(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]

§ 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 employee may be cause for remedial action. Remedial action may include, but is not limited to:

(1) Changes in assigned duties;

(2) Divestment by the employee of a conflicting interest;

(3) Disqualification for a particular assignment; or

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

(b) Remedial action, whether disciplinary or otherwise, shall be effected in accordance with any applicable laws, Executive Orders, and regulations.

§ 0.735-6 Responsibilities of supervisors.

(a) Supervisors, because of their dayto-day relationships with employees, are responsible to a large degree for maintaining high standards of ethics and conduct. They must become familiar with the regulations in this part and apply the standards to themselves and employees they supervise.

(b) Supervisors shall advise an employee who comes to them with questions on matters covered by these regulations, or when they consider it appropriate, refer the employee or the questions to a counselor designated in § 0.735-3.

Subpart B-Conduct and
Responsibilities of Employees

§ 0.735-11 Prohibited conduct-general.

(a) An employee shall avoid any action, whether or not specifically prohibited by this subpart, which might result in or create the appearance of: (1) Using public office for private gain;

(2) Giving preferential treatment to any person;

(3) Impeding Government efficiency or economy;

(4) Losing complete independence or impartiality;

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

(6) Affecting adversely the confidence of the public in the integrity of 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, using such beverages or drugs at any time or place to the extent that it adversely affects performance of official duties;

or

(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 Inspector 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 advertising or promotional material of clearly trivial value, such as: pens, pencils, note pads, calendars, and other things of nominal or trifling value. Acceptance of gifts, such as meat products, alcoholic beverages, fruit baskets, boxes of candy, wallets, jewelry, and cuff links is, however, strictly prohibited; or

(5) Acceptance of food and refreshments of nominal value on infrequent occasions when the interest of the Government is served by participation of Department employees in industrysponsored activities at which luncheon or dinner may be served, and where the discussion of matters of mutual interest to the Government and industry will take place.

a

(d) An employee shall not solicit a contribution from another employee for a gift to an official superior, make a donation as a gift to an official superior, or accept a gift from an employee receiving less pay than himself or herself (5 U.S.C. 7351). However, this paragraph does not prohibit the voluntary giving or acceptance of a gift of nominal value or donation in a nominal amount made on a special occasion such as marriage, illness, or retirement.

(e) Pursuant to 5 U.S.C. 7342, the acceptance by an employee of a gift, present, decoration or other thing from a foreign government or agent thereof (including an international organization whose membership includes a unit of foreign government, or any agent of a foreign government) is subject to the following conditions:

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

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

(3) An employee may accept a gift of more than $140 when such gift is in the nature of an educational scholarship or medical treatment or when it appears that to refuse the gift would likely cause offense or embarrassment or otherwise adversely affect the for

eign relations of the United States. An employee may also accept gifts of travel or expenses for travel entirely outside the United States provided the employee obtains prior approval from the Head of the employing Agency or his or her designee;

(4) The acceptance of a tangible gift of more than $140 is deemed to have been accepted on behalf of the United States and becomes the property of the United States. It must be deposited by the employee within 60 calendar days with his or her employing Agency's Property Management Officer with a statement indicating:

(i) Name and position of the employee;

(ii) Brief description of the gift and the circumstances justifying acceptance;

(iii) Identity, if known, of the foreign government and name and position of the individual who presented the gift;

(iv) Date of acceptance of gift;

(v) Estimated value in the United States of the gift at time of acceptance; and

(vi) Disposition and current location of the gift.

If the gift is for travel or travel expenses, the employee must file a statement with his or her employing Agency Head within 30 calendar days after acceptance indicating: Name and position of the employee, brief description of the gift and the circumstances justifying acceptance, and identity, if known, of the foreign government and name and position of the individual who presented the gift;

(5) An employee may accept, retain, and wear a foreign decoration, if tendered in recognition of active field service or unusually meritorious service and if supported by a statement from the donor, preferably in the form of a citation, which shows the basis for tender of the award. A request from the Head of the employing Agency for approval of the acceptance of the decoration will be forwarded to the Administrator of the Foreign Agricultural Service or his or her designee for concurrence or disapproval. The request from the employing Agency must contain a recommendation as to whether or not the acceptance, reten

tion, and wearing of the foreign decoration by the employee would be in the best interest of the United States. The Administrator of the Foreign Agricultural Service shall notify the employing Agency of his or her concurrence or disapproval of the retention of the foreign decoration. Disapprovals by the Foreign Agricultural Service shall constitute acceptance on behalf of the United States and the decoration shall be deposited by the employee with the Agency's Property Management Officer within 60 calendar days. The Property Management Officer shall report the decoration as required by the Agriculture Property Management Regulations;

(6) Violation of the provisions of the law including the failure by an employee to report such a gift may result in a civil penalty against the employee for the value of the gift plus $5,000; and

(7) The definition of "employee" includes all employees of the Department, experts, or consultants under contract with the United States, spouses of all such individuals, and blood and in-law relations who are residents of the employee's household.

(f) Neither this section nor § 0.73513(a) precludes an employee from receipt of bona fide reimbursement, unless prohibited by law, for expenses of travel, and such other necessary subsistence as is compatible with this part for which no Government payment or reimbursement is made. However, this paragraph does not allow an employee to be reimbursed, or payment to be made on his or her behalf, for excessive personal living expenses, gifts, entertainment, or other personal benefits; nor does it allow an employee to be reimbursed for travel on official business under Agency orders when reimbursement is proscribed by decision B-128527 of the Comptroller General dated March 7, 1967 (46 Comp. Gen. 689).

[43 FR 43431, Sept. 26, 1978, as amended at 47 FR 12327, Mar. 23, 1982]

$ 0.735-13 Outside employment and activities.

(a) An employee shall not engage in outside employment or other outside