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terprise. For the purpose of this section, educational and other institutions doing research and development or related work involving grants of money from or contracts with the Government are deemed "business enterprises” and are required to be included in employee's statement of employment and financial interests.

80.736–38 Interests of employee's rel

atives. (a) The financial interest of a spouse, minor child, or other member of an employee's immediate household shall be reported to the same extent as the financial interest of the reporting employee. An “other member" of the immediate household means a relative who is a full-time resident of the employee's household ($0.735–2(i)).

(b) The employment of such persons need not be reported unless such person is engaged in an activity, which if held by the employee, would place him or her in a conflict or apparent conflictof-interest situation.

erwise as a result of any current or prior employment or business or professional associations, or in which he or she has any financial or beneficial interest through the ownership of stock, stock options, bonds, securities or

other arrangements including trusts. The dollar value of each financial interest must be listed on the financial statement. Shares in credit unions, building and loan associations, social or religious organizations, or deposits in savings and loan associations and banks, and interests exempted under $0.735–14(c) need not be reported.

(b) A list of the names of his or her creditors other than those to whom he or she may be indebted by reason of mortgage on property which he or she occupies as a personal residence or to whom he or she may be indebted for current and ordinary household and living expenses such as household furnishings, automobile, education, vacation, and similar expenses. Indebtedness on owner-occupied farms must be reported.

(c) A list of interests in real property or rights in land and minerals such as farmland, timberland and/or undeveloped land with their value, total acreage, total number of farm animals, types of crops, types of farm animals, number of acres of each crop and/or number of each farm animal, average annual income derived from sales of crops and/or farm animals, other than property which the employee occupies as a personal residence. Owner-occupied farms must be listed. Property acquired for the personal use of the employee and members of his or her family, such as beach lots and cemetary lots need not be listed.

(d) The interests and obligations as listed above of a spouse, minor child, or relative who are full-time residents of the employee's household. 80.735-37 Information prohibited.

The regulations in this part do not require an employee to submit any information relating to the employee's connection with, or interest in, a union, professional society or a charitable, religious, social, fraternal, recreational, public service, civic, or political organization or similar organization not conducted as a business en

80.735-39 Information not known by

employee. If any information required to be included on a statement of employment and financial interests, or supplement thereto, including holdings placed in trusts, is not known to the employee but is known to another person, the employee shall ask such person to furnish the information in his or her behalf. 80.735-40 Effect of employee's state

ment. The statements of employment and financial interests and supplementary statements required under this part are in addition to, and not in substitution for, or in derogation of, any similar requirement imposed by law, the Executive order, or regulation. The submission of a statement or supplementary statement by an employee does not permit him or her or any other person to participate in a matter in which his or her or the other person's participation is prohibited by law, the Executive order, or the regulations in this part.

80.735–41 Specific provisions for spe that all personnel required to file are cial Government employees.

properly identified, all statements are (a) Except as provided in paragraph

submitted timely and that Agency (b) of this section, each special Govern

Heads identify review officials who posment employee shall submit a state sess the knowledge and experience to ment of employment and financial in

be able to properly evaluate the listed terests on USDA Form AD-392A which

interest. This pertains to filings under reports:

both Executive Order 11222 and the (1) All other employment; and

Surface Mining Control and Reclama(2) The financial interests of the spe

tion Act of 1977. All Agencies shall recial Government employee which re

port to the Assistant Secretary for Adlate either directly or indirectly to the

ministration by May 30 each year the duties and responsibilities of the spe

number of statements submitted, the cial Government employee with the

number that have been closed favorDepartment.

ably and the number that have not (b) An Agency Head may waive the

been closed. In the latter instance, the requirements in paragraph (a) of this Assistant Secretary for Administration section for the submission of a state

shall be advised the reasons for the ment of employment and financial in cases remaining open and shall be adterests in the case of a special Govern vised on a monthly basis of the status ment employee who is not a consultant

of all open cases. or expert when the Agency Head finds

(b)(1) The Director of Personnel is rethat the duties of the position held by sponsible for the review of, and deterthat special Government employee are

mination on, those statements submitof a nature and at such a level of re ted directly to him or her pursuant to sponsibility that the submission of the $0.735-34(b). statement by the incumbent is not nec (2) Agency Heads will be responsible essary to protect the integrity of the for annually identifying employees reGovernment. For the purpose of this

quired to file employment and finanparagraph, “consultant” and “expert"

cial statements, for collecting and inihave the meanings given those terms tially reviewing the statements, for by Chapter 304 of the Federal Personnel identifying and designating those emManual but do not include:

ployment and financial interests that (1) A physician, dentist, or allied are not in conflict, and for signing and medical specialist whose services are

dating the statements. procured to provide care and service to (c) Agency Heads are responsible for patients; or

the review of, and determination on, (2) A veterinarian whose services are those statements submitted to an procured to provide care and service to Agency official. Original and suppleanimals.

mentary statements shall be reviewed (c) A statement of employment and and determinations made within 2 financial interests required to be sub months of receipt of such statements. mitted under this section shall be sub Disciplinary action will be taken mitted to the Head of the Agency in against those who falsely certify that which the special Government em the employment and financial interests ployee is to serve not later than the statements have been received and retime of employment. Each special Gov viewed. This responsibility may be delernment employee shall keep his or her egated, subject to the following restricstatement of employment and financial tions: interests current throughout his or her (1) Responsibility for review and deemployment with the Department by termination may be delegated only to a the submission of supplementary state responsible Agency official in the naments.

tional office, who the Agency Head de

termines has sufficient experience, 80.735–42 Review of statements and judgment, and understanding of the

determination of conflicting inter conflict-of-interest problem to properly ests.

carry out such responsibilities. The ini(a) The Assistant Secretary for Ad tial processing and receiving of the ministration is responsible for assuring statements can be delegated to the

field facilities where the person is employed. If the statement, when received, shows any holding of any sort, it shall be referred for review to the official identified by the Agency Head as having the responsibility, with a statement indicating whether the holding does, does not, or appears to have some relationship to the duties the employee performs.

(2) Responsibility for final determinations in cases involving substantial conflict questions may be delegated only to Associate, Deputy, and Assistant Agency Heads. The Agency Head shall set criteria identifying the types of cases which must be referred to such officials for final determination.

(d) Delegations of review and determination responsibility must be in writing from the Director of Personnel or the Agency Head, as appropriate.

(e) The Director of Personnel shall issue general guidelines covering the review of statements, recognizing possible conflicts or the appearance thereof, obtaining additional information, resolving conflict situations, documentation, and remedial action. Agencies shall supplement these with more specific guidelines applicable to the particular Agency. A copy of both the general and the specific guidelines shall be furnished to each employee to whom review and determination responsibility has been delegated.

(f) Whenever a question of a conflict or appearance of conflict arises, a written determination must be made. The basis of the determination must also be documented in writing. The employee must be advised in writing of the determination, and, if the determination involves a change in duties or disqualification for a particular assignment, a copy of the determination should be furnished to the employee's immediate supervisor. Where affirmative action by the employee is required, a report of his or her compliance shall be obtained and made a part of the record.

(g) If a determination cannot be made at the Agency level, the case shall be referred to the Director of Personnel. If the Director of Personnel cannot make a determination, he or she shall refer the case to the Department Counselor for his or her deter

mination or referral to the Secretary for determination. The record shall include copies of all pertinent documents and a written statement from each referring official setting forth his or her recommendation as to a final determination and the reasons therefor.

(h) Before a final determination requiring any remedial action is made, the employee concerned shall be given an opportunity to explain the conflict or appearance thereof and to offer any suggestions he or she may wish as to how the matter might be resolved. If an employee feels that the final determination will cause him or her undue hardship, or objects to the decision on other grounds, he or she may request a review and modification by forwarding to the Chief, Security and Employee Relations Staff, a written statement setting forth all the facts and circumstances in support of his or her request and any alternative solution which he or she thinks appropriate.

(i) If the final determination requires positive action on the part of the employee, he or she shall take such action as soon as possible and advise the determining official when he or she has done so. Failure to take a required action within a reasonable time may result in disciplinary action.

(j) Where special circumstances exist, the Director of Personnel may grant, in writing, an exception to the requirements of paragraph (c)(1) of this section to allow delegation of review and determination authority to others than national office officials. [43 FR 43431, Sept. 26, 1978, as amended at 46 FR 22559, Apr. 20, 1981; 46 FR 47210, Sept. 25, 1981)

80.735–43 Protection of employees'

statements. (a) The statements of employment and financial interests, and supplements thereto, required by or pursuant to the regulations in this part shall be held in confidence and afforded adequate physical security. No information as to the contents thereof shall be disclosed except to the head of the employing agency and such other persons as may be designated custodians or reviewers of such reports unless specific authorization has been obtained from the Department Counselor. An official,

167-007 0496_-2

(4) The Designated Agency Ethics Official; and

(5) Employees on detail to a position normally occupied by an individual described in paragraphs (a)(1) through (4) of this section, irrespective of the detailed employee's actual grade level or compensation, if the detail can reasonably be expected to last for more than 60 days in a calendar year.

(b) Financial disclosure reports required under this section shall be submitted to the Designated Agency Ethics Official at USDA (the Director of Personnel) or his or her designee. Reports are due as follows:

(1) Within 30 days of assuming a position or office described in paragraph (a) of this section-unless the employee has already filed a current Standard Form 278 either for a similarly covered position which he or she has left within 30 days of assuming the duties of the new one, or has filed as a nominee for the position assumed;

(2) Within 30 days of termination of employment from a position or office described in paragraph (a) of this section, unless the employee enters a similarly covered position within 30 days of such termination; and

(3) On or before May 15 of each calendar year during the incumbency of an employee in a covered position, when he or she has served more than 60 days in such position during the previous calendar year.

(c) Instructions covering the types of information to be provided on a Standard Form 278 are included with the form. The basic categories of information required are: Income from and interests in property; purchases, sales and exchanges; gifts and reimbursements; liabilities; positions held; and relations with other employers.

(d) Financial disclosure reports submitted under the provisions of this section shall be reviewed by the Director of Personnel as the Designated Agency Ethics Official, or by those individuals delegated authority for that purpose as Deputy Ethics Officials (subject to the restrictions of 5 CFR 738.204).

(e) The official responsible for reviewing the disclosure statement shall either approve it, or make an initial determination that a conflict or appearance thereof exists, or may deter

custodian, reviewer, or other employee having possession of a statement of employment and financial interests shall not allow access to, or allow information to be disclosed from, the statement except to carry out the purpose of this subpart C.

(b) Information from a statement of employment and financial interests shall not be disclosed outside of the Department except as the Civil Service Commission or the Secretary of Agriculture may determine for good cause shown.

(c) Reports shall be separately maintained by the officials designate as custodians for such reports and shall not be made a part of the official personnel folders.

(d) Regardless of the means or manner of transmission, when these reports leave the physical custody of employees or a designated reviewer, they shall be enclosed in a double sealed envelope. The inner envelope shall be marked: For Official Use Only,” “Contains AD-392 (or AD-392A),” as appropriate, and "To Be Opened by Addressee Only.”

80.735–44 Financial disclosure under

the Ethics in Government Act. (a) The following individuals are covered by the financial reporting requirements of the Ethics in Government Act of 1978 and shall submit a financial disclosure report on Office of Personnel Management Standard Form 278 in accordance with this section:

(1) Members of the Senior Executive Service and other officers or employees in the executive branch, including a special Government employee as defined in 18 U.S.C. 202, whose position is classified at GS-16 or above of the General Schedule prescribed by 5 U.S.C. 5332, or the rate of basic pay for which is fixed at a rate equal to or greater than the minimum rate of basic pay for GS-16;

(2) Employees who are administrative law judges appointed pursuant to 5 U.S.C. 3105;

(3) Employees not described in paragraph (a)(2) of this section who are in a position in the executive branch which is excepted from the competitive service by reason of being of a confidential or policy making nature;

80.785-51 Purpose.

The purpose of this subpart is to set forth regulations governing administrative enforcement of the prohibitions on post-employment activities contained in 18 U.S.C. 207.

80.735–52 Notice of violation.

Whenever there is reasonable cause to believe that a former employee has violated the provisions of 18 U.S.C. 207, an investigation and referral of the matter to the Department of Justice for possible prosecution shall be made in accordance with applicable regulations and Department procedures. A copy of such referral shall be provided to the Office of Government Ethics. Thereafter any action to be taken by the Department shall be coordinated with the Department of Justice unless the Department of Justice declines to prosecute.

mine that additional information is needed to resolve potential problems. The reporting individual shall be afforded the opportunity for written or oral response to any initial determinations other than approval, and should a

inal determination of a conflict be made, shall be afforded the opportunity for a personal consultation where practicable. If after these steps have been taken the reviewing official determines that a conflict or appearance of a conflict continues to exist, the reporting individual shall be notified in writing of what steps must be taken to resolve the problems. Failure to take any required remedial actions will result in appropriate disciplinary action against the individual involved in accordance with the provisions of 5 CFR 734.604(b)(6).

(f) Financial disclosure reports filed under the Ethics in Government Act of 1978 shall be made available for public inspection within 15 days of their receipt within the parameters established in 5 CFR 734.603.

(g) The Ethics in Government Act of 1978 provides that the Office of Government Ethics, Office of Personnel Management, shall be responsible for developing rules and regulations affecting financial disclosure procedures under the Act. These regulations are found in 5 CFR part 734. Employees with questions concerning this section may consult the complete regulations in 5 CFR part 734, ask their servicing personnel office, or address their inquiries directly to the Designated Agency Ethics Official, Director of Personnel, Room 16-W, U.S. Department of Agriculture, Washington, DC 20250. (5 U.S.C. 301; Title II of Pub. L. 95-521, 92 Stat. 1836, as amended, 5 U.S.C. app.; E.O. 11222 of May 8, 1965, 30 FR 6469, 3 CFR, 1965 Supp.; 5 CFR 734.103) [47 FR 12608, Mar. 24, 1982]

80.335-53 Initiation of administrative

action. Whenever the Director of Personnel has reasonable cause to believe that a former employee of the Department has committed acts which violate 18 U.S.C. 207 (a), (b), or (c) he or she shall initiate administrative action pursuant to this subpart by notifying such employee (hereinafter respondent), in writing that:

(a) Action is being instituted against him or her pursuant to this subpart as a result of allegations of a violation or violations of 18 U.S.C. 207. The respondent shall be informed of the allegations and the basis for them in sufficient detail to prepare an adequate defense;

(b) He or she may request a hearing in writing within 15 working days by addressing the request to the Director of Personnel of the Department;

(c) In the absence of such a request, the Director of Personnel shall decide the matter on its merits based upon the evidence gathered to date; and

(d) The respondent may elect to supply a written rebuttal to the allegations in lieu of requesting a hearing. Such material shall be incorporated in the record and reviewed by the Director of Personnel prior to reaching a determination on the matter.

Subpart D-Administrative En

forcement of Restriction on Post-Employment Activities

AUTHORITY: 18 U.S.C. 207(3).

SOURCE: 46 FR 47210, Sept. 25, 1981, unless otherwise noted.

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