Standards of Conduct

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Parts 83 and 91

[DoD Directive 5500.7]

Standards of Conduct

AGENCY: Office of the Secretary of Defense, DoD.

ACTION: Final rule and request for comments.

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SUMMARY: This part authorizes the publication of the Joint Ethics

Regulation, 32 CFR part 84, which shall be the single source of

standards of ethical conduct and ethics guidance for all personnel of

the Department of Defense. A single source of rules is necessary to

implement and augment standards promulgated by the U.S. Office of

Government Ethics for the entire Executive Branch. A single source of

rules will simplify application of ethics standards and guidance to the

performance of official duties by DoD personnel. This document also

removes 32 CFR part 91.

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 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 to the Standards

and the Supplement, there are ethics statutes applicable only to 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. The ``18 U.S.C. 208(b) Waiver'' section

of 32 CFR part 40 has been retained at 32 CFR 40.1 and cross-referenced

in Appendix B of 32 CFR part 84. Other Standards of Conduct rules are

replaced by this part.

Executive Order 12866

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

defined under sections 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 determined that the Paperwork Reduction Act (44 U.S.C.

chapter 35) does not apply because this rule does not contain any

information collection requirements that require the approval of the

Office of Management and Budget.

List of Subjects

32 CFR Part 83

Conflict of interests, Government procurement.

32 CFR Part 91

Armed Forces, Conflict of interests, Government employees.

Accordingly under authority of 10 U.S.C. 301, Title 32, Chapter I,

Subchapter A of the Code of Federal Regulations is amended by removing

part 91 and adding part 83 to read as follows:

PART 83--STANDARDS OF CONDUCT

Sec.

83.1 Purpose.

83.2 Applicability and scope.

83.3 Definitions.

83.4 Policy.

83.5 Responsibilities.

83.6 Procedures.

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.

Sec. 83.1 Purposes.

This part:

(a) Replaces DoD Directive 5120.47\1\ and implements E.O. 12674, 54

FR 15159, 3 CFR, 1989 Comp., p. 215; 5 U.S.C. App. (Ethics in

Government Act of 1978); 5 U.S.C. 4111; 10 U.S.C. 801-940, 2397, 2397a,

and 2397b; 18 U.S.C. 203, 205, 207, 208, 209 and 218; 31 U.S.C. 1353;

41 U.S.C. 423; 48 CFR 3.104-6; 5 CFR parts 733, 2634, 2635, 2636, 2637,

2638, and 2641. The ``18 U.S.C. 208(b) Waiver'' section of 32 CFR part

40 has been retained at 32 CFR 40.1 and cross-referenced in Appendix B

of 32 CFR part 84.

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\1\Copies of the replaced directive are available from the

Directives Division, room 2A286, Washington Headquarters Services,

1155 Defense Pentagon, Washington, DC 20301-1155.

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(b) Cancels DD Form 1357, ``Statement of Employment--Regular

Retired Officers,'' March 1987, and DD Form 1555, ``Confidential

Statement of Affiliations and Financial Interests,'' March 1987. The

Office of Government Ethics' (OGE) SF 450, ``Confidential Financial

Disclosure Report,'' July 1992, replaces DD Form 1555.

(c) Authorizes the publication of DoD 5500.7-R\2\ in accordance

with DoD 5025.1-M\3\ which prescribes standards of conduct required of

all DoD employees; establishes criteria and procedures for filing DD

Form 1787, ``Report of DoD and Defense Related Employment,'' August

1989, SF 450, and SF 278, ``Public Financial Disclosure Report,''

January 1991, required of certain present and former DoD employees;

provides ethics training guidance; and sets general responsibilities

and enforcement procedures.

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\2\Copies of the publication are available, at cost, from the

National Technical Information Service, U.S. Department of Commerce,

5285 Port Royal Road, Springfield, VA 22161.

\3\See footnote 2 to Sec. 83.1(c).

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Sec. 83.2 Applicability and scope.

(a) This part and 32 CFR part 84 apply to the Office of the

Secretary of Defense; the Military Departments; the Chairman of the

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

Commands; the Office of the Inspector General of the Department of

Defense; 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 (hereafter referred to collectively as the ``DoD

Components''). The sections of 32 CFR part 84 entitled ``Financial and

Employment Disclosure,'' ``Post-Government Service Employment,'' and

``Seeking Other Employment'' also apply, as specified, to certain

former employees of DoD Components in accordance with specified

statutes. The section of 32 CFR part 84 entitled ``Financial and

Employment Disclosure'' has provisions that apply to individuals who

are not DoD employees such as detailees and nominees to DoD positions.

(1) Although OGE regulations, cross-referenced in 32 CFR part 84,

do not apply to enlisted members of the Department of Defense, the

provisions of 5 CFR parts 2634, 2635, 2638, 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.

(2) Certain criminal statutes referenced in 32 CFR part 84 and 18

U.S.C. 203, 205, 207, 208, 209, and 218 do not apply to enlisted

members; however, provisions similar to those of 18 U.S.C. 208 and 209

apply to enlisted members. See Sec. 84.3(a)(1)(i) of 32 CFR part 84.

(b) Penalties for violation of the standards and rules of conduct

prescribed in 32 CFR part 84 include the full range of statutory and

regulatory sanctions for DoD employees.

(1) The prohibitions and requirements printed in 32 CFR part 84

that are marked as general orders apply to all military members without

further implementation. Violations may result in prosecution under the

Uniform Code of Military Justice (UCMJ) (10 U.S.C. 801-940), as well as

adverse administrative action and other adverse action authorized by

the United States Code or Federal regulations.

(2) DoD employees on assignment to another Executive Agency for

more than 30 days are subject to 5 CFR part 2635 and the regulations of

that agency that supplement 5 CFR part 2635 and have been approved by

OGE.

(3) In addition to details within the Federal Government, details

of civilian DoD employees (except temporary or non-career employees who

may not be so detailed) may be made to State and local governments,

institutions of higher education, and certain other agencies. Civilian

DoD employees detailed outside the Federal Government remain subject to

32 CFR part 84.

(4) In matters of ethics and standards of conduct, any

inconsistencies among applicable regulations shall be resolved by the

DoD Component Designated Agency Ethics Official (DAEO).

Sec. 83.3 Definitions.

Terms used in this part are defined in 32 CFR part 84.

Sec. 83.4 Policy.

(a) The Department of Defense shall have 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 embodied in 32 CFR part 84.

(b) A violation of this part and 32 CFR part 84 does not create any

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

person against the United States, its agencies, its officers or

employees, or any other person.

Sec. 83.5 Responsibilities.

(a) The General Counsel of the Department of Defense shall:

(1) Ensure that appropriate updates, modifications, additions and

deletions are made to 32 CFR part 84.

(2) Have approval authority for DoD Component documents

supplementing or implementing 32 CFR part 84.

(b) The Heads of the DoD Components shall ensure that:

(1) 32 CFR part 84 is followed within their DoD Components.

(2) No DoD Component documents supplementing or implementing 32 CFR

part 84 are issued without the approval of the General Counsel of the

Department of Defense.

(3) The DoD Component DAEO or designee distributes copies of 32 CFR

part 84 throughout the DoD Component and makes such copies available

for review by DoD employees in the offices of each local Ethics

Counselor.

(4) The DoD Component DAEO or designee distributes updates,

modifications, additions, and deletions for insertion in copies of 32

CFR part 84 throughout the DoD Component.

(5) The DoD Component DAEO resolves inconsistencies among the

regulations of applicable Executive Agencies, as appropriate, for DoD

employees of the DoD Component.

(6) The DoD Component representative to the Ethics Oversight

Committee assists in the development and upkeep of 32 CFR part 84, as

needed, through the operation of that committee as a working group.

Sec. 83.6 Procedures.

32 CFR part 84 shall be a product of a coordinated effort by the

General Counsel of the Department of Defense and the DoD Component

DAEOs and designees through the Ethics Oversight Committee.

Dated: March 10, 1994.

Patricia L. Toppings,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 94-5978 Filed 3-18-94; 8:45 am]

BILLING CODE 5000-04-M