[Federal Register: October 22, 2003 (Volume 68, Number 204)]
[Rules and Regulations]
[Page 60593-60596]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22oc03-17]
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Part IV
Office of Government Ethics
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5 CFR Part 2601
Implementation of Office of Government Ethics Statutory Gift Acceptance
Authority; Final Rule
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OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2601
RIN 3209-AA21
Implementation of Office of Government Ethics Statutory Gift
Acceptance Authority
AGENCY: Office of Government Ethics (OGE).
ACTION: Final rule.
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SUMMARY: The Office of Government Ethics is adopting as final a
proposed regulation implementing the agency gift acceptance authority
contained in section 2 of the Office of Government Ethics Authorization
Act of 1996, which authorizes OGE to accept gifts and certain other
items for the purpose of aiding or facilitating the work of the agency
and which requires the Director of OGE to issue regulations
establishing criteria for determining whether the exercise of this gift
acceptance authority is appropriate. This rule states the policy
regarding the use of this authority, provides definitions of key terms,
establishes guidelines for the solicitation and acceptance of gifts,
states certain conditions for acceptance and use of gifts, and
establishes accounting requirements. Although this rule implements
authority that is specific to OGE, it addresses several agency gift
acceptance issues of general concern to executive branch agencies.
Therefore, it could provide guidance to other agencies in administering
their gift authority.
EFFECTIVE DATE: This rule will become effective November 21, 2003.
FOR FURTHER INFORMATION CONTACT: Allison C. George, Associate General
Counsel, Office of Government Ethics, Telephone: (202) 482-9300; TDD:
(202) 482-9293; FAX (202) 482-9237.
SUPPLEMENTARY INFORMATION: In this rulemaking document, OGE is adopting
final agency gift acceptance authority regulations, for codification at
5 CFR part 2601. On May 5, 2003, at 68 FR 23875-23883 (as separate part
VII), OGE published a proposed rule that would implement section 2 of
the Office of Government Ethics Authorization Act of 1996 (the 1996
Reauthorization Act), Pub. L. 104-179, 110 Stat. 1566, which amended
the Ethics in Government Act of 1978 (the Ethics Act), as codified at 5
U.S.C. app. Sec. 403(b). The proposed rule invited comments from the
public to be received by OGE on or before August 4, 2003. No comments
were received. Therefore, OGE is finalizing this rule without change.
For additional background information and a discussion of the
regulatory provisions, interested parties may consult the preamble to
the proposed rule, which was published in the Federal Register at 68 FR
23875-23883.
Executive Order 12866
In promulgating this final regulation, the Office of Government
Ethics has adhered to the regulatory philosophy and the applicable
principles of regulation as set forth in section 1 of Executive Order
12866, Regulatory Planning and Review. This regulation has not been
reviewed by the Office of Management and Budget under that Executive
order since it is not a significant regulatory action within the
meaning of the Executive order.
Executive Order 12988
As Director of the Office of Government Ethics, I have reviewed
this final rule in light of section 3 of Executive Order 12988, Civil
Justice Reform, and certify that it meets the applicable standards
provided therein.
Regulatory Flexibility Act
As Director of the Office of Government Ethics, I certify under the
Regulatory Flexibility Act (5 U.S.C. chapter 6) that this regulation
will not have a significant economic impact on a substantial number of
small entities because it primarily affects OGE itself and OGE
employees.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
chapter 25, subchapter II), this regulation would not significantly or
uniquely affect small governments and would not result in increased
expenditures by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more (as adjusted for
inflation) in any one year.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply
because this regulation does not contain information collection
requirements that require the approval of the Office of Management and
Budget.
Congressional Review Act
The Office of Government Ethics has determined that this regulation
involves a nonmajor rule under the Congressional Review Act (5 U.S.C.
chapter 8) and will submit a report thereon to the U.S. Senate, House
of Representatives and General Accounting Office in accordance with
that law at the same time this rulemaking document is sent to the
Office of the Federal Register for publication in the Federal Register.
List of Subjects in 5 CFR Part 2601
Conflict of interests, Government employees, Government property.
Approved: October 10, 2003.
Amy L. Comstock,
Director, Office of Government Ethics.
0
Accordingly, for the reasons set forth in the preamble, the Office of
Government Ethics is amending subchapter A of chapter XVI of title 5 of
the Code of Federal Regulations by adding a new part 2601 to read as
follows:
PART 2601--IMPLEMENTATION OF OFFICE OF GOVERNMENT ETHICS STATUTORY
GIFT ACCEPTANCE AUTHORITY
Subpart A--General Provisions
Sec.
2601.101 Authority.
2601.102 Purpose.
2601.103 Policy.
2601.104 Relationship to other authorities.
2601.105 Definitions.
Subpart B--Guidelines for Solicitation and Acceptance of Gifts
2601.201 Delegation.
2601.202 Procedure.
2601.203 Conflict of interest analysis.
2601.204 Conditions for acceptance.
Subpart C--Accounting Requirements
2601.301 Accounting of gifts.
Authority: 5 U.S.C. App. (Ethics in Government Act of 1978).
Subpart A--General Provisions
Sec. 2601.101 Authority.
Section 2 of the Office of Government Ethics Authorization Act of
1996, amending the Ethics in Government Act of 1978, as codified at 5
U.S.C. app. 403(b), authorizes the Office of Government Ethics (OGE) to
accept and utilize gifts for the purpose of aiding or facilitating the
work of OGE.
Sec. 2601.102 Purpose.
The purpose of this part is to establish guidelines governing the
implementation of OGE's gift authority by defining its scope and
application, by prescribing the policies, standards and procedures that
govern the solicitation, acceptance and use of gifts, and by setting
forth accounting requirements related to the use of this authority.
Sec. 2601.103 Policy.
(a) Scope. The Office of Government Ethics may use its statutory
authority to solicit, accept and utilize gifts to the agency that aid
or facilitate the agency's
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work. The authority to solicit, accept and utilize gifts includes the
authority to receive, administer, spend, invest and dispose of gifts.
Gifts to the agency from individuals or organizations can be a useful
adjunct to appropriated funds and may enhance the agency's ability to
fulfill its mission, as well as further mutually beneficial public/
private partnerships, or other useful arrangements or relationships.
Such uses of this authority are appropriate provided that solicitation
or acceptance of a gift does not compromise the integrity of OGE, its
programs or employees.
(b) Use of gifts. Gifts to OGE may be used to carry out any
activity that furthers the mission, programs, responsibilities,
functions or activities of the agency. Gifts may be used to carry out
program functions whether or not appropriated funds are available for
that purpose, provided that such expenditures are not barred by law or
regulation. Gifts may also be used for official travel by employees to
events or activities required to carry out the agency's statutory or
regulatory functions. Gifts to the agency may also be used for the
travel expenses of spouses accompanying employees on official travel,
if such travel could be paid for by appropriated funds.
(c) Sources. Generally, gifts may be solicited or accepted from any
source, including a prohibited source, provided that the standards of
this part are met. Gifts generally should be made directly to the
agency and not through intermediaries. However, where a gift is offered
by an intermediary, both the intermediary and the ultimate source of
the gift should be analyzed to determine whether acceptance would be
appropriate.
(d) Endorsement. Acceptance of a gift pursuant to this part shall
not in any way be deemed to be an endorsement of the donor, or the
donor's products, services, activities, or policies. Letters to a donor
expressing appreciation of a gift are permitted.
(e) Type of gift. The agency may solicit or accept any gift that is
within its statutory authority. However, as a matter of policy, OGE
will not solicit or accept gifts of currency pursuant to this part.
Donors who offer currency should be advised that the gift may be made
by check or money order payable to the U.S. Office of Government
Ethics.
Sec. 2601.104 Relationship to other authorities.
(a) This part does not apply to gifts to the agency of:
(1) Travel and travel-related expenses made pursuant to the
authority set forth in 31 U.S.C. 1353; or
(2) Volunteer services made pursuant to the authority set forth in
5 U.S.C. 3111.
(b) This part does not apply to gifts to an individual agency
employee, including:
(1) Gifts of contributions, awards or other expenses for training
made pursuant to the authority set forth in the Government Employees
Training Act, 5 U.S.C. 4111;
(2) Gifts made by a foreign government or organization, or
representative thereof, pursuant to the authority set forth in 5 U.S.C.
7342;
(3) Gifts made by a political organization that may be accepted by
an agency employee who, in accordance with the terms of the Hatch Act
Reform Amendments of 1993, at 5 U.S.C. 7323, may take an active part in
political management or in political campaigns; or
(4) Gifts made directly or indirectly that an employee may accept
in a personal capacity pursuant to the authority set forth in 5 CFR
part 2635, subpart B or subpart C.
Sec. 2601.105 Definitions.
For the purposes of this part:
Administration Division means the Administration Division of the
Office of Government Ethics.
Agency means the Office of Government Ethics (OGE).
Authorized agency official means the Director of the Office of
Government Ethics or the Director's delegatee.
Director means the Director of the Office of Government Ethics.
Employee means an employee of the Office of Government Ethics.
Gift means any gift, donation, bequest or devise of money, use of
facilities, personal property, or services and may include travel
reimbursements or payments for attendance at or participation in
meetings or events.
Money means currency, checks, money orders or other forms of
negotiable instruments.
Personal property means all property, tangible or intangible, not
defined as real property, and includes stocks and bonds.
Prohibited source means any source described in 5 CFR 2635.203(d).
Services means all forms of voluntary and uncompensated personal
services.
Use of facilities means use of space, equipment and all other
facilities.
Subpart B--Guidelines for Solicitation and Acceptance of Gifts
Sec. 2601.201 Delegation.
(a) The authority to solicit, accept, and utilize gifts in
accordance with this part resides with the Director.
(b) The Director may delegate this authority.
(c) Authorities delegated in accordance with paragraph (b) of this
section may be redelegated only through a written delegation
authorizing an agency employee to solicit or accept specific types of
gifts, or a gift for a specific purpose, function, or event.
Sec. 2601.202 Procedure.
(a) The authorized agency official shall have the authority to
solicit, accept, refuse, return, or negotiate the terms of acceptance
of a gift.
(b) An employee, other than an authorized agency official, shall
immediately forward all offers of gifts covered by this part regardless
of value to an authorized agency official for consideration and shall
provide a description of the gift offered. An employee shall also
inform an authorized agency official of all discussions of the
possibility of a gift. An employee shall not provide a donor with any
commitment, privilege, concession or other present or future benefit
(other than an appropriate acknowledgment) in return for a gift.
(c) Only an authorized agency official may solicit, accept or
decline a gift after making the determination required under the
conflict of interest standard in Sec. 2601.203. An authorized agency
official may find that, while acceptance of an offered gift is
permissible, it is in the interest of the agency to qualify acceptance
by, for example, limiting the gift in some way. Approval of acceptance
of a gift in-kind after receipt of the gift may be granted as deemed
appropriate by the authorized agency official.
(d) Gifts may be acknowledged in writing in the form of a letter of
acceptance to the donor. The amount of a monetary gift shall be
specified. In the case of nonmonetary gifts, the letter shall not make
reference to the value of the gift. Valuation of nonmonetary gifts is
the responsibility of the donor. Letters of acceptance shall not
include any statement regarding the tax implications of a gift, which
remain the responsibility of the donor. No statement of endorsement
should appear in a letter of acceptance to the donor.
(e) A gift may be declined by an authorized official orally or in
writing. A donor may be advised of the reason why the gift has been
declined. A gift
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may be declined solely as a matter of agency discretion, even though
acceptance would not be precluded under the conflict of interest
standard in Sec. 2601.203.
(f) A gift of money or the proceeds of a gift shall be deposited in
an appropriately documented agency fund. A check or money order should
be made payable to the ``U.S. Office of Government Ethics.''
Sec. 2601.203 Conflict of interest analysis.
(a) A gift shall not be solicited or accepted if the authorized
agency official determines that such solicitation or acceptance of the
gift would reflect unfavorably upon the ability of the agency, or any
employee of the agency, to carry out OGE responsibilities or official
duties in a fair and objective manner, or would compromise the
integrity or the appearance of the integrity of its programs or any
official involved in those programs.
(b) In making the determination required under paragraph (a) of
this section, an authorized agency official may be guided by all
relevant considerations, including, but not limited to the following:
(1) The identity of the donor;
(2) The monetary or estimated market value or the cost to the
donor;
(3) The purpose of the gift as described in any written statement
or oral proposal by the donor;
(4) The identity of any other expected recipients of the gift on
the same occasion, if any;
(5) The timing of the gift;
(6) The nature and sensitivity of any matter pending at the agency
affecting the interests of the donor;
(7) The significance of an individual employee's role in any matter
affecting the donor, if benefits of the gift will accrue to the
employee;
(8) The nature of the gift offered;
(9) The frequency of other gifts received from the same donor; and
(10) The agency activity, purpose or need that the gift will aid or
facilitate.
(c) An authorized agency official may ask the donor to provide in
writing any additional information needed to assist in making the
determination under this section. Such information may include a
description of the donor's business or organizational affiliation and
any matters that are pending or are expected to be pending before the
agency.
Sec. 2601.204 Conditions for acceptance.
(a) No gift may be accepted that:
(1) Attaches conditions inconsistent with applicable laws or
regulations;
(2) Is conditioned upon or will require the expenditure of
appropriated funds that are not available to the agency;
(3) Requires the agency to provide the donor with some privilege,
concession or other present or future benefit in return for the gift;
(4) Requires the agency to adhere to particular requirements as to
deposit, investment, or management of funds donated;
(5) Requires the agency to undertake or engage in activities that
are not related to the agency's mission, programs or statutory
authorities; or
(6) Would reflect unfavorably upon the ability of the agency, or
any of its employees, to carry out its responsibilities or official
duties in a fair and objective manner, or would compromise or appear to
compromise the integrity or the appearance of the integrity of its
programs or any official involved in those programs.
(b) [Reserved].
Note to Sec. 2601.204: Nothing in this part shall prohibit the
agency from offering or providing the donor an appropriate
acknowledgment of its gift in a publication, speech or other medium.
Subpart C--Accounting Requirements
Sec. 2601.301 Accounting of gifts.
(a) The Administration Division shall ensure that gifts are
properly accounted for by following appropriate internal controls and
accounting procedures.
(b) The Administration Division shall maintain an inventory of
donated personal property valued at over $500. The inventory shall be
updated each time an item is sold, excessed, destroyed or otherwise
disposed of or discarded.
(c) The Administration Division shall maintain a log of all gifts
valued at over $500 accepted pursuant to this part. The log shall
include, to the extent known:
(1) The name and address of the donor;
(2) A description of the gift; and
(3) The date the gift is accepted.
[FR Doc. 03-26343 Filed 10-21-03; 8:45 am]
BILLING CODE 6345-02-P