Joint Ethics Regulation

DEPARTMENT OF DEFENSE

32 CFR Part 84

[DoD 5500.7-R]

Joint Ethics Regulation

AGENCY: Office of the Secretary of Defense, DoD.

ACTION: Final rule and request for comments.

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

SUMMARY: This part is designed to prescribe standards of ethical

conduct required of all DoD personnel and certain former DoD officers

and employees, regardless of assignment. It also provides guidance and

procedures to implement the regulations promulgated by the U.S. Office

of Government Ethics for the entire Executive Branch, especially

concerning gifts and conflict of interest. It covers matters related to

activities with non-Federal entities, travel benefits, political

activities, financial and employment disclosure procedures, post-

Government service employment issues, enforcement of ethics rules,

ethics training, and ethical conduct. It will serve as the single,

uniform publication of rules and guidance for ethics and standards of

conduct in DoD with no implementations by DoD components.

DATES: This part is effective August 30, 1993. Comments must be

received by May 20, 1994.

ADDRESSES: Forward comments to DoD Standards of Conduct Office, Office

of General Counsel, 1600 Defense Pentagon, Washington, DC 20301-1600.

FOR FURTHER INFORMATION CONTACT:

Randi Elizabeth DuFresne, DoD Standards of Conduct Office, (703) 697-

5305, FAX (703) 697-1640.

SUPPLEMENTARY INFORMATION: On August 7, 1992, the U.S. Office of

Government Ethics (OGE) published a final rule entitled ``Standards of

Ethical Conduct for Employees of the Executive Branch'' (Standards).

See 57 FR 35006-35067, as corrected at 57 FR 48557 and 52583. The

Standards, codified at 5 CFR part 2635, establish uniform standards of

ethical conduct that are applicable to all Executive Branch personnel.

With the concurrence of OGE, DoD published an interim rule entitled

``Supplemental Standards of Ethical Conduct for Employees of the

Department of Defense'' (Supplement). See 58 FR 47619-47624. The DoD

Supplement appears at 5 CFR chapter XXVI. In addition the Standards and

the Supplement, there are ethics statutes applicable only to 2635 DoD

employees and former employees, matters such as political activities,

activities with non-Federal entities, enforcement, and ethical conduct

which are not addressed by the Standards or the Supplement, and

procedural concerns that require publication of a uniform,

comprehensive DoD regulation.

Certain portions of this part that are marked ``general orders''

apply to all military members without further implementation.

Violations may result in prosecution under the Uniform Code of Military

Justice (UCMJ), as well as adverse administrative action and other

adverse action authorized by the United States Code and Federal

regulations.

Executive Order 12866

It has been determined that this is not a significant rule as

defined under section 3(f)(1) through 3(f)(4) of Executive Order 12866.

Regulatory Flexibility Act

It has been 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 affects

only DoD employees and certain former DoD employees.

Paperwork Reduction Act

It has been certified that information collection associated with

32 CFR part 84 has been submitted to the Office of Management and

Budget and is currently under review.

List of Subjects in 32 CFR Part 84

Conflict of interests, Government procurement.

Accordingly, Title 32, Chapter I, Subchapter A is amended to add

part 84 to read as follows:

PART 84--JOINT ETHICS REGULATION

Subpart A--General Information

Sec.

84.1 Purpose.

84.2 Definitions.

84.3 General policy.

84.4 General responsibilities.

Subpart B--Standards of Ethical Conduct

84.5 Office of Government Ethics regulation.

84.6 DoD supplement to 5 CFR part 2635.

84.7 DoD guidance.

Subpart C--Activities with Non-Federal Entities

84.8 Office of Government Ethics regulation.

84.9 Official participation in non-Federal entities.

84.10 Personal participation in non-Federal entities.

Subpart D--Travel Benefits

84.11 Acceptance of official travel benefits in kind or payment for

official travel expenses.

84.12 DoD guidance.

84.13 Procedures and responsibilities.

Subpart E--Conflict of Interest

84.14 Office of Government Ethics regulation.

84.15 Guidance on 18 U.S.C. 208.

84.16 Other conflict of interest laws.

Subpart F--Political Activities

84.17 Office of Personnel Management regulation.

84.18 Political activities of civilian DoD employees.

84.19 Political activities of military members.

Subpart G--Financial and Employment Disclosure

84.20 Office of Government Ethics regulation.

84.21 Public financial disclosure report (SF 278).

84.22 Confidential financial disclosure report (SF 450).

84.23 Report of DoD and defense related employment (DD form 1787).

Subpart H--Seeking Other Employment

84.24 General rules.

84.25 Conflict of interest (18 U.S.C. 208).

84.26 Procurement integrity (41 U.S.C. 423(b)).

84.27 Reporting employment contacts (10 U.S.C. 2397a).

84.28 DoD guidance.

Subpart I--Post-Government Service Employment

84.29 Office of Government Ethics regulation.

84.30 Guidance on 18 U.S.C. 207.

84.31 Post-employment counseling and advice.

84.32 Restrictions resulting from procurement activities.

84.33 Restrictions on retired military members.

84.34 Restrictions on former senior appointees.

84.35 Restrictions on dealing with current or former DoD employees.

84.36 Report of DoD and defense related employment (DD form 1787).

Subpart J--Enforcement

84.37 Enforcement of the provisions of the Joint Ethics Regulation.

84.38 Reporting procedures.

84.39 Administrative enforcement procedures.

Subpart K--Training

84.40 Office of Government Ethics regulation.

84.41 DoD guidance.

84.42 Procedures.

84.43 Responsibilities.

Subpart L--Ethical Conduct

84.44 Executive orders.

84.45 Code of ethics for Government service.

84.46 DoD human goals.

84.47 Ethical values.

84.48 Ethical decisionmaking.

Appendix A to Part 84--Digest of Laws

Appendix B to Part 84--Excerpts From DoD Publications

Appendix C to Part 84--DoD Human Goals

Authority: 5 U.S.C. 301, 7301, 7351, 7353; 5 U.S.C. App. (Ethics

in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989

Comp., p. 215 as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990

Comp., p. 306; 5 CFR part 2635.

Subpart A--General Information

Sec. 84.1 Purpose.

(a) Single source of guidance. This part provides a single source

of standards of ethical conduct and ethics guidance, including

direction in the areas of financial and employment disclosure systems,

post-employment rules, enforcement, and training.

(b) Disclaimer. A violation of this part does not create any right

or benefit, substantive or procedural, enforceable at law by any person

against the U.S., its agencies, its officers or employees, or any other

person.

Sec. 84.2 Definitions.

(a) Administrative officer. The individual responsible for the

administrative control of personnel within a unit or office, including

assistance with training, travel, or personnel actions for individuals

of the unit or office.

(b) Agency. A DoD component as follows: Department of the Army;

Department of the Navy; Department of the Air Force; Defense Commissary

Agency; Defense Contract Audit Agency; Defense Finance and Accounting

Service; Defense Intelligence Agency; Defense Investigative Service;

Defense Logistics Agency; Defense Mapping Agency; Defense Nuclear

Agency; Defense Information Systems Agency; National Security Agency;

Office of the Inspector General of the Department of Defense (IG, DoD);

and the Uniformed Services University of the Health Sciences. Employees

of DoD components not designated as separate agencies, including

employees of the Office of the Secretary of Defense (OSD), shall be

treated as employees of DoD which shall be treated as a separate

agency.

(c) Agency designee. The first supervisor who is a commissioned

military officer or a civilian above GS/GM-11 in the chain of command

or supervision of the DoD employee concerned. Except in remote

locations, the agency designee may act only after consultation with his

local Ethics Counselor. For any military officer in grade 0-7 or above

who is in command and any civilian Presidential appointee confirmed by

the Senate, the agency designee is his Ethics Counselor.

(d) Alternate Designated Agency Ethics Official (Alternate DAEO).

An employee of a DoD agency who has been appointed by the DoD component

Head to serve in the absence of the DoD component Designated Agency

Ethics Official (DAEO).

(e) Competing defense contractor. See Federal Acquisition

Regulation,\1\ 48 CFR 3.104-4(b) or 41 U.S.C. 423(p)(2).

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

\1\For purchase of this Department of Defense document contact

Superintendent of Documents, Congressional Sales Office, U.S.

Government Printing Office, Washington, DC 20402.

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

(f) Conduct of a procurement. See 48 CFR 3.104-4(c) or 41 U.S.C.

423(p)(1).

(g) DAEO or designee. This phrase refers to the Designated Agency

Ethics Official, or to the Alternate Designated Agency Ethics Official,

Deputy Designated Agency Ethics Official, or Ethics Counselor who has

been delegated specific written authority by the DoD component DAEO to

perform specific functions on behalf of the DoD component DAEO.

(h) Defense contractor. For purposes of 10 U.S.C. 2397, 2397a, and

2397b, any individual, firm, corporation, partnership, association, or

other legal non-Federal entity that enters into a contract directly

with DoD or a DoD component to furnish services, supplies, or both,

including construction. Subcontractors are excluded unless they are

separate legal non-Federal entities that contract directly with DoD or

a DoD component in their own names. Foreign governments or

representatives of foreign governments that are engaged in selling to

DoD or a DoD component are defense contractors when acting in that

context.

(i) Deputy Designated Agency Ethics Official (Deputy DAEO). An

employee of a DoD agency who has been appointed, in writing, by the DoD

component DAEO and who has been delegated written authority by that DoD

component DAEO to act on his behalf.

(j) Designated Agency Ethics Official (DAEO). A DoD employee

appointed, in writing, by the Head of the DoD agency to administer the

provisions of the Ethics in Government Act of 1978, Public Law 95-521

(5 U.S.C. App.), and this part.

(k) DoD component. OSD; the Military Departments; the Chairman of

the Joint Chiefs of Staff and the Joint Staff; the Unified and

Specified Commands; IG, DoD; the Uniformed Services University of the

Health Sciences; the Defense Agencies; the DoD Field Activities; the

Combined Commands and Agencies; and the Special Activities, including

non-appropriated fund instrumentalities. See paragraph (b) of this

section for those DoD components that are agencies.

(l) DoD employee. (1) Any DoD civilian officer or employee

(including special Government employees) of any DoD component

(including any non-appropriated fund activity).

(2) Any active duty regular or reserve military officer, including

warrant officers.

(3) Any active duty enlisted member of the Army, Navy, Air Force,

or Marine Corps.

(4) Any reserve or National Guard member on active duty under

orders issued pursuant to title 10, United States Code.

(5) Any reserve or National Guard member performing official

duties, including while on inactive duty for training or while earning

retirement points, pursuant to title 10, United States Code, or while

engaged in any activity related to the performance of a Federal duty or

function.

(6) Any faculty member in a civil service position or hired

pursuant to title 10, United States Code, and any student (including a

cadet or midshipman) of an academy, college, university, or school of

DoD.

(7) Consistent with labor agreements and international treaties and

agreements, and host country laws, any foreign national working for a

DoD component except those hired pursuant to a defense contract.

(m) DoD supplement. Section 84.6 contains the cross-reference to

the DoD Supplement of 5 CFR part 2635.

(n) Employment. See 5 CFR 2635.603(a).

(o) Ethics Counselor. The DoD component DAEO, Alternate DAEO,

Deputy DAEO, or a DoD employee appointed in writing by the DoD

component DAEO or designee to generally assist in implementing and

administering the DoD component command's or organization's ethics

program and to provide ethics advice to DoD employees of the DoD

component command or organization in accordance with this part. Except

for a DoD component DAEO, Alternate DAEO, or Deputy DAEO, a DoD

employee appointed as an Ethics Counselor shall only serve as a ``DAEO

or designee'' when he has been delegated specific written authority by

the DoD component DAEO to perform specific functions on behalf of the

DoD component DAEO. Except for a DoD component DAEO, Alternate DAEO, or

Deputy DAEO, a DoD employee appointed as an Ethics Counselor shall be

an attorney. Legal assistance officers (or equivalent) who also serve

as Ethics Counselors must clearly separate these roles. Communications

received in an Ethics Counselor capacity are not protected by the

attorney-client privilege while communications received in a legal

assistance capacity may be. Attorneys who serve as Ethics Counselors

must advise individuals being counseled as to the status of that

privilege prior to any communications. The term ``Ethics Counselor''

includes ``agency ethics official'' as used by the Office of Government

Ethics (OGE). See 5 CFR 2635.102.(c).

(p) Ethics Oversight Committee (EOC). A working group composed of

the DoD component DAEO, or their representatives, and representatives

of the Chairman of the Joint Chiefs of Staff, and the Judge Advocates

General of the Military Departments.

(q) Former DoD employee. Any individual defined in Sec. 84.2(l),

after termination of active duty or termination of DoD service,

including reserve military officers who served on active duty for more

than 130 days and who are no longer on active duty, or who are in an

inactive or retired status.

(r) Gratuity. Gifts as defined in 5 CFR 2635.203(b).

(s) He, his, him, himself. These pronouns include she, hers, her

and herself.

(t) Head of DoD component command or organization. A commander,

commanding officer, or other military or civilian DoD employee who

exercises command authority within a DoD component.

(u) Major defense contractor. Any non-Federal entity which, during

the preceding fiscal year, received defense contracts in a total amount

equal to or greater than $10 million.

(v) Major defense system. For purposes of 10 U.S.C. 2397b, a

combination of elements that will function together to produce the

capability required to fulfill a mission need. Elements may include

hardware, equipment, software, or any combination thereof, but excludes

construction or other improvements to real property. A list is

published in the Federal Register. See 10 U.S.C. 2302. A system shall

be considered a major defense system if:

(1) DoD is responsible for the system and the total expenditures,

for research, development, test, and evaluation for the system, are

estimated to exceed $75 million (based on fiscal year 1980 constant

dollars) or the eventual total expenditure for procurement exceeds $300

million (based on fiscal year 1980 constant dollars); or

(2) The system is designated a ``major system'' by the Head of the

DoD agency responsible for the system.

(w) Majority of working days. More than 50% of days actually

worked, excluding holidays, weekends, sick days, and leave days of the

two-year period in question.

(x) Negotiation. For purposes of 10 U.S.C. 2397b only, the exchange

of views between Federal Government and defense contractor

representatives regarding respective entitlements, liabilities and

responsibilities on a particular defense contract, modification, or

claim over $10 million, including deliberations regarding contract

specifications, terms of delivery, allowability of costs, and pricing

of change orders. Other statutes using this term may define it

differently.

(y) Non-Federal entity. A non-Federal entity is generally a self-

sustaining, non-Federal person or organization, established, operated

and controlled by any individual(s) acting outside the scope of any

official capacity as officers, employees or agents of the Federal

Government. A non-Federal entity may operate on DoD installations if

approved by the installation commander or higher authority under

applicable regulations. See 32 CFR part 212.

(z) Non-public information. Information generally not available to

the public, obtained in the course of one's official DoD duties or

position which would normally not be releasable under the Freedom of

Information Act, 5 U.S.C. 552. The term ``non-public information''

includes ``inside information,'' ``proprietary information,'' and

``source selection information.'' See 5 CFR 2635.703, 32 CFR part 285,

and 48 CFR 3.104-4(j) and (k) and 3.104-5.

(aa) Office of Government Ethics. The Federal Government agency

responsible for overall direction and leadership concerning Executive

Branch policies related to ethics in the Federal Government. See 5 CFR

part 2638.

(bb) Personal and substantial. See 5 CFR 2635.402(b)(4).

(cc) Personal commercial solicitation. Any effort to contact an

individual to conduct or transact matters involving unofficial

business, finance, or commerce. This does not include off-duty

employment of DoD employees employed in retail establishments. See 32

CFR part 43.

(dd) Primary Government representative. For purposes of 10 U.S.C.

2397b, acting as a ``representative'' requires personal and substantial

participation in the matter by personal presence, telephone

conversation, or similar involvement with representatives of a defense

contractor. At any time, more than one individual may act as a primary

representative for a single matter.

(ee) Procurement official. See 48 CFR 3.104-4(h).

(ff) Procurement function. For purposes of 10 U.S.C. 2397b, any

function relating to:

(1) The negotiation, award, administration, or approval of a

contract;

(2) The selection of a defense contractor;

(3) The approval of a change in a contract;

(4) The performance of quality assurance, operational and

developmental testing, the approval of payment, or auditing under a

contract; or

(5) The management of a procurement program.

(gg) Prohibited source. See 5 CFR 2635.203(d).

(hh) Qualified individual. See 5 CFR 2638.702(a)(2).

(ii) Reserve military officer. An individual who currently holds an

appointment in the reserve of a Military Department, or is a military

officer of the National Guard with Federal Government recognition.

(jj) Retired military officer. Any military officer entitled to

receive military retired pay, even though such pay may be waived or

pending.

(kk) Senior DoD official. For purposes of 18 U.S.C. 207, a DoD

employee is defined as stated in 10 U.S.C. 207(c)(2).

(ll) Special Government employee. An individual who is retained,

designated, appointed, or employed to perform, with or without

compensation, for a period not to exceed 130 days during any period of

365 consecutive days, temporary duties either on a full-time or

intermittent basis. The term also includes a reserve military officer

who is serving on active duty involuntarily or for training for any

length of time, and one who is serving voluntarily on active duty for

training for 130 days or less. It does not include enlisted members;

however, for the purposes of this part, enlisted members shall be

considered special Government employees to the same extent that

military officers are included in the meaning of the term.

(mm) Travel benefits. Travel related gifts, including in kind

subsistence and accommodations and payments or reimbursements of

expenses, from non-Federal sources.

Sec. 84.3. General policy.

DoD policy. It is DoD policy that:

(a) A single, uniform source of standards of ethical conduct and

ethics guidance shall be maintained within DoD, and each DoD agency

shall implement and administer a comprehensive ethics program to ensure

compliance with such standards and guidance;

(b) Although OGE regulations, cross-referenced in this part, do not

apply to enlisted members of DoD, the provisions of 5 CFR parts 2634,

2635, 2638, 2639, 2640, and 2641, are determined to be appropriate for

enlisted members and are hereby made applicable to enlisted members as

if the terms ``employee,'' and ``special Government employee,'' as used

in those OGE regulations, include enlisted members to the same extent

that military officers are included within the meaning of those terms.

The following exception applies to certain criminal statutes, 18 U.S.C.

203, 205, 207, 208, 209 and 218, and related provisions of OGE

regulations, do not apply to enlisted members. Provisions similar to

those of 18 U.S.C. 208 and 209 apply to enlisted members as follows:

(1) Except as approved by the DoD component DAEO or designee, an

enlisted member, including an enlisted special Government employee,

shall not participate personally and substantially as part of his

official DoD duties, in any particular matter in which he, his spouse,

minor child, partner, entity in which he is serving as officer,

director, trustee, partner, or employee, or any entity with which he is

negotiating or has an arrangement concerning prospective employment,

has a financial interest;

(2) An enlisted member, except an enlisted special Government

employee, shall not receive any salary or supplementation of his

Federal Government salary, from any entity other than the Federal

Government or as may be contributed out of the treasury of any State,

county, or municipality, for his services to the Federal Government.

(c) DoD employees shall become familiar with all ethics provisions,

including the standards set out in Executive Order 12674, 54 FR 15159,

3 CFR, 1989 Comp., p. 215-218, and comply with them;

(d) DoD employees shall become familiar with the scope of and

authority for the official activities for which they are responsible.

Sound judgment must be exercised. All DoD employees must be prepared to

account fully for the matter in which that judgment has been exercised;

(e) If the propriety of a proposed action or decision is in

question for any reason, DoD employees shall seek guidance from a DoD

component legal counsel, the DoD component DAEO or designee, or Ethics

Counselor, as appropriate;

(f) Individual conduct, official programs and daily activities

within DoD shall be accomplished lawfully and ethically;

(g) DoD employees shall adhere strictly to DoD policy of equal

opportunity, regardless of race, color, religion, gender, age, national

origin, or handicap, in accordance with applicable laws and

regulations.

Sec. 84.4 General responsibilities.

(a) The Head of each DoD component shall:

(1) Exercise personal leadership and take personal responsibility

through the DoD component DAEO for establishing and maintaining the DoD

component's ethics program and be personally accountable for the DoD

component's compliance with every requirement of this part, including

the ethics and procurement integrity training requirements;

(2) When authorized, appoint a DoD component DAEO, through a formal

written delegation of authority, who is qualified to oversee and

supervise the DoD component's ethics programs for DoD employees, both

civilian and military (the GC, DoD, may serve as the DAEO for several

DoD components);

(3) When authorized, appoint a DoD component Atlernate DAEO who

shall serve in the absence of the DoD component DAEO;

(4) Provide sufficient resources (including funding and

investigative, audit, legal, training and administrative staff) to

enable the DoD component DAEO to implement and administer the DoD

component's ethics programs in a positive and effective manner.

(b) Each DoD component Designated Agency Ethics Official (DAEO)

shall:

(1) Be responsible for the implementation and administration of all

aspects of the DoD component ethics program and manage and oversee

local implementation and administration of all matters relating to

ethics covered by this part.

(2) Appoint DoD component Deputy DAEOs and Ethics Counselors and

delegate to them written authority to act on behalf of the DoD

component DAEO;

(3) Ensure that ethics advice (and facts relied upon for such

advice) is in writing, when practicable;

(4) Ensure that written opinions regarding the applicability of 10

U.S.C. 2397b and 41 U.S.C. 423 are provided within 30 days of request

by any DoD employee provided that the requests is accompanied by

complete and full information necessary to render an opinion;

(5) Ensure that proper collection, review, and handling of the DoD

component's financial and employment disclosure reports, including

those submitted by Presidential appointees for confirmation purposes;

(6) Be responsible for the implementation and administration of

ethics and procurement integrity training and ensure that necessary

resources are available to accomplish such training;

(7) Provide periodic ethics and procurement integrity training for

Ethics Counselors;

(8) Certify Qualified Individuals to conduct ethics training;

(9) Assist agency designees, through the chain of command or

supervision, in initiating prompt, effective action to evaluate and

process violations, potential violations, and appearances of violations

of ethics laws or regulations, in accordance with applicable procedures

as discussed in subpart J of this part;

(10) Provide advice and assistance to DoD employees of the DoD

component not otherwise served by a local Ethics Counselor;

(11) Oversee and coordinate local ethics programs through a system

for periodic evaluation and ensure that the DoD component provides and

maintains sufficient funding, staff, space and resources to administer

the DoD component's ethics programs;

(12) Maintain liaison with the DoD EOC, OGE, and the DoD Standards

of Condut Office (SOCO), and provide to SOCO and OGE all information

required by law or regulation;

(13) Represent the DoD component to OGE, Congress, the Executive

Branch and the public on matters relating to ethics and standards of

conduct.

(c) Each DoD component Alternate Designated Agency Ethics Official

(Alternate DAEO) shall serve in the absence of the DoD component DAEO

and, when so serving, is authorized to take any action this part

indicates may be taken only by the DoD component DAEO.

(d) Each DoD component Deputy Designated Agency Ethics Official

(Deputy DAEO) shall serve on behalf of the DoD component DAEO

consistent with written delegation of authority from the DoD component

DAEO.

(e) The head of each DoD component command or organization shall:

(1) Exercise personal leadership and take personal responsibility

for establishing and maintaining the command's or organization's ethics

program in coordination with the command's or organization's Ethics

Counselors;

(2) Be personally accountable for the command's or organization's

ethics program, including its ethics and procurement integrity training

program, and the command's or organization's compliance with every

requirement of this part;

(3) Provide sufficient resources to enable the command's

organization's Ethics Counselors to implement and administer the local

aspects of the command's or organization's ethics program in a positive

and effective manner;

(4) Ensure the prompt resolution of any actual or apparent conflict

of interest involving a DoD employee of the command or organization;

(5) Direct administrative officers (or equivalent) of the command

or organization to ensure that the position descriptions of the DoD

component command or organization indicate if financial disclosure

report filing, annual ethics training or procurement integrity training

is required and ensure the accuracy of personnel data provided by the

director of the DoD component personnel office (or equivalent) on DoD

employees of the command or organization;

(6) Direct administrative officers (or equivalent) of the command

or organization to coordinate with the DoD component DAEO or designee

to develop lists of all DoD employees of the command or organization

who are required to receive ethics and procurement integrity training,

schedule such training, annotate such lists to indicate when required

training was accomplished and retain annotated lists for three years;

(7) Ensure that DoD employees of the command or organization who

are in positions requiring the filing of SF 450,\2\ ``Confidential

Financial Disclosure Report,'' July 1992, do so in a timely manner;

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

\2\Copies are available from U.S. Office of Government Ethics,

1201 New York Avenue, NW., suite 500, Washington, DC 20005-3917.

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

(8) Ensure that DoD employees of the command or organization attend

required ethics and procurement integrity training.

(f) The General Counsel of each DoD component shall:

(1) Serve as the DAEO for the DoD component unless otherwise

delegated;

(2) Support all aspects of the ethics program of the DoD component;

(3) Provide legal guidance and assistance to the DoD component DAEO

or designee.

(g) The Judge Advocate General of each Military Department shall:

(1) Provide legal guidance and assistance to Ethics Counselors

under his supervision;

(2) Support all aspects of the ethics program of the Military

Department.

(h) The General Counsel, DoD (GC, DoD) shall:

(1) Maintain the DoD SOCO and provide sufficient resources to

enable SOCO to oversee and coordinate DoD component ethics programs, to

produce reports required by Congress and maintain report data, and to

manage the DoD EOC;

(2) Represent DoD as a whole to OGE, Congress, the Executive

Branch, and the public when called upon to do so on matters relating to

ethics policy;

(3) Have the authority to incorporate changes to Government-wide

regulations that are reprinted in this part without formal

coordination.

(i) Each agency designee shall:

(1) In accordance with Sec. 84.10(g), provide prior approval or

disapproval of outside activities by DoD employees under his

responsibility;

(2) Receive and appropriately process reports of suspected

violations of ethics statutes or regulations and possible conflicts of

interest;

(3) Receive and appropriately process reports of non-compliance

with the filing requirements of subpart G of this part;

(4) Perform all the other duties of an agency designee established

in this part and in 5 CFR part 2635;

(5) Annually determine those positions under his responsibility

that require the filing of SF 450s, and annual ethics and procurement

integrity training.

(j) The DoD Standards of Conduct Office (SOCO) shall:

(1) Manage the DoD EOC and call periodic meetings to consider

current issues in ethics and standards of conduct;

(2) Coordinate DoD component ethics programs, including providing

uniform guidance and training material;

(3) Collect and publish important written opinions from DoD

components, when practicable, to promote uniformity of ethics opinion

throughout DoD;

(4) Monitor and assist DoD component DAEOs in ensuring effective

corrective action is taken to remedy violations, potential violations

and the appearance of violations of ethics laws or this part;

(5) Certify Qualified Individuals to conduct ethics training who

may be used by DoD components;

(6) Make ethics and procurement integrity training for ethics

trainers available on an ongoing basis to ensure that Qualified

Individuals are uniformly prepared to provide such training;

(7) Distribute ethics and procurement integrity training material

to all DoD component DAEOs for use in all types of ethics and

procurement integrity training;

(8) In the interest of Federal Government efficiency and economy,

establish and maintain a resource center of ethics and procurement

integrity materials (including training materials) developed by DoD

components.

(k) The DoD Ethics Oversight Committee (EOC) shall:

(1) Meet periodically, as necessary;

(2) Consider general ethics issues or current issues and make

recommendations to promote uniformity of ethics opinions throughout

DoD;

(3) Provide recommendations to DoD component DAEOs on particular

ethics matters in accordance with this part;

(4) Provide recommendations for DoD input on proposed ethics

legislation and regulations.

(l) The Director, Washington Headquarters Services shall:

(1) Prepare an annual report listing all the defense contractors

that have been awarded $10 million or more in defense contracts during

the fiscal year and publish the report in the Federal Register not

later than December 15 following the end of the fiscal year;

(2) Prepare an annual report listing all the defense contractors

that have been awarded $25,000 or more in defense contracts during the

fiscal year and distribute to the DoD component DAEOs not later than

December 31 following the end of the fiscal year.

(m) The Under Secretary of Defense for Acquisition shall prepare an

annual report listing all the major defense systems as defined by 10

U.S.C. 2302(5), and the prime defense contractors responsible for each,

that were in progress during the fiscal year and provide the report to

the DoD SOCO for publication in the Federal Register not later than

December 31 following the end of the fiscal year;

(n) Each Ethics Counselor shall:

(1) Provide written and oral advice, counseling, and assistance to

his DoD component command or organization and to the DoD employees of

his DoD component command or organization, on all ethics matters,

particularly areas covered by this part and related statutes and

regulations;

(2) Request assistance, through appropriate channels, from the DoD

component DAEO or designee on any matter than cannot be resolved

locally;

(3) Maintain a current copy of this part, and all changes, for

review by any DoD employee;

(4) Maintain a thorough understanding of current DoD ethics policy

through contact with the DoD component DAEO, attendance at periodic

ethics training courses, and other appropriate methods;

(5) Promptly provide a copy to the DoD component DAEO of

precedental written decisions to assist uniformity throughout the DoD

components;

(6) Perform other duties as assigned by written delegation from the

DoD component DAEO;

(7) Review financial disclosure reports in accordance with subpart

G of this part.

(o) The Inspector General of each DoD component shall:

(1) Investigate ethics matters arising in the DoD component, and

refer any such matters that involve suspected criminal violations to

the appropriate criminal investigative office of the DoD component;

(2) Report to the DoD component DAEO or designee on investigations

that result in referrals to the Department of Justice (DoJ) and on

disciplinary actions that must be reported in response to the OGE

annual ethics survey;

(3) Ensure inspectors and agents are educated in ethics matters to

ensure appropriate handling of ethics related cases and calls;

(p) The director of each DoD component personnel office (or

equivalent) shall:

(1) Provide the DoD component DAEO or designee such personnel data

on DoD employees, both civilian and military, as may be required by the

DoD component DAEO or designee;

(2) Assign personnel action officers the responsibility of

providing the required information at local levels;

(3) In coordination with the DoD component DAEO or designee,

establish procedures to inform new DoD employees of their obligation to

receive ethics and procurement integrity training as required;

(4) In coordination with the DoD component DAEO or designee,

establish out-processing procedures and records to advise DoD employees

of available counseling regarding post-employment and procurement

integrity restrictions prior to departure from DoD;

(5) In coordination with the DoD component DAEO or designee,

establish procedures to advise incoming and outgoing DoD employees of

their financial and employment disclosure reporting obligations.

(q) The administrative officer (or equivalent) of each DoD

component command and organization shall:

(1) Ensure that each position description of the DoD component

command or organization indicates if an SF 278,\3\ ``Public Financial

Disclosure Report,'' January 1991, or SF 450, and annual ethics and

procurement integrity training are required so prospective or new DoD

employees are on notice of such requirements prior to employment;

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

\3\Copies are available from U.S. Office of Government Ethics,

1201 New York Avenue, NW., suite 500, Washington, DC 20005-3917.

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

(2) Upon the request of the DAEO or designee, ensure the accuracy

of personnel data provided by the Director of the DoD component

personnel office on DoD employees of the DoD component command or

organization;

(3) In coordination with the DoD component DAEO or designee,

develop a list of all DoD employees within the DoD component command or

organization who are required to receive ethics and procurement

integrity training;

(4) In coordination with the DoD component DAEO or designee, ensure

that DoD employees of the DoD component command or organization are

scheduled to receive required ethics and procurement integrity

training;

(5) Annotate such list to indicate when required training was

accomplished and retain annotated list for three years.

(r) Each DoD employee shall:

(1) Abide by the ethical principles established by Executive Order

12674, ethics statutes, and the ethics regulations promulgated by OGE

and the DoD thereunder;

(2) Set a personal example for fellow DoD employees in performing

official duties within the highest ethical standards;

(3) Report suspected violations of ethics regulations in accordance

with Sec. 84.38(a);

(4) Perform all official duties so as to facilitate Federal

Government efficiency and economy;

(5) Attend ethics and procurement integrity training as required;

(6) File financial and employment disclosure reports as required.

Subpart B--Standards of Ethical Conduct

Sec. 84.5 Office of Government Ethics regulation.

See 5 CFR part 2635, ``Standards of Ethical Conduct for Employees

of the Executive Branch.'' The following sections of 5 CFR part 2635

are military general orders: Sec. 2635.202(a);

Sec. 2635.202(c)(1),(2),(3),(4), and (5) (excluding example and

paragraphs (c)(4) (i) through (iii)); Sec. 2635.302; Sec. 2635.402(a)

(excluding note); Sec. 2635.502(a) (excluding paragraphs (a)(1)

and(2)); Sec. 2635.503(a) (excluding examples); Sec. 2635.604(a)

(excluding the last sentence and examples); Sec. 2635.606(a) (excluding

the last sentence and example); the first sentence of Sec. 2635.702;

Sec. 2635.702(a) (excluding examples); Sec. 2635.702(b) (excluding

examples); Sec. 2635.702(c) (excluding examples); Sec. 2635.703(a);

Sec. 2635.704(a); Sec. 2635.705(b) (excluding examples); the first

paragraph of Sec. 2635.802; Sec. 2635.802(a); Sec. 2635.802(b)

(excluding sentence beginning ``Employees are cautioned * * *'' and

excluding examples); Sec. 2635.805(a); Sec. 2635.807(a) (excluding

paragraphs (a)(1) and (2)); the first sentence of Sec. 2635.808;

Sec. 2635.808(b) (excluding example); and Sec. 2635.808(c) (excluding

paragraph (c)(3) and examples).

Sec. 84.6 DoD supplement to 5 CFR part 2635.

See 5 CFR 3601.101-3601.108, ``Supplemental Standards of Conduct

for Employees of the Department of Defense.'' The following sections of

5 CFR 3601.101-3601.108 are military general orders: Sec. 3601.104(a)

(excluding paragraphs (a)(1) and (2)); Sec. 3601.104(b);

Sec. 3601.105(a); Sec. 3601.105(b); Sec. 3601.105(c); Sec. 3601.106;

and Sec. 3601.108 (excluding paragraphs (a) through (c)).

Sec. 84.7 DoD guidance.

(a) Gifts--(1) Procurement officials. In addition to the

restrictions on gifts in 5 CFR part 2635, subpart B, procurement

officials are subject to the gift acceptance restrictions of the

procurement integrity statute. See 41 U.S.C. 423 and 48 CFR 3.104.

(2) Gifts from foreign governments. There are special DoD rules

governing gifts from foreign governments. See 5 U.S.C. 7342 and 32 CFR

part 95.

(3) Ship launch and similar ceremonies. A DoD employee may not

accept gifts in connection with a ceremony to mark the completion of a

milestone in shipbuilding, aircraft completion, or similar vehicle

launch or roll-out unless attendance is official and is approved by the

head of the DoD component command or organization and the gifts are

limited to the following (see 5 U.S.C. 7301 note):

(i) Attendance at appropriate functions incident to the ceremony,

such as a dinner preceding the ceremony and reception following it, and

related food, hospitality and entertainment, as long as the function

and related benefits are not lavish, excessive, or extravagant;

(ii) Tangible gifts or mementos in connection with the ceremony to

DoD employees, their spouses, and their dependent children, who are

official participants in the ceremony, as long as the aggregate retail

value does not exceed $100 per family and the cost is not borne by the

Federal Government. When such gifts exceed the $100 limit, the

recipient shall pursue one of the following alternatives:

(A) Return the gift to the donor;

(B) Retain the gift after reimbursing the donor the full value of

the gift; or

(C) Forward the gift to the appropriate DoD component official for

disposition as a gift to the Federal Government in accordance with

statute. See 10 U.S.C. 2601.

(b) Use of Federal Goverment telephone systems. See GSA regulation

41 CFR part 201-21, subpart 201-21.6, on manangement of Federal

Government telecommunications resources.

(1) The use of Federal Government telephone systems (including

calls over commercial systems which will be paid for by the Federal

Government), except as provided in paragraph (b)(2) of this section

shall be limited to the conduct of official business. Such official

business calls may include emergency calls and calls that the DoD

components determine are necessary in the interest of the Federal

Government.

(2) Personal calls (such as calls to speak to spouse/minor children

or to arrange for emergency repairs to residence or automobile) that

must be made during working hours over the commercial local/long

distance network may properly be authorized as being in the best

interest of the Federal Government if the call is consistent with the

following criteria:

(i) It does not adversely affect the performance of official duties

by the DoD employee or the DoD employee's organization;

(ii) It is of reasonable duration and frequency; and

(iii) It could not reasonably have been made at another time;

(iv) And, in the case of long distance calls, is:

(A) Charged to the employee's home telephone number or other non-

Federal Government number (third number call);

(B) Made to an 800 toll-free number;

(C) Charged to the called party if a non-Federal Government number

(collect call);

(D) Charged to a personal telephone credit card; or

(E) When traveling for more than one night on Federal Government

business in the United States, a brief call to his residence to notify

family of a schedule change.

(c) Gambling. (1) [The following is a General Order] A DoD employee

shall not participate while on Federally-owned or leased property or

while on duty (for military members, this means, in this context,

present for duty) for the Federal Government in any gambling activity

prohibited by 5 CFR 735.208 except:

(i) Activities necessitated by a DoD employee's law enforcement

duties;

(ii) Activities by organizations composed of DoD employees or their

dependents when transacted entirely among their own members and

approved by the Head of the DoD component or designee; or

(iii) Private wagers among DoD employees if based on a personal

relationship and transacted entirely within assigned Federal Government

living quarters and within the limitations of local laws [end of

General Order].

(2) Gambling with a subordinate may be a violation of Articles 133

and 134 of the Uniform Code of Military Justice (UCMJ) (10 U.S.C. 801-

940).

(3) Gambling may be prohibited by Federal Government building and

grounds regulations, such as 32 CFR part 406 which prohibits gambling

in the Pentagon.

(d) Outside employment and activity. In addition to 5 CFR 3601.107

except to the extent that when procedures have been established by

higher authority for any class of DoD employees (e.g., DoD Directive

6025.7\4\), agency designees may require DoD employees under their

jurisdiction to report any outside employment or activity prior to

engaging in the employment or activity. See Sec. 84.10(g).

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

\4\Copies may be obtained, at cost, from the National Technical

Information Service, 5285 Port Royal Road, Springfield, VA 22161.

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

(1) The commander, head of the organization, or supervisor may

prohibit the employment or activity if he believes that the proposed

outside activity will detract from readiness or pose a security risk.

(2) If action is not taken to prohibit the employment or activity,

the DoD employee is free to engage in the employment or activity in

keeping with other restrictions of this part.

(e) Use of military title by retirees or reserves. Retired military

members and members of reserve components, not on active duty, may use

military titles in connection with commercial enterprises, provided

they clearly indicate their retired or inactive reserve status.

However, any use of military titles is prohibited if it in any way

casts discredit on DoD or gives the appearance of sponsorship,

sanction, endorsement, or approval by DoD. In addition, in overseas

areas, commanders may further restrict the use of titles by retired

military members and members of reserve components.

Subpart C--Activities With Non-Federal Entities

Sec. 84.8 Office of Government Ethics regulation.

See 5 CFR part 2636, ``Limitations on Outside Employment and

Prohibition of Honoraria; Confidential Reporting of Payments of

Charities in Lieu of Honoraria.''

Sec. 84.9 Official participation in non-Federal entities.

(a) Attendance. (1) Agency designees may permit their DoD employees

to attend meetings, conferences, seminars or similar events sponsored

by non-Federal entities in their official DoD capacities at Federal

Government expense if there is a legitimate Federal Government purpose

in accordance with 5 U.S.C. 4101 et seq. and 37 U.S.C. 412, such as

training a DoD employee beyond maintaining professional credentials or

gathering information of value to the DoD.

(2) DoD employees are prohibited from attending events in their

official DoD capacities at Federal Government expense in order to

acquire or maintain professional credentials that are a minimum

requirement to hold the DoD position. See 5 U.S.C. 5946 and 31 U.S.C.

1345.

(b) Membership. DoD employees may serve as DoD liaisons to non-

Federal entities where there is a significant and continuing DoD

interest to be served by such representation. Liaisons serve as part of

their official DoD duties and under DoD component memberships. DoD

employees may not accept DoD component membership in a non-Federal

entity on behalf of DoD except as provided by statute or regulation.

DoD may pay for DoD component memberships in accordance with opinions

of the Comptroller General, such as 24 Comp. Gen. 814 (which may be

purchased from the U.S. Government Printing Office, Washington, DC

20402). DoD is prohibited from paying for individual memberships by 5

U.S.C. 5946. See also 10 U.S.C. 2601.

(c) Management. DoD employees may not participate in their official

DoD capacities in the management of non-Federal entities without

authorization from the Head of the DoD component. However, authorized

DoD employees may officially represent DoD in discussions of matters of

mutual interest with non-Federal entities, may participate in the

determinations and conclusions of non-Federal entities, and may cast a

vote on issues within the scope of the DoD employees' official

responsibilities.

(d) Impartiality of agency designee and travel-approving Authority.

When a DoD employee requests permission to travel to or participate in

activities of a non-Federal entity and the agency designee or travel

approving authority is an active participant in the non-Federal entity,

that agency designee or travel approving authority may not act on the

DoD employee's request but shall defer such action to the next higher

superior or another independent DoD authority. See 5 CFR 2635.402 and

2635.502 and 18 U.S.C. 208.

(e) Impartiality of DoD employees. DoD employees are generally

prohibited from engaging in any official activities in which a non-

Federal entity is a party or has a financial interest if the DoD

employee is an active participant in the non-Federal entity or has been

an officer in the non-Federal entity within the last year. See 5 CFR

2635.402 and 2635.502 and 18 U.S.C. 208.

(f) Endorsement. [The following is a General Order] Endorsement of

a non-Federal entity may be neither stated nor implied by DoD or DoD

employees and DoD employees may not use their titles or positions to

suggest official endorsement or preferential treatment of any non-

Federal entity except those listed in Sec. 84.9(k) [end of General

Order]. Use of military grade as part of an individual's name in

relationship to membership in private organizations is permissible. See

5 CFR 2635.702(c).

(g) Distributing information. In accordance with public affairs

regulations, official channels may be used to notify DoD employees of

events sponsored by non-Federal entities.

(h) Remuneration. DoD employees may not receive any salary or

salary supplement from a non-Federal entity for performance of DoD

duties.

(i) Co-sponsorship. A DoD component is a sponsor or co-sponsor of

an event when that DoD component is one of the organizations holding

the event or in whose name the event is held. Co-sponsorship of events

with a non-Federal entity is prohibited except as follows:

(1) A DoD component may co-sponsor a civic or community activity

where the head of the DoD component command or organization determines

that the activity is unrelated to the purpose or business of the co-

sponsoring, non-Federal entity or the purpose or business of any of its

members. See DoD Instruction 5410.20\5\;

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

\5\See footnote 4 to Sec. 84.7(d).

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

(2) A DoD component may co-sponsor a conference, seminar, or

similar event with a non-Federal entity when all of the following

requirements are met:

(i) The head of the DoD component command or organization finds

that the subject matter of the conference (or co-sponsored portion) is

scientific, technical or professional issues that are relevant to the

DoD component's mission;

(ii) The head of the DoD component command or organization finds

that the purpose of co-sponsorship is to transfer federally developed

technology or to stimulate wider interest and inquiry into the

scientific, technical or professional issues previously identified;

(iii) The non-Federal entity is a recognized scientific, technical

or professional organization approved by the DoD component DAEO for

this purpose; and

(iv) The DoD component accomplishes the co-sponsorship through a

contract, grant or cooperative agreement as identified in 31 U.S.C.

6303 through 6306; or a Cooperative Research and Development Agreement

(CRDA) as defined in 15 U.S.C. 3710a; or a cooperative agreement or

other transaction identified in 10 U.S.C. 2371.

(3) If the DoD component desires to sponsor an event, but requires

assistance in making the arrangements, the DoD component may arrange,

through normal acquisition procedures, to have a non-Federal entity

provide whatever assistance is necessary. If the event is open to

individuals outside the Federal Government, attendance may not be

limited to members of the supporting non-Federal entity. The supporting

non-Federal entity may be permitted to mention its support in

conference materials, but not in terms which imply that it is

sponsoring or co-sponsoring the event.

(j) Participation in conferences and similar events. Subject to the

provisions of paragraph (l) of this section and in accordance with

public affairs regulations and 31 U.S.C. 1345, DoD employees may

participate in their official DoD capacities as speakers or panel

members at conferences, seminars, or similar events sponsored by non-

Federal entities.

(k) Fundraising and membership drives. (1) [The following is a

General Order] Except as provided in paragraph (l) of this section, DoD

components shall not officially support and DoD employees shall not

officially endorse or officially participate in membership drives or

fundraising for any non-Federal entity except the following

organizations which are not subject to the provisions of paragraph (l)

of this section:

(i) The Combined Federal Campaign (CFC);

(ii) Emergency and disaster appeals approved by the Office of

Personnel Management (OPM);

(iii) Army Emergency Relief;

(iv) Navy-Marine Corps Relief Society;

(v) Air Force Assistance Fund, including:

(A) Air Force Enlisted Men's Widows and Dependents Home Foundation,

Inc.;

(B) Air Force Village;

(C) Air Force Aid Society;

(D) General and Mrs. Curtis E. LeMay Foundation.

(vi) Other organizations composed of DoD employees or their

dependents when fundraising among their own members for the benefit of

welfare funds for their own members when approved by the head of the

DoD component command or organization [end of General Order].

(2) Fundraising by DoD employees is strictly regulated by Executive

Order 12353, 47 FR 12785, 3 CFR, 1982 Comp., p. 139, 5 CFR part 950,

DoD Directive 5035.1\6\, DoD Instruction 5035.5\7\, DoD Directive

5410.18\8\, 5 CFR 2635.808 and by the prohibition against preferential

treatment established in paragraph (d) of this section.

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

\6\See footnote 4 to Sec. 84.7(d).

\7\See footnote 4 to Sec. 84.7(d).

\8\See footnote 4 to Sec. 84.7(d).

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

(1) Support of non-Federal entity events. (1) The head of a DoD

component command or organization may provide DoD employees in their

official capacities as speakers, panel members or other participants,

or, on a limited basis, the use of DoD equipment (and the services of

DoD employees necessary to make proper use of the equipment), in

support of an event sponsored by a non-Federal entity when the head of

the DoD command or organization determines all of the following:

(i) The support does not interfere with the performance of official

duties and would in no way detract from readiness;

(ii) The sponsoring, non-Federal entity is not affiliated with the

CFC (including local CFC) or, if affiliated with the CFC, the Director,

OPM or designee has no objection to DoD support of the event;

(iii) The community relations with the immediate community and/or

other legitimate DoD interests are served by the support;

(iv) It is appropriate to associate DoD, including the concerned

Military Department, with the event;

(v) The event is of interest and benefit to the local civilian or

military community as a whole;

(vi) The DoD component command or organization is able and willing

to provide similar support to similar events that meet the criteria

sponsored by other non-Federal entities;

(vii) The use is not restricted by other statutes or regulations;

and

(viii) Except for a fundraising event that meets all other criteria

for DoD participation, no admission fee beyond reasonable costs is

charged for the event, no admission fee beyond reasonable costs is

charged for the portion of the event supported by DoD, or DoD support

to the event is incidental to the entire event in accordance with

public affairs guidance.

(2) Involvement of DoD resources in air shows sponsored by non-

Federal entities is approved or disapproved by the Office of the

Assistant Secretary of Defense (Public Affairs).

(3) Speeches by DoD employees at events sponsored by non-Federal

entities are not precluded when the speech expresses an official DoD

position in a public forum in accordance with public affairs guidance.

(m) Relationships governed by other authorities. The provisions of

this Chapter do not restrict activities involving certain organizations

which have a special relationship with DoD or its employees

specifically recognized by law or by other directives. Other

restrictions may apply. These organizations include:

(1) Certain banks and credit unions (32 CFR part 231);

(2) United Service Organization (DoD Directive 1330.12\9\);

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

\9\See footnote 4 to Sec. 84.7(d).

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

(3) Labor organizations (5 U.S.C. Chapter 71; DoD 1400.25-M\10\,

Chapter 711);

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

\10\Written request should be forwarded to: OASD(P&R)/CPP/EEO,

room 3D269, Pentagon, Washington, DC 20301.

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

(4) Combined Federal Campaign (Executive Order 10927, 26 FR 2383, 3

CFR, 1959-1963 Comp., p. 508) DoD Directive 5035.1;

(5) Association of Management Officials and Supervisors (DoD

Instruction 5010.30\11\);

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

\11\See footnote 4 to Sec. 84.7(d).

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

(6) American Registry of Pathology (10 U.S.C. 177); Henry M.

Jackson Foundation for the Advancement of Military Medicine (10 U.S.C.

178); American National Red Cross (10 U.S.C. 2542); Boy Scouts

Jamborees (10 U.S.C. 2544); Girl Scouts International Events (10 U.S.C.

2545); Shelter for Homeless (10 U.S.C. 2546); National Military

Associations; Assistance at National Conventions (10 U.S.C. 2548);

Assistance from American National Red Cross (10 U.S.C. 2602); United

Seaman's Service Organization (10 U.S.C. 2604); Scouting: Cooperation

and Assistance in Foreign Areas (10 U.S.C. 2606); and Civil Air Patrol

(10 U.S.C. 9441-9442).

Sec. 84.10 Personal participation in non-Federal entities.

(a) Participation--(1) Fundraising and other activities. Subject to

other provisions of this part, DoD employees may voluntarily

participate in activities of non-Federal entities as individuals in

their personal capacities provided they act exclusively outside the

scope of their official position. Purely personal, unofficial,

volunteer efforts to support fundraising are not prohibited where the

efforts do not imply DoD endorsement. The head of the DoD component

command or organization may authorize such activities outside the

Federal Government workplace, such as at public entrances, in community

support facilities and in personal quarters. See 5 CFR part 950 and

Executive Order 12353. These activities may be further limited by

Federal Government building and grounds regulations.

(2) Professional associations and learned societies. Agency

designees may permit their DoD employees to voluntarily participate in

the activities of non-profit professional associations and learned

societies without being charged leave and to use Federal Government

equipment or administrative support services to prepare papers to be

presented at such association or society events or to be published in

professional journals, in accordance with FPM 252 and 630\12\ and

related DoD regulations, when:

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

\12\For sale by Superintendent of Documents, Congressional Sales

Office, U.S. Government Printing Office, Washington, DC 20402.

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

(i) The participation or paper is related to the DoD employee's

official position or to DoD functions, management or mission; and

(ii) The participation or preparation of the paper does not

interfere with the performance of official DoD duties.

(3) Community support activities. Agency designees may permit their

DoD employees to voluntarily participate in community support

activities that promote civic awareness and uncompensated public

service such as disaster relief events, without being charged leave in

accordance with FPM 630 and related DoD regulations.

(4) Impartiality of agency designee and travel approving authority.

When a DoD employee requests permission to travel to or participate in

activities of a non-Federal entity and the agency designee or travel

approving authority is an active participant in the non-Federal entity,

that agency designee or travel approving authority may not act on the

DoD employee's request but shall defer such action to the next higher

superior or another independent DoD authority. See 5 CFR 2635.402 and

2635.502 and 18 U.S.C. 208.

(b) Membership and management. DoD employees may become members and

may participate in the management of non-Federal entities as

individuals in a personal capacity provided they act exclusively

outside the scope of their official position. A DoD employee may not

serve in a personal capacity as an officer, member of the Board of

Directors, or in any other similar position in any non-Federal entity

offered because of their DoD assignment or position.

(c) Impartiality of DoD Employees. DoD employees are generally

prohibited from engaging in any official activities in which a non-

Federal entity is a party or has a financial interest if the DoD

employee is an active participant in the non-Federal entity or has been

an officer in the non-Federal entity within the last year. See 5 CFR

2635.402 and 2635.502 and 18 U.S.C. 208.

(d) Interference with employment of local civilians. Enlisted

members on active duty may not be ordered or authorized to leave their

post to engage in a civilian pursuit, business, or professional

activity if it interferes with the customary or regular employment of

local civilians in their art, trade, or profession. See 10 U.S.C. 974.

(e) Competition with civilian musicians. Members of military bands

are very restricted in the degree to which they may compete off base

with civilian musicians. See 10 U.S.C. 3634, 6223 and 8634.

(f) Use of Federal Government resources--(1) Authorized uses. Other

than Federal Government time authorized in paragraphs (a)(2) and (a)(3)

of this section, Federal Government assets, employees, or property may

not be used in support of personal participation in non-Federal

entities, except as follows:

(i) Agency designees may permit occasional use of Federal

Government telephone systems in keeping with GSA rules on personal

calls, provided that such use does not interfere with the performance

of official duties. See Sec. 84.7(b) and 41 CFR 201-21.6;

(ii) Because the cost to the Federal Government is minimal, the use

of office telecommunications equipment for local calls, word processing

equipment, libraries and similar resources and facilities whose use

would not affect Federal Government costs significantly, may be

permitted by the agency designee if:

(A) The non-Federal entity is not a prohibited source;

(B) The agency designee determines that:

(1) A legitimate public interest is served by the use; or

(2) The use would enhance the professional development or skills of

the DoD employee in his current position.

(C) The use of such resources is made only during personal time,

such as excused absence, lunch period, or after duty hours; and

(D) The use does not interfere with the performance of official

duties.

(2) Prohibited uses. (i) [The following is a General Order] Because

of the potential for significant cost to the Federal Government, and

the potential for abuse, DoD employees, such as secretaries, clerks,

and military aides, may not be used to support the unofficial activity

of another DoD employee in support of non-Federal entities except as

provided in paragraph (a)(1) of this section [end of General Order].

(ii) [The following is a General Order] For the same reasons,

copiers and other duplicating equipment may not be used for unofficial

activity in support of non-Federal entities [end of General Order].

(g) Prior approval of outside employment and business activities.

(1) A DoD employee, other than a special Government employee, who is

required to file a financial disclosure report, SF 450 or SF 278, shall

obtain written approval from the agency designee before engaging in a

business activity or compensated outside employment with a prohibited

source, unless general approval has been given in accordance with

paragraph (g)(2) of this section. Approval shall be granted unless a

determination is made that the business activity or compensated outside

employment is expected to involve conduct prohibited by statute or

regulation.

(i) Business activity means any business, contractual or other

financial relationship not involving the provision of personal services

by the DoD employee. It does not include a routine commercial

transaction or the purchase of an asset or interest, such as common

stock, that is available to the general public.

(ii) Employment means any form of non-Federal Government employment

or business relationship involving the provision of personal services

by the DoD employee. It includes, but is not limited to, personal

services as an officer, director, employee, agent, attorney,

consultant, contractor, general partner or trustee.

(iii) Prohibited source has the meaning set forth in 5 CFR

2635.203(d), as modified by the separate agency designations in 5 CFR

3601.102.

(2) The DoD component DAEO or designee may, by a written notice,

exempt categories of business activities or employment from the

requirement of paragraph (g)(1) of this section for prior approval

based on a determination that business activities or employment within

those categories would generally be approved and are not likely to

involve conduct prohibited by statute or regulation.

(3) A copy of the request for prior approval and the written

approval shall be kept with the filed copy of the DoD employee's

financial disclosure report, SF 450 or SF 278, or with the local Ethics

Counselor.

(4) Such DoD employees who have not obtained prior approval and who

are, on the effective date of this supplemental rule, already engaged

in an outside activity that requires prior approval shall have 90 days

from that date to obtain such approval.

(5) Except to the extent that when procedures have been established

by higher authority for any class of DoD employee (e.g., DoD Directive

6025.7\13\, agency designees may require DoD employees under their

jurisdiction to report any outside employment or activity prior to

engaging in the employment or activity.

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

\13\See footnote 4 to Sec. 84.7(d).

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

(i) The commander, head of the organization, or supervisor may

prohibit the employment or activity if he believes that the proposed

outside activity will detract from readiness or pose a security risk.

(ii) If action is not taken to prohibit the employment or activity,

the DoD employee is free to engage in the employment or activity in

keeping with other restrictions of this part.

(h) Teaching, speaking and writing--(1) Disclaimer for speeches and

writings devoted to agency matters. [The following is a General Order]

A DoD employee who uses or permits the use of his military grade or who

includes or permits the inclusion of his title or position as one of

several biographical details given to identify himself in connection

with teaching, speaking or writing, in accordance with 5 CFR

2635.807(b)(1), shall make a disclaimer if the subject of the teaching,

speaking or writing deals in significant part with any ongoing or

announced policy, program or operation of the DoD employee's agency, as

defined in 5 CFR 3601.102(a), and the DoD employee has not been

authorized by appropriate agency authority to present that material as

the agency's position.

(i) The required disclaimer shall expressly state that the views

presented are those of the speaker or author and do not necessarily

represent the views of DoD or its components.

(ii) Where a disclaimer is required for an article, book or other

writing, the disclaimer shall be printed in a reasonably prominent

position in the writing itself. Where a disclaimer is required for a

speech or other oral presentation, the disclaimer may be given orally

provided it is given at the beginning of the oral presentation [end of

General Order].

(2) Security clearance. A lecture, speech, or writing that pertains

to military matters, national security issues, or subjects of

significant concern to DoD shall be reviewed for clearance by

appropriate security and public affairs offices prior to delivery or

publication.

(3) Honoraria. Compensation for a lecture, speech or writing may be

restricted by the honoraria prohibition of the Ethics in Government Act

(5 U.S.C. App.), 5 CFR part 2636, and by 5 CFR 2635.807.

Subpart D--Travel Benefits

Sec. 84.11 Acceptance of official travel benefits in kind or payment

for official travel expenses.

(a) Acceptance from non-Federal sources--(1) Official travel.

Official travel by DoD employees shall be funded by the Federal

Government except that DoD components may accept official travel

benefits, including in kind subsistence and accommodations and payments

or reimbursements of expenses, from non-Federal sources as provided in

this subpart of this part.

(2) Personal travel. This subpart does not apply to travel benefits

provided to DoD employees in their personal capacities. However, DoD

employees must report such travel expenses when appropriate in

accordance with subpart G of this part. There may be limitations on

acceptance of travel benefits in a personal capacity, including

limitations on acceptance from prohibited sources, because of official

position, and under 41 U.S.C. 423.

(3) Acceptance procedures. Any official travel benefits from non-

Federal sources accepted by the travel approving authority must be:

(i) Approved in writing by the travel approving authority with the

advice of the DoD employee's Ethics Counselor;

(ii) If accepted under the authority granted by 31 U.S.C. 1353,

approved in advance of travel.

(4) Spousal travel. The travel approving authorities for travel of

a spouse accompanying a DoD employee on official travel that is paid

for or provided in kind by a non-Federal source are as follows:

(i) For DoD employees of OSD, Defense Agencies and OSD Field

Activities, the Executive Secretary, OSD;

(ii) For DoD employees of Military Departments, the Secretaries

concerned or their designees;

(iii) For DoD employees of the Chairman of the Joint Chiefs of

Staff and the Joint Staff, the United or Specified Commands, and the

Combined Commands and agencies, the Chairman of the Joint Chiefs of

Staff, or his designee.

(b) Acceptance of travel and related expenses by a DoD component

from non-Federal sources--(1) Attendance at a meeting or similar

function (31 U.S.C. 1353).

(i) In accordance with 31 U.S.C. 1353 and GSA travel regulations,

41 CFR 301-1.2 and part 304, Heads of DoD components may accept travel

benefits from a non-Federal source incurred by DoD employees in

connection with their attendance in an official capacity at a meeting

or similar function. The Joint Federal Travel Regulations\14\ (JFTR),

Chapter 7, part W, Paragraphs U7900-7908 (DoD Uniformed Services) and

Joint Travel Regulations\15\ (JTR), Chapter 4, part Q, Paragraphs

C4900-4908 (DoD Civilian Personnel) implement 41 CFR 301-1.2 and part

304. For detailed guidance as to the applicability and application of

specific authority, these regulations should be consulted directly.

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

\14\For sale by Superintendent of Documents, Congressional Sales

Office, U.S. Government Printing Office, Washington, DC 20402

\15\See footnote 14 to Sec. 84.11(b)

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

(ii) Where the GSA travel regulations, 41 CFR 301-1.2 and part 304,

are inconsistent with the JFTR and JTR, 41 CFR 301-1.2 and part 304 are

the controlling authorities.

(iii) A DoD component may not accept travel benefits from non-

Federal sources under any other gift acceptance authority if 31 U.S.C.

1353 applies.

(iv) Payment guidelines. DoD employees (or their spouses) shall not

accept cash payments on behalf of the Federal Government.

(A) When travel benefits are paid for rather than provided in kind,

payments from the non-Federal source will be by check or similar

instrument made payable to the United States Treasury. Any such payment

received by the DoD employee (or spouse) shall be submitted with his

travel voucher as soon as practicable.

(B) The DoD employee shall exclude from his travel voucher any

request for reimbursement for travel benefits furnished in kind by a

non-Federal source on the travel voucher to ensure that appropriate

deductions are made in the travel, per diem, or other allowances

payable by the United States.

(v) Reporting. Each travel-approving authority designated by the

DoD component Head to accept travel benefits from non-Federal sources

shall submit a report to the DoD component DAEO or designee

semiannually on April 30 and October 31 to accommodate the required

reporting to OGE on May 31 and November 30 each year. See JFTR,

Paragraph U7908 and JTR, Paragraph C4908 for details on what to report.

(2) DoD component gift acceptance statutes. In accordance with

procedures established by those DoD components with gift acceptance

authority under 10 U.S.C. 2601, travel benefits may be accepted by such

DoD component Heads or their designees.

(i) This authority may not be used to accept travel benefits

covered by 31 U.S.C. 1353.

(ii) This authority may be used to accept, for example,

reimbursement for travel benefits of flight crew members that accompany

Federal Government aircraft to international air shows or the expenses

incurred by the attendance of DoD employees at ceremonial events in

order to enhance a DoD component's public relations. This authority may

also be used to accept travel benefits offered after travel has begun

or has been completed.

(3) DoD component DAEO or designee approval. Acceptance of official

travel benefits from non-Federal sources described in Sec. 84.11(b)(1)

and (2) requires the concurrence of the DoD component DAEO or designee.

(c) Acceptance of contributions, awards and other payments by DoD

employees from tax-exempt organizations (5 U.S.C. 4111)--(1)

Applicability. Military members are permitted to accept contributions,

awards and other payments the same as civilian DoD employees in

accordance with the requirements of this section.

(2) Conditions for acceptance. Except when acceptance is permitted

under 5 CFR 2635.204(d), DoD employees are permitted to accept

contributions, awards and other payments directly from non-Federal

sources only when all of the following conditions are met:

(i) The source is tax-exempt organization described by 26 U.S.C.

501(c)(3) or a State or local government (see 5 CFR part 410, subpart

G);

(ii) The contribution, award, or payment of travel benefits is

incidental to training in non-Federal Government facilities or

attendance at a meeting;

(iii) An appropriate deduction is made from any payment by the

Federal Government to the DoD employee for their official travel

entitlement;

(iv) The contribution, award, or payment is not a reward for

services to the non-Federal source;

(v) Acceptance of the contribution, award or payment would not

reflect unfavorably on the DoD employee's ability to perform his duties

in a fair and objective manner, nor otherwise compromise the integrity

of any Federal Government action; and

(vi) The travel approving authority approves the acceptance of the

contribution, award or payment in writing.

(3) Payments from multiple sources. When more than one organization

participates in making a single contribution, award, or payment, only

the organization that selects the recipient and administers the funds

from which the contribution, award, or payment is made will be

considered the source.

(4) Reporting. (i) Financial disclosure reporting individuals must

report acceptance of these travel benefits if the fair market value of

those benefits reaches the reportable amount.

(ii) Travel benefits accepted under 5 U.S.C. 4111 shall be reported

by the travel-approving authority directly to the DoD component DAEO or

designee within 30 days after completion of travel. These reports shall

include, at a minimum, the information required for the semiannual

reports by the JFTR, Paragraph U7908 and JTR, Paragraph C4908.

(d) Receipt and disposition of foreign gifts and decorations (5

U.S.C. 7342). DoD employees may accept travel and travel-related

expenses from a foreign government in accordance with 32 CFR part 95.

Sec. 84.12 DoD guidance.

(a) Acceptance of incidental benefits. There are two basic

principles DoD employees must consider in determining whether they may

accept benefits offered incident to their official travel. See DoD

travel rules (e.g., DoD Directive 4500.9\16\).

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

\16\See footnote 4 to Sec. 84.7(d).

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

(1) Federal Government property. Anything that does not fall within

a gift exception or exclusion under 5 CFR part 2635, subpart B, or 5

CFR 3601.101-3601.108, which is received by a DoD employee as a result

of official travel, belongs to the Federal Government, regardless of

the source of the funding.

(i) Travel coupons, tickets, promotional items of more than nominal

value, frequent flyer mileage credits, and most other benefits received

by DoD employees from non-Federal sources (e.g., airlines, rental car

companies, hotels) incident to their official travel belong to the

Federal Government. They may not be used for personal purposes.

(ii) If possible, such benefits will be turned over to the

appropriate official. See JFTR, Paragraph U2010B, JTR, Paragraph C1200,

41 CFR part 301 and 41 CFR 101-25.103.

(2) Gifts from outside sources. Benefits offered to a DoD employee

from a non-Federal source incident to official travel that cannot be

used for official purposes must be treated as gifts to the DoD

employee. DoD employees may not accept such gifts if acceptance would

violate 5 CFR part 2635, subpart B.

(b) Examples of benefits considered Federal Government property--

(1) Frequent flying mileage credits. Frequent flyer mileage credits

earned as a result of official travel are the property of the Federal

Government. They shall not be used except in connection with official

travel. Credits are used in connection with official travel either by

redeeming them for airline tickets which are used for official travel

or by using them for travel upgrades while on official travel (e.g.,

airline seat upgrades, rental car upgrades, hotel upgrades). First

consideration should be given to the former. When mileage credits for

official and personal travel have been commingled in the same account,

only those credits or points that clearly can be shown to have been

derived from personal travel may be used for future personal travel.

All other points in the account belong to the Federal Government.

(2) Other awards to users of travel services. Travel companies

sometimes give away merchandise, or award points toward merchandise or

other prizes, to users of their services. If the travel services used

are paid for by the Federal Government, any resulting award belongs to

the Federal Government (e.g., if a DoD employee renting a car for

official business is offered either a calculator or points toward a

larger prize, both would belong to the Federal Government).

(c) Examples of benefits treated as gifts to an individual--(1)

Travel upgrades. Travel upgrades are commonly offered for such travel

accommodations as airline seats, rental cars, and hotel rooms. Some

travel upgrades are given on the spot without any prearranged

entitlement. Others are provided pursuant to some prearranged

entitlement, such as a coupon. DoD employees on official travel may

accept benefits such as an airline seat upgrade to first class, a

luxury rental car in place of a compact, or a hotel room with a view

instead of an interior room, for official use as long as there is no

extra charge to the Federal Government to obtain the upgrade (see 5 CFR

2635.204(c)), subject to the following:

(i) On the spot upgrades. DoD employees may accept an upgrade

offered on the spot under circumstances in which such upgrades are

generally available to the public or at least to all Federal Government

employees or all military members. For example, a travel company may

provide upgrades to remedy overbooking or overcrowding, due to a

shortage of smaller cars, or simply for customer relation purposes; or

upgrades may be offered to all military members in uniform. No upgrade

may be accepted, however, if it is provided on the basis of the DoD

employee's grade or position. Upgrades resulting from involuntary

``bumping'' while on official travel may not be used for personal

travel. See 5 CFR 2635.202(a)(2);

(ii) Use of upgrade certificates (other than those obtained for

frequent flyer miles). Some travel companies distribute coupons for

free travel upgrades as a promotional offer. DoD employees may accept

and use such coupons if they are realistically available to the general

public (e.g., widely available coupons usable by bearer) or to all

Federal Government employees or all military members (e.g., coupons

available to any Federal Government employee for official travel). DoD

employees may not use coupons provided on the basis of their grade or

position.

(2) ``Gold card'' and similar memberships. Certain airlines offer

special benefits, including free upgrades, to members of their traveler

incentive programs (e.g., Gold card, Key Club, etc.). Membership in

these programs ordinarily is earned by accumulating a large number of

travel miles during the current calendar year, or in some cases,

memberships may be purchased. DoD employees who obtain eligibility

under these circumstances (i.e., by purchasing a membership with their

personal funds or by accumulating the necessary miles, even by official

travel) may accept the membership and resulting benefits, including

travel upgrades. If membership in the program is offered to DoD

employees who have not met the usual requirements for membership,

however, primarily because of the DoD employee's grade or position,

neither the membership nor its benefits may be accepted.

(3) Prizes in ``open'' and ``closed'' contest. When travel

companies and related organizations offer prizes in a competition that

is open to the general public, so that no one must perform official

travel to win, a DoD employee may keep any prize he wins, even if he

happened to enter the contest only because of official travel (e.g., a

DoD employee flying on official business receives the winning entry

blank in an airline's contest while on the flight, but individuals not

using the airline will be given the entry blank on request). Some

travel companies and related organizations offer prizes in connection

with official travel. The prize usually is given as a result of a

drawing or some kind of contest. If competition for a prize is limited

to individuals using a certain kind of travel accommodation, which in

the case of the DoD employee is paid for by the Federal Government, any

prize won belongs to the Federal Government (e.g., an airline provides

contest entry blanks only to passengers on its planes, and the DoD

employee receives the winning entry blank while flying on official

travel).

(4) Incentives for voluntary surrender of flight reservations. DoD

employees may keep payments or free tickets received from a carrier for

voluntarily giving up a seat on an overbooked flight. DoD employees on

official travel may not voluntarily surrender their seats if the

resulting delay would interfere with the performance of duties. The

delay may not increase the cost to the Federal Government. Therefore,

travel vouchers should disclose the voluntary surrender and resulting

delays and leave must be taken as appropriate.

Sec. 84.13 Procedures and responsibilities.

(a) The travel-approving authority shall:

(1) Approve or disapprove acceptance of travel benefits in kind or

payments of travel expenses from non-Federal sources in accordance with

Sec. 84.11 (c) and (d);

(2) Acquire the concurrence of the DoD component DAEO or designee

when approving travel benefits in accordance with the conflict of

interest analysis required by 41 CFR 304-1.5;

(3) Prepare and submit a report to the DoD component DAEO or

designee reporting all travel benefits over $250 accepted in accordance

with the authority granted under 31 U.S.C. 1353 as implemented in

Sec. 84.11(b);

(4) Prepare and submit a report to the DoD component DAEO or

designee within 30 days after completion of travel during which travel

benefits have been paid by non-Federal sources under 5 U.S.C. 4111. See

Sec. 84.11(c)(3).

(b) Each DoD component DAEO or designee shall:

(1) Prepare and submit semiannual reports to OGE on acceptance of

payments under 31 U.S.C. 1353 due May 31 and November 30 each year. See

Sec. 84.11(b)(1)(v);

(2) Retain reports from the travel-approving authority under 5

U.S.C. 4111 for two years. See Sec. 84.11(c)(4);

(3) Provide written concurrence for the approval of travel benefits

in accordance with the conflict of interest analysis required by 41 CFR

304-1.5.

(c) Each traveling DoD employee shall:

(1) Provide all necessary information to the travel approving

authority for a semiannual report to the DoD component DAEO;

(2) Turn in any merchandise, frequent flyer miles or other benefits

as required under Sec. 84.12(a).

Subpart E--Conflicts of Interest

Sec. 84.14 Office of Government Ethics Regulation.

(a) See 5 CFR part 2639, ``Interpretation of 18 U.S.C. 209''

(b) See 5 CFR part 2640, ``Interpretation of 18 U.S.C. 208''

Sec. 84.15 Guidance on 18 U.S.C. 208.

(a) Conflicts and appearance of conflicts under 18 U.S.C. 208. See

5 CFR part 2635, subpart D and subpart E, OGE opinions (which are

available for purchase from the U.S. Office of Government Ethics, 1201

New York Avenue, NW., suite 500, Washington, DC 20005-3917), and 5 CFR

3601.105 for provisions on conflicts of interest under 18 U.S.C. 208.

(b) Applicability to enlistees. The provisions of 18 U.S.C. 208 and

related provisions of OGE regulations do not apply to enlisted members.

However, provisions similar to 18 U.S.C. 208 do apply to enlisted

members as follows: [The following is a General Order] except as

approved by the DoD component DAEO or designee, an enlisted member,

including an enlisted special Government employee, shall not

participate personally and substantially as part of his official DoD

duties, in any particular matter in which he, his spouse, minor child,

partner, entity in which he is serving as officer, director, trustee,

partner or employee or any entity with which he is negotiating or has

an arrangement concerning prospective employment, has a financial

interest [end of General Order].

(c) Waiver of 18 U.S.C. 208(a). Pursuant to 18 U.S.C. 208(b),

application of 18 U.S.C. 208(a) may be waived.

(1) The regulatory waivers for DoD under 18 U.S.C. 208(b)(2) have

been preserved and are reprinted as follows (see 5 CFR 2635.402(d));

(i) For civilian DoD components, such waivers appear in Appendix B

to this part;

(ii) For the Department of the Army, such waivers appear in

Appendix B to this part;

(iii) For the Department of the Air Force, such waivers appear in

Appendix B to this part;

(iv) For the Department of the Navy, such waivers appear in

Appendix B to this part.

(2) Application of 18 U.S.C. 208(a) may be waived for individuals

when a financial interest is not so substantial as to be likely to

affect the integrity of the services that the Federal Government may

expect from the DoD employee. Considerations in determining whether the

interest is not so substantial as to be deemed likely to affect the

integrity of the services that the Federal Government may expect from

the DoD employee include:

(i) The extent to which the DoD employee's exercise of authority

and responsibility can affect his interest;

(ii) The relative importance of the interest in the DoD employee's

life or finances;

(iii) The potential for harm to the Federal Government and to the

DoD employee if the DoD employee's interests influence his decision-

making;

(iv) How the situation would appear to an informed public;

(v) The nature of the relationship between the DoD employee and the

individual who has the interest concerned.

(3) In order to pursue an individual waiver under 18 U.S.C.

208(b)(1) the following steps are mandatory:

(i) Before a waiver is requested, consideration should first be

given to alternative resolutions, such as disqualification,

divestiture, reassignment, or rearrangement of duties. Individual

waivers are to be considered only when all alternatives have been

exhausted. The supervisor should also consider, with the advice of the

Ethics Counselor, whether a potential violation of 18 U.S.C. 208(a)

exists. See paragraph (d) of this section. Even if the interests are

insubstantial, consideration should be given to whether the particular

matter will have a direct and predictable effect on the financial

interest. See 5 CFR 2635.402(b)(1);

(ii) A request for a waiver shall be forwarded through the chain of

command or supervision to the DoD component DAEO. The DoD component

DAEO shall consult, if practicable, on the action with OGE;

(iii) Pending the approval of the waiver, the DoD employee shall be

disqualified from participation in the particular matter that will have

an effect on the financial interest;

(iv) The waiver request shall include the Ethics Counselor's

findings of fact on the following:

(A) The manner in which the financial interest was acquired;

(B) The purpose behind the DoD employee's acquisition of the

interest;

(C) The dollar value of the interest;

(D) The potential amount by which the DoD employee's official

actions may affect the financial interest;

(E) The degree to which the DoD employee has control over official

actions which may affect the non-Federal entity;

(F) The size of the non-Federal entity and the degree to which

official actions may affect the non-Federal entity;

(G) The value of the financial interest in relation to the DoD

employee's net worth and income from other sources;

(H) The degree to which the DoD employee has control over the

financial interest, and whether it is capable of being divested.

(4) By statute, authority to grant 18 U.S.C. 208(b)(1) waivers

rests with the DoD official responsible for the DoD employee's

appointment. By Executive Order 12674, that authority shall not be

exercised without prior consultation, if practicable, with OGE. The DoD

component DAEO shall consult with OGE regarding the waiver on behalf of

the DoD official responsible for the DoD employee's appointment.

(d) Resolution of conflicts. Resolution of actual or apparent

conflicts of interest is the responsibility of the head of the DoD

component command or organization. An Ethics Counselor should be

consulted about alternatives for resolution. See subpart J of this part

for enforcement information.

Sec. 84.16 Other conflict of interest laws.

(a) Bribery and graft. (1) [The following is a General Order] All

DoD employees are prohibited from, directly or indirectly, giving,

offering, promising, demanding, seeking, receiving, accepting, or

agreeing to receive anything of value to influence any official act, to

influence commission of fraud on the United States, to induce

committing or omitting any act in violation of a lawful duty, or to

influence testimony given before an individual or non-Federal entity

authorized to hear evidence or take testimony [end of General Order].

See 18 U.S.C. 201(b).

(2) [The following is a General Order] DoD employees are also

prohibited, except as provided by law for the proper discharge of

official duties, from, directly or indirectly, giving, offering,

promising, demanding, seeking, receiving, accepting, or agreeing to

accept anything of value for or because of any official act performed

or to be performed, or for or because of any testimony given or to be

given before an individual or non-Federal entity authorized to hear

evidence or take testimony [end of General Order]. See 18 U.S.C.

201(c).

(3) These prohibitions do not apply to the payment or receipt of

witness fees authorized by law, certain travel and subsistence expenses

to appear as a witness and value of time lost in attendance at a trial,

hearing, or proceeding. Other prohibitions may apply. See 18 U.S.C.

201(d); 5 U.S.C. 5515 and 5751 and paragraph 66 of part IV, MCM, 1984

(10 U.S.C. 801-940).

(b) Compensation related to matters pending Government decision.

OGE interpretation of prohibitions under 18 U.S.C. 203 appear in 5 CFR

2635.801(d)(3). These prohibitions do not apply to enlisted members. A

DoD employee whose salary is not tied to the profitability of the non-

Federal entity's Federal Government contracts does not violate this

statute. See OGE opinion 86x9\17\ (informal). This statute prohibits

receiving compensation for any representation, including those where

there is no intent to be corrupted or to provide preferential

treatment. Representations can be either oral or written.

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

\17\Copies are available from Office of Government Ethics, 1201

New York Avenue, NW., suite 500, Washington, DC 20005-3917

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

(1) The prohibition does not apply to a DoD employee's

representation of himself, but this exception does not extend to the

representation of a distinct, legal, non-Federal entity as a

corporation, a partnership, or even a sole proprietorship. 18 U.S.C.

203(a)(2) prohibits an offer or payment of compensation, the

solicitation or receipt of which is otherwise barred.

(2) The prohibitions apply to special Government employees but only

in relation to a particular matter involving a specific party or

parties in which the special Government employee participated

personally and substantially or, absent such participation, if he

served more than a total of 60 days in the preceding 365 days, in

relation to any particular matter pending in the DoD agency.

(3) 18 U.S.C. 203 does not prohibit giving testimony under oath or

making statements required to be made under penalty of perjury.

(4) 18 U.S.C. 203 does not prohibit representation, with or without

compensation, of one's parents, spouse, child, or any person or estate

the DoD employee serves as administrator, guardian or other personal

fiduciary. This exemption is permitted only if approved by the DoD

official responsible for appointing the DoD employee to his DoD

position. The exemption may not be extended to the DoD employee's

representation of any such person in matters in which the DoD employee

has officially participated personally and substantially or in matters

which, even absent such participation, are the subject of his official

responsibility.

(5) The head of a department or agency may authorize a special

Government employee to represent his regular employer or other outside

organization in the performance of work under a Federal Government

grant or contract if the department or agency head certifies and

publishes the certification in the Federal Register that the national

interest requires such representation.

(c) Contracts with DoD employees. Contracts for the procurement of

goods and services between the Federal Government and its employees are

prohibited unless the needs of the Federal Government cannot otherwise

be met. See 48 CFR 3.601 and 3.602.

(d) Representation of others--(1) Prohibition under 18 U.S.C. 205.

18 U.S.C. 205 prohibits DoD employees, other than enlisted members,

whether or not they are employed for compensation, from personally

acting as an agent or attorney for anyone else before a department,

agency, or court in connection with any covered matter in which the

United States is a party or has a direct and substantial interest or

from prosecuting any claim against the Federal Government or receiving

any gratuity or interest in such claim for assistance in prosecuting

the claim. Covered matter means any judicial or other proceeding,

application, request for a ruling or other determination, contract,

claim, controversy, investigation, charge, accusation, arrest, or other

particular matter.

(2) Exceptions. The following are excluded from the scope of 18

U.S.C. 205:

(i) Giving testimony under oath or making statements required to be

made under penalty of perjury or representing another person, with or

without compensation, in a disciplinary, loyalty, or other personnel

administration proceeding;

(ii) Representing, with or without compensation, one's parents,

spouse, child, or a person estate the DoD employee serves as a

fiduciary, but only if approved by the DoD official responsible for

appointing the DoD employee to this DoD position. This exception does

not apply to matters in which the DoD employee has participated

personally and substantially or which, in the absence of such

participation, are the subject of his official DoD responsibility;

(iii) The head of a department or agency may allow a special

Governmental employee to represent his regular employer or other

outside organization in the performance of work under a Federal

Government grant or contract if the department or agency head certifies

and publishes the certification in the Federal Register that the

national interest requires such representation;

(iv) For special Government employees, the prohibitions apply only

to covered matters in which they participated personally and

substantially as a special Government employee. Absent such

participation, the prohibitions apply only if he served more than a

total of 60 days during the preceding 365 days and the covered matter

was pending in the DoD agency during that period.

(e) Compensation from other sources. (1) The provisions of 18

U.S.C. 209 and related provisions of OGE regulations do not apply to

enlisted members. However, provisions similar to 18 U.S.C. 209 do apply

to enlisted members as follows: [The following is a General Order] an

enlisted member, except an enlisted special Government employee, shall

not receive any salary or supplementation of his Federal Government

salary, from any entity other than the Federal Government or as may be

contributed out of the treasury of any State, county, or municipality,

for his services to the Federal Government [end of General Order].

(2) 18 U.S.C. 209 prohibits DoD employees from receiving pay or

allowances or supplements of pay or benefits from any source other than

the United States for the performance of official service or duties

unless specifically authorized by law. Note that a task or job that is

performed outside normal working hours does not necessarily allow

acceptance of payment for performing it. If the undertaking is part of

one's official duties, pay for its performance may not be accepted from

any source other than the United States regardless of when it was

performed.

(3) A DoD employee may continue to participate in bona fide

pension, retirement, insurance, bonus, or other employee welfare or

benefit plan maintained by his former employer. See 18 U.S.C. 209(b).

(4) Reserve military officers and certain temporarily commissioned

military officers who are ordered to active duty may continue to

receive compensation from individuals who furnished compensation to

them prior to being ordered to active duty. See 10 U.S.C. 1033 and 50

U.S.C. App. 454(f).

(f) Additional pay or allowances. [The following is a General

Order] DoD employees may not receive additional pay or allowances for

disbursement of public money or for the performance of any other

service or duty unless specifically authorized by law. See 5 U.S.C.

5536 [end of General Order].

(1) 5 U.S.C. 5536 precludes extra pay from the Federal Government

for the performance of official duties. Subject to certain limitations,

civilian DoD employees may hold two distinctly different Federal

Government positions and receive the salaries of both if the duties of

each are performed. Absent specific authority, however, military member

may not do so because any arrangement by a military member for

rendering services to the Federal Government in another position is

incompatible with the military member's actual or potential military

duties. That a military member may have leisure hours during which no

official duty is performed does not alter the result. See 52 Comp. Gen.

471 and 22 Comp. Gen. 127, 149.

(2) 5 U.S.C. 5536 applies to enlisted members and precludes

enlisted members from supplementing their official salaries from

outside sources for performing their official duties.

(g) Interference with military duties. Military officers on active

duty (except while on terminal leave) may not accept employment if it

requires separation from their organization, branch, or unit, or

interferes with the performance of military duties. See 10 U.S.C.

973(a).

(h) Civil office prohibition. Regular military officers on the

active duty list and retired regular military officers on active duty

from more than 180 days may not hold civil office, unless expressly

authorized by law. See 10 U.S.C. 973(b).

(i) Assignment of reserves for training. (1) Personnel who assign

reserves for training shall not assign them to duties in which they

will obtain information that they or their private employers may use to

gain unfair advantage over competitors. Reservists must disclose to

superiors and assignment personnel information necessary to ensure that

no conflict exists between their duty assignment and their private

interests.

(2) Commanders, or their designees, shall screen Reservists

performing training to ensure that no actual or apparent conflict

exists between their private interests and their duty assignment. While

Reservists have an affirmative obligation under this rule to disclose

material facts in this regard, receiving commands cannot assume

compliance and shall independently screen incoming personnel to avoid

conflicts of interests.

(j) Commercial dealings involving DoD employees. [The following is

a General Order] A DoD employee shall not knowingly solicit or make

solicited sales to DoD personnel who are junior in rank, grade or

position, or to the family members of such personnel, on or off duty.

In the absence of coercion or intimidation, this does not prohibit the

sale or lease of a DoD employee's non-commercial personal or real

property or commercial sales solicited and made in a retail

establishment during off-duty employment. The posting of an

advertisement in accordance with Federal Government building management

policies does not constitute solicitation for purposes of this section

[end of General Order].

(1) [The following is a General Order] In the absence of coercion

or intimidation, this does not prohibit the sale or lease by an

individual of one's non-commercial personal property or real estate,

and commercial sales made in a retail establishment during off-duty

employment. Solicitation does not include advertisements posted in

accordance with Federal Government building management policies [end of

General Order].

(2) [The following is a General Order] This prohibition includes

the solicited sale of insurance, stocks, mutual funds, real estate,

cosmetics, household supplies, vitamins, and other goods or services

[end of General Order].

(3) [The following is a General Order] Both the act of soliciting

and the act of selling as a result of soliciting are prohibited. In

both cases, however, a solicitation is necessary for a violation to

occur. While the standard prohibits a senior from making a solicited

sale to a junior or to the junior's family, sales made because a junior

approaches the senior and requests the sale to be made are not

prohibited, absent coercion or intimidation by the senior [end of

General Order].

(4) Personal commercial solicitations by the spouse or other

household member of a DoD employee to those who are junior in rank,

grade, or position to the DoD employee, may give rise to the appearance

that the DoD employee himself is using his public office for personal

gain. When a spouse or household member of a DoD employee engages in

such activity, the supervisor of the DoD employee must consult an

Ethics Counselor, and counsel the DoD employee that such activity

should be avoided where it may:

(i) Cause actual or perceived partiality or unfairness;

(ii) Involve the actual or apparent use of rank or position for

personal gain; or

(iii) Otherwise undermine discipline, morale, or authority.

(k) Related rules. (1) There is a prohibition on holding

conflicting financial interests. See 5 CFR 2635.403, 18 U.S.C. 208, and

5 CFR part 2640.

(2) There are requirements regarding seeking outside employment.

See 5 CFR 2635.601-2635.606 and subpart H of this part.

(3) There is a prohibition on engaging in outside employment or

activities that conflict with official duties. See 5 CFR 2635.802.

(4) There are limitations on certain outside activities such as

receipt of outside earned income by certain DoD Presidential appointees

or non-career DoD employees, service as an expert witness,

participation in professional associations, teaching, writing,

speaking, or fundraising. See 5 CFR 2635.804-2635.808.

(5) There is a prohibition on the receipt of honoraria. See 5 CFR

part 2636.

(6) There are prohibitions on the misuse of official position such

as improper endorsements or improper use of non-public information. See

5 CFR 2635.701-2635.705.

(7) There are prohibitions on certain post-Government service

employment. See subpart I of this part.

Subpart F--Political Activities

Sec. 84.17 Office of Personnel Management regulation.

See 5 CFR part 733, ``Political Activities of Federal Employees.''

Sec. 84.18 Political activities of civilian DoD employees.

(a) Policy. (1) The policy governing the political activities of

civilian DoD employees is derived from the Hatch Act, 5 U.S.C. 7321

through 7327, and 5 CFR part 733.

(2) Primary enforcement responsibility under the Hatch Act lies

with the Office of Special Counsel; however, DoD components have

responsibility to investigate allegations of prohibited political

activity by excepted service employees of the DoD component.

(3) It is DoD policy to encourage civilian DoD employees and

members of the Armed Forces to carry out the obligations of citizenship

to the maximum extent possible consistent with the restrictions imposed

by law and by this part.

(b) Applicability--(1) Covered DoD employees. Sections 84.17 and

84.18 apply to DoD employees who are:

(i) Competitive service employees;

(ii) Excepted service employees;

(iii) Non-appropriated fund employees as specified in the FPM,

Chapter 334, and DoD 1401.1-M.\18\

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

\18\See footnote 4 to Sec. 84.7(d)

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

(2) DoD Employees not covered. The provisions of the Hatch Act and

of this subpart of this part do not apply to civilian DoD employees

appointed to their office by the President, by and with the advice and

consent of the Senate (e.g., Secretary of Defense, Secretaries of the

Military Departments, etc.). Nevertheless, as a matter of longstanding

DoD policy, such DoD employees may not engage in activities that could

be interpreted as associating DoD with any partisan political cause or

issue. Military members are covered by Sec. 84.19.

(c) Permissible activities. Subject to paragraphs (d) and (e) of

this section, civilian DoD employees are free to:

(1) Register and vote in any election;

(2) Express an opinion as an individual privately and publicly on

political subjects and candidates;

(3) Display a political picture, sticker, badge, or button;

(4) Participate in a personal capacity in the non-partisan

activities of civic, community, social, labor, professional, or similar

organizations except as proscribed in Sec. 84.10 (a) through (g);

(5) Be a member of a political party or other political

organization and participate in its activities to the extent consistent

with law;

(6) Attend, in an individual capacity, a political convention,

rally, fundraising function or other political gathering;

(7) Sign a political petition as an individual;

(8) Make a financial contribution to a political party or

organization, except as proscribed in Sec. 84.18(e)(3);

(9) Take an active part, as an independent candidate or in support

of an independent candidate, in a partisan election covered by 5 CFR

733.124;

(10) Take an active part, as a candidate or in support of a

candidate, in a non-partisan election;

(11) Participate in an individual capacity in connection with a

question which is not specifically identified with a political party,

such as a constitutional amendment, referendum, approval of a municipal

ordinance or any other question or issue of similar character;

(12) Serve as an election judge or clerk, or in a similar position

to perform non-partisan duties as prescribed by State or local law;

(13) Otherwise participate fully in public affairs, except as

prohibited by law, in a manner which does not materially compromise the

efficiency or integrity as a DoD employee or the neutrality,

efficiency, or integrity of DoD or other Federal Government agency; and

(14) Participate in non-partisan voter registration drives.

(d) Limitations. Paragraph (e) of this section does not authorize a

DoD employee to engage in political activities in violation of law,

while on duty, or while wearing anything that identifies him as a DoD

employee. The Head of a DoD component may, in appropriate cases,

prohibit or limit participation in the permitted activity of a DoD

employee or class of DoD employees if participation in the activity

would interfere with the efficient performance of official duties, or

create a conflict or apparent conflict of interest.

(e) Prohibited activities. Civilian DoD employees may not:

(1) Use official authority or influence for the purpose of

interfering with or affecting the result of an election; or

(2) Except as specified in 5 CFR 733.124, take an active part in

political management or in a political campaign, including but not

limited to:

(i) Serving as an officer of a political party, a member of a

national, State, or local committee of a political party, an officer or

member of a committee of a partisan political club, or being a

candidate for any of these positions;

(ii) Organizing or reorganizing a political party organization or

political club;

(iii) Directly or indirectly soliciting, receiving, collecting,

handling, disbursing, or accounting for assessments, contributions, or

other funds for a partisan political purpose;

(iv) Organizing, publicizing, selling tickets to, promoting, or

actively participating in a fundraising activity of a candidate in a

partisan election or of a political party, or political club;

(v) Taking an active part in managing the political campaign of a

candidate for public office in a partisan election or a candidate for

political party office;

(vi) Becoming a candidate for, or campaigning for, an elective

public office in a partisan election;

(vii) Soliciting votes in support of, or in opposition to, a

candidate for public office in a partisan election or a candidate for

political party office;

(viii) Acting as recorder, watcher, challenger, or similar officer

at the polls on behalf of a political party or a candidate in a

partisan election;

(ix) Driving voters to the polls on behalf of a political party or

a candidate in a partisan election;

(x) Endorsing or opposing a candidate for public office in a

partisan election or a candidate for political party office in a

political advertisement, broadcast, campaign, literature, or similar

material;

(xi) Serving as a delegate, alternate, or proxy to a political

party convention;

(xii) Addressing a convention, caucus, rally, or similar gathering

of a political party in support of, or in opposition to, a partisan

candidate for public office or political party office;

(xiii) Initiating or circulating a partisan nominating petition;

(xiv) Soliciting, paying, collecting, or receiving a contribution

in the Federal Government workplace for any political party, political

fund, or other partisan recipient;

(xv) Paying a contribution in the Federal Government workplace to

any political party, political fund, or other partisan recipient.

(3) Contribute to the political campaign of another Federal

Government employee who is in his chain of command or supervision or

who is his employing authority, including the political campaign to re-

elect the President or Vice President.

(f) Exemptions. (1) The Hatch Act does not prohibit all activities

associated with a partisan election. The restrictions only apply where

the DoD employee's activity involves active participation in organized

activities where the organizing group is partisan. For example, writing

letters in support of a particular candidate for publication or

contributing to a newsletter with editorials or columns opposing one

candidate and supporting another does not violate the Act. See Blaylock

v. MSPB, 851 F.2d 1348. The activities must be in coordination with the

partisan activity. Even fundraising for political action does not

violate the activity if the fundraising organization is not associated

with a partisan group. See Biller v. MSPB, 863 F.2d 1079.

(2) DoD employees who reside in municipalities or other political

subdivisions designated by OPM in 5 CFR 733.124 are partially exempt

from the above restrictions.

(3) DoD employees in some areas of high Federal Government

employment are excepted from certain aspects of the Hatch Act as to

local elections. OPM regulations, 5 CFR part 733 should be consulted

for a list of the areas for which these exceptions apply. However, the

District Court for the District of Columbia has ruled that the

exception granted by the regulations for the District of Columbia is

incorrect and the Office of Special Counsel has chosen to support this

ruling. See Ward Three Democratic Committee v. U.S., 609 F.2d 10 and

Memorandum Opinion No. 78-853. Therefore, District of Columbia

residents are subject to the provisions of the Hatch Act without

exception.

(4) A DoD employee who works on an irregular or occasional basis is

exempt from the above restrictions on the days that he performs no

services.

Sec. 84.19 Political activities of military members.

See DoD Directive 1344.10\19\, ``Political Activities by Members of

the Armed Forces on Active Duty,'' June 15, 1990.

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

\19\See footnote 4 to Sec. 84.7(d)

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

Subpart G--Financial and Employment Disclosure

Sec. 84.20 Office of Government Ethics regulation.

See 5 CFR part 2634, ``Financial Disclosures, Qualified Trusts, and

Certificates of Divestiture for Executive Branch Employees''.

Sec. 84.21 Public financial disclosure report (SF-278).

(a) Individuals required to file--(1) Covered positions. For

purposes of this section, the following individuals are in ``covered

positions'' and are required by the Ethics in Government Act of 1978,

Public Law 95-521 (5 U.S.C. App.) to file an SF 278, with their DoD

component DAEO or designee as set out in paragraph (f) of this section:

(i) Civilian Presidential appointees;

(ii) Regular and reserve military officers whose pay grade is 0-7

or above;

(iii) Members of the Senior Executive Service;

(iv) Other civilian DoD employees, including special Government

employees, whose positions are classified above GS/GM-15 prescribed by

5 U.S.C. 5332 or whose rate of basic pay is fixed at or above 120% of

the minimum rate of basic pay for a GS/GM-15;

(v) DoD employees in the excepted service in positions that are of

a confidential or policy-making character unless they have been

excluded by the Director, OGE. See paragraph (a)(4) of this section;

(vi) Individuals serving by appointment under the Intergovernmental

Personnel Act, from State or local governments, institutions of higher

education or other eligible organizations. See 5 U.S.C. 3371-3376;

(vii) Civilian individuals who are detailed to positions described

in paragraphs (a)(1)(iii) through (a)(1)(v) of this section;

(viii) DoD component DAEOs.

(2) Waiver. An individual otherwise required to file an SF 278 but

who now is expected to perform the duties of a covered position for

less than 130 days in a calendar year, may request a waiver of any or

all reporting requirements from the Director, OGE, in accordance with 5

CFR part 2634.

(3) Exception. An individual who is nominated to or assumes a

covered position is not required to file an SF 278 if the Secretary

concerned or the DoD component DAEO determines that the individual is

not reasonably expected to perform the duties of the position for more

than 60 days in a calendar year. If such individual performs the duties

of the position for more than 60 days in a calendar year, an SF 278

shall be filed within 15 days after the 61st day of duty.

(4) Exclusion. The Director, OGE, may exclude an individual who is

in a covered position under paragraph (a)(1)(v) of this section from

the requirement to file an SF 278 in accordance with 5 CFR 2634.203.

(b) Information on covered positions. The directors of DoD

component personnel offices are responsible for providing the following

information to their DoD component DAEOs or designees:

(1) The name, position, grade, organization and entrance-on duty or

termination date of each individual assigned to the DoD component who

is required to file a new entrant or termination SF 278 immediately

upon the appointment of the individual to a position requiring filing,

or upon receipt of an SF 52, ``Request for Personnel Action,'' August

1988, requesting approval of the retirement, resignation, or removal of

the individual from such a position;

(2) By January 10 of each year, the name, position, grade, and

organization of each individual assigned to the DoD component who is

required to file an annual SF 278.

(c) Notification of requirement to file. Each DoD component DAEO or

designee shall provide appropriate notices and instructions to all

reporting individuals to ensure the timely preparation of the reports

and submission to supervisors and Ethics Counselors for review and

filing.

(d) Time of filing--(1) Nomination reports. (i) Any time after

public announcement but within five days after transmittal by the

President to the Senate of the nomination of an individual to a

civilian DoD position that requires the advice and consent of the

Senate, the DoD component DAEO shall ensure the nominee's SF 278 is

filed with the appropriate authorities.

(ii) The report shall contain the information prescribed in the

``Instructions for Completing SF 278'' attached to the SF 278. These

reports shall be certified by the DoD component DAEO, and processed as

prescribed by OGE regulation, 5 CFR part 2634.

(iii) Unless otherwise required by the Senate, nomination reports

are not required of individuals nominated to positions as military

officers. Such individuals must file new entrant reports as prescribed

in the following.

(2) New entrant reports. (i) Within 30 days of assuming a covered

position, a reporting individual shall submit an SF 278.

(ii) The report shall contain the information prescribed for new

entrant reports in the ``Instructions for Completing SF 278'' attached

to the SF 278.

(iii) No new entrant report is necessary if the reporting

individual has, within 30 days prior to assuming a new position, left

another covered position for which the reporting individual filed an SF

278.

(iv) Notwithstanding paragraph (a)(3) of this section, reserve

military officers shall file a new entrant report within 30 days of

promotion to grade O-7, regardless of whether they are expected to

perform active duty for more than 60 days.

(3) Annual reports. Any time after January 1 but not later than May

15, a reporting individual who served in a covered position for more

than 60 days during the preceding calendar year shall file an annual SF

278. For reserve military officers, only service pursuant to orders

issued under title 10, United States Code, is counted.

(4) Termination reports. Not sooner than 15 days before but not

later than 30 days after termination from a covered position, a

reporting individual shall submit an SF 278. A termination report is

not required of a reporting individual who, within 30 days of such

termination, assumes another covered position. A termination report is

not required of a reserve military officer in the grade of O-7 or above

who did not serve more than 60 days on active duty during the calendar

year in which the military officer is transferred to the Retired

reserve.

(5) Extension of filing deadlines. The DoD component DAEO, in the

case of civilian Presidential appointees, and the DoD component DAEO or

designee in other cases, may grant, for good cause, a filing extension

up to 45 days. All requests for extensions shall be provided, in

writing, by the reporting individual to the DoD component DAEO or

designee. The request shall contain a clear statement of the reasons

for the request and shall be submitted in advance of the original

filing deadline. Requests for additional time beyond the initial 45 day

extension shall be forwarded by the appropriate DoD component DAEO or

designee with his comments to the Director, OGE, who may grant an

additional 45 days extension. The reporting individual shall notify his

supervisor of any extension granted.

(6) Combined annual and termination reports. Reporting individuals

who anticipate terminating their DoD employment before June 30 may

request an extension from the appropriate DoD component DAEO or

designee of up to 45 days in order to file one consolidated annual and

termination report. Combined annual and termination reports must be

filed within 30 days after termination of employment or service but not

later than July 15.

(7) Late filing fee. (i) Any reporting individual who is required

to file an SF 278 and does so more than 30 days after the date the

report is required to be filed, or, if an extension is granted, more

than 30 days after the last day of the filing extension period, shall

be subject to a $200 late filing fee. See 5 CFR part 2634. Such fee

shall be collected by the DoD component DAEO or designee for deposit

with the U.S. Treasury.

(ii) If the reporting individual fails to remit the $200 fee within

90 days, the fee shall be subject to DoD component debt collection

procedures.

(iii) If extraordinary circumstances existed that caused the late

submission of the report, a request for a waiver of the fee may be

submitted by the reporting individual with supporting documentation to

the DoD component DAEO or designee. The DoD component DAEO or designee

shall review the request and forward it with a recommendation for

approval or denial to OGE. OGE will grant or deny the waiver.

(e) Content of report. (1) Instructions for completing the SF 278

are attached to the form. See detailed instructions at 5 CFR 2634.301

through 2634.408, for additional guidance or contact the local Ethics

Counselor.

(2) A complete report is required even if no changes have occurred

since the last submission.

(3) Termination reports shall contain information covering the

preceding calendar year, if an annual report was not filed for that

year, and that portion of the present calendar year up to the date of

termination from the covered position.

(4) A reporting individual shall request required information known

only to another person to be submitted by that person to appropriate

reviewing authorities. Such a submission may be made with a request for

confidentiality which shall be honored by DoD reviewing authorities

when appropriate even if it limits disclosure to the reporting

individual.

(f) Chain of submission. A reporting individual shall submit his SF

278 as follows:

(1) A civilian Presidential appointee shall file directly with his

DoD component DAEO or designee;

(2) Any other reporting individual shall submit his SF 278 through

his supervisor and through his Ethics Counselor to the DoD component

DAEO or designee. In some cases, the Ethics Counselor and the DoD

component DAEO or designee are the same person;

(i) A military officer serving in a DoD component or in the Central

Intelligence agency shall submit his report through his supervisor

directly with the DAEOs or designees of those agencies;

(ii) A military officer serving in OSD or for the Chairman of the

Joint Chiefs of Staff and Joint Staff, shall submit his report, through

his supervisor, to the GC, DoD, as the DoD component DAEO;

(iii) A military officer serving in a joint, Unified, Specified or

Combined Commands, other than a Commander in Chief, shall file through

his supervisor directly with his DoD component DAEO or designee. A

Commander in Chief of such command shall file with the Legal Advisor to

the Chairman of the Joint Chiefs of Staff.

(3) A reporting individual who has more than one immediate

supervisor shall submit his report through both supervisors prior to

submitting it to the DoD component DAEO or designee. Such a reporting

individual may submit a copy of his report to one supervisor and the

original to the other in order to expedite processing;

(4) Reporting individuals on detail to other Executive or

Legislative Branch agencies shall follow the filing requirements and

procedures of those agencies.

(g) Review--(1) Initial supervisor review. Upon receipt of an SF

278, the supervisor of the reporting individual shall review the report

to determine if any of the reported financial interests reveal a

conflict of interest with the reporting individual's current and future

official duties. See 5 CFR 2634.605(b). The supervisor shall supplement

the report with any required information or data, including comments on

the existence of actual or apparent conflicts of interest, and forward

the report with all attachments to the Ethics Counselor. If any review

reveals a conflict or apparent conflict, the supervisor shall ensure

that the matter is resolved in accordance with paragraph (g)(2)(vii) of

this section.

(2) Ethics Counselor review. (i) When applicable, the Ethics

Counselor shall review each report to determine that:

(A) Each item is completed; and

(B) No interest or position disclosed on the report violates or

appears to violate;

(1) Any applicable provision of Chapter 11 of title 18, United

States Code;

(2) The Ethics in Government Act of 1978, Public Law 95-521 (5

U.S.C. App.), and implementing regulations;

(3) Executive Order 12674 and implementing regulations; or

(4) Any other related laws or regulations applicable to DoD

employees.

(ii) The reports are to be taken at ``face value'' unless there is

a patent omission or ambiguity or the official has independent

knowledge of matters outside the report. However, to ensure that there

are no omissions, the previous report of each reporting individual, if

applicable, shall be compared to the current submission.

(iii) If the Ethics Counselor believes that additional information

is required, the reporting individual shall be notified of the

additional information required and the date by which it must be

submitted. The reporting individual shall submit the required

information directly to the Ethics Counselor.

(A) When the Ethics Counselor amends or revises a report based on

additional information obtained from the reporting individual, he shall

initial the amendment or revision and make a note of the source of the

information in the comment section of the report. For example, if the

Ethics Counselor adds to a report that a certain fund is an excepted

investment fund based on a telephone conversation with the reporting

individual, he shall number and initial the change on Schedule A and

add a notation in the comment section of the report, such as ``1. per

telecon with Mr. Doe on June 16, 1992'' and initial the comment.

(B) When a substantial amount of information is missing from the

report, it shall be returned to the supervisor for evaluation in

accordance with the standards set forth in paragraph (g)(2)(i) of this

section, with instructions to return it to the Ethics Counselor with

any additional comments or supplementary information.

(iv) If the Ethics Counselor agrees with the supervisor's

evaluation that no item violates, or appears to violate, applicable

laws or regulations, then he shall annotate the report or attach an

endorsement stating that no conflicts of interest under applicable laws

or regulations exist, and forward it to the appropriate DoD component

DAEO or designee.

(v) If the Ethics Counselor disagrees with the supervisor's

evaluation, and concludes that the report does not comply with

applicable laws and regulations, he shall do the following:

(A) Notify the reporting individual in writing of the preliminary

determination;

(B) Afford the reporting individual a reasonable opportunity for an

oral or written response; and

(C) Determine, after considering any response, whether or not the

reporting individual is in compliance with applicable laws and

regulations. If the Ethics Counselor concludes that the report does

fulfill the requirements, he shall annotate the report or attach an

endorsement stating that no conflicts of interest under applicable laws

or regulations exist and dispose of the report in accordance with

paragraph (g)(2)(iv) of this section. If the Ethics Counselor

determines that it does not, he shall:

(1) Notify the reporting individual of the conclusion;

(2) Afford the reporting individual an opportunity for personal

consultation, if practicable;

(3) Determine what remedial action should be taken to bring the

reporting individual into compliance;

(4) Notify the reporting individual, in writing, of the remedial

action required, indicating a date by which that action must be taken;

and

(5) Ensure that the supervisor of the reporting individual is

notified of the required remedial action and date by which that action

must be taken.

(vi) Except in unusual situations, which must be documented fully

to the satisfaction of the Ethics Counselor, remedial action shall be

completed within three months from the date the reporting individual

was notified that the action is required.

(vii) Remedial steps, in accordance with 5 CFR 2634.605-2634.607,

may include the following measures:

(A) Divestiture:

(1) Any reporting individual or the spouse, minor or dependent

child of a reporting individual, may be issued a Certificate of

Divestiture by the Director, OGE, upon a determination that such

divestiture is reasonably necessary to comply with 18 U.S.C. 208, or

any other Federal Government conflict of interest statute, regulation,

rule, or Executive Order, or pursuant to the request of the Senate as a

condition of confirmation;

(2) If obtained before the sale, the Certificate of Divestiture

allows for the non-recognition of capital gains that result upon the

sale of property to comply with conflict of interest requirements if

the property is rolled over into property permitted by OGE. See 5 CFR

2634.1001;

(3) The following items must be submitted to the Director, OGE, by

the DoD component DAEO:

(i) A copy of the written request from the reporting individual to

the DoD component DAEO to seek certification in the case of the

property to be divested;

(ii) A copy of the latest SF 278 or SF 450;

(iii) A detailed description of the specific property for which

divestiture is contemplated;

(iv) A complete statement by the DoD component DAEO or designee of

the facts and circumstances relevant to the requirement for divestiture

and an explanation of the rules that apply to the requirement for

divestiture;

(v) An analysis and recommendation as to whether the certificate

should be granted.

(4) The Director, OGE, will issue a Certificate of Divestiture when

divestiture is a condition for Senate confirmation or is reasonably

necessary to comply with conflict of interest requirements.

(B) Disqualification in accordance with 5 CFR 3601.105;

(C) Limitation of duties;

(D) Transfer or reassignment;

(E) Resignation;

(F) Exemption under 18 U.S.C. 208 (b)(1) or (b)(3);

(G) Establishment of a qualified blind trust.

(viii) When the Ethics Counselor determines that a reporting

individual has complied fully with the remedial measures, a notation to

that effect shall be made in the comment section of the SF 278. The

Ethics Counselor shall then follow the procedures set forth in

paragraph (g)(2)(iv) of this section.

(ix) If steps ensuring compliance with applicable laws and

regulations are not taken by the date established, the Ethics Counselor

shall report the matter to the agency designee for appropriate action,

with an information copy to the DoD component DAEO.

(3) DoD component DAEO review. (i) The DoD component DAEO or

designee shall review the report in accordance with the standards set

forth in paragraphs (g)(2)(i) and (g)(2)(ii) of this section.

(ii) Additional information required by the DoD component DAEO or

designee shall be collected in accordance with paragraph (g)(2)(ii) of

this section.

(iii) The DoD component DAEO or designee shall notify the reporting

individual of any necessary remedial action in accordance with

procedures set forth in paragraph (g)(2)(v) of this section.

(iv) When the DoD component DAEO or designee determines that no

item violates, or appears to violate, any applicable law or regulation,

or when the DoD component DAEO or designee determines that a reporting

individual has complied fully with the remedial measures, the DoD

component DAEO or designee shall sign and date the report.

(v) If steps ensuring compliance with applicable laws or

regulations are not taken by the date established, the DoD component

DAEO or designee shall report the matter to the Head of the DoD

component for remedial action, with an information copy to the

Director, OGE.

(vi) If the DoD component or designee concludes that no item

violates, or appears to violate, any applicable law or regulation, but

that there are financial interests in non-Federal entities doing or

seeking business with DoD, then the DoD component DAEO or designee may

issue a memorandum of caution to the reporting individual.

(vii) All reports shall be reviewed within 60 days after the date

of filing. The DoD component DAEO or designee shall record the date of

the review and ensure that all reports are reviewed within the 60 day

period. After review, the DoD component DAEO or designee may proceed to

obtain addition information, seek remedial action, or sign and date the

report.

(4) Special reviewing requirements of O-9 and O-10 Flag and General

Officer nominees. (i) As part of the process for approving nominees for

appointment to O-9 and O-10 Flag or General officer positions, the

Secretaries of the Military Departments shall ensure that the nominee

has a current SF 278 on file and that the report has been reviewed by

the appropriate DoD component DAEO or designee in relation to the

position for which he is being considered.

(ii) Secretaries of Military Departments shall cause a review of

all relevant systems of records maintained by their departments,

including investigative files, to determine if there is any evidence

that the nominee has violated the rules or standards of conduct.

(iii) Each nomination forwarded to the Secretary of Defense shall

be accompanied by a certification by the Secretary of the Military

Department concerned that the required review has been conducted and

has or has not disclosed a violation of the rules or standards of

conduct.

(h) Disposition--(1) Designation of certifying official. Only the

Head of the DoD component or the DoD component DAEO may certify

nomination reports required to be filed by a reporting individual who

is nominated by the President to a position requiring the advice and

consent of the Senate. For all other reports, the DoD component DAEO

may delegate this responsibility to other officials within the DoD

component.

(2) Disposition. The SF 278 and a complete record of all action

taken thereon shall be retained for a period of six years by the DoD

component DAEO or designee, and a copy of the report shall be forwarded

to OGE, when required. After the six-year period, the report shall be

destroyed, unless needed in an ongoing investigation. In the case of a

reporting individual who filed a report as a nominee and was not

subsequently confirmed by the Senate, the report shall be destroyed one

year after the reporting individual is no longer under consideration by

the Senate.

(i) Public availability of reports. SF 278s must be made available

for public inspection 30 days after the reports are filed unless

otherwise exempted under law. OGE Form 201, ``Request to Inspect or

Receive Copies of SF 278, Financial Disclosure Report,'' shall be filed

by a requestor before inspecting an SF 278.

(j) Penalties--(1) Action within a DoD component. The Head of the

DoD component may take appropriate action, including adverse action, in

accordance with applicable laws or regulations, against any reporting

individual who fails to file an SF 278 or who falsifies or fails to

report required information.

(2) Action by the U.S. Attorney General. The U.S. Attorney General

may bring a civil action in the U.S. District Court against any

individual who knowingly and willfully falsifies or fails to file or

report information required to be reported. The court may assess a

civil penalty. Knowing and willful falsification of information

required to be filed may also result in criminal prosecution under 18

U.S.C. 1001, leading to a fine or imprisonment of not more than five

years, or both.

(3) Misuse of reports. (i) The U.S. Attorney General may bring a

civil action against an individual who obtains or uses an SF 278 filed

under the Ethics in Government Act, Public Law 95-521 (5 U.S.C. App.),

for the following reasons:

(A) Any unlawful purpose;

(B) Any commercial purpose other than by news and communications

media for dissemination to the general public;

(C) Determining or establishing the credit rating of any

individual;

(D) Directly or indirectly, for the solicitation of money for any

political, charitable or other purpose.

(ii) The court in which the action is brought may assess a penalty

against a person in any amount, not to exceed $10,000. This shall be in

addition to any other remedy available under statutory or common law.

Sec. 84.22 Confidential financial disclosure report (SF 450).

(a) Individuals required to file. (1) Covered positions. For

purposes of this section, unless required to file an SF 278 or unless

expressly exempted, the following individuals are in ``covered

positions'' and are required by 5 CFR part 2634 to file initial and

annual SF 450 through their supervisor to their Ethics Counselor as set

out in paragraph (f) of this section:

(i) Commanding officers, heads and deputy heads, and executive

officers of:

(A) Navy shore installations with 500 or more military and civilian

DoD employees (including foreign nationals and indirect personnel

regularly attached but excluding personnel attached for temporary

duty); and

(B) All Army, Air Force, and Marine Corps installations, bases, air

stations or activities.

(ii) Special Government employees, except the following categories

of DoD employees who are required to file reports only when

specifically requested to do so by their supervisor:

(A) Physicians, dentists, and allied medical specialists engaged

only in providing services to patients;

(B) Veterinarians providing only veterinary services;

(C) Lecturers participating only in educational activities;

(D) Chaplains performing only religious services;

(E) Individuals in the motion picture or television fields who are

utilized only as narrators or actors in DoD productions;

(F) Reservists on active duty for less than 30 consecutive days

during a calendar year; and

(G) Members of selection panels for ROTC candidates.

(iii) DoD employees classified at GS/GM-15 or below under 5 U.S.C.

5332 or a comparable pay level under other authority, and members of

the military below the grade of O-7 as follows:

(A) When the official responsibilities of such DoD employees

require them to participate personally and substantially through

decision or exercise of significant judgment in taking an official

action for contracting or procurement, administering or monitoring

grants, subsidies, licenses or other Federally conferred financial or

operational benefits, regulating or auditing any non-Federal entity, or

other activities in which the final decision or action may have a

direct and substantial economic impact on the interests of any non-

Federal entity;

(B) Any DoD employee serving in a position in which his supervisor

determines that the duties and responsibilities of the position require

the DoD employee to file such a report to avoid an actual or apparent

conflict of interest and to carry out the purpose of any statute,

Executive Order, or regulation applicable to or administered by that

reporting individual;

(iv) Individuals who are detailed to positions described in

paragraph (a)(1)(iii) of this section.

(v) Individuals serving on detail under the Intergovernmental

Personnel Act, from State or local governments, institutions of higher

education or other eligible organizations. See 5 U.S.C. 3371-3376.

(2) Exclusion. Any DoD employee or group of DoD employees may be

excluded from all or a portion of the reporting requirements when the

DoD component Head or designee determines that a report is unnecessary

because of the remoteness of any impairment to the integrity of the

Federal Government, because of the degree of supervision and review of

the DoD employee's work, or because the use of an alternative procedure

is adequate to prevent possible conflicts of interest. Any alternative

procedure must be approved in writing by OGE.

(b) Information on covered positions. (1) The directors of

personnel offices are responsible for providing the following

information to their DoD component DAEOs or designees they service:

(i) Immediately upon the appointment of covered DoD employees, the

name, position, organization and entrance-on-duty date of DoD employees

required by their supervisor to file a new entrant SF 450.

(ii) By October 3 of each year, a list of the names, positions and

organizations, when applicable, of DoD employees who are required to

file an annual SF 450.

(2) Coordination is required as follows:

(i) Administrative officers (or equivalent) of each organization

shall coordinate with the supervisors within their organization, in

consultation with the DoD component DAEO or designee, to update the

list of annual reporting individuals in their organization and report

any additions or deletions to the concerned Ethics Counselor by October

31 of each year. In addition, it is the administrative officers'

responsibility to ensure that any new positions are evaluated to

determine whether such reports are required; or

(ii) The directors of personnel offices shall coordinate with

Ethics Counselors and supervisors to ensure that position or billet

descriptions of reporting individuals described in paragraph (a) of

this section contain a statement that an SF 450 must be filed. All new

or revised position or billet descriptions shall be reviewed to

determine whether such reports are required.

(c) Notification of requirement to file. DoD component DAEOs or

designees shall provide appropriate notices and instructions to ensure

the timely preparation of the reports and submission to their

supervisors and their Ethics Counselors for review and filing.

(d) Time of filing--(1) New entrant reports. (i) Except for a

special Government employee, a reporting individual shall submit an SF

450 with information current as of the filing date for the preceding 12

months, through his supervisor to his Ethics Counselor not later than

30 days after assuming duties in a covered position. Upon transfer or

reassignment from one covered position to another, a reporting

individual shall submit a copy of his previous report to the

appropriate supervisor of the new position.

(ii) A special Government employee shall submit an SF 450 with

information current as of the filing date for the preceding 12 months,

through his supervisor to his Ethics Counselor before assuming duties

in a covered position. A special Government employee whose appointment

is renewed shall file a new entrant report for the preceding 12 months

prior to his reappointment. A special Government employee whose

appointment exceeds one year shall file a new entrant report on the

anniversary of his appointment.

(2) Annual reports. A reporting individual (except a special

Government employee) who was employed at least 61 days during the

preceding reporting period must submit an SF 450 to his Ethics

Counselor by November 30 of each year covering the preceding 12 months

(or any portion thereof not covered by a new entrant report), with

information current as of September 30 of that year. A reporting

individual who is reassigned or transferred from one covered position

to another during the reporting period shall file an annual report

whether or not he was employed in that position for 61 days.

(3) Extension of filing deadline. (i) When required by reason of

duty assignment, infirmity, or other good cause affecting a reporting

individual, the DoD component DAEO or designee may grant an extension

of the filing deadline, not to exceed 60 days for annual reports or 90

days for new entrant reports.

(ii) Requests for extensions shall be submitted in writing.

(iii) Each annual reporting individual is automatically granted a

30 day extension by this part to make the reporting deadline November

30 as stated in paragraph (d)(2) of this section. This automatic

extension need not be annotated on an individual report. Any other

extension shall be noted.

(e) Content of report. (1) Instructions for completing the SF 450

are included on the report. See instructions at 5 CFR 2634.907 and

2634.908 for additional guidance or contact the local Ethics Counselor.

(2) A complete report is required even though no changes have

occurred since the last submission.

(3) A reporting individual shall request required information known

only to another person to be submitted by that person to appropriate

reviewing authorities. Such a submission may be made with a request for

confidentiality which shall be honored by DoD reviewing authorities

when appropriate, even if it limits disclosure to the reporting

individual.

(f) Chain of submission. A reporting individual shall submit his SF

450 through his supervisor to his Ethics Counselor. It is the

responsibility of the reporting individual to ensure that an annual

report is filed by November 30.

(g) Review. (1) Upon receipt of an SF 450, the supervisor of the

reporting individual shall provide an initial review of the report

using the criteria set forth in paragraph (g)(2) of this section and

forward it with any comments to the local Ethics Counselor for further

review.

(2) The Ethics Counselor shall review each report to determine

that:

(i) Each item is completed; and

(ii) No interest or position disclosed on the report violates or

appears to violate:

(A) Any applicable provision of Chapter 11 of title 18, United

States Code;

(B) The Ethics in Government Act of 1978, Public Law 95-521 (5

U.S.C. App.), and implementing regulations;

(C) Executive Order 12674 and implementing regulations; or

(D) Any other related laws or regulations applicable to DoD

employees of the agency.

(3) The Ethics Counselor shall not sign and date the report until

the determinations described in paragraph (g)(2) of this section are

made. The reports are to be taken at ``face value'' unless there is a

patent omission or ambiguity or the official has independent knowledge

of matters outside the report.

(4) If the Ethics Counselor believes that additional information is

required, the reporting individual shall be notified of the additional

information required and the date by which it must be submitted. The

reporting individual shall submit the required information directly to

the Ethics Counselor.

(i) When the Ethics Counselor amends or revises a report based on

additional information obtained from the reporting individual, he shall

initial the amendment or revision and make a note of the source of the

information in the comment section of the report. For example, if the

Ethics Counselor adds to a report that a certain fund is an excepted

investment fund based on a telephone conversation with the reporting

individual, he shall number and initial the change on Schedule A and

add a notation in the comment section of the report such as, ``1. per

telecon with Mr. Doe on June 16, 1992'' and initial the comment.

(ii) When a substantial amount of information is missing from the

report, it shall be returned to the supervisor for his evaluation in

accordance with the standards set forth in paragraph (g)(2) of this

section with instructions to return it to the Ethics Counselor with any

additional comments or supplementary information.

(5) If the Ethics Counselor agrees with the supervisor's evaluation

that no item violates, or appears to violate, applicable laws or

regulations, then the Ethics Counselor shall sign and date the report.

(6) If the Ethics Counselor agrees with the supervisor's evaluation

that no item violates, or appears to violate, applicable laws or

regulations, but that there are financial interests in non-Federal

entities doing or seeking business with DoD, then the Ethics Counselor

may issue a memorandum of caution to the reporting individual and shall

sign and date the report.

(7) If the Ethics Counselor disagrees with the supervisor's

evaluation that no item violates or appears to violate applicable laws

or regulations, then the Ethics Counselor shall do the following:

(i) Notify the reporting individual, in writing, of the preliminary

determination;

(ii) Afford the reporting individual a reasonable opportunity for

an oral or written response; and

(ii) Determine, after considering any response, whether or not the

reporting individual is in compliance with applicable laws and

regulations. If the Ethics Counselor concludes that the report does

fulfill the requirements, he shall sign and date the report. If the

Ethics Counselor determines that it does not, he shall:

(A) Notify the reporting individual of the conclusion;

(B) Afford the reporting individual an opportunity for personal

consultation, if practicable;

(C) Determine what remedial action shall be taken to bring the

reporting individual into compliance; and

(D) Notify the reporting individual, in writing, of the remedial

action required, indicating a date by which that action must be taken;

(3) Ensure that the supervisor of the reporting individual is

notified of the required remedial action and date by which that action

must be taken.

(8) Except in unusual situations, which must be documented fully to

the satisfaction of the Ethics Counselor, remedial action shall be

completed within 90 days from the date the reporting individual was

notified that the action is required.

(9) Remedial steps, in accordance with 5 CFR 2634.605-2635.607 may

include the following measures:

(i) Divestiture:

(A) Any DoD employee or the spouse, minor or dependent child of a

DoD employee may be issued a Certificate of Divestiture by the

Director, OGE, upon a determination that such divestiture is reasonably

necessary to comply with 18 U.S.C. 208 or any other Federal Government

conflict of interest statute, regulation, rule, or Executive order;

(B) If obtained before the sale, the Certificate of Divestiture

allows for the non-recognition of capital gains that result upon the

sale of property to comply with conflict of interest requirements if

the property is rolled over into property permitted by OGE. See 5 CFR

2634.1001 for additional guidance;

(C) The following items must be submitted to the Director, OGE, by

the DoD component DAEO:

(1) A copy of the written request from the individual to the DoD

component DAEO to seek certification in the case of the property to be

divested;

(2) A copy of the latest SF 278 or SF 450;

(3) A detailed description of the specific property in which

divestiture is contemplated;

(4) A complete statement by the DoD component DAEO or designee of

the facts and circumstances relevant to the requirement for divestiture

and an explanation of the rules that apply to the requirement for

divestiture;

(5) An analysis and recommendation as to whether the certificate

should be granted.

(D) The Director, OGE, will issue a Certificate of Divestiture when

divestiture is reasonably necessary to comply with conflict of interest

requirements.

(ii) Disqualification in accordance with 5 CFR 3601.105;

(iii) Limitation of duties;

(iv) Transfer or reassignment;

(v) Resignation;

(vi) Exemption under 18 U.S.C. 208(b)(1) or (b)(3);

(vii) Establishment of a qualified blind trust

(10) When the Ethics Counselor determines that a reporting

individual has complied fully with the remedial measures, a notation to

that effect shall be made on the SF 450. The Ethics Counselor shall

then sign and date the SF 450 and dispose of it in accordance with

paragraph (h) of this section.

(11) If steps ensuring compliance with applicable laws and

regulations are not taken by the date established, the Ethics Counselor

shall report the matter to the agency designee for appropriate action,

with an information copy to the DoD component DAEO.

(12) All reports shall be reviewed within 60 days after the date of

filing and the Ethics Counselor shall record the date of the initial

review. After the initial review, the Ethics Counselor shall obtain

additional information, as necessary, seek remedial action, or sign and

date the report.

(h) Disposition. The SF 450 and a complete record of all action

taken thereon shall be retained for a period of six years in a central

location within the agency, command or activity to which the reporting

individual was assigned at the time of filing, after which they shall

be destroyed, unless needed in an ongoing investigation.

(i) Privacy Act. The SF 450 is a confidential report. Accordingly,

the reports are protected by the Privacy Act, 5 U.S.C. 552 and are

exempt from being released to the public under the Freedom of

Information Act, 5 U.S.C. 552(b)(3)(A) and (B), (b)(4) and (b)(6).

(j) Status reports. (1) Not later than December 15 of each year,

Ethics Counselors shall prepare a consolidated status report concerning

the annual filing of the SF 450. The status report shall be sent

through the head of the DoD component command or organization to the

respective DoD component DAEO or designee and shall contain the

following information:

(i) The number of individuals required to file an annual SF 450;

and

(ii) The number of individuals who have not filed an SF 450 as of

November 30.

(2) Subsequent to December 15, monthly reports may be required by

the DoD component DAEO to be filed for those organizations which have

not received an SF 450 from all reporting individuals required to file,

until 100% compliance has been achieved. These monthly reports shall be

forwarded as described in paragraph (j)(1) of this section.

(k) Penalties.--(1) Administrative penalties. Anyone failing to

file a report, or falsifying or failing to file required information,

may be subject to disciplinary action by the employing organization,

including such measures as suspension of consideration for appointment,

reassignment of duties and termination of employment.

(2) Criminal liability. Anyon

This text is long and has been trimmed here. Open the source document for the complete record.