PART 3601—SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE DEPARTMENT OF DEFENSE Authority: 5 U.S.C. 301, 7301, 7351, 7353; 5 U.S.C. Chapter 131; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.203(a), 2635.204(k), 2635.803, 2635.807. Source: 88 FR 12543, Feb. 28, 2023, unless otherwise noted. § 3601.101 Purpose. In accordance with 5 CFR 2635.105, the regulations in this part apply to employees of the Department of Defense (DoD) and supplement the Standards of Ethical Conduct for Employees of the Executive Branch contained in 5 CFR part 2635. DoD employees are required to comply with part 2635, this part, and implementing guidance and procedures. § 3601.102 Designation of DoD components as separate agencies for purposes of gifts from outside sources, and teaching, speaking, and writing. (a) Pursuant to 5 CFR 2635.203(a), each of the following DoD components is designated as a separate agency for purposes of the regulations in subpart B of 5 CFR part 2635 governing gifts from outside sources and 5 CFR 2635.807 governing teaching, speaking, and writing: (1) Armed Services Board of Contract Appeals; (2) Department of the Army; (3) Department of the Navy; (4) Department of the Air Force; (5) Defense Commissary Agency; (6) Defense Contract Audit Agency; (7) Defense Finance and Accounting Service; (8) Defense Information Systems Agency; (9) Defense Intelligence Agency; (10) Defense Logistics Agency; (11) Defense Counterintelligence and Security Agency; (12) Defense Threat Reduction Agency; (13) National Geospatial-Intelligence Agency; (14) National Security Agency; (15) Office of Inspector General; (16) Uniformed Services University of the Health Sciences; (17) National Reconnaissance Office; and (18) Office of the Secretary of Defense remainder agency. Example 1 to paragraph (a). Example 2 to paragraph (a). Example 3 to paragraph (a). (b) Employees of DoD components not designated as separate agencies, including employees of the Office of the Secretary of Defense, will be treated as employees of the “Office of the Secretary of Defense (OSD) remainder agency.” The OSD remainder agency shall itself be treated as a separate DoD agency for purposes of determining whether the donor of a gift is a prohibited source under 5 CFR 2635.203(d) and for identifying the employee's agency under 5 CFR 2635.807 governing teaching, speaking, and writing. (1) The use of the term “agency” in this part does not carry with it the designation and responsibilities of a “defense agency” as set forth in 10 U.S.C. 191-197 (2019). (2) For purposes of this part, “prohibited source” is defined at 5 CFR 2635.203(d), except that “agency” shall mean the employee's component. Note 1 to paragraph (b). All DoD organizations not individually listed in paragraph (a) of this section are part of the OSD remainder agency. Note 2 to paragraph (b): Prohibited sources for each component for purposes of gifts and teaching, speaking, and writing are exclusive to that component and are not imputed to OSD. Note 3 to paragraph (b). An employee who is detailed to another component will use the prohibited source list of the component to which they are detailed for purposes of gifts, teaching, speaking, and writing. (c) The designations in this section shall only apply for purposes of gifts under 5 CFR 2635.203(a) and teaching, speaking, and writing under 5 CFR 2635.807, and are distinct from the designations approved by the Office of Government Ethics for purposes of the post-Government employment restrictions in 18 U.S.C. 207(c). See § 3601.103 Additional exceptions for gifts from outside sources. In addition to the gift exceptions in 5 CFR 2635.204, which authorize acceptance of certain gifts from outside sources, and subject to all provisions of 5 CFR part 2635, subpart B, an employee may accept unsolicited gifts from outside sources otherwise prohibited by 5 CFR 2635.202 as detailed in this section. For purposes of this section, the term “agency” is defined in § 3601.102, and the term “free attendance” is defined in 5 CFR 2635.203(g). (a) Community relations events. (i) The cost of free attendance is provided by the sponsor of the event; and (ii) The employee's agency designee determines that the community relations interests of the agency will be served by the employee's attendance in his or her personal capacity, and the employee's attendance outweighs any concern that acceptance would cause a reasonable person with knowledge of the relevant facts to question the employee's integrity or impartiality. (2) Refer to 5 CFR 2635.204(g)(5) in determining whether the cost of attendance may be considered to be provided by the sponsor of the event. Example 1 to paragraph (a) Example 2 to paragraph (a) (b) Scholarships and grants. (1) Scholarships or grants have been made on a regular basis or, if the program is new, there is a reasonable basis for concluding that scholarships or grants will be made on a regular basis based on funding or funding commitments; and (2) Selection of recipients is made pursuant to written standards. § 3601.104 Additional limitations on gifts between employees. The following limitations apply to gifts from groups of employees that include a subordinate and to voluntary contributions to gifts for superiors permitted under 5 CFR 2635.304(c)(1): (a) Gifts from a group that includes a subordinate. (1) The cost of items excluded from the definition of a gift by 5 CFR 2635.203(b) and the cost of food, refreshments, and entertainment provided to mark the occasion for which the gift is given shall not be included in determining whether the value of a gift or gifts exceeds the aggregate minimal value limit. (2) The value of a gift or gifts from two or more donating groups will be aggregated and will be considered to be from a single donating group if the employee who is offered the gift knows or has reason to know that an individual who is his or her subordinate is a member of more than one of the donating groups. (b) Voluntary contribution. § 3601.105 Disclaimer for teaching, speaking, and writing in a personal capacity related to official duties. An employee who uses or permits the use of his or her military rank or who includes or permits the inclusion of his or her title or position as one of several biographical details given to identify himself or herself in connection with teaching, speaking, or writing, in accordance with 5 CFR 2635.807(b), must make a disclaimer if the subject of the teaching, speaking, or writing deals in significant part with any ongoing or announced policy, program, or operation of the employee's agency, as defined in § 3601.102, and the employee has not been authorized by appropriate agency authority to present that material as the agency's position. The disclaimer must be made as follows: (a) The required disclaimer must expressly state that the views presented are those of the speaker or author and do not necessarily represent the views of DoD or its components. (b) When a disclaimer is required for an article, book, or other writing, the disclaimer will be printed in a reasonably prominent position in the writing itself. (c) When a disclaimer is required for a speech or other oral presentation, the disclaimer may be given orally provided it is given at the beginning of the oral presentation. Example 1 to § 3601.105 Example 2 to § 3601.105 Note 1 to § 3601.105. Ethics review of whether a disclaimer is necessary or prudent is not a substitute for compliance with other DoD requirements such as obtaining a security review of the content of the teaching, speaking, or writing. § 3601.106 Prior approval for outside employment and business activities. (a) A DoD employee, other than a special Government employee, who is required to file a financial disclosure report (OGE Forms 450 or 278e) shall obtain approval from the agency designee before engaging in a business activity or compensated outside employment with a prohibited source, unless general approval has been given in accordance with paragraph (b) of this section. Approval shall be granted unless a determination is made that the business activity or compensated outside employment is expected to involve conduct prohibited by statute or regulation. Approval of the DoD employee's business activity or compensated outside employment with a prohibited source will be annotated on the employee's annual financial disclosure report. Nothing in this part precludes a supervisor from providing the employee with written approval. For purposes of this section, the following definitions apply: (1) Business activity. (2) Employment. (3) Prohibited source. See (b) The DoD component DAEO or designee may, by a written notice, exempt categories of business activities or employment from the requirement of paragraph (a) of this section based on a determination that business activities or employment within those categories would generally be approved and are not likely to involve conduct prohibited by statute or regulation. [88 FR 12543, Feb. 28, 2023, as amended at 88 FR 86029, Dec. 12, 2023] § 3601.107 Waiver. (a) The DoD General Counsel may waive any provision of this part based upon a determination that the waiver is not inconsistent with 5 CFR part 2635 or otherwise prohibited by law, and that waiver of the provision will not undermine public confidence in the integrity of Government programs or operations. The waiver must be: (1) In writing; (2) Supported by a detailed statement of facts and findings; and (3) Narrow in scope and limited in duration. (b) The DoD General Counsel may withdraw the waiver, in writing, if it is determined to no longer be necessary. (c) The authority for granting and withdrawing a waiver cannot be delegated below the DoD Alternate DAEO.