exempt organization as

described in 26 U.S.C. 501(c)(3) and

when no real or apparent conflict of

interest will result. Prior advice should

be obtained from the employee’s ethics

counselor in this circumstance (5 U.S.C.

4111).

(c) Employees may accept

reimbursement by the Department for

travel and related expenses when on

detail under the Intergovernmental

Personnel Act, in accordance with 5

U.S.C. 3375.

(d) Should the Director of the United

States Information Agency, with the

approval of the employing agency,

assign an employee to a foreign

government, reimbursement for the

employee’s pay and allowances shall be

made to the United States in an amount

equal to the compensation, travel

expenses, and allowances payable to

such person during the period of such

assignment, in accordance with 22

U.S.C. 1451.

(e) Should an employee be detailed by

the Secretary to an international

organization which requests services,

the employee is deemed to be (for the

purpose of preserving his or her

allowances, privileges, rights, seniority,

and other benefits) an employee of the

Department and the employee is

entitled to pay, allowances, and benefits

from funds available to the Department.

The international organization may

reimburse the Department for all or part

of the pay, travel expenses, and

allowances payable during the detail; or,

the detailed employee may be paid or

reimbursed directly by the international

organization for allowances or expenses

incurred in the performance of duties

required by the detail without regard to

18 U.S.C. 209 (5 U.S.C. 3343).

Subpart D—Special Provisions

Governing Financial and Other Outside

Interests of Certain Employees of the

Department

§ 20.401 Interests in Federal lands.

(a) Statutory prohibition applicable to

employees of the Bureau of Land

Management. (1) In accordance with 43

U.S.C. 11, employees of the Bureau of

Land Management are prohibited from

voluntarily acquiring a direct or indirect

interest in Federal lands.

(2) Definitions. For purposes of

applying the prohibition in 43 U.S.C.

11:

(i) Federal lands. means public lands

or resources or an interest in lands or

resources administered or controlled by

the Department, including, but not

limited to, all submerged lands lying

seaward outside of the area of ‘‘lands

beneath navigable water’’ as defined in

43 U.S.C. 1301(a), and of which the

subsoil and seabed appertain to the

United States and are subject to its

jurisdiction and control.

(ii) Direct interest in Federal lands

means any employee ownership or part

ownership in Federal lands or any

participation in the earnings therefrom,

or the right to occupy or use the

property or to take any benefits there

from, based upon a contract, grant,

lease, permit, easement, rental

agreement, or application. Direct

interest in Federal lands also includes:

(A) Membership or outside

employment in a business which has

interests in Federal lands; and.

(B) Ownership of stock or other

securities in corporations determined by

the Department to have an interest in

Federal lands directly or through a

subsidiary.

(iii) Indirect interest in Federal lands

means any ownership or part ownership

of an interest in Federal lands by an

employee in the name of another where

the employee still reaps the benefits.

Indirect interest in Federal lands also

includes:

(A) Holdings in land, mineral rights,

grazing rights or livestock which in any

manner are connected with or involve

the substantial use of the resources or

facilities of the Federal lands; or

(B) Substantial holdings of a spouse or

minor child.

(b) Statutory prohibition applicable to

employees of the U.S. Geological

Survey. (1) In accordance with 43 U.S.C.

31(a), the Director and members of the

U.S. Geological Survey are prohibited

from having any personal or private

interests in the lands or mineral wealth

of the region under survey.

(2) Definitions. For purposes of

applying the prohibition in 43 U.S.C.

31(a):

(i) Personal or private interest means

ownership of an interest in, or

employment with a person or enterprise

which leases or uses, Federal lands for

commercial purposes.

(ii) Region under survey means

Federal lands which are administered or

controlled by the Department.

(c) Exclusions. (1)(i) Except for U.S.

mineral surveyors, an individual

employed on an intermittent or seasonal

basis for a period not exceeding 180

working days in each calendar year, and

a special Government employee (SGE)

engaged in field work relating to land,

range, forest, and mineral conservation

and management activities, and the

spouse of such an individual or SGE,

shall not be precluded from retaining

any interest, including renewal or

continuation of existing rights, in

Federal lands, provided that such

individual or SGE or spouse shall not

acquire any additional interest in

Federal lands during employment.

(ii) A U.S. mineral surveyor is a

person appointed under the authority of

30 U.S.C. 39, and as such is included

within the term ‘‘officers, clerks, and

employees’’ of the Bureau of Land

Management as that term is used in 43

U.S.C. 11 and construed in Waskey v.

Hammer, 223 U.S. 85 (1912). U.S.

mineral surveyors are also considered to

be special government employees.

(2) A Bureau of Land Management

employee or any member of the

employee’s family may acquire wild

free-roaming horses or burros from

Federal lands for maintenance and

protection through a cooperative

agreement entered into in accordance

with 43 CFR part 4700.

(3) A Bureau of Land Management

employee may retain a direct or indirect

interest in Federal lands when:
53724 Federal Register / Vol. 62, No. 200 / Thursday, October 16, 1997 / Rules and Regulations

(i) There is little or no relationship

between the employee’s functions or

duties and the particular interest in

Federal lands, and

(ii) The employee, or the spouse or

dependent child of the employee,

acquired such an interest:

(A) By gift, devise, bequest, or court

award or settlement, or

(B) Prior to the time the employee

entered on duty in the Department.

(4) Pursuant to 43 U.S.C. 1621(d), 43

U.S.C. 11 does not apply to any land

grants or other rights granted under 43

U.S.C. chapter 33.

(5) The recreational or other personal

and noncommercial use of the Federal

lands by an employee, the employee’s

spouse or dependent child, on the same

terms as use of the Federal lands is

available to the general public, is not

prohibited.

(6) Advisory councils. Nothing in 43

U.S.C. 11 shall disqualify individuals

appointed pursuant to the Federal Land

Policy and Management Act of 1976, 43

U.S.C. 1739, as members of advisory

boards or councils, from acquiring or

retaining grazing licenses or permits

issued pursuant to section 3 of the

Taylor Grazing Act (43 U.S.C. 315b), or

any other interest in land or resources

administered by the Bureau of Land

Management: Provided, that in no case

shall the member of any such board or

council participate in any advice or

recommendation concerning such

license or permit in which such member

is directly or indirectly interested.

(d) Request for advice. When an

employee is in doubt as to whether the

acquisition or retention of any interest

in lands or resources administered by

the Department would violate the

provisions of this section, a statement of

the facts should be submitted promptly

by the individual involved to his or her

servicing ethics counselor for guidance.

§ 20.402 Interests in underground or

surface coal mining operations.

(a) Definitions. As used in this

section:

(1) Direct financial interest in

underground or surface coal mining

operations means ownership or part

ownership by an employee of lands,

stocks, bonds, debentures, warrants,

partnership shares, or other holdings

and also means any other arrangement

where the employee may benefit from

his or her holding in or salary from coal

mining operation. Direct financial

interests also include employment,

pensions, creditor, real property and

other financial relationships.

(2) Indirect financial interest in

underground or surface coal mining

operations means the same financial

relationships as for direct ownership,

but where the employee reaps the

benefits of such interests including

interests held by his or her spouse,

dependent child and other relatives,

including in-laws, residing in the

employee’s home. The employee will

not be deemed to have an indirect

financial interest if there is no

relationship between the employee’s

functions or duties and the coal mining

operation in which the spouse,

dependent child or other resident

relative holds a financial interest.

(3) Coal mining operation means the

business of developing, producing,

preparing or loading bituminous coal,

subbituminous coal, anthracite or lignite

or of reclaiming the areas upon which

such activities occur.

(4) Performing any function or duty

under the Surface Mining Control and

Reclamation Act of 1977 means those

decisions or actions, which if performed

or not performed by an employee, affect

the programs under the Act.

(b) Prohibitions. (1) Neither the

Director nor any other employee of the

Office of Surface Mining Reclamation

and Enforcement or any other employee

who performs functions or duties under

the Surface Mining Control and

Reclamation Act of 1977, 30 U.S.C. 1201

et seq., shall have a direct or indirect

financial interest in underground or

surface coal mining operations.

(2) The Surface Mining Control and

Reclamation Act of 1977, at 30 U.S.C.

1211(f), provides that anyone who

knowingly violates the prohibitions in

that Act shall, upon conviction, be

punished by a fine of not more than

$2,500, or by imprisonment for not more

than one year, or both.

(c) Employees are encouraged to

review regulations contained in 30 CFR

part 706 which pertain to the

prohibitions restated in this section.

§ 20.403 Certificates of disclaimer.

(a) Each employee of the U.S.

Geological Survey, Bureau of Land

Management, Minerals Management

Service, and Office of Surface Mining

Reclamation and Enforcement shall sign

a certificate of disclaimer upon entrance

to or upon transfer to a position within

any of these bureaus. The employee’s

signature will indicate that he or she:

(1) Is aware of the specific restrictions

pertinent to his or her employment; and

(2) Is in compliance with such

restrictions.

(b) If an employee is unable to sign

the certificate, he or she must submit a

statement of facts to the appropriate

ethics counselor for review and

appropriate action.

(c) Signed certificates of disclaimer

shall be filed and maintained by the

employee’s deputy ethics counselor.

Subpart E—Other Employee Conduct

Provisions

§ 20.501 General policy.

Employees of the Department are

expected to maintain especially high

standards of honesty, integrity,

impartiality, and conduct to ensure the

proper performance of Government

business and the continual trust and

confidence of citizens in their

Government. Employees are expected to

comply with all Federal statutes,

Executive Orders, Office of Government

Ethics and Office of Personnel

Management regulations, and

Departmental regulations. The conduct

of employees should reflect the qualities

of courtesy, consideration, loyalty to the

United States, a deep sense of

responsibility for the public trust,

promptness in dealing with and serving

the public, and a standard of personal

behavior which will be a credit to the

individual and the Department. These

principles apply to official conduct and

to private conduct which affects in any

way the ability of the employee or the

Department to effectively accomplish

the work of the Department.

§ 20.502 Conformance with policy and

subordination to authority.

Employees are required to carry out

the announced policies and programs of

the Department and to obey proper

requests and directions or supervisors.

While policies related to one’s work are

under consideration employees may,

and are expected to, express their

professional opinions and points of

view. Once a decision has been

rendered by those in authority, each

employee is expected to comply with

the decision and work to ensure the

success of programs or issues affected

by the decision. An employee is subject

to appropriate disciplinary action,

including removal, if he or she fails to:

(a) Comply with any lawful

regulations, orders, or policies; or

(b) Obey the proper requests of

supervisors having responsibility for his

or her performance.

§ 20.503 Scope of authority.

Employes shall not engage in any

conduct or activity which is in excess of

his or her authority, or is otherwise

contrary to any law or announced

Departmental policy.

§ 20.504 Selling or soliciting.

Employees and other persons are

prohibited from selling or soliciting for

personal gain within any building or on
Federal Register / Vol. 62, No. 200 / Thursday, October 16, 1997 / Rules and Regulations 53725

any lands occupied or used by the

Department. Exception is granted for

Department-authorized operations,

including, but not limited to, the

Interior Department Recreation

Association, the Indian Arts and Crafts

store, and for cafeteria, newsstand,

snack bar and vending machine

operations which are authorized by the

Department of the benefit of employees

or the public.

§ 20.505 Habitual use of intoxicants.

An employee who habitually uses

intoxicants to excess may be subject to

removal (5 U.S.C. 7352).

§ 20.506 Appropriations, legislation and

lobbying.

(a) Unless expressly authorized by

Congress, employees are prohibited

from using any part of the money

appropriated by any enactment of

Congress to pay for any personal

service, advertisement, telegram,

telephone, letter, printed or written

matter, or other device, intended or

designed to influence in any manner a

Member of Congress, to favor or oppose,

by vote or otherwise, any legislation or

appropriation by Congress, whether

before or after the introduction of any

bill or resolution proposing such

legislation or appropriation; this

prohibition does not prevent any

employee from communicating to

Members of Congress on the request of

any Member or through proper official

channels, requests for legislation or

appropriations which they deem

necessary for the efficient conduct of the

public business (18 U.S.C. 1913).

(b) When acting in their official

capacity, employees are required to

refrain from promoting or opposing

legislation relating to programs of the

Department without the official sanction

of the property Departmental authority.

(c) The rights of employees,

individually or collectively, to

otherwise petition Congress, or to a

Committee or Member thereof, shall not

be interfered with or denied (5 U.S.C.

7211).

§ 20.507 Unlawful organizations.

An employee may not advocate the

violent overthrow of our constitutional

form of government nor may an

employee be a member of an

organization that he or she knows

advocates the violent overthrow of our

constitutional form of government (5

U.S.C. 7311).

§ 20.508 Notary.

An employee is prohibited from

charging fees for performance of any

notarial act for any employee of the

Federal Government who is acting in his

or her official capacity, or for any

person during the hours of such notary’s

service to the Government (E.O. 977,

Nov. 24, 1908).

§ 20.509 Penalty mail and official

stationery.

(a) An employee is prohibited from

using any official envelope, label, or

indorsement authorized by law, to avoid

the payment of postage or registry fee on

his or her private letter, packet, package,

or other matter in the mail (18 U.S.C.

1719).

(b) Official Government envelopes

and official letterhead stationery are

Government property that may only be

used for authorized purposes.

Employees’ use of Government

envelopes to mail their own personal

job applications is not authorized.

§ 20.510 Fraud or false statements in a

Government matter.

An employees shall not, in any matter

within the jurisdiction of any

department or agency of the United

States, knowingly or willfully falsify,

conceal or cover up by any trick,

scheme, or device a material fact, or

make any false, fictitious, fraudulent

statements or representations, or make

or use any false writing or document

knowing the same to contain any false,

fictitious or fraudulent statement or

entry (18 U.S.C. 1001). Special attention

is required in the certification of time

and attendance reports, applications for

employment, request for travel

reimbursement, and purchase orders

and receiving forms.

§ 20.511 Carrying of firearms.

Employees, except those specifically

designated to perform enforcement,

police or other official duties requiring

the use of firearms, are prohibited from

carrying or having in their possession

firearms on property under the control

of the Secretary. Employees who are

officially stationed in parks, refuges,

Indian reservations, other Tribal lands

or other wilderness areas which are

known to be inhabited by wild animals,

are permitted, when on those lands, to

carry and use firearms for personal

protection as permitted by existing

policy or as authorized by the park,

refuge or area supervisor.

Notwithstanding this paragraph,

employees who are not on official duty

may carry firearms on Departmental

lands under the same conditions and in

accordance with procedures and

authorizations established for members

of the general public.

§ 20.512 Labor practices.

Employees are prohibited from

striking against the Government of the

United States (5 U.S.C. 7311).

Additional information regarding

affiliation with employee organizations

is found in the Department Manual, Part

370, Chapter 711, Labor Management

Relations.

Subpart F—Disciplinary and Remedial

Actions

§ 20.601 General.

This subpart deals with disciplinary

actions and remedial actions for

violations, or potential violations, of

conflict of interest laws or of the

regulations in this part or in 5 CFR part

2635 or 5 CFR part 3501. Disciplinary

action may include oral or written

warning or admonishment, reprimand,

suspension, reduction in grade or pay,

removal from position or removal from

office. Such action shall be taken in

accordance with Departmental policies

and procedures, applicable statutes,

Executive Orders, regulations, and any

applicable collective bargaining

agreement provisions. Disciplinary

action may be imposed independently

from and without prior application of

remedial actions, including those

remedial actions listed in § 20.602.

§ 20.602 Remedial action.

(a)(1) Remedial action should

normally be considered only after

attempts to obtain voluntary resolution

have failed. Voluntary resolution may

include:

(i) Voluntary divestiture;

(ii) Voluntary conversion to securities

which are not prohibited, or the holding

of which would not violate law or

regulation; or

(iii) Voluntary reassignment to

another position.

(2) If the bureau Ethics Counselor

decides that remedial action is required,

such action shall be initiated within a

reasonable time, usually 90 days.

(b) Remedial action may include:

(1) Reassignment or disqualification

of the employee. It may be possible for

the employee to be reassigned to

another job, or to be disqualified from

performing particular duties. Although

the number of cases where this remedy

can be used should be rare, the

possibility should be explored before

divestiture of an interest is ordered.

(2) Waiver. (i) The Designated Agency

Ethics Official (DAEO) is authorized to

make a written advance determination

pursuant to 18 U.S.C. 208(b)(1) waiving

the prohibitions of 18 U.S.C. 208(a) for

any Department employee except the

Secretary and those employees in the

same organization as the DEAO, i.e., the

Department’s Office of Policy,

Management and Budget. The Secretary
53726 Federal Register / Vol. 62, No. 200 / Thursday, October 16, 1997 / Rules and Regulations

or the Deputy Secretary shall issue

individual waivers pursuant to 18

U.S.C. 208(b)(1) for employees in the

Office of Policy, Management and

Budget.

(ii) In the case of a special

Government employee serving on an

advisory committee within the meaning

of the Federal Advisory Committee Act,

5 U.S.C. App. (including an individual

being considered for an appointment to

such a position), the DAEO, after review

of the financial disclosure report filed

by the individual pursuant to the Ethics

in Government Act of 1978, 5 U.S.C.

App., is authorized to certify in writing

that the need for the individual’s

services outweighs the potential for a

conflict of interest created by the

financial interest involved.

(iii) The DAEO may grant a waiver

under 5 CFR 3501.103(e) from the

regulatory restrictions at 5 CFR

3501.103 (b) and (c).

(3) Divestiture of the interest. An

employee may be required to divest an

interest, including outside employment,

that is prohibited by law or regulation.

Divestiture of the interest shall be

ordered in all situations where it is

determined by the appropriate official

that there is no other satisfactory

remedy. Evidence of divestiture must be

provided in the form of broker’s sale

receipt or other appropriate document.

Note to paragraph (b)(3): It may be

possible in certain cases for the tax

consequences of divestiture to be delayed, if

the interest is sold pursuant to a certificate

of divestiture issued before the sale by the

Director, U.S. Office of Government Ethics.

See 5 CFR part 2634, subpart J.

(c) Authority to order remedial action.

(1) Each bureau Ethics Counselor is

authorized to order remedial actions

within his or her bureau. The advice of

the appropriate Regional Solicitor, the

Associate Solicitor—Division of General

Law, or the Designated Agency Ethics

Official or his or her designee may be

sought before such an order is issued.

This authority to order remedial action

may not be redelegated.

(2) The Deputy Assistant Secretary for

Policy is authorized to order remedial

actions for employees within the Office

of the Secretary, except that the

Secretary shall order remedial actions in

situations involving the Deputy

Secretary.

(d) An employee who fails to comply

with an order for remedial action is

considered to be in violation of this part

and shall be subject to disciplinary

action.

§ 20.603 Appealing an order for remedial

action.

(a) When and how to appeal. An

employee has the right to appeal an

order for remedial action under

§ 20.602, and shall have 30 days from

the date of the remedial action order to

exercise this right before any

disciplinary action may be initiated. For

appeals of remedial orders issued under

§ 20.602, the procedures described in

370 DM 771 may not be used in lieu of

or in addition to those of this section.

Each appeal shall be in writing and

shall contain:

(1) The basis for appeal;

(2) Fact(s) supporting the basis; and

(3) The telephone number where

appellant can be reached to discuss facts

pertinent to the appeal.

(b) Where to appeal. (1) Orders for

remedial action issued by an Ethics

Counselor may be appealed to the

Deputy Secretary, whose decision shall

be final.

(2) Orders for remedial action issued

by the Deputy Secretary may be

appealed to the Secretary, whose

decision shall be final.

(c) Review Board analysis and

recommendations. (1)(i) Each appeal

shall be considered by a Review Board

consisting of:

(A) A program Assistant Secretary

selected by the Designated Agency

Ethics Official;

(B) The Associate Solicitor or the

Deputy Associate Solicitor, Division of

General law; and

(C) The Director or Deputy Director of

the Departmental Office of Personnel

within the Department.

(ii) Assistant Secretaries may delegate

authority to serve on the Review Board

to a Deputy Assistant Secretary who has

not been involved, and who has not

advised or made a decision on the issue

or on the order for remedial action.

(2) The Deputy Agency Ethics Official

or his or her assistant shall serve as

secretary to the Review Board, except

for cases in which he or she has

previously participated. In such cases,

the Review Board shall designate an

employee who has not previously been

involved with the case to serve as

secretary.

(3) The Review Board members shall:

(i) Obtain from the appropriate ethics

counselor a full statement of actions and

considerations which led to the order

for remedial action including any

supporting documentation or files used

by the Ethics Counselor.

(ii) Obtain from the employee all

facts, information, exhibits for

documents which he or she feels should

be considered before a final decision is

made.

(iii) The secretary to the Review Board

shall prepare a summary of the facts

pertinent to the appeal. When

appropriate, the Review Board may

provide for personal appearance by the

appellant before the Review Board if

necessary to ascertain the circumstances

concerning the appeal or may designate

the Review Board secretary or another

employee to conduct further fact

finding, or may do both. Fact finding

procedures shall be carried out by a

person(s) who:

(A) Has not been involved in the

matter being appealed; and

(B) Does not occupy a position

subordinate to any official who

recommended, advised, made a decision

on, or who otherwise is or was involved

in, the matter being appealed.

(iv) Establish a file containing all

documents related to the appeal, which

shall be available to the appellant and

his or her representative.

(v) Provide to the official who will

decide the appeal an advisory

recommendation on the appeal. The

views of dissenting members of the

Review Board shall also be provided.

(d) Assurances to the appellant. Each

appellant is assured of:

(1) Freedom from restraint,

interference, coercion, discrimination or

reprisal in presenting an appeal;

(2) A reasonable amount of official

time to present the appeal if the

employee is otherwise in a duty status;

(3) The right to obtain counseling

from an ethics counselor of the

Department; and

(4) The right to be accompanied,

represented, and advised by a

representative of his or her own

choosing, except that the Review Board

may disallow the choice of an

individual as a representative if such

representation would result in a conflict

of interest or position, would conflict

with the priority needs of the

Department, or which would give rise to

unreasonable costs to the Government.

(e) Assurances to the appellant’s

representative. Each person chosen to

represent an appellant is assured of:

(1) Freedom from restraint,

interference, coercion, discrimination or

reprisal; and

(2) A reasonable amount of official

time to present the appeal if the

representative is an employee of the

Department and is otherwise in a duty

status.

[FR Doc. 97–27069 Filed 10–15–97; 8:45 am]

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