Subpart C-Statements of Employment and Financial Interests

0.735-31 Employees required to submit statements under the Executive order. 0.735-32 Exceptions.

0.735-33 Identification of employees required to submit statements. 0.735-34 Time and place for submission of employees' statements.

0.735-35 Supplementary statements. 0.735-36 Types of interests to be reported. 0.735-37 Information prohibited. 0.735-38 Interests of employee's relatives. 0.735-39 Information not known by employee.

0.735-40 Effect of employee's statement. 0.735-41 Specific provisions for special Government employees.

0.735-42 Review of statements and determination of conflicting interests. 0.735-43 Protection of employees' statements.

0.735-44 Financial disclosure under the Ethics in Government Act.

Sec.

Subpart D-Administrative Enforcement of Restriction on Post-Employment Activities

0.735-51 Purpose.

0.735-52 Notice of violation.

0.735-53 Initiation of administrative action.

0.735-54 Hearing officer.

0.735-55 Department representative.

0.735-56 Time, date and place of hearing.

0.735-57 Representation.

0.735-58 Rights of parties at hearing.

0.735-59 Oaths and rules of evidence. 0.735-60 Transcript.

0.735-61 Briefs and discovery. 0.735-62 Open hearing.

0.735-63 Ex-parte communications. 0.735-64 Administrative record. 0.735-65 Burden of proof.

0.735-66 Initial decision. 0.735-67 Appeal.

0.735-68 Final decision. 0.735-69 Sanctions.

0.735-70 Finality.

AUTHORITY: Executive Order 11222 of May 8, 1965, 30 FR 6469, 3 CFR, 1965 Supp.; 5 CFR 735.104; 18 U.S.C 207(j), unless otherwise noted.

SOURCE: 43 FR 43431, Sept. 26, 1978, unless otherwise noted.

Subpart A-General Provisions

§ 0.735-1 Purpose.

The maintenance of unusually high standards of honesty, integrity, impartiality, and conduct by Government employees and special Government employees is essential to assure the proper performance of the Government business and the maintenance of confidence by citizens in their Government. The confidence of citizens in their Government is influenced not only by the manner in which employees serve the public but in the way they conduct themselves in the eyes of the public. The avoidance of misconduct and conflicts-of-interests on the part of Government employees through informed judgment is indis pensable to the maintenance of these standards. To accord with these con cepts, this part sets forth the regula tions for employees of the U.S. D partment of Agriculture, prescribir standards of conduct and responsib ities and governing the reporting employment and financial interests.

(a) “Agency" means an independent subagency or departmental staff office of the U.S. Department of Agriculture.

(b) "Agency Head" means the Administrator or Chief Executive Officer of an independent subagency or departmental staff office.

(c) "Conflict-of-interest" means a situation in which a Federal employee's private interest, usually of an economic nature, conflicts with his or her Government duties and responsibilities.

(d) "Appearance of conflict-of-interest" means a situation where it could reasonably be concluded that an employee's private interest is in conflict with his or her Government duties and responsibilities, even though there may not actually be such a conflict.

(e) "Employee" means a regular officer or employee of the Department of Agriculture including excepted and WOC employees and includes a special Government employee unless otherwise provided.

(f) "Special Government employee" means an officer or employee of the Department of Agriculture who is retained, designated, appointed, or employed to perform temporary duties either on a full-time or intermittent basis, with or without compensation, for not to exceed 130 days during any period of 365 consecutive days.

(g) "Supervisor" means an employee having authority, in the interest of an Agency, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or responsibility to direct them, or to adjust their grievance, or effectively recommend such action, if in connection with the foregoing the exercise of authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

(h) "Outside employment or activity" means any outside work, service, or activity performed by an employee other than in the performance of official duties. It includes but is not limited to such activities as writing, editing, publishing, teaching, lecturing, consulting services, self-employment, working for another employer, management or operation of a private busi

ness, personally owned business, partnership, corporation, or any work perfomed with or without compensation.

(i) "Members of family" means those blood and in-law relations who are residents of the employee's household. (j) "The Executive order" means Executive Order 11222 of May 8, 1965.

§ 0.735-3 Counseling and advisory service.

(a) The General Counsel shall designate an employee of the Office of the General Counsel to serve as the Department Counselor and designee to the Civil Service Commission on matters covered by the regulations in this part. Employees shall be notified semiannually of the name and title of the Department Counselor and also upon the designation of a new employee to that position. The Department Counselor shall have overall responsibility for coordination of the Department's counseling and advisory service, and for assuring advice and interpretations on questions of conflict or apparent conflicts-of-interest and other matters covered by the regulations in this part are available to Deputy Counselors and Assistant Deputy Counselors hereinafter designated.

(b) The Director of Personnel and the Chief, Security and Employee Relations Division, Office of Personnel, shall be Department Deputy Counsel

ors.

(c) Agency Heads will be Agency Deputy Counselors. If necessary, in order to assure that counseling and advisory service is available to all Washington and field employees, the Agency Head may designate as Agency Assistant Deputy Counselors such employees as are qualified and in a position to give authoritative advice and guidance on most matters covered by this part.

(d) All employees are to be notified of the availability of counseling and by whom this service is provided. Initial notification must be made within 90 days after issuance of this part, and perodically thereafter. A new employee or new special Government employee must be notified at or before the time of his or her entrance on duty.

(e) Each new employee shall be furnished at the time of hiring a copy of

this part. Current employees shall be furnished a copy of these regulations within 90 days following issuance. Subsequent changes to these regulations will be furnished employees upon issuance. Each employee shall be reminded of the regulations in this part semiannually.

(f) The regulations in this part will be discussed with each employee annually in conjunction with the employee's performance evaluation. Each employee will certify on the performance evaluation form or other Agency form that he or she has a copy of this part and has discussed it with his or her supervisor.

(g) In addition to the counseling service set forth in paragraphs (a) through (f) of this section, 5 CFR 738 prescribes the naming of a Designated Agency Ethics Official (DAEO) to administer Title II of the Ethics in Government Act of 1978, to coordinate and manage the agency's ethics program, and to provide liaison with the Office of Government Ethics with regard to all aspects of the Ethics program. The Director of Personnel has been designated by the Secretary of Agriculture to serve as DAEO for USDA. The responsibilities and duties of the DAEO can be found in 5 CFR 738.203.

(5 U.S.C. 301; Title II of Pub. L. 95-521, 92 Stat. 1836, as amended, 5 U.S.C. app.; 5 CFR 738)

[43 FR 43431, Sept. 26, 1978, as amended at 47 FR 10509, Mar. 11, 1982]

8 0.735-4 Agency supplementation.

Agencies of the Department may issue such additional regulations as are necessary, consistent, and of necessity more restrictive than the regulations in this part, subject to the prior approval of the Director of Personnel. Agencies are expected to issue such supplemental regulations, with respect to employees assigned to particular programs, as are necessary to prevent such employees from being in a potential conflict-of-interest situation or a situation giving the appearance of a conflict-of-interest. Such Agency regulations shall be furnished to employees in the same manner as the regulations in this part.

§ 0.735-5 Remedial action.

(a) A violation of this part by an e ployee may be cause for remed action. Remedial action may inclu but is not limited to:

(1) Changes in assigned duties; (2) Divestment by the employee of conflicting interest;

(3) Disqualification for a particul assignment; or

(4) Disciplinary action which may in addition to any penalty prescrib by law.

(b) Remedial action, whether dis plinary or otherwise, shall be effect in accordance with any applicab laws, Executive Orders, and regul tions.

§ 0.735-6 Responsibilities of supervisors.

(a) Supervisors, because of their da to-day relationships with employee are responsible to a large degree f maintaining high standards of ethi and conduct. They must become fam iar with the regulations in this pa and apply the standards to themselv and employees they supervise.

(b) Supervisors shall advise an er ployee who comes to them with que tions on matters covered by these re ulations, or when they consider it a propriate, refer the employee or th questions to a counselor designated § 0.735-3.

Subpart B-Conduct and
Responsibilities of Employees

§ 0.735-11 Prohibited conduct-general.

(a) An employee shall avoid an action, whether or not specifically pr hibited by this subpart, which migh result in or create the appearance of: (1) Using public office for privat gain;

(2) Giving preferential treatment t any person;

(3) Impeding Government efficienc or economy;

(4) Losing complete independence o impartiality;

(5) Making a Government decisio outside of official channels; or

(6) Affecting adversely the conf dence of the public in the integrity o the Government.

(b) Employees are specifically prohibited from:

(1) Engaging in criminal, infamous, dishonest or notoriously disgraceful conduct, or other conduct prejudicial to the Government;

(2) Betting or participating in any gambling activity, including the operation of a gambling device, conducting a lottery or pool, or selling or buying a number slip or ticket, while on Government-owned or leased property or while on duty for the Government;

(3) Using intoxicating beverages or narcotic drugs on Government-owned or leased property, or transporting such beverages or drugs in Government-owned or leased vehicles, or using such beverages or drugs at any time or place to the extent that it adversely affects performance of official duties;

(4) Lending funds at usurious interest rates;

(5) Provoking or harassing other employees, or making unwarranted criticism or accusations against other employees;

(6) Except as authorized by the Inspec or General with the consent of a party to the conversation when necessary in criminal investigations, monitoring or recording, or authorizing or permitting others under their administrative control to monitor or record, telephone conversations for the purpose of taking a verbatim transcript of all or part of the conversation unless such monitoring or recording is agreed to in advance by all participants in the conversation;

(7) Except as authorized by the Inspector General with the consent of a party to the conversation when necessary in criminal investigations, utilizing a mechanical or electronic device to monitor or record nontelephone conversations, unless such monitoring or recording is agreed to in advance by all participants in the conversation;

(8) Soliciting, making collections, canvassing for the sale of any article, or distributing or posting literature, advertising matter, or any other graphic matter, in any space occupied by the Department, except as authorized in writing by the Director of Personnel;

(9) Soliciting money from, or selling tickets to, persons outside the Government for the benefit of any organization of the Department;

(10) Taking any action which might prejudice the Government's interest in a criminal or civil case;

(11) Giving aid or assistance, other than in the discharge of official duties, to any claimant in prosecuting any claim against the United States; or

(12) Distributing through the Department's mail and messenger service, or otherwise distributing or posting, in any space occupied by the Department, any circulars, flyers, announcements, pictures, or other graphic matters, etc., that:

(i) Directly or indirectly attack or adversely reflect on the integrity of any official, officer or employee of any branch of the Government; or

(ii) Directly or indirectly condemn or criticize the policies of any Government department or agency.

(13) Discriminating against any person on the grounds of race, color, national origin, religion, sex, age, marital status, physical or mental handicap, or political affiliation;

(14) Engaging in sexual harassment by participating in coercive or repeated unsolicited and unwelcome verbal comments, gestures, or physical contacts of a sexual nature or by using implicit or explicit coercive sexual behavior in the process of conducting agency business, or to control, influence or affect the career, salary, or job of an employee. Supervisors and managers who fail to take appropriate action on complaints of sexual harassment will be subject to disciplinary action;

(15) Displaying discourtesy or disrespect to a member of the public when acting in an official capacity.

[43 FR 43431, Sept. 26, 1978, as amended at 46 FR 22559, Apr. 20, 1981]

§ 0.735-12 Gifts, gratuities, entertainment, and favors.

(a) Except as provided in paragraphs (c) and (f) of this section, employees shall not solicit or accept, for themselves or another person, directly or indirectly, any gift, gratuity, favor, entertainment, loan, unusual discount,

special consideration or any other thing of monetary value (including complimentary meals and beverages, tangible items, tickets and passes) from any interested party. An "interested party" is any person, firm, corporation, other entity, or an individual acting in behalf thereof, which:

(1) Has or is seeking to engage in, procurement activities or other contractual, business, or financial relations with the Department;

(2) Conducts operations or activities that are regulated by the Department;

or

(3) Has interests that may be substantially affected by the performance or nonperformance of the official duty of the employee concerned.

(b) Gifts, gratuities, favors, entertainment, loans, unusual discounts, special considerations and any other thing of monetary value bestowed upon members of the employee's immediate family are considered to be the same as if bestowed upon the employee. Acceptance of items, no matter how innocently offered or accepted from "interested parties" may be a source of embarrassment to the Department and the employee involved, may affect the objective and impartial judgment of the employee, and may impair confidence of the public in the integrity of the employee and the Department.

(c) The restrictions in paragraph (a) of this section do not prohibit:

(1) Exchange of social gifts in an obvious family or personal relationship (such as those between the employee and parents, spouse, children, or close personal friends of the employee) when the circumstances make it clear that it is those relationships rather than the business of the "interested party" which are the motivating factors;

(2) Exchange of customary social courtesies which are wholly free of any embarrassing or improper implications, and which are of trivial value (e.g., soft drink or cup of coffee);

(3) Acceptance of loans from banks or other financial institutions on customary terms to finance proper and usual activities of employees, such as automobile and home mortgage loans;

(4) Acceptance of unsolicited adve tising or promotional material ( clearly trivial value, such as: pen pencils, note pads, calendars, ar other things of nominal or triflir value. Acceptance of gifts, such : meat products, alcoholic beverage fruit baskets, boxes of candy, wallet jewelry, and cuff links is, howeve strictly prohibited; or

(5) Acceptance of food and refresh ments of nominal value on infrequer occasions when the interest of th Government is served by participatio of Department employees in industry sponsored activities at which luncheon or dinner may be served, an where the discussion of matters c mutual interest to the Governmer and industry will take place.

(d) An employee shall not solicit contribution from another employe for a gift to an official superior, mak a donation as a gift to an official supe rior, or accept a gift from an employe receiving less pay than himself or he self (5 U.S.C. 7351). However, thi paragraph does not prohibit the vo untary giving or acceptance of a gift o nominal value or donation in a nom nal amount made on a special occasio such as marriage, illness, or retire ment.

(e) Pursuant to 5 U.S.C. 7342, the ad ceptance by an employee of a gift present, decoration or other thin from a foreign government or agen thereof (including an international or ganization whose membership include a unit of foreign government, or an agent of a foreign government) is sub ject to the following conditions:

(1) An employee may not request o otherwise encourage the tender of decoration or gift (including travel an travel expenses);

(2) An employee may accept and retain a gift that is tendered and re ceived as a souvenir or a mark of cour tesy if the gift has a retail value in th United States of $140 or less at th time of acceptance;

(3) An employee may accept a gift o more than $140 when such gift is i the nature of an educational scholar ship or medical treatment or when i appears that to refuse the gift woul likely cause offense or embarrassmen or otherwise adversely affect the for