[Federal Register Volume 77, Number 67 (Friday, April 6, 2012)]
[Rules and Regulations]
[Pages 20697-20700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8191]



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Rules and Regulations
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Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules 
and Regulations

[[Page 20697]]



SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION

5 CFR Part 9303

RIN 3460-AA01


Supplemental Standards of Ethical Conduct for Employees

AGENCY: Special Inspector General for Afghanistan Reconstruction.

ACTION: Interim rule with request for comments.

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SUMMARY: The Special Inspector General for Afghanistan Reconstruction 
(SIGAR), with the concurrence of the Office of Government Ethics (OGE), 
is issuing an interim regulation for SIGAR employees that will 
supplement the executive branch-wide Standards of Ethical Conduct 
(Standards) issued by OGE. The supplemental regulation includes a 
requirement that SIGAR employees obtain prior approval for certain 
types of outside activities.

DATES: Effective date: April 6, 2012.
    Comment date: Comments are invited and must be received by June 5, 
2012.

ADDRESSES: You may submit comments, in writing, to Hugo Teufel on this 
rule, identified by RIN 3460-AA01, by any of the following methods:
     Email: [email protected]. Include the reference 
``Supplemental Standards of Ethical Conduct for Employees of SIGAR'' in 
the subject line of the message.
     Mail: Special Inspector General for Afghanistan 
Reconstruction, 2530 Crystal Drive, Arlington, VA 22202-3940. 
Attention: Hugo Teufel, Designated Agency Ethics Official (DAEO).
     Hand Delivery/Courier: Special Inspector General for 
Afghanistan Reconstruction, 1550 Crystal Drive, 9th Floor, Arlington, 
VA 22202. Attention: Hugo Teufel, Designated Agency Ethics Official 
(DAEO).

FOR FURTHER INFORMATION CONTACT: Christina Beach, Ethics Compliance 
Officer, at 703-545-5994, email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    In 1992, OGE published the Standards of Ethical Conduct for 
Employees of the Executive Branch, as codified at 5 CFR part 2635 and 
effective February 3, 1993, which established uniform standards of 
ethical conduct applicable to all executive branch personnel.
    The National Defense Authorization Act (Pub. L. 110-181) 
established SIGAR. The agency's mission is to provide independent 
oversight of the treatment, handling, and expenditure of funds 
appropriated or otherwise made available for the reconstruction of 
Afghanistan; detect and deter fraud, waste, and abuse of U.S. funds; 
and promote actions to increase program economy, efficiency, and 
effectiveness. Afghanistan reconstruction includes any major contract, 
grant, agreement, or other funding mechanism entered into by any 
department or agency of the United States government that involves the 
use of amounts appropriated, or otherwise made available for the 
reconstruction of Afghanistan with any private entity to: (1) Build or 
rebuild physical infrastructure of Afghanistan, (2) establish or 
reestablish political or societal institutions of Afghanistan, (3) 
build the Afghanistan National Security Forces, and (4) provide 
products or services to the people of Afghanistan.
    Given the importance of the agency's mission and the need to 
maintain objectivity and independence, SIGAR, through the proposed 
provisions, would require prior agency approval before employees engage 
in certain outside activities. Part 2635.105 authorizes executive 
branch agencies, with the concurrence of OGE, to publish such agency-
specific supplemental regulations as may be necessary to implement 
their respective ethics programs. SIGAR, with OGE's concurrence, has 
determined that the following supplemental regulation is necessary, 
given SIGAR's unique status and mission, to implement the agency's 
ethics program.

II. Analysis of the Regulations

Section 9303.101 General

    Section 9303.101 explains that the regulations apply to all SIGAR 
employees and supplement the executive branch-wide Standards in 5 CFR 
part 2635. Section 9303.101 also provides a cross-reference to the 
executive branch-wide financial disclosure regulations contained in 5 
CFR part 2634, the executive branch-wide regulation regarding outside 
employment at 5 CFR part 2636, and the regulation concerning executive 
branch financial interests contained in 5 CFR part 2640.

Section 9303.102 Prior Approval for Certain Outside Activities

    Under 5 CFR 2635.803, agencies may, by supplemental regulations, 
require employees to obtain approval before engaging in outside 
employment and activities. SIGAR has determined that it is necessary to 
the administration of its ethics program to require its employees, 
other than special Government employees, to obtain prior approval for 
certain types of outside employment and activities. This approval 
requirement will help to ensure that potential ethical problems are 
resolved before employees begin outside employment or activities that 
could involve a violation of applicable laws and regulations.
    Under Sec.  9303.102(a)(1), SIGAR employees must obtain prior 
approval regarding the provision of professional services that involve 
the application of the same specialized skills or the same educational 
background as performance of the employee's official duties. Such 
outside activities may raise a strong risk of a violation of the 
Standards. For purposes of this section, the definition of 
``professional services'' in Sec.  9303.102(d)(3) reflects the 
definition of ``profession'' as provided at 5 CFR 2636.305(b)(1), and 
means the provision of personal services by an employee, including the 
rendering of advice or consultation, which involves application of the 
skills of a profession. Secretarial and clerical positions are not, for 
purposes of this requirement, considered to provide ``professional 
services.''
    Under Sec.  9303.102(a)(2), SIGAR employees must obtain prior 
approval regarding teaching, speaking, or writing that relates to the 
employee's official

[[Page 20698]]

duties. This section requires prior approval of outside speaking and 
writing, as well as outside teaching, but only if it ``relates to the 
employee's official duties.'' Consistent with the Standards, the term 
``relates to the employee's official duties'' is defined in Sec.  
9303.102(d)(5) as having the meaning provided in 5 CFR 
2635.807(a)(2)(i)(B) through (a)(2)(i)(E). To summarize that 
definition, teaching, speaking, or writing relates to the employee's 
official duties if the invitation to teach, speak, or write is extended 
primarily because of the employee's official position; if the 
invitation or the offer of compensation (when the employee is to be 
compensated for the activity) is extended by a person whose interests 
may be affected substantially by the employee's performance or 
nonperformance of his or her official duties; if the activity draws 
substantially on ``nonpublic information,'' a term which Sec.  
9303.102(d)(2) defines as having the meaning set forth in Sec.  
2635.703(b) of the Standards and which therefore includes information 
that the employee gains by reason of Federal employment and that the 
employee knows or reasonably should know has not been made available to 
the general public; if the subject of the activity deals in significant 
part with SIGAR programs, operations or policies, or with the 
employee's current or recent assignments; or, in the case of a non-
career employee as defined in 5 CFR 2636.303(a), if the subject of the 
activity deals in significant part with the general subject matter 
area, industry, or economic sector primarily affected by the programs 
and operations of SIGAR.
    Under Sec.  9303.102(a)(3), SIGAR employees must obtain prior 
approval regarding certain services for a ``prohibited source.'' The 
term ``prohibited source'' is defined in Sec.  9303.102(d)(4) as having 
the meaning set forth in Sec.  2635.203(d) of the Standards, and 
therefore in summary includes a person or organization, a majority of 
whose members seek official action by SIGAR, do or seek to do business 
with SIGAR, are subject to oversight by SIGAR pursuant to sections 1229 
and 842 of the National Defense Authorization Act for FY 2008, Pub. L. 
No. 110-181, or who may be substantially affected by the performance or 
nonperformance of the employee's duties. The kind of services for a 
prohibited source for which Sec.  9303.102(a)(3) requires prior 
approval are those that could raise a question of conflicting financial 
interests under subpart D of the Standards or a question of loss of 
impartiality in performing official duties under subpart E of the 
Standards. Those services include service as an officer, director, 
trustee, general partner, employee, agent, attorney, consultant, 
contractor, or ``active participant.'' The term ``active participant'' 
is defined in Sec.  9303.102(d)(1) as having the meaning set forth in 
subpart E of the Standards, at 5 CFR 2635.502(b)(1)(v). In accordance 
with that definition, payment of dues to an organization, or the 
donation or solicitation of financial support, alone does not 
constitute active participation.
    An exception to the prior approval requirement in Sec.  
9303.103(a)(3) excludes from the prior approval requirement therein a 
number of uncompensated and volunteer activities that are unlikely to 
raise issues under the Standards. Specifically, employees do not have 
to obtain approval before providing the services listed in Sec.  
9303.102(a)(3), if the service is without compensation (other than 
reimbursement of expenses) and the prohibited source for which the 
service is to be provided is a nonprofit charitable, religious, 
professional, social, fraternal, educational, recreational, public 
service, or civic organization. However, prior approval for such an 
activity is required if the activity is covered by another of the prior 
approval requirements in this section.
    Under Sec.  9303.102(a)(4), SIGAR employees must obtain prior 
approval regarding the provision of services, other than clerical 
services or service as a fact witness, on behalf of any other person in 
connection with a particular matter in which the United States is a 
party, in which the United States has a direct and substantial 
interest, or if the provision of services involves the preparation of 
materials for submission to, or representation before, a Federal court 
or executive branch agency. Under 5 CFR 2635.805, employees are 
required to obtain authorization before acting as expert witnesses, 
other than on behalf of the United States, in any proceeding before a 
Federal court or agency in a matter in which the United States is a 
party or has a direct and substantial interest. Paragraph (a)(4) of 
Sec.  9303.102 is intended to cover such testimony as an outside 
activity, thus eliminating the need to create a separate procedure for 
the required authorization. In addition, requiring prior approval under 
these circumstances will help employees to avoid violating the 
representational bars in 18 U.S.C. 203 and 205.
    Section 9303.102(b) sets forth the procedures for submitting a 
request for approval of an outside activity, specifying the information 
to be included in the employee's request, and the contents of a 
certification the employee is to submit with the request for approval.
    Section 9303.102(c) specifies the standard for granting approval. 
Approval shall be granted only upon a determination by the agency 
official who is the designated authority to make such a determination 
that the outside employment is not expected to involve conduct 
prohibited by statute or Federal regulation.
    Section 9303.102(d) defines the terms ``active participant,'' 
``nonpublic information,'' ``professional services,'' ``prohibited 
source,'' and ``relates to the employee's official duties,'' for 
purposes of the section, as explained above, consistent with the 
Standards and other regulations issued by OGE.
    Requiring prior approval will give SIGAR managers the opportunity 
to review the proposed employment or activity in light of the 
employee's official duties and to consult with an agency ethics 
official concerning the applicability of Federal conflict of interest 
statutes and ethics regulations to the proposed activity. The executive 
branch-wide Standards, at 5 CFR 2635.802, explain that an activity 
conflicts with an employee's official duties if it is prohibited by 
statute or by an agency supplemental regulation, or if, under the 
standards set forth in Sec. Sec.  2635.402 and 2635.502 of the 
Standards, it would require the employee's disqualification from 
matters so central or critical to the performance of the employee's 
official duties that the employee's ability to perform the duties of 
his or her position would be materially impaired. Even when prior 
approval is not required, conflict of interest statutes and the 
Standards may restrict the actions of employees in connection with 
participation in such activities or organizations.

III. Matters of Regulatory Procedure

Administrative Procedure Act

    Under 5 U.S.C. 1103(b)(1) and 1105, these regulations are not 
subject to the rulemaking requirements of the Administrative Procedure 
Act, at 5 U.S.C. 553(b), (c), and (d), because they apply solely to 
SIGAR or its employees. Furthermore, SIGAR finds good cause that it is 
in the public interest that these internal regulations take effect as 
an interim rule upon the date of publication of this Federal Register 
rulemaking document. In issuing a final rule on this matter, SIGAR will 
consider

[[Page 20699]]

all written comments on this rule that are submitted by the June 5, 
2012 due date.

Regulatory Flexibility Act

    As Acting Inspector General of SIGAR, I have determined under the 
Regulatory Flexibility Act (5 U.S.C. chapter 6) that this rule will not 
have a significant economic impact on a substantial number of small 
entities because it will primarily affect SIGAR employees.

Paperwork Reduction Act

    As Acting Inspector General of SIGAR, I have determined that the 
Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply to this 
rule, because it does not contain any information collection 
requirements that would require the approval of the Office of 
Management and Budget.

Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
chapter 25, subchapter II), this rule would not significantly or 
uniquely affect small governments and would not result in increased 
expenditures by State, local, and tribal governments, or by the private 
sector, of $100 million or more (as adjusted for inflation) in any one 
year.

Congressional Review Act

    SIGAR has determined that this rule is not a rule as defined in 5 
U.S.C. 804 and, thus, does not require review by Congress.

Executive Order 12866

    In promulgating this rule, SIGAR has adhered to the regulatory 
philosophy and the applicable principles of regulation set forth in 
section 1 of Executive Order 12866, Regulatory Planning and Review. 
This rule has not been reviewed by the Office of Management and Budget 
under that Executive order, since it deals with agency organization, 
management, and personnel matters and is not in any way event deemed 
``significant'' thereunder.

Executive Order 12988

    As Acting Inspector General of SIGAR, I have reviewed this rule in 
light of section 3 of Executive Order 12988, Civil Justice Reform, and 
certify that it meets the applicable standards provided therein.

List of Subjects in 5 CFR Part 9303

    Conflict of interests, Government employees.

Authority and Issuance

    For the reasons set forth in the preamble, the Special Inspector 
General for Afghanistan Reconstruction, with the concurrence of the 
Office of Government Ethics, is amending chapter LXXXIII of title 5 of 
the Code of Federal Regulations by adding part 9303 to read as follows:

PART 9303--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES 
OF THE OFFICE OF THE SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN 
RECONSTRUCTION

Sec.
9303.101 General.
9303.102 Prior approval for certain outside activities.

    Authority:  5 U.S.C. Section 7301; 5 U.S.C. App. (Ethics in 
Government Act of 1978, as amended), E.O. 12674, 54 FR 15159, 3 CFR 
1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547; 3 CFR 
1990 Comp., p. 306; 5 CFR 2635.105, 2635.702, 2635.703, 2635.801, 
2635.802, 2635.803, and 2635.805.


Sec.  9303.101  General.

    In accordance with 5 CFR 2635.105, the regulations in this part 
apply to employees of the Office of the Special Inspector General for 
Afghanistan Reconstruction (SIGAR) and supplement the Standards of 
Ethical Conduct for Employees of the Executive Branch contained in 5 
CFR part 2635. In addition to the regulations in 5 CFR part 2635 and 
this part, SIGAR employees are subject to the executive branch-wide 
financial disclosure regulations contained in 5 CFR part 2634; the 
executive branch regulations regarding outside employment at 5 CFR part 
2636; and the regulations concerning executive branch financial 
interests contained in 5 CFR part 2640.


Sec.  9303.102  Prior approval for certain outside activities.

    (a) Prior approval requirement. An employee, other than a special 
Government employee, shall obtain written approval before engaging--
with or without compensation--in the following outside activities:
    (1) Providing professional services involving the application of 
the same specialized skills or the same educational background as 
performance of the employee's official duties;
    (2) Teaching, speaking, or writing that relates to the employee's 
official duties;
    (3) Serving as an officer, director, trustee, general partner, 
employee, agent, attorney, consultant, contractor, or active 
participant for a prohibited source, except that prior approval is not 
required by this paragraph (a)(3) to provide such service without 
compensation (other than reimbursement of expenses) for a prohibited 
source that is a nonprofit charitable, religious, professional, social, 
fraternal, educational, recreational, public service, or civic 
organization, unless prior approval for the activity is required by 
paragraph (a)(1), (a)(2), or (a)(4) of this section; or
    (4) Providing services, other than clerical services or service as 
a fact witness, on behalf of any other person in connection with a 
particular matter:
    (i) In which the United States is a party;
    (ii) In which the United States has a direct and substantial 
interest; or
    (iii) If the provision of services involves the preparation of 
materials for submission to, or representation before, a Federal court 
or executive branch agency.
    (b) Submission of requests for approval. (1) Requests for approval 
shall be submitted in writing to SIGAR's Inspector General or Inspector 
General's designee through normal supervisory channels. Such requests 
shall include, at a minimum, the following:
    (i) The employee's name and position title;
    (ii) The name and address of the person or organization for whom or 
for which the outside activity is to be performed;
    (iii) A description of the proposed outside activity, including the 
duties and services to be performed while engaged in the activity; and
    (iv) The proposed hours that the employee will engage in the 
outside activity, and the approximate dates of the activity.
    (2) Together with the employee's request for approval, the employee 
shall provide a certification that:
    (i) The outside activity will not depend in any way on nonpublic 
information;
    (ii) No official duty time or Government property, resources, or 
facilities not available to the general public will be used in 
connection with the outside activity; and
    (iii) The employee has read subpart H (``Outside Activities'') of 5 
CFR part 2635.
    (3) Upon a significant change in the nature or scope of the outside 
activity or in the employee's official position, the employee shall 
submit a revised request for approval.
    (c) Approval of requests. Approval shall be granted only upon a 
determination by SIGAR's Inspector General or Inspector General's 
designee, in consultation with the General Counsel and the Director of 
Public

[[Page 20700]]

Affairs, that the outside activity is not expected to involve conduct 
prohibited by statute or Federal regulation, including 5 CFR part 2635.
    (d) Definitions. For purposes of this section:
    (1) ``Active participant'' has the meaning set forth in 5 CFR 
2635.502(b)(1)(v).
    (2) ``Nonpublic information'' has the meaning set forth in 5 CFR 
2635.703(b).
    (3) ``Professional services'' means the provision of personal 
services by an employee, including the rendering of advice or 
consultation, which involves application of the skills of a profession 
as defined in 5 CFR 2636.305(b)(1).
    (4) ``Prohibited source'' has the meaning set forth in 5 CFR 
2635.203(d).
    (5) ``Relates to the employee's official duties'' has the meaning 
set forth in 5 CFR 2635.807(a)(2)(i)(B) through (a)(2)(i)(E).

    Dated: March 16, 2011.
Steven J. Trent,
Acting Inspector General, Special Inspector General for Afghanistan 
Reconstruction.
    Approved: March 20, 2011.
Don W. Fox,
Acting Director, Office of Government Ethics.
[FR Doc. 2012-8191 Filed 4-5-12; 8:45 am]
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