Generally, members of advisory committees and panels of the Science Advisory Board (SAB), Clean Air Scientific Advisory Committee (CASAC) and the Advisory Council on Clean Air Compliance Analysis (Council) are employed as Special Government Employees (SGEs) as defined under 18 U.S.C. 202(a). On occasion, Regular Government Employees (RGEs) serving in agencies other than EPA are also used as advisory committee panelists. As with RGEs, SGEs are required to abide by appropriate ethics regulations issued by the U.S. Office of Government Ethics. Among these requirements are the submission of a confidential financial disclosure form and completion of ethics training.
Confidential Financial Disclosure Form
SGEs are required to file a confidential financial disclosure report when first appointed to participate in an advisory activity, and then annually thereafter. SGEs must complete a "Confidential Financial Disclosure Form for Special Government Employees Serving on Federal Advisory Activities at the U.S. Environmental Protection Agency," EPA Form 3110-48 (PDF, 10 pp., 568 kb, About PDF Files). This form is used by Government officials to determine whether there are ethics issues with regard to the service of an SGE on an advisory committee or panel. Members of advisory committees or panels may also be required to update the confidential form before each meeting while they serve as SGEs. RGEs are required to submit either an OGE Form 450 (Confidential Financial Disclosure Report) or an OGE-278 form (Public Financial Disclosure Report) as appropriate under regulations promulgated by the Office of Government Ethics.
SGEs are also required by regulation (5 C.F.R. Part 2638) to take ethics training before participating in an advisory activity and annually thereafter. RGEs take ethics training at their agencies as required by regulation (5 C.F.R. Part 2638). SGE ethics training is available as an on-line course available through the U.S. Office of Government Ethics (OGE). The on-line OGE “Ethics Training for Special Government Employees” takes approximately one hour to complete.
How EPA Evaluates Ethics Information
When forming an advisory panel, one component of that process is to ensure candidates are free from Conflicts of Interest and/or an appearance of a loss of impartiality. This decision is made based on all relevant information, including a review of each candidate's confidential financial disclosure form (EPA Form 3110-48), the responses to the supplemental ethics questions, public comments and information gathered by SAB staff. Possible remedies to a conflict of interest include recusal from some part of the matter, divestiture from the disqualifying financial interest, application of exemptions in the ethics regulations, or an EPA-issued individual waiver.
Although 18 U.S.C. 208 (b)(3) allows the agency, in consultation with the Office of Government Ethics (OGE), to issue individual waivers to SGEs under certain conditions, the SAB Staff Office has not requested that the EPA Office of General Counsel issue such waivers in recent years given available regulatory exemptions. For example, C.F.R. 2640.203(g) provides an exemption that allows SGEs serving on FACA committees to participate in particular matters of general applicability (e.g., providing advice on the development of general regulations, policies or standards) where the disqualifying interest arises from the SGE’s non-federal employment. The exemption is subject to several important limitations (e.g., it does not cover interests arising from the SGE’s ownership of stock and the matter cannot have a special or distinct effect on either the SGE or the SGE’s non-Federal employer, other than as part of a class).