5 C.F.R. Subpart I—Confidential Financial Disclosure Reports
Title 5 - Administrative Personnel
Source: 57 FR 11826, Apr. 7, 1992, unless otherwise noted.
(a) The confidential financial reporting system set forth in this subpart is designed to complement the public reporting system established by title I of the Act. High-level officials in the executive branch are required to report certain financial interests publicly to ensure that every citizen can have confidence in the integrity of the Federal Government. It is equally important in order to guarantee the efficient and honest operation of the Government that other, less senior, executive branch employees, whose Government duties involve the exercise of significant discretion in certain sensitive areas, report their financial interests and outside business activities to their employing agencies, to facilitate the review of possible conflicts of interest. These reports assist an agency in administering its ethics program and counseling its employees. Such reports are filed on a confidential basis. (b) The confidential reporting system seeks from employees only that information which is relevant to the administration and application of criminal conflict of interest laws, administrative standards of conduct, and agency-specific statutory and program-related restrictions. The basic content of the reports required by §2634.907 of this subpart reflects that certain information is generally relevant to all agencies. However, depending upon an agency's authorized activities and any special or unique circumstances, additional information may be necessary. In these situations, and subject to the prior written approval of the Director of the Office of Government Ethics, agencies may formulate supplemental reporting requirements by following the procedures of §§2634.103 and 2634.601(b). (c) This subpart also allows an agency to request, on a confidential basis, additional information from persons who are already subject to the public reporting requirements of this part. The public reporting requirements of the Act address Governmentwide concerns. The reporting requirements of this subpart allow agencies to confront special or unique agency concerns. If those concerns prompt an agency to seek more extensive reporting from employees who file public reports, it may proceed on a confidential, nonpublic basis, with prior written approval from the Director of the Office of Government Ethics, under the procedures of §§2634.103 and 2634.601(b). (d) The reports filed pursuant to this subpart are specifically characterized as “confidential,” and are required to be withheld from the public, pursuant to section 107(a) of the Act. Section 107(a) leaves no discretion on this issue with the agencies. See also §2634.604. Further, Executive Order 12674 as modified by Executive Order 12731 provides, in section 201(d), for a system of nonpublic (confidential) executive branch financial disclosure to complement the Act's system of public disclosure. The confidential reports provided for by this subpart contain sensitive commercial and financial information, as well as personal privacy-protected information. These reports and the information which they contain are, accordingly, exempt from being released to the public, under exemptions 3 (A) and (B), 4, and 6 of the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(3) (A) and (B), (b)(4), and (b)(6). Additional FOIA exemptions may apply to particular reports or portions of reports. Agency personnel shall not publicly release the reports or the information which these reports contain, except pursuant to an order issued by a Federal court, or as otherwise provided under applicable provisions of the Privacy Act (5 U.S.C. 552a), and in the OGE/GOVT–2 Governmentwide executive branch Privacy Act system of records, as well as any applicable agency records system. If an agency statute requires the public reporting of certain information and, for purposes of convenience, an agency chooses to collect that information on the confidential report form filed under this subpart, only the special statutory information may be released to the public, pursuant to the terms of the statute under which it was collected. (e) Executive branch agencies hire or use the paid and unpaid services of many individuals on an advisory or other less than full-time basis as special Government employees. These employees may include experts and consultants to the Government, as well as members of Government advisory committees. It is important for those agencies that utilize such services, and for the individuals who provide the services, to anticipate and avoid real or apparent conflicts of interest. The confidential financial disclosure system promotes that goal, with special Government employees among those required to file confidential reports. (f) For additional policies and definitions of terms applicable to both the public and confidential reporting systems, see §§2634.104 and 2634.105.
Title 5: Administrative Personnel
PART 2634—EXECUTIVE BRANCH FINANCIAL DISCLOSURE, QUALIFIED TRUSTS, AND CERTIFICATES OF DIVESTITURE
Subpart I—Confidential Financial Disclosure Reports
§ 2634.901 Policies of confidential financial disclosure reporting.
§ 2634.902 [Reserved]
§ 2634.903 General requirements, filing dates, and extensions.
Link to an amendment published at 71 FR 28234, May 16, 2006.
(a) Incumbents. A confidential filer who holds a position or office described in §2634.904 of this subpart and who performs the duties of that position or office for a period in excess of 60 days during the twelve-month period ending September 30 (including more than 60 days in an acting capacity) shall file a confidential report as an incumbent, containing the information prescribed in §§2634.907 and 2634.908 of this subpart on or before October 31 immediately following that period. This requirement does not apply if the employee has left Government service prior to the due date for the report. No incumbent reports are required of special Government employees described in §2634.904(b) of this subpart, but they must file new entrant reports under §2634.903(b) of this subpart upon each appointment or reappointment. For confidential filers under §2634.904(c) of this subpart, consult agency supplemental regulations.
(b) New entrants. (1) Not later than 30 days after assuming a new position or office described in §2634.904 of this subpart (which also encompasses the reappointment or redesignation of a special Government employee, including one who is serving on an advisory committee), a confidential filer shall file a confidential report containing the information prescribed in §§2634.907 and 2634.908 of this subpart. For confidential filers under §2634.904(c) of this subpart, consult agency supplemental regulations.
(2) However, no report shall be required if the individual:
(i) Has, within 30 days prior to assuming his position, left another position or office referred to in §2634.904 of this subpart or in §2634.202, and has previously satisfied the reporting requirements applicable to that former position, but a copy of the report filed by the individual while in that position should be made available to the appointing agency, and the individual must comply with any agency requirement for a supplementary report for the new position;
(ii) Has already filed such a report in connection with consideration for appointment to the position. The agency may request that the individual update such a report if more than six months has expired since it was filed; or
(iii) Is not reasonably expected to perform the duties of an office or position referred to in §2634.904 of this subpart for more than 60 days in the following twelve-month period, as determined by the designated agency ethics official or delegate. That may occur most commonly in the case of an employee who temporarily serves in an acting capacity in a position described by §2634.904(a) of this subpart. If the individual actually performs the duties of such position for more than 60 days in the twelve-month period, then a confidential financial disclosure report must be filed within 15 calendar days after the sixtieth day of such service in the position. Paragraph (b)(2)(iii) of §2634.903 does not apply to new entrants filing as special Government employees under §2634.904(b) of this subpart.
(3) Notwithstanding the filing deadline prescribed in paragraph (b)(1) of this section, agencies may at their discretion, require that prospective entrants into positions described in §2634.904 of this subpart file their new entrant confidential financial disclosure reports prior to serving in such positions, to insure that there are no insurmountable ethics concerns. Additionally, a special Government employee who has been appointed to serve on an advisory committee shall file the required report before any advice is rendered by the employee to the agency, or in no event, later than the first committee meeting.
(c) Advisory committee definition. For purposes of this subpart, the term advisory committee shall have the meaning given to that term under section 3 of the Federal Advisory Committee Act (5 U.S.C. app). Specifically, it means any committee, board, commission, council, conference, panel, task force, or other similar group which is established by statute or reorganization plan, or established or utilized by the President or one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government. Such term includes any subcommittee or other subgroup of any advisory committee, but does not include the Advisory Commission on Intergovernmental Relations, the Commission on Government Procurement, or any committee composed wholly of full-time officers or employees of the Federal Government.
(d) Extensions—(1) Agency extensions. The agency reviewing official may, for good cause shown, grant to any employee or class of employees a filing extension or several extensions totaling not more than 90 days.
(2) Certain service during period of national emergency. In the case of an active duty military officer or enlisted member of the Armed Forces, a Reserve or National Guard member on active duty under orders issued pursuant to title 10 or title 32 of the United States Code, a commissioned officer of the Uniformed Services (as defined in 10 U.S.C. 101), or any other employee, who is deployed or sent to a combat zone or required to perform services away from his permanent duty station in support of the Armed Forces or other governmental entities following a declaration by the President of a national emergency, the agency reviewing official may grant such individual a filing extension to last no longer than 90 days after the last day of:
(i) The individual's service in the combat zone or away from his permanent duty station; or
(ii) The individual's hospitalization as a result of injury received or disease contracted while serving during the national emergency.
(3) Agency procedures. Each agency may prescribe procedures to provide for the implementation of the extensions provided for by this paragraph.
[57 FR 11826, Apr. 7, 1992, as amended at 58 FR 38912, July 21, 1993; 63 FR 69992, Dec. 18, 1998; 66 FR 55872, Nov. 5, 2001]
§ 2634.904 Confidential filer defined.
Link to an amendment published at 71 FR 28234, May 16, 2006.
The term confidential filer includes:
(a) Each officer or employee in the executive branch whose position is classified at GS–15 or below of the General Schedule prescribed by 5 U.S.C. 5332, or the rate of basic pay for which is fixed, other than under the General Schedule, at a rate which is less than 120% of the minimum rate of basic pay for GS–15 of the General Schedule; each officer or employee of the United States Postal Service or Postal Rate Commission whose basic rate of pay is less than 120% of the minimum rate of basic pay for GS–15 of the General Schedule; each member of a uniformed service whose pay grade is less than O–7 under 37 U.S.C. 201; and each officer or employee in any other position determined by the designated agency ethics official to be of equal classification; if:
(1) The agency concludes that the duties and responsibilities of the employee's position require that employee to participate personally and substantially (as defined in §2635.402(b)(4) of this chapter) through decision or the exercise of significant judgment, in taking a Government action regarding:
(i) Contracting or procurement;
(ii) Administering or monitoring grants, subsidies, licenses, or other federally conferred financial or operational benefits;
(iii) Regulating or auditing any non-Federal entity; or
(iv) 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
(2) The agency concludes that the duties and responsibilities of the employee's position require the employee to file such a report to avoid involvement in a real or apparent conflict of interest, and to carry out the purposes behind any statute, Executive order, rule, or regulation applicable to or administered by that employee. Positions which might be subject to a reporting requirement under this subparagraph include those with duties which involve investigating or prosecuting violations of criminal or civil law.
Example 1. A contracting officer drafts the requests for proposals for data processing equipment of significant value which is to be purchased by his agency. He works with substantial independence of action. The contracting officer should be required to file a confidential financial disclosure report.
Example 2. An agency environmental engineer inspects a manufacturing plant to ascertain whether the plant complies with a permit to release a certain effluent into a nearby stream. Any violation of the permit standards may result in civil penalties for the plant, and in criminal penalties for the plant's management based upon any action which they took to create the violation. If the agency engineer determines that the plant does not meet the permit requirements, he can require the plant to terminate release of the effluent until the plant satisfies the permit standards. Because the engineer exercises substantial discretion in regulating the plant's activities, and because his final decisions will have a substantial economic effect on the plant's interests, the engineer should be required to file a confidential financial disclosure report.
(b) Unless required to file public financial disclosure reports by subpart B of this part, all executive branch special Government employees as defined in 18 U.S.C 202(a) and §2634.105(s), including those who serve on advisory committees. The term special Government employees does not include an advisory committee member who serves only as a representative of an industry or other outside entity or who is already a Federal employee.
Example 1. A consultant to an agency periodically advises the agency regarding important foreign policy matters. The consultant must file a confidential report if he is retained as a special Government employee and not an independent contractor.
Example 2. An advisory committee member (who is not a private group representative) attends four committee meetings every year to provide advice to an agency about pharmaceutical matters. No compensation is received by the committee member, other than travel expenses. The advisory committee member must file a confidential disclosure report, since she is a special Government employee.
(c) Each public filer referred to in §2634.202 on public disclosure who is required by agency regulations issued in accordance with §2634.907(b) of this subpart to file a supplemental confidential financial disclosure report which contains information that is more extensive than the information required in the reporting individual's public financial disclosure report under this part.
(d) Any employee who, notwithstanding his exclusion from the public financial reporting requirements of this part by virtue of a determination under §2634.203, is covered by the criteria of paragraph (a) of this section.
[57 FR 11826, Apr. 7, 1992, as amended at 63 FR 69992, Dec. 18, 1998; 64 FR 2422, Jan. 14, 1999]
§ 2634.905 Exclusions from filing requirements.
Link to an amendment published at 71 FR 28235, May 16, 2006.
Any individual or class of individuals described in §2634.904 of this subpart, including special Government employees unless otherwise noted, may be excluded from all or a portion of the confidential reporting requirements of this subpart, when the agency head or designee determines that:
(a) The duties of a position make remote the possibility that the incumbent will be involved in a real or apparent conflict of interest;
(b) The duties of a position involve such a low level of responsibility that the submission of a confidential financial disclosure report is unnecessary because of:
(1) The substantial degree of supervision and review over the position; or
(2) The inconsequential effect of any potential conflict on the integrity of the Government;
(c) The use of an alternative procedure approved in writing by the Office of Government Ethics is adequate to prevent possible conflicts of interest; or
(d) The use of OGE Optional Form 450–A (Confidential Certificate of No New Interests) is adequate to prevent possible conflicts of interest. This form may be used by eligible filers, as described in this paragraph, who can certify, after reexamining their most recent previous OGE Form 450, that they (and their spouse and dependent children) have acquired no new interests required to be reported on OGE Form 450, and that they have not changed jobs (no new position description or other significant change in duties) at their agency since filing that previous report. OGE Optional Form 450–A will be used under the following conditions:
(1) OGE Optional Form 450–A will only be made available for use by current employees who are not special Government employees.
(2) OGE Optional Form 450–A will only be used by incumbent filers, as described in §2634.903(a) of this subpart, in lieu of filing an annual OGE Form 450, who have a previous OGE Form 450 on file with their agency for the position they currently hold. Its due date is as specified in §2634.903(a), unless extended under §2634.903(d).
(3) As indicated on the OGE Optional Form 450–A, eligible filers may use OGE Optional Form 450–A, if applicable to their circumstances, or they may file a new OGE Form 450, at their option. Therefore, a blank OGE Form 450 and its accompanying written instructions should ordinarily be distributed to them, along with the blank OGE Optional Form 450–A. The instructions to OGE Form 450 will also provide guidance on what is meant by “reportable” interests on OGE Optional Form 450–A. In lieu of distributing a blank OGE Form 450 and its instructions, agencies may choose to develop separate guidance on the meaning of “reportable” interests, or they may refer certificate users to guidance contained in any available source, such as the Office of Government Ethics' Web site on the Internet or agency-approved electronic software for OGE Form 450. Filers would then also have to be advised of where to obtain a blank OGE Form 450, if needed.
(4) OGE Optional Form 450–A may be used by eligible filers for a maximum of three consecutive years before they are required to complete a new OGE Form 450 every fourth year, on a uniform basis for all incumbent (annual) filers, as provided in paragraph (d)(5) of this section. Agencies may, however, elect to permit use of the OGE Optional Form 450–A for only one year (or two years), and to require a new OGE Form 450 every second (or third) year, on a uniform basis for all incumbent filers, as provided in paragraph (d)(5) of this section.
(5) In each year divisible by four, beginning in 2000 (or divisible by two or three, beginning in 1998, for agencies that choose one of the more frequent options described in the second sentence of paragraph (d)(4) of this section), all incumbent filers, as described in §2634.903(a) of this subpart, must file a new OGE Form 450 rather than OGE Optional Form 450–A, regardless of how recently they may have filed an OGE Form 450 (either as a new entrant or as an annual filer who was not eligible to use, or chose not to use, the optional certificate).
(6) When submitting OGE Optional Form 450–A, filers are not required to attach a copy of their previous OGE Form 450, unless their agency determines that it is necessary. Filers should be encouraged, however, to retain a copy of their previous OGE Form 450, so that it will be readily available for their examination prior to completing an OGE Optional Form 450–A.
Example 1. An agency special Government employee who is a draftsman prepares the drawings to be used by an agency in soliciting bids for construction work on a bridge. Because he is not involved in the contracting process associated with the construction, the likelihood that his actions will create a conflict of interest is remote. The draftsman need not be required by the agency to file a confidential financial disclosure report.
Example 2. An investigator is principally assigned as the field agent to investigate alleged violations of conflict of interest laws. The investigator works under the direct supervision of an agent-in-charge. The agent-in-charge reviews all of the investigator's work product and then uses those materials to prepare the agency's report which is submitted under his own name. The agency may decide not to require the investigator to file a confidential disclosure report.
Example 3. A nonsupervisory auditor at an agency is regularly assigned to cases involving possible loan improprieties by financial institutions. Prior to undertaking each enforcement review, the auditor reviews the file to determine if she, her spouse, minor or dependent child, or any general partner, organization in which she serves as an officer, director, trustee, employee, or general partner, or organization with which she is negotiating or has an agreement or an arrangement for future employment, or a close friend or relative is a subject of the investigation, or will be in any way affected by the investigation. Once she determines that there is no such relationship, she signs and dates a certification which verifies that she has reviewed the file and has determined that no conflict of interest exists. She then files the certification with the head of her auditing division at the agency. On the other hand, if she cannot execute the certification, she informs the head of her auditing division. In response, the division will either reassign the case or review the conflicting interest to determine whether a waiver would be appropriate. This alternate procedure, if approved by the Office of Government Ethics in writing, will suffice for a conflict of interest review. Therefore, the agency may exclude the auditor from filing a confidential disclosure report under this subpart.
[57 FR 11826, Apr. 7, 1992; 57 FR 21855, May 22, 1992; 62 FR 33976, June 24, 1997]
§ 2634.906 Review of confidential filer status.
The head of each agency, or an officer designated by the head of the agency for that purpose, shall review any complaint by an individual that his position has been improperly determined by the agency to be one which requires the submission of a confidential financial disclosure report pursuant to this subpart. A decision by the agency head or designee regarding the complaint shall be final and conclusive for all purposes, notwithstanding any other provision of law or regulation. This procedure is the sole and exclusive means of seeking review of an agency's decision to designate positions and the employees therein for filing confidential financial disclosure reports.
Note: The provision in this section for a final decision by the agency head or designee is intended to preclude administrative or negotiated grievances, arbitration procedures, and any other review or appeal, either within or outside the agency. This finality of the agency head's (or designee's) decision is necessary in order to maintain the prompt and orderly administration of the executive branch confidential financial disclosure system.
[57 FR 11826, Apr. 7, 1992, as amended at 63 FR 15274, Mar. 31, 1998]
§ 2634.907 Report contents.
Link to an amendment published at 71 FR 28236, May 16, 2006.
(a) Other than the reports of confidential filers described in §2634.904(c), each confidential financial disclosure report filed pursuant to §2634.903 of this subpart shall include on the standard form prescribed by the Office of Government Ethics (see §2634.601 of subpart F of this part) and in accordance with instructions issued by the Office, a full and complete statement of information about himself, his spouse and his dependent children, required to be reported according to the provisions of subpart C of this part, (except for those provisions in subpart C requiring the reporting of the amounts or values of any item), with respect to the following:
(1) Interests in property. All the interests in property specified by §2634.301, except:
(i) Accounts (including both demand and time deposits) in depository institutions, including banks, savings and loan associations, credit unions, and similar depository financial institutions;
(ii) Money market mutual funds and accounts;
(iii) U.S. Government obligations, including Treasury bonds, bills, notes, and savings bonds; and
(iv) Government securities issued by U.S. Government agencies;
(2) Income. All the income items specified by §2634.302, except from:
(i) Accounts (including both demand and time deposits) in depository institutions, including banks, savings and loan associations, credit unions, and similar depository financial institutions;
(ii) Money market mutual funds and accounts;
(iii) U.S. Government obligations, including Treasury bonds, bills, notes, and savings bonds; and
(iv) Government securities issued by U.S. Government agencies;
(3) Gifts and reimbursements. All gifts and reimbursements specified by §2634.304 (except that new entrants, as described in §2634.903(b) of this subpart, need not report any information on gifts and reimbursements);
(4) Liabilities. All liabilities specified by §2634.305;
(5) Agreements and arrangements. All agreements and arrangements specified by §2634.306; and
(6) Outside positions. All outside positions specified by §2634.307.
(b) For reports of confidential filers described in §2634.904(c) of this subpart, each supplemental confidential financial disclosure report shall include only the supplemental information:
(1) Which is more extensive than that required in the reporting individual's public financial disclosure report under this part; and
(2) Which has been approved by the Office of Government Ethics for collection by the agency concerned, as set forth in supplemental agency regulations and forms, issued under §§2634.103 and 2634.601(b) (see §2634.901 (b) and (c) of this subpart).
[57 FR 11826, Apr. 7, 1992, as amended at 58 FR 63024, Nov. 30, 1993; 63 FR 69992, Dec. 18, 1998]
§ 2634.908 Reporting periods.
Link to an amendment published at 71 FR 28239, May 16, 2006.
(a) Incumbents. Each confidential financial disclosure report filed under §2634.903(a) of this subpart shall include on the standard form prescribed by the Office of Government Ethics and in accordance with instructions issued by the Office, a full and complete statement of the information required to be reported according to the provisions of this subpart for the preceding twelve months ending September 30, or for any portion of that period not covered by a previous confidential or public financial disclosure report filed under this part.
(b) New entrants. Each confidential financial disclosure report filed under §2634.903(b) of this subpart shall include, on the standard form prescribed by the Office of Government Ethics and in accordance with instructions issued by the Office, a full and complete statement of the information required to be reported according to the provisions of this subpart for the preceding twelve months from the date of filing.
§ 2634.909 Procedures, penalties, and ethics agreements.
(a) The provisions of subpart F of this part govern the filing procedures and forms for, and the custody and review of, confidential disclosure reports filed under this subpart.
(b) For penalties and remedial action which apply in the event that the reporting individual fails to file, falsifies information, or files late with respect to confidential financial disclosure reports, see subpart G of this part.
(c) Subpart H of this part on ethics agreements applies to both the public and confidential reporting systems under this part.
Browse Previous | Browse Next
