TREASURY DIRECTIVE: 61-02
DATE: January 15, 2009
SUBJECT: Implementation of the Confidential Financial Disclosure Report (OGE Form 450) Filing Requirements
1. PURPOSE. This directive provides guidance concerning the distribution, submission, review, and custody of the Confidential Financial Disclosure Report (OGE Form 450). The OGE Form 450 is required to be filed by certain officers and employees of the Executive branch, pursuant to regulations at 5 CFR Part 2634, issued by the Office of Government Ethics (OGE).
2. SCOPE. This directive applies to the Departmental Offices (DO), all Treasury bureaus, the Office of the Treasury Inspector General for Tax Administration (OTIGTA), and the Office of the Inspector General (OIG). The authority of the Inspector(s) General is set forth in Section 3 of the Inspector General Act and the Internal Revenue Service Restructuring and Reform Act, and defined in Treasury Order 114-01 (OIG) and Treasury Order 115-01 (OTIGTA), or successor orders. The provisions of this directive shall not be construed to interfere with that authority.
3. DEFINITIONS.
a. Bureau shall include the Departmental Offices (DO), Treasury bureaus, the Office of the Inspector General (OIG), and the Office of the Treasury Inspector General for Tax Administration (OTIGTA).
b. Bureau
c. Bureau Head means the head of a
Treasury bureau, the Inspector General, the Treasury Inspector General for Tax
Administration, and, with respect to the Departmental Offices, for the purposes
of this directive, Treasury’s Alternate Designated Agency
d. Confidential Filer means an employee occupying a position, the duties of which are described by one or more of the criteria in 4.c., who is designated to file a new entrant or annual confidential financial disclosure report (OGE Form 450, OGE Form 450-A, or alternative filing).
e. Designated Agency Ethics Official (DAEO) means the DAEO who is the Assistant General Counsel (General Law, Ethics, and Regulation).
f. Special Government Employee (SGE) means an officer or employee of the Department who is retained, designated, appointed, or employed to perform temporary duties, with or without compensation, for a period not to exceed 130 days during any period of 365 consecutive days, either on a full-time or intermittent basis. Although an SGE may serve as an advisory committee member, not all possible advisory committee members are SGEs. Advisory committee members who are not SGEs include those who are already Federal employees, or those serving only as a non-employee representative who are specifically appointed to a committee to provide the point of view of nongovernmental entities or of a recognizable group of persons (e.g., an industry sector, labor unions, or environmental groups, etc.) having interests in the subject matter under a committee’s charge.
4. Filing Determinations.
a. Procedures. The Bureau Head, or designee(s), shall establish and maintain procedures for:
(1) designating, on the basis of the criteria in 4.c., which employees in DO and each respective bureau are required to file the OGE Form 450;
(2) notifying new entrants and incumbents in designated positions of the filing requirement; and
(3) collecting and reviewing new entrant and annual reports in a timely manner.
b. Designation and Notification. The Bureau Head or designee(s), using the procedures established pursuant to 4.a., shall:
(1) by January 15 of each year, designate which positions in DO or the bureau require the incumbents to file an annual OGE Form 450 covering the previous calendar year; and
(2) by January 15 of each year, notify the incumbents in the designated positions of the filing requirement.
c. Confidential Filers. Certain individuals are required to file a confidential financial disclosure report pursuant to 5 CFR 2634.904. Most commonly, these include:
(1) employees with contracting and procurement responsibilities (e.g., contracting officers, contracting specialists, Contracting Officers’ Technical Representatives (COTRs), or source selection authorities);
(2) SGEs who do not otherwise file a public financial disclosure report;
(3) GS 14 and 15 attorneys in the Legal Division (or equivalent rates of basic pay); and
(4) other employees (including Legal Division attorneys below GS 14) in positions if:
(a) the duties and responsibilities of the employee’s position require the employee to make policy or other significant decisions (e.g., exercise significant judgment), without substantial supervision and review, regarding:
(i) contracting, procurement, licensing, or grant-making;
(ii) administering or monitoring grants, subsidies, licenses, or other Federally-conferred financial or operational benefits;
(iii) regulating or auditing any non-Federal entity or activity; or
(iv) otherwise participating in other activities in which the final decision or action will have a direct and substantial economic effect on the interests of any non-Federal entity; or
(b) the duties and responsibilities of the position require filing to avoid involvement in a real or apparent conflict of interest.
Note: Although these criteria often include positions at GS 14 and 15, or equivalent rates of basic pay, employees in lower level positions may also be covered, depending on the responsibilities of their positions and the degree of supervision over their work.
d. Exclusions from Filing. Any individual or class of individuals, including an SGE (as defined in 3.f.), may be excluded from all or a portion of the confidential financial disclosure reporting requirements when the Bureau Head or his or her designee determines that the duties of the position make remote the possibility that the incumbent will be involved in a real or apparent conflict of interest.
e. Use of Alternative Filing Procedures.
(1) A Bureau Head or designee may authorize filing the Confidential Certificate of “No New Interests” (OGE Form 450-A) in lieu of filing an OGE Form 450 upon determining that the form is adequate to prevent possible conflicts of interest and provided that the criteria established in 5 CFR 2634.905(b) are met.
(2) A Bureau Head or designee, with concurrence from the DAEO and with OGE’s prior written approval, may instruct confidential filers to use an alternative filing
procedure, such as an agency-specific form, in lieu of requiring the OGE Form 450 or the 450-A.
f. Review of Confidential Filer Status. A Bureau Head or designee shall review any complaint by an individual that his or her position has been improperly designated as one which requires submission of a confidential financial disclosure report pursuant to this directive. Determinations made by the Bureau Head or designee shall be final.
5. Report Due Dates, Filing Extensions, REPORTING PERIODS, AND EXCEPTIONS.
a. If an incumbent who is not an SGE and has
been designated as a confidential filer served in that confidential filer
position for more than 60 days in a calendar year, including in an acting
capacity, he or she shall file a report on or before February 15 of the
following year unless he or she requests and receives a filing extension from a
Bureau
b. A new entrant whose position is designated as
a confidential filer position shall file a report not later than 30 days after
assuming the relevant position, unless he or she requests and receives a filing
extension from a Bureau
c. An SGE who serves as an advisory committee member must file his report prior to rendering any advice, or no later than the first committee meeting. An SGE confidential filer is not required to file an annual report; instead, the SGE is required to file a new entrant report either upon his reappointment or redesignation as an SGE or upon the anniversary date of his initial appointment. To avoid the administrative burden of managing these potentially numerous dates, bureaus may specify a date (e.g., February 15 or May 15) to be the SGE report filing anniversary date.
d. Reporting Period and Reporting Exceptions. The reporting period will cover the preceding 12 months from the date of filing. No report shall be required of a new entrant if the individual:
(1) has, within 30 days prior to assuming the confidential filer position, left another confidential filing position and has previously satisfied the requirements as applicable to that position. A copy of the report last filed by the individual while in that previous position should be made available to the official responsible for reviewing the report. The individual must also comply with any agency requirements for supplemental reporting for the new position;
(2) has already filed such a report in connection with consideration for appointment to the position. A Bureau Ethics Official may require that the individual update the report if a period of more than six months has expired since it was filed; or
(3) is not reasonably expected to perform the
duties in a confidential filer position for more than 60 days in the following
12-month period, as determined by a Bureau
Note: Notwithstanding the filing deadline prescribed for new entrants in this section, the Bureau Head or designee(s) may, at his or her discretion, require that a prospective employee file a new entrant confidential financial disclosure report before entering the new position to ensure that there are no insurmountable ethics concerns. Also, an SGE (e.g., who has been appointed to serve on an advisory committee, or who is to be employed as an expert or consultant) shall file a new entrant report prior to the SGE’s appointment. That report shall be filed by the SGE and reviewed by an ethics official before any advice is rendered by the SGE to the agency, and no later than the first meeting or the first performance of duties as an expert or consultant.
e. Filing Extensions. All filing extensions must be granted in
writing by a Bureau
(1) One or more extensions totaling not more than 90 days may be granted, for good cause shown, to any employee, or class of employees.
(2) Additional extensions may be granted for certain service during national emergencies, pursuant to 5 CFR 2634.903(d)(2).
6. Falsification of or Failure to Submit a
Confidential Financial Disclosure Report.
a. A reviewer or any other employee shall refer an allegation or suspicion of falsification and other violation of the reporting requirements to a Bureau Ethics Official. In the event the ethics official concludes the matter is not an instance of inadvertent noncompliance with the technical reporting requirements, the ethics official must refer the matter to the OIG or, in the case of employees of the Internal Revenue Service (including the Office of the Chief Counsel to the IRS) and OTIGTA personnel, to the OTIGTA. Any further referral for possible judicial action by the U.S. Department of Justice will be initiated by the respective Inspector General office. Instances of inadvertent noncompliance will be resolved by the respective Bureau Ethics Official in coordination with the subject’s appropriate senior official.
b. A Bureau Head or designee shall coordinate with the Deputy Assistant Secretary for Human Resources, in DO, or the Human Resources/Capital Officer or equivalent in the bureaus, to take appropriate personnel or other action in accordance with applicable law or regulation against an individual for failing to file a confidential financial disclosure report, for filing such a report late, or for falsifying or failing to report required information.
7. Additional Bureau-Specific Reporting Requirements and Supplemental Regulations.
a. Before any information additional to that required to be reported on the OGE Form 450 may be requested by DO or a bureau, OGE must specifically authorize the collection of such information by prior written approval.
(1) Requests for approval of the collection of additional information shall be submitted in writing to OGE through the DAEO and shall describe in detail the bureau’s special or unique circumstances giving rise to the need for such supplemental information.
(2) Though a bureau need not develop supplemental regulations to codify an OGE-approved special reporting requirement, any supplemental disclosure regulation the bureau does issue must be submitted to OGE through the DAEO for approval and published in Title 5 CFR as a supplement to the OGE regulation.
b. Provided that prior approval has been obtained from OGE by DO or a bureau, pursuant to 7.a., confidential filers as well as other designated employees may be required to submit additional information on a confidential basis if the Bureau Head or designee determines that such additional information is needed, for example, in connection with the bureau’s enforcement of statutes, regulations, or specific policies not having government-wide application.
8. Collection and Review of Reports.
a. Each Bureau Head or designee shall be responsible for the collection and timely review of confidential reports submitted by employees of his or her bureau.
b. The report review(s) may be performed by the Bureau Head, or designee(s), including the immediate supervisor of the designated filer.
c. The purpose of the review is to identify and resolve real or apparent conflicts of interest on the part of the employee required to file and to ensure that the report is technically complete.
(1) If the reviewer finds an actual or potential conflict of interest on a filer’s report, the filer shall explain the information and/or resolve the conflict in accordance with ethics or bureau supplemental regulations.
(2) If the reviewer is unable to resolve an actual or potential conflict at the bureau level, the matter shall be referred to the DAEO or to his or her designee for resolution.
d. The review shall be completed within 60 days of the date of receipt of the report.
9. Confidentiality and Retention of Employee Reports.
a. Confidential reports are part of a Privacy Act system of records (OGE/GOVT- Executive Branch Confidential Financial Disclosure Reports (OGE/GOVT-2, Treasury)) and shall be held in confidence.
(1) To ensure this confidentiality, Bureau
(2) Designated officials are responsible for maintaining the reports as sensitive but unclassified information in accordance with TD P 15-71 (Department of the Treasury Security Manual) and OGE/GOVT-2. They shall not allow access to a report or allow information on a report to be released, except to carry out the purposes of this directive and any related procedures; the regulations found in 5 CFR Part 2634; or as authorized by the Privacy Act at 5 USC 552a.
b. Criminal penalties may be imposed on employees who willfully and knowingly disclose information from these reports to unauthorized persons (5 USC 552a).
c. Reports shall be retained for six years after receipt. After the six-year period, the report shall be destroyed unless needed in an ongoing investigation.
(1) Reports filed by DO employees shall be retained in locked files in the Office of the Assistant General Counsel (General Law, Ethics, and Regulation).
(2) Reports filed by bureau employees shall be
retained in locked files in a location designated by a Bureau
10. Supply of Forms. The OGE Form 450 is authorized for local reproduction. A copy of the OGE Form 450 may be downloaded from the Treasury Ethics web site at http://intranet.treas.gov/ethics/, a bureau web site, or other authorized agency web site, such as OGE at www.usoge.gov. The form may also be obtained from the personnel offices, or other designated sources, in DO or the bureaus.
11. AUTHORITY. Treasury Order (TO) 107-04, “The General Counsel.”
12. REFERENCES.
a. The
b. 5 CFR Part 2634, Subpart I — Confidential Financial Disclosure Reports.
13. CANCELLATION. Treasury
Directive 61-02, “Implementation of the Confidential Financial Disclosure
Requirements — Office of Government Ethics Regulations”, dated
14. OFFICE
OF PRIMARY RESPONSIBILITY. Office
of the General Counsel, General Law, Ethics, and Regulation.
/S/
Robert F. Hoyt
General Counsel