does not permit him or any other person to participate in a matter in which his or the other person's participation is prohibited by law, order or regulation.

(j) Presidential appointees. Members of the Commission are subject to separate reporting requirements as to statements of employment and financial interests under section 401 of Executive Order No. 11222.

§ 140.735-8 Acceptance of things of value. (a) Application. A Commission member or employee shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan, service, or any other thing of monetary value from any person (i) with whom he transacts business on behalf of the United States; (ii) who has, or is seeking to obtain, contractual or other business or financial relations with the Commission; (iii) who conducts operations or activities regulated by the Commission or who is a representative of such a person; or (iv) who has interests that may be substantially affected by the performance or nonperformance of his official duty. Gifts, gratuities, favors, entertainment, loans, services, or other things of monetary value accepted by a spouse or minor child of a member or employee or other relatives who are residents of the immediate household of the member or employee shall be deemed, for purposes of this section, to have been accepted by the member or employee.

(b) Exceptions. This paragraph does not apply (i) to things of nominal value; (ii) when the circumstances make it clear that it is obvious family or personal relationships rather than the business of the persons concerned which govern and are the motivating factors; (iii) when, on infrequent occasions, food and refreshments of nominal value are offered in the ordinary course of a luncheon or dinner meeting or other meeting; (iv) when unsolicited advertising or promotional materials, such as pens, pencils, note pads, calendars and other items of nominal value are offered; (v) when local transportation is provided to the member or employee while he is on official business and alternative arrangements are

impracticable; (vi) when the Commission, after due consideration, determines that an exception is warranted and appropriate in a particular situation; or (vii) to customary loans from banks or other financial institutions on customary terms to finance proper and usual activities of employees such as home mortgage loans.

(c) Voluntary donations. Except as specifically authorized by law, members and employees are not authorized to accept on behalf of the United States voluntary donations from private sources for travel expenses in the form of cash, or services in kind, such as hotel accommodations. An employee who is officially directed to participate in a convention, seminar or similar meeting of an association on an active duty basis and is authorized to receive per diem and other travel expenses from the Government, shall not accept travel, subsistence, or payment of other expenses from the association or outside organization. 14

§ 140.735-9 Disclosure of information.

A Commission employee shall not divulge, or cause or allow to be divulged, confidential or nonpublic commercial, economic or official information to any unauthorized person, or release such information in advance of authorization for its release. 15 Any em

ployee who is served with a subpoena requiring the disclosure of nonpublic information or documents shali, unless the Commission authorizes the disclosure of such information, respectfully decline to disclose the information or produce the documents called for, basing his refusal upon this paragraph. 16 Any employee who is served with such a subpoena shall promptly advise the General Counsel of the service of such subpoena, the nature of the information or documents sought, and any circumstances which may bear upon the desirability of making such information or documents available in the public interest. 1

17

§ 140.735-10 Practice by former members and employees of the Commission.

(a) Personal knowledge or consideration of the matter. No person shall ever appear in a representative capacity before the Commission in a particular matter 18 if such person, or one participating with him in the particular matter, personally considered it or gained nonpublic knowledge of the

Footnotes continued from last page

mation from any Commissioner or any employee or agent thereof and to use such information in any of the foregoing transactions.

16No employee shall disclose such information unless directed to do so by the Commission or by a court of appropriate jurisdiction.

"The prohibitions regarding confidential or nonpublic information stated above are intended to cover the matters addressed in section 9(e) of the Act as well as nonpublic information under the Freedom of Information Act, 5 U.S.C. 552, the rules of the Commission thereunder, 17 CFR Part 145, and the Privacy Act, 5 U.S.C. 552a, the rules of the Commission thereunder, 17 CFR Part 146, and cases where, apart from specific prohibitions in any statute or rule, the disclosure or use of such information would be unethical.

18This prohibition does not apply to personal participation in or gaining knowledge of facts pertaining to general rulemaking, general policy and standards formulation or other similar matters. See memorandum of the Attorney General dealing with the conflict of interest provisions, reproduced in material following 18 U.S.C. 201 (1970 Edition).

facts thereof while he was a member or employee of the Commission. 19

20

(b) Matter within individual's official responsibility. No person who has been a member or an employee shall, within one year after his employment has ceased, appear in a representative capacity before the Commission in any matter which was under his official responsibility as a member or employee of the Commission at any time within a period of one year prior to the termination of such responsibility. The term official responsibility as used herein has the meaning assigned to it in 18 U.S.C. 202, namely, the "direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and either personally or through subordinates, to approve, disapprove, or otherwise direct Government action.”21

(c) Appearance before Commission. Any former member or employee of the Commission who, within two years after ceasing to be such, is employed or retained as the representative of any person outside the government in any matter in which it is contemplated that he will appear before the Commission shall, within ten days of such retainer or employment, or of the time when appearance before the Commission is first contemplated, file with the

19 Attention is called to 18 U.S.C. 207(a) which basically prohibits a former United States Government employee from acting as an agent or attorney in any matter in which he participated personally and substantially as such officer or employee and in which the United States is a party or has a direct and substantial interest.

20 This prohibition does not apply to general rulemaking, general policy and standards formulation or other similar matters under a member or employee's official responsibility. See memorandum of the Attorney General dealing with the conflicts of interest provisions, reproduced in material following 18 U.S.C. 201 (1970 Edition).

21 Attention is called to 18 U.S.C. 207(b), which basically prohibits a former United States Government employee, for the one year period following the end of his employment, from appearing before any court or government agency or department as agent or attorney in any proceeding or matter that was under his official responsibility and in which the United States is a part or has a direct and substantial interest.

General Counsel of the Commission a statement as to the nature thereof together with any desired explanation as to why it is deemed consistent with this section. Employment of a recurrent character may be covered by a single comprehensive statement. Each such statement should include an appropriate caption indicating that it is filed pursuant to this section. The reporting requirements of this paragraph do not apply to communications incidental to court appearances in litigation involving the Commission. As used in this section, the term "appear before the Commission" means personal appearance before or personal communication with the Commission, or any member or employee thereof, in connection with any interpretation or matter of substance arising under the statutory provisions administered by the Commission. As used in this section, the term "representative" or "representative capacity” shall include not only the usual type of representation by an attorney, but also representation of a corporation in the capacity of an officer, director, or controlling stockholder thereof.

(d) Advisory rulings. Persons in doubt as to the applicability of this section may apply for an advisory ruling of the Commission by addressing a letter requesting an advisory ruling to the Office of General Counsel.

[41 FR 27511, July 2, 1976, as amended at 42 FR 15902, Mar. 24, 1977]

§ 140.735-11 Action in case of personal interest.

Any employee assigned to work on any application, filing or matter of a company (a) in which he or his spouse or his minor child or any other relatives who are residents of his immediate household then own any securities or have a personal interest, including a continuing financial interest through a pension or retirement plan, shared income, or other arrangement, as a result of any current or prior employment or business or professional association; or (b) with which he has been employed or associated in the past; or (c) which was a client of a firm with which he had been associated shall immediately advise the division director

or other office head in writing of all pertinent facts. Division directors and other office heads are authorized to direct the reporting employee to continue with the assignment in question where the interest is not so substantial as to be likely to affect the integrity of the services which the Government may expect from the employee and where it appears in the interest of the Government, taking into account (1) the prohibitions stated in this subpart; (2) the general desirability of avoiding situations that raise a question of conflict of interest or the appearance of a conflict of interest; (3) the extent to which the employee's activities will be supervised; and (4) the difficulty of assigning the matter to some other employee. Where the employee in question is not relieved of the assignment, his written report concerning the nature of his interest shall be forwarded by the division director or other office head to the General Counsel with a notation that he has been directed to continue the assignment, together with such explanation, if any, as may seem appropriate. In the event that a division director or other office head deems that he has, himself, such personal interest in an application, filing or matter of a company as may raise a question as to his disinterestedness, he may delegate his responsibility with regard thereto to a subordinate, but in that event shall submit a brief memorandum of the circumstances to the General Counsel.

§ 140.735-12 Statutory provisions applicable to conduct of Commission members and employees.

Each member and employee is responsible for acquainting himself with each statute that relates to his ethical and other conduct as an employee of the Commission and of the Government, including the statutory provisions listed below. Violations of any of these statutes are deemed to be violations of the rules in this subpart as well. 22

22 Copies of these and other pertinent statutes, regulations and orders are on file in the Office of the General Counsel in Washington, D.C., and in each Regional Office of the Commission and available for review by all Commission members and employees.

(a) Sections 2(a)(7), 9(d) and 9(e) of the Commodity Exchange Act.

(b) House Concurrent Resolution 175, 85th Congress, 2d Session, 72 Stat. B12, the "Code of Ethics for Government Service."

(c) Chapter 11 of title 18, United States Code, relating to bribery, graft, and conflict of interests, as appropriate to the employees concerned.

(d) The prohibition against lobbying with appropriated funds (18 U.S.C. 1913).

(e) The prohibitions against disloyalty and striking (5 U.S.C. 7311, 18 U.S.C. 1918).

(f) The prohibitions against (1) the disclosure of classified information (18 U.S.C. 798, 50 U.S.C. 783); and (2) disclosure of confidential information (18 U.S.C. 1905).

(g) The provision relating to the habitual use of intoxicants to excess (5 U.S.C. 7352).

(h) The prohibition against the misuse of a Government vehicle (31 U.S.C. 638a(c)).

(i) The prohibition against the misuse of the franking privilege (18 U.S.C. 1719).

(j) The prohibition against the use of deceit in an examination or personnel action in connection with Government employment (18 U.S.C. 1917).

(k) The prohibition against fraud or false statements in a Government matter (18 U.S.C. 1001).

(1) The prohibition against mutilating or destroying a public record (18 U.S.C. 2071).

(m) The prohibition against counterfeiting and forging transportation requests (18 U.S.C. 508).

(n) The prohibitions against (1) embezzlement of Government money or property (18 U.S.C. 641); (2) failing to account for public money (18 U.S.C. 643); and (3) embezzlement of the money or property of another person in the possession of an employee by reason of his employment (18 U.S.C. 654).

(0) The prohibition against unauthorized use of documents relating to claims from or by the Government (18 U.S.C. 285).

(p) The prohibitions against political activities in subchapter III of chapter

73 of title 5, United States Code and 18 U.S.C. 602, 603, 607 and 608.

(q) The prohibition against an employee acting as the agent of a foreign principal registered under the Foreign Agents Registration Act (18 U.S.C. 219).

[41 FR 27511, July 2, 1976, as amended at 42 FR 15902, Mar. 24, 1977]

§ 140.735-13 Special Government employ

ees.

(a) Definition. Special Government employee means a “special Government employee” as defined in section 202 of Title 18 of the United States Code who is employed in the executive branch. In the Commission these employees usually are experts and consultants.

(b) Applicability of this subpart to special Government employees. All provisions of this subpart applicable to regular Commission employees are applicable to special Government employees, except § 140.735-5(a)(ii) (furnishing of commodity-related advice; provided, however, that this particular exception applies only if a special Government employee of the Commission has not personally and substantially participated in the matter and has served with the Commission no more than 60 days during the immediately preceding period of 365 consecutive days), § 140.735-5(e) (obtaining prior approval for outside employment), § 140.735-5(f) prohibition upon association of name with professional firm), and § 140.735-7 (filing statement of employment and financial interests), unless the Commission deems it necessary or appropriate in the public interest that the employee be subject to any of these provisions. 23 Additional specific provisions applicable to special Government employees are listed in paragraph (c) of this section.

(c) Prohibitions. A special Government employee shall not:

(1) Use his Government employment for a purpose that is, or gives the ap

23 Particular attention is directed to the fact that the prohibitions of sections 2a(7), 9(d) and 9(e) of the Commodity Exchange Act apply to special Government employees employed by the Commission as well as regular Commission employees.

pearance of being, motivated by the desire for private gain for himself or another person, particularly one with whom he has family, business, or financial ties;

(2) Use information obtained as a result of his Government employment for private gain for himself or another person either by direct action on his part or by counsel, recommendation, or suggestion to another person, particularly one with whom he has family, business, or financial ties. For purposes of this subparagraph, “information" means information obtained under Government authority which has not become part of the body of public information. A special Government employee may teach, lecture, or write provided he meets the requirements of § 140.735-5 (c) and (e);

(3) Use his Government employment to coerce, or give the appearance of coercing, a person to provide financial benefit to himself or another person, particularly one with whom he has family, business or financial ties; or

(4) Receive or solicit from a person having business with the Commission anything of value as a gift, gratuity, loan, entertainment, or favor for himself or another person, particularly one with whom he has family, business, or financial ties. The same exceptions in § 140.735-8(b) applicable to regular employees are also applicable to special Government employees.

(d) Statement of employment and financial interests. Prior to entrance on duty, each special Government employee shall submit to the Director of Personnel a statement of employment and financial interests which reports (1) all other employment, and (2) the financial interests of the special Government employee which the Commission determines are relevant in the light of the duties he is to perform. Statements shall be on CFTC Form 70 and shall be kept current throughout the period of employment by the filing of supplementary statements in accordance with the requirements of § 140.735-7(d). This paragraph shall not be construed as requiring the submission of information referred to in § 140.735-7(e) (information not known by employee). Paragraphs (f), (g) and (h) of § 140.735-7 shall be applicable

with respect to statements required under this section.

(e) Waiver of requirement of filing statement. The Commission may waive the requirement of paragraph (d) of this section in the case of a special Government employee who is not a "consultant" or an "expert," as those terms are defined in Chapter 304 of the Federal Personnel Manual if the duties of the position are determined to be at a level of responsibility which does not require the submission of such statement to protect the integrity of the Commission.

§ 140.735-14 Other standards of conduct.

(a) Office gifts. A Commission member or employee shall not solicit a contribution from another employee for a gift to an employee in a superior position. An employee in a superior official position shall not accept a gift presented as a contribution from employees receiving less salary than himself. An employee shall not accept a gift presented as a contribution from employees receiving less salary than himself. An employee shall not make a donation as a gift to an employee in a superior official position (5 U.S.C. 7351). However, this subparagraph does not prohibit the use of completely voluntary contributions of nominal amounts by employees within the Commission to establish funds for the limited purpose of providing token remembrances or gifts of nominal value in situations such as death, illness, marriage, birth or retirement.

(b) Gifts from foreign governments. A Commission member or employee shall not accept a gift, present, decoration, or other thing of value from a foreign government unless authorized by Congress as provided by the Constitution and in 5 U.S.C. 7342.

(c) Gambling, betting and lotteries. An employee shall not participate, while on Government-owned or leased property or while on duty for the Government, in any gambling activity including the operation of a gambling device, in conducting a lottery or pool, in a game for money or property, or in selling or purchasing a numbers slip or ticket. However, this section does not preclude activities: