March 20, 1997
TO: Designated Agency Ethics Officials
FROM: Stephen D. Potts Director
SUBJECT: Publication of Interim Rule Amendments to the Training Regulation
The Office of Government Ethics (OGE) has published interim rule amendments to subpart G of 5 C.F.R. part 2638, titled "Executive Agency Ethics Training Programs" (Training Regulation). See 62 Fed. Reg. 11307-11314 (March 12, 1997), copy attached. With the exception of certain parts of the rule concerning the presentation of annual briefings to those covered employees who file public financial disclosure reports, this interim rule will become effective on June 10, 1997. An erroneous general effective date of May 12, 1997 was published by mistake in the Federal Register; the correct effective date of June 10, 1997 should be published in the Federal Register in the near future. Comments on the interim rule amendments are invited and are due on or before April 11, 1997. All regulatory citations in this memorandum are to sections of subpart G of title 5 of the C.F.R. as amended by the interim rule.
The interim rule amendments are designed to enable agencies to allocate their training resources in a more flexible and efficient manner, while still providing that all executive branch employees receive sufficient training to enable them to understand the ethical responsibilities concomitant with their Government positions. The interim rule will accomplish this by altering the nature of the ethics briefings that most employees covered by the annual briefing requirement receive. Instead of receiving annual "verbal" briefings, agencies will be able to meet the annual briefing requirement for most covered employees by means of written briefings for up to two out of every three years. Those covered employees who file SF 278 Public Financial Disclosure Reports, however, will have to continue to receive verbal briefings every year. In addition, starting in 1998, agencies must provide the verbal briefings to SF 278 filers with a qualified individual present during and immediately following the briefing. These changes will focus agency ethics training resources upon employees in the most sensitive positions, while simultaneously freeing significant resources for use in other parts of the agency's ethics training program.
As part of its ongoing internal review of OGE regulations, OGE began a review of the Training Regulation in the summer of 1995. In DO-95-028 (July 6, 1995), OGE informed agencies that OGE would be conducting a complete evaluation of the Training Regulation, and that agencies wishing to submit suggestions or ideas should send them to OGE. Our review, together with the feedback that we received, culminated in a draft rule late last year, the outline of which was presented at the annual Ethics Conference last September. Further suggestions received at that time led to additional changes to the rule. The time involved in this consultation process, combined with the need to redraft the rule in light of recent changes in the area of procurement integrity, delayed the publication of the rule until this year. Although at the time of the Conference OGE intended to publish this amendatory rule as a notice of proposed rulemaking, we have decided to publish it as an interim rule instead so that agencies could take advantage of the increased flexibility provided by the amendments during the course of the calendar year 1997 training cycle.
Annual Ethics Briefings
The key change contained in the interim rule is in the annual ethics training requirement, found at section 2638.704. Where the current Training Regulation generally requires that all covered employees receive a one-hour verbal ethics briefing annually, the interim rule would enable agencies to meet the annual ethics training requirement for those covered employees who are not SF 278 filers by means of a written briefing (with no minimum time requirement) for up to two out of every three years, provided such employees receive a one-hour verbal briefing at least once every three calendar years. See § 2638.704(d)(3). The interim rule also retains exceptions found in the current Training Regulation that enable agencies to provide solely written ethics briefings to special Government employees expected to work fewer than 60 days in a calendar year, as well as to uniformed service officers who serve on active duty for 30 or fewer continuous days, and in situations where the Designated Agency Ethics Official determines that circumstances make providing a verbal briefing impractical. See § 2638.704(d)(3)(iii)(A)-(C). The interim rule also adds an exception for those employees who are "covered" by agency discretionary designation only. See § 2638.704(d)(3)(iii)(D).
In order to ensure that agency resources are focused on employees in the most sensitive positions, SF 278 filers must still be provided with a one-hour verbal ethics briefing annually under the interim rule revisions. According to the data we received from the 1996 (CY 1995) OGE Agency Ethics Program Questionnaire, public filers constitute approximately 5.4% of the employees covered by the annual briefing requirement contained in the Training Regulation. Next year, the annual ethics briefings for SF 278 filers must also be provided with a qualified individual present. Presence is defined in the interim rule as direct and immediate access on the part of the SF 278 filers to a qualified individual by physical presence or other appropriate means of access, for example, by telecommunications or a telephone hook-up. See § 2638.704(d)(2)(ii) and examples 1 through 3 following it. The effective date of this subsection was delayed until January 1, 1998 in order to provide agencies with sufficient time to plan for this new requirement.
Because of changes to the procurement integrity statute, the interim rule deletes procurement officials from the list of covered employees for purposes of the annual briefing requirement. As you know, the procurement integrity statute was recently revised, and no longer contains the term "procurement official." See section 4304(a) of the National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, and 62 Fed. Reg. 226-233 (January 2, 1997), as corrected at 62 Fed. Reg. 10709-10710 (March 10, 1997). Instead, the revised procurement integrity statute contains an informal reference to "procurement officers," who are referred to as those who are personally and substantially involved in a procurement in excess of the simplified acquisition threshold (generally $100,000). See 41 U.S.C. § 423(c).
OGE decided not to include "procurement officers" as a category of covered employees in part because of the imprecision of the reference. Moreover, many of those formerly described as procurement officials are already considered covered employees for purposes of the annual ethics briefing requirement of the Training Regulation because they are contracting officers or OGE Form 450 confidential financial disclosure report filers. Thus, no substituting term was added. OGE also considered and rejected the possibility of adding agency employees with micro-purchase authority to the definition of covered employees under the interim rule. To encourage agencies to increase the number of employees receiving annual ethics briefings, the interim rule also permits agencies to provide employees designated as covered employees under the "catch-all" provision in the rule to receive their annual ethics briefing by means of a written briefing only. See § 2638.704(d)(3)(iii)(D).
Please note that, because almost all the changes associated with this interim rule will become effective halfway through the current training year (CY 1997), OGE will not change the question on the CY 1997 Agency Ethics Program Questionnaire, to be sent out to the agencies this coming fall, requesting the number of employees required to receive training and the number that actually received training. See the 1996 Agency Ethics Program Questionnaire, Education and Training Section, number 4. Agencies should have already determined the total number of covered employees required to receive an annual ethics briefing for the CY 1997 training cycle as part of their written plan for annual ethics training. See § 2638.702(a)(3)(i) of the current Training Regulation. OGE will accept this number for the CY 1997 Questionnaire response for the number of employees required to receive an annual ethics briefing.
OGE recognizes that agencies may find that the interim rule amendments slightly alter the number of covered employees in an individual agency. If an agency finds at the end of the year that the number of employees that actually received training differs from the original number developed in the annual training plan because of these interim rule amendments, an agency should note that on its questionnaire response. If an agency has begun maintaining statistics detailing the number of employees trained through written briefings, verbal briefings or other means, OGE would welcome those statistics as a separate item at the time the CY 1997 questionnaire response is submitted. However, such statistics will not be required for the 1997 questionnaire response. Beginning with the CY 1998 questionnaire, OGE will require agencies to provide detailed statistics on the numbers of employees trained through the various allowable methods, in accordance with the provisions of § 2638.702(c) of the interim rule amendments.
The interim rule also codifies, at § 2638.702(c), OGE's policy change (announced in DO-95-028) that agencies need no longer file their annual training plans with OGE, and makes other, minor changes throughout subpart G. A more complete discussion of the entire rule may be found in the preamble of the attached copy of the interim rule amendments as published in the Federal Register. Agencies are encouraged to comment on the interim rule. This rule is a product of an ongoing dialogue between executive agencies and OGE, and can only be improved through the furthering of this dialogue. In this regard, OGE would like to express our thanks to the Ethics Trainers' Partnership, which has provided invaluable input into this interim rule.