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25 June 2008
[Federal Register: June 25, 2008 (Volume 73, Number 123)]
[Rules and Regulations]
[Page 36167-36210]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25jn08-32]
[[Page 36167]]
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Part II
Office of Government Ethics
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5 CFR Parts 2637 and 2641
Post-Employment Conflict of Interest Restrictions; Final Rule
[[Page 36168]]
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OFFICE OF GOVERNMENT ETHICS
5 CFR Parts 2637 and 2641
RIN 3209-AA14
Post-Employment Conflict of Interest Restrictions
AGENCY: Office of Government Ethics (OGE).
ACTION: Final rule.
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SUMMARY: OGE regulations have provided guidance concerning the post-
employment conflict of interest restrictions of 18 U.S.C. 207 for
Government employees terminating service between July 1, 1979 and
December 31, 1990. As a result of amendments to section 207 that became
effective January 1, 1991, and subsequently, employees terminating
service in the executive branch or in an independent agency (or
terminating service from certain high-level Government positions) since
that date are subject to substantially revised post-employment
restrictions. The purpose of these new regulations is to provide
regulatory guidance explaining the scope and content of the statutory
restrictions as they apply to employees terminating service on or after
January 1, 1991. This final rule would expand the regulatory guidance
OGE has previously published concerning the current version of section
207 and make minor modifications to those earlier rulemakings. It would
also remove the old obsolete regulations from the Code of Federal
Regulations.
DATES: July 25, 2008.
FOR FURTHER INFORMATION CONTACT: Richard M. Thomas, Associate General
Counsel, Office of Government Ethics; Telephone: 202-482-9300: TDD:
202-482-9293; FAX: 202-482-9237.
SUPPLEMENTARY INFORMATION:
I. Rulemaking History
On February 18, 2003, the Office of Government Ethics (OGE)
published for comment a proposed rule that would provide guidance and
certain implementing procedures concerning the post-employment conflict
of interest statute, 18 U.S.C. 207, as applied to former officers and
employees of the executive branch. See 68 FR 7844-7892 (February 18,
2003). The proposed rule was issued pursuant to OGE's authority under
the Ethics in Government Act of 1978, as amended, and Executive Order
12674, as modified by E.O. 12731.
As explained in the preamble, the proposed rule provided for minor
modifications to existing guidance and procedures in part 2641, as well
as substantially expanded guidance to address more comprehensively the
application of section 207.
The proposed rule also provided for the removal of part 2637
(formerly part 737). Part 2637 interpreted and implemented a version of
section 207 that was in effect prior to January 1, 1991, the effective
date of the relevant provisions of the Ethics Reform Act of 1989.
Although part 2637 had provided comprehensive post-employment advice in
the past, numerous statutory changes, beginning with the Ethics Reform
Act of 1989, rendered the content of much of part 2637 inapplicable to
the current statute. For this reason, the current version of part 2637
carries an introductory note emphasizing that the regulation applies to
``individuals terminating Government service prior to January 1,
1991.'' It is OGE's intent that the advice now contained in part 2641,
as amended by the final rule, will provide both comprehensive and
current guidance applicable to employees terminating subsequent to
January 1, 1991. Therefore, part 2637 is being removed in its entirety,
with the proviso that the last published edition of the 5 CFR in which
part 2637 was published (the one revised as of January 1, 2008) will be
retained by OGE, and should be retained by agency ethics officials, to
provide interpretive guidance to employees who terminated service
before January 1, 1991.
The history of parts 2637 and 2641 is discussed in detail in the
preamble to the proposed rule, at 68 FR 7844-7845. In addition, since
the publication of the proposed rule, the appendices to part 2641 have
been amended three times. First, by a final rule issued November 23,
2004, OGE modified the list of separate agency and departmental
component designations in Appendix B, pursuant to 18 U.S.C. 207(h), for
purposes of the one-year cooling-off restriction applicable to former
senior employees of an agency or department, under 18 U.S.C. 207(c).
See 69 FR 68053-68056 (November 23, 2004). Second, by a final rule
issued March 8, 2007, OGE again modified the list of separate agency
and departmental component designations in Appendix B and also modified
the list of waived positions in Appendix A, pursuant to 18 U.S.C.
207(c)(2)(C), for purposes of the one-year restriction applicable to
former senior employees. See 72 FR 10339-10342 (March 8, 2007). Third,
by a final rule issued March 6, 2008, OGE once more modified the list
of separate agency and departmental component designations in Appendix
B. See 73 FR 12007-12009 (March 6, 2008).
Additionally, three amendments to 18 U.S.C. 207 have become
effective since the publication of the proposed rule, and the effect of
these amendments is addressed in the final rule. First, the amendments
enacted by section 209(d) of the E-Government Act of 2002, Public Law
107-347, were noted in the preamble of the proposed rule, but the
amendments did not become effective until nearly two months after the
proposed rule was published. See 68 FR 7844. The proposed rule did not
implement these statutory amendments, but the preamble specifically
invited comments concerning the implementation of the amendments and
noted that the effect of the amendments would be addressed in the final
rule, as appropriate. During the comment period applicable to the
proposed rule, OGE received no recommendations concerning the
implementation of these amendments, which involve the addition of a new
category of senior employee under 18 U.S.C. 207(c)(2)(A)(v) and a new
restriction on contract advice under section 207(l), both applicable
only to former private sector assignees under the Information
Technology Exchange Program. The final rule implements these
amendments, as discussed more fully below, through changes to proposed
sections 2641.104 (definition of senior employee), 2641.301(j) (waiver
of restrictions of 18 U.S.C. 207(c) and (f) for certain positions), and
2641.301(l) (guide to available exceptions and waivers), and the
promulgation of new section 2641.207 (setting out basic outline of new
restriction in 18 U.S.C. 207(l)). Second, one category of senior
employees covered by 18 U.S.C. 207(c) was amended by section 1125(b)(1)
of the National Defense Authorization Act for Fiscal Year 2004, Public
Law 108-136, November 24, 2003. Therefore, as discussed more fully
below, the definition of senior employee in proposed section 2641.104
has been revised to conform to the current version of 18 U.S.C.
207(c)(2)(A)(ii). Third, the Honest Leadership and Open Government Act
of 2007 amended 18 U.S.C. 207(d) by extending the cooling-off period
for very senior employees to two years, which is addressed in revised
section 2641.205. See Public Law 110-81, sec. 101(a), September 14,
2007. Section 104 of the same Act also added a cross-reference, in 18
U.S.C. 207(j)(1)(B), to a revised exception in the Indian Self-
Determination and Education Assistance Act; proposed section
2641.301(k)(4) has been revised accordingly.
[[Page 36169]]
The proposed rule provided a 90-day comment period. Timely comments
were received from 17 sources. After carefully considering all comments
and making appropriate modifications, the Office of Government Ethics
is publishing this final rule after consulting with the Office of
Personnel Management and the Department of Justice in accordance with
section 402(b) of the Ethics in Government Act, and further, pursuant
to section 201(c) of Executive Order 12674, as modified by E.O. 12731,
after obtaining the concurrence of the Department of Justice.
II. Summary of Comments and Changes to Proposed Rule
OGE received comments from 17 entities, all Federal executive
branch offices. Most of these comments were from agency ethics offices.
Two agency inspector general offices commented, as did the Office of
the Vice President. Five different Department of Defense components
commented, although these comments were substantially similar or
identical in many respects.
General Comments
A number of commenters stated that the proposed rule generally was
helpful, thorough and well-organized. Many of these commenters remarked
that the examples included in the proposed rule were particularly
useful.
The Use of Examples
With respect to the subject of examples, one agency thought that
OGE generally needed to include more explanatory information in its
examples. The same agency also recommended that OGE address, either in
the preamble or the text of the rule, ``the way in which examples are
to be used as illustrative guidance.'' Given the limits of the
regulatory format, OGE has attempted to provide examples that contain
sufficient explanatory information to illustrate the particular
provision of the rule that is at issue. OGE's practice has been to
include examples in most of its rules, e.g., 5 CFR parts 2634, 2635,
2637, and 2640, for the purpose of providing factual scenarios that
demonstrate the operation of the substantive provisions articulated in
the rules. These examples illustrate how OGE would apply the rule in
certain contexts.
Three agencies raised related questions about why various examples
in the proposed regulation do not contain facts satisfying each element
of the relevant statutory prohibition. OGE has organized its treatment
of each of the prohibitions in section 207 by treating each element
separately and then providing examples to illustrate that particular
element. OGE believes that it would be unnecessarily discursive to
reiterate each statutory element in each example and that the lack of
focus would render the examples less convenient for readers to use in
analyzing the particular element in the accompanying regulatory text.
In a similar vein, one agency also commented on the absence of facts in
one particular example to illustrate a knowledge element in the
statute. See proposed Sec. 2641.201(f) (example 3). The example to
which this commenter referred is intended to illustrate the element
that the post-employment contact must be ``to or before'' a Federal
employee, not the scope of the statutory term ``knowingly.''
Additionally, it is important to note that OGE has not attempted to
provide comprehensive guidance as to the scope of the knowledge
requirement in the various prohibitions in section 207. In OGE's
experience, knowledge questions more typically arise after the post-
employment conduct has already occurred, and legal analysis of such
issues is not always well-suited to a regulation that provides general,
prospective guidance.
Coordination With the Department of Justice
One commenter recommended that part 2641 be issued ``jointly'' by
the Director of OGE and the Attorney General. The commenter stated
that, because ``the Attorney General is the officer charged by law to
enforce the criminal statutes, including section 207, the Attorney
General's issuance of part 2641 along with the Director of OGE
increases the likelihood that the Federal Courts, in construing section
207, will give the interpretive guidance in part 2641 judicial
deference.''
OGE has not followed this recommendation. Section 201(c) of
Executive Order 12731 states that is the responsibility of OGE to
promulgate regulations interpreting sections 207, 208, and 209 of title
18, United States Code. The Executive Order provides that OGE obtain
the concurrence of the Attorney General, which OGE has done (and also
did with the prior post-employment regulations, see 5 CFR 2637.101(b)).
Compare E.O. 12731, section 201(c) (concurrence); with id., section
301(a) (joint promulgation). OGE also has its own statutory rulemaking
authority with respect to conflicts of interest in the executive
branch, which is exercised in consultation with the Attorney General.
See 5 U.S.C. app. section 402. Furthermore, it may be debatable whether
joint promulgation of part 2641 with the Attorney General would
necessarily entail judicial deference. See Crandon v. United States,
494 U.S. 152, 177 (1990) (Scalia, J., concurring). In any event, there
is already a history of judicial recognition and reliance on OGE's
section 207 regulations. E.g., EEOC v. Exxon Corp., 202 F.3d 755 (5th
Cir. 2000); United States v. Nofziger, 878 F.2d 442 (D.C. Cir. 1989);
U.S. v. Clark, 333 F.Supp.2d 789 (E.D. Wisc. 2004); U.S. v. Martin, 39
F.Supp.2d 1333 (D. Utah 1999); Conrad v. United Instruments, Inc., 988
F. Supp. 1223 (W.D. Wisc. 1997); Robert E. Derecktor of R. I., Inc. v.
U.S., 762 F. Supp. 1019 (D.R.I. 1991); U.S. v. Dorfman, 542 F.Supp. 402
(N.D. Ill. 1982).
Legislative Recommendations
Several agencies did not confine their comments to the proposed
rule, but asked OGE to consider proposing legislative changes to the
post-employment statute. Subsequently, OGE completed a review of the
criminal conflict of interest statutes, pursuant to section 8403(d) of
the Intelligence Reform and Terrorism Prevention Act of 2004, Public
Law 108-458. See OGE, Report to the President and to Congressional
Committees on the Conflict of Interest Laws Relating to Executive
Branch Employment (January 2006), at http://www.usoge.gov/pages/forms_
pubs_otherdocs/fpo_files/reports_plans/rpt_title18.pdf. In
connection with this review, OGE solicited the views of the public with
respect to possible changes to the criminal conflict of interest
statutes, including 18 U.S.C. 207. See 70 FR 22661 (May 2, 2005); 67
Federal Register 43321 (June 27, 2002). OGE's evaluation of the need
for legislation must be viewed as a separate undertaking from the
present rulemaking, which is limited by the text of section 207 as it
is currently written.
OMB Circular A-76
Seven agencies, including four DOD components, submitted comments
about the application of 18 U.S.C. 207 in the context of public-private
competitions under Office of Management and Budget Circular A-76. See
OMB Circular A-76, May 29, 2003, available at http://
www.whitehouse.gov/omb/circulars/a076/a76_rev2003.pdf. In A-76
proceedings, an agency determines whether to contract out certain
``commercial'' (i.e., not inherently governmental) functions, after a
competition between private bids and an agency tender offer based on
the agency's cost estimate for performing
[[Page 36170]]
the same function internally. The commenting agencies focused on a
number of different elements of section 207(a) as they apply to A-76
proceedings: particular matter involving specific parties, see Sec.
2641.201(h); same particular matter involving specific parties, see
Sec. 2641.201(h)(5); personal and substantial participation, see Sec.
2641.201(i); and intent to influence, see Sec. 2641.201(e).
The central thrust of the arguments advanced by most of these
agencies is that OGE should propound a ``workable'' interpretation of
section 207 that does not interfere with the operation of the A-76
process. In particular, most of the commenting agencies were especially
concerned that the interpretation of section 207 not unduly restrict
affected employees, whose Government jobs may be contracted out, from
going to work for a winning private bidder after those employees
participated in some part of the A-76 process. Many affected employees
are provided a ``right of first refusal'' to perform their privatized
functions for the winning private bidder, see OMB Circular A-76,
Attachment B, Sec. D.3.a(2), and these agencies fear that this right
may be eroded if significant numbers of affected employees are
disqualified from performing private jobs involving communications or
appearances that are deemed to be prohibited representational contacts
under section 207. A related concern expressed by some of the
commenters is that directly affected employees may be reluctant to
participate in the A-76 process--whether by serving on the Most
Efficient Organization or Performance Work Statement teams or simply by
providing relevant job-related information to those teams--for fear of
jeopardizing their ability to work for the winning bidder in the event
that their Federal positions are eliminated.
The final rule does not address issues pertaining to A-76
proceedings. For one thing, OGE did not raise this subject in the
proposed rule. Moreover, the subjects are sufficiently complex and
novel that OGE finds it prudent to defer any treatment, for example, to
a later rulemaking or other guidance.
Subpart A--General Provisions
Section 2641.101--Purpose
One agency commented on the note following proposed section
2641.101, now designated as paragraph (b) of the section in this final
rule, which indicates that part 2641 is not intended to address post-
employment restrictions in statutes or authorities other than 18 U.S.C.
207. This agency asked that OGE maintain a list of post-employment
restrictions, other than section 207, somewhere in part 2641. OGE
expressly declined to propose such a list, as explained more fully in
the preamble to the proposed rule. 68 Federal Register 7845. The
commenter has not persuaded OGE that the reasons for so declining are
no longer valid. OGE foresees a burden in maintaining such a list in
the regulation and ensuring that it is accurate and up-to-date, which
burden is not outweighed by the potential value. The commenter's
suggestion that OGE could include a disclaimer in the regulation
indicating that the list is not intended to be exhaustive simply
underscores the risks and limitations inherent in promulgating such a
list in the Code of Federal Regulations, especially in view of OGE's
experience that post-employment restrictions are a relatively frequent
subject of legislative action. However, OGE will consider compiling
such a list and making it available to agencies and the public through
the DAEOgram process.
On a related topic, another agency recommended that OGE include, in
example 1 following proposed Sec. 2641.204(d), a cross-reference to
the restrictions on the representational activities of current
employees, under 18 U.S.C. 203 and 205. OGE has not followed this
recommendation. The purpose of part 2641, and OGE's responsibility
under section 201(c) of Executive Order 12731, is to provide guidance
with respect to 18 U.S.C. 207, not guidance with respect to 18 U.S.C.
203 and 205. The rule cannot reasonably identify every restriction,
other than section 207, that might apply to a hypothetical set of
circumstances. Moreover, OGE believes that agency ethics officials may
be relied upon to provide comprehensive training and counseling with
respect to the entire range of ethical restrictions that may be
applicable in a given situation.
Section 2641.104--Definitions
Employee
OGE has made one change to the definition of ``employee'' as
proposed in section 2641.104. In order to clarify that employees
serving without compensation from the Government are subject to the
post-employment law, OGE has added the phrase ``employees serving
without compensation'' to the final sentence (before the parenthetical)
in the definition.
Former Employee
Three agencies commented on the definition of ``former employee''
in proposed section 2641.104. OGE also received one comment concerning
the treatment of the Vice President under this definition, which is
discussed separately below, under ``Applicability of Certain Provisions
to the Vice President.''
One of the agencies recommended that OGE amend example 4, in order
to clarify when a special Government employee (SGE) serving on an
advisory committee becomes a former employee. Consistent with this
comment, OGE is revising the example to make clear that the SGE in that
example becomes a former employee when his appointment terminates,
provided that there is no reappointment without a break in service.
However, OGE is not adopting the commenter's suggestion that the SGE
necessarily becomes a former employee immediately upon the expiration
of the term of the advisory committee. Personnel appointments for SGEs
could outlast the term of the committee on which they serve, and
agencies sometimes may use SGEs for other expert or consultant services
beyond the work of a particular advisory committee.
Another agency recommended that OGE add a new example to illustrate
the post-employment implications of what the agency stated was a common
practice of appointing retired Foreign Service officers in civil
service positions without any break in service. We have adopted this
recommendation and have added a new example 6 to the definition of
former employee. Additionally, we have amended the definition of
``Government service'' to emphasize that a period of Government service
is not completed, and the individual does not therefore become a former
employee, unless there is a break in service.
A third agency recommended that examples 3 and 4 be amended to
indicate that current Federal employees remain subject to the
representational restrictions of 18 U.S.C. 203 and 205 even though they
may not be former employees subject to the restrictions of 18 U.S.C.
207. We have not adopted this recommendation. Presumably, agencies
already advise current employees, as appropriate, concerning their
restrictions under sections 203 and 205, as well as any other
applicable conflict of interest statutes or rules, and it is not the
purpose of this post-employment rule to explain those requirements.
Person
One agency recommended that the definition of ``person'' be amended
specifically to include Indian tribal governments. We have not made the
recommended change. The definition of
[[Page 36171]]
person in section 2641.104 emphasizes that it is ``all-inclusive,'' and
it includes, among other things, ``any other organization.'' We believe
that this definition is sufficiently broad to include tribal
governments. Moreover, we note that similar definitions of person in
other OGE regulations do not expressly address tribal governments, and
we are not aware that this has created any particular difficulties. See
5 CFR 2635.102(k); 2638.104; 2640.102(o).
Senior Employee
OGE received two substantive comments concerning the definition of
``senior employee,'' which governs the application of the one-year
cooling-off restriction of 18 U.S.C. 207(c) (described in Sec.
2641.204). One comment was from an agency Inspector General office,
which requested that OGE provide a new example addressing the effect of
``Law Enforcement Availability Pay'' (LEAP) on the rate of basic pay of
certain criminal investigators, for purposes of determining whether
such investigators would be senior employees under 18 U.S.C.
207(c)(2)(A)(ii) and paragraph (2) of the definition of senior employee
in Sec. 2641.104 as proposed. The commenter stated that ``LEAP is not
meant to `elevate' a GS-14 or GS-15 supervisor into the `senior
employee' category'' and urged OGE to determine that LEAP is not to be
considered part of basic pay. We agree with the commenter that LEAP
should not be viewed as part of basic pay for purposes of section
207(c)(2)(A)(ii). The statutory and regulatory provisions governing
LEAP make clear that it is to be treated as part of basic pay only for
certain specified purposes, which do not include the post-employment
restrictions. See 5 U.S.C. 554a(h)(2); 5 CFR 550.186(b). We have
confirmed this conclusion with the Office of Personnel Management. In
view of the number of Federal investigators who may receive LEAP, we
are adding a new example 3 following the definition of senior employee
to provide guidance on this subject.
A second agency commented that example 2 following the definition
of senior employee does not adequately illustrate the fact that step
increases, or their equivalent, must be considered in determining
whether an employee's basic rate of pay equals or exceeds the threshold
rate of basic pay for senior employee status. See 68 FR 7848. OGE has
made no change to the rule as proposed in adopting it as final. Example
2 illustrates the point that basic pay, for pay systems employing pay
bands, is the actual pay of the employee, including any periodic
adjustments, not the minimum possible pay that employees in the system
might receive. See OGE Informal Advisory Letters 98 x 2; 92 x 20.
Finally, OGE has made two conforming amendments to the definition
of senior employee to reflect statutory amendments to 18 U.S.C. 207(c)
since the proposed rule was developed. First, a new paragraph (6) has
been added, to reflect section 209(d)(1) of the E-Government Act,
Public Law 107-347, December 17, 2002, which became effective 120 days
after enactment. This law amended 18 U.S.C. 207(c)(2)(A) by adding a
new category of senior employee: Assignees from private sector
organizations under the new Information Technology Exchange Program
created by the Act. See 18 U.S.C. 207(c)(2)(a)(v). Second, paragraph
(2) of the proposed definition has been changed to reflect section
1125(b)(1) of the National Defense Authorization Act for Fiscal Year
2004, Public Law 108-136, November 24, 2003, which became effective on
the first day of the first pay period on or after January 1, 2004. This
law amended 18 U.S.C. 207(c)(2)(A)(ii) by replacing the former
standard--a rate of basic pay equivalent to the former level 5 of the
Senior Executive Service--with a standard based on 86.5 percent of
level II of the Executive Schedule. As reflected in paragraph (2) of
the revised definition of senior employee in the final rule, the
statutory amendment also provided that employees who had a rate of
basic pay equivalent to level 5 of the SES on the day prior to
enactment of the new law would be deemed senior employees for two years
following the date of enactment. OGE also has made conforming changes
to other parts of the rule that refer to the statutory pay threshold
for senior employee status, including the provisions in Sec.
2641.204(c) concerning the application of 18 U.S.C. 207(c) to special
Government employees and Intergovernmental Personnel Act appointees or
detailees.
Section 2641.105--Advice
Two commenters recommended that OGE amend proposed section
2641.105(e), concerning attorney-client privilege. They requested OGE
to clarify that the Government itself still may be able to claim
certain privileges, even though employees and former employees
personally may not enjoy any personal attorney-client privilege with
respect to information conveyed to ethics officials. OGE agrees that,
although employees and former employees may not enjoy any personal
attorney-client privilege with respect to their communications with
ethics officials, this does not mean that the Government itself may not
be able to claim its own privileges with respect to such
communications. At the same time, however, OGE is concerned that
nothing in the regulation should suggest that agencies may invoke
attorney-client privilege in connection with an information request
made by OGE. Therefore, we are modifying Sec. 2641.105(e) in this
final rule only so far as to emphasize that employees do not personally
benefit from an attorney-client privilege: ``A current or former
employee who discloses information to an agency ethics official, to a
Government attorney, or to an employee of the Office of Government
Ethics does not personally enjoy an attorney-client privilege with
respect to such communications.''
One of the commenters also recommended that we revise proposed
Sec. 2641.105(b), concerning advice by OGE, to specify how conflicts
of opinion between OGE and agency ethics officials will be resolved. We
do not believe this subject is amenable to any general rule and
therefore have not modified this section in the final rule. On the one
hand, OGE recognizes and respects the opinions of agency ethics
officials, and we start from the premise that those officials often are
in a better position to obtain and understand the facts pertinent to
post-employment questions involving their agencies. On the other hand,
OGE cannot ignore its oversight responsibilities under title IV of the
Ethics in Government Act. When differences of opinion arise, OGE must
handle each case as the demands of the situation require.
Section 2641.106--Applicability of Certain Provisions to the Vice
President
OGE received a set of comments from one commenter raising issues
pertaining to the treatment of the Vice President under section 207 and
the proposed rule. The commenter recommended an organizational change,
which OGE has made in the final rule. This commenter recommended that
OGE place all references to the application of section 207 to the Vice
President in one stand-alone section in the rule. The commenter noted
that the Vice President is subject only to section 207(d) and section
207(f) and recommended that a single provision governing the Vice
President state this fact, without the need for any further references
to the Vice President in the definitions of ``employee,'' ``former
employee,'' or ``very senior employee'' in Sec. 2641.104. Among other
reasons, the commenter requested this change in
[[Page 36172]]
order to avoid ``the confusion that may result from straining the
normal meaning of the words `employee' and `former employee' to reach
(for one narrow purpose) a constitutional officer.''
OGE agrees that this recommendation would add clarity.
Consequently, this final rule removes the references to the Vice
President in the various definitions from Sec. 2641.104 as proposed,
and adds a new Sec. 2641.106 to the general provisions in subpart A of
part 2641. Following the language proposed by the commenter, OGE has
added the new Sec. 2641.106, titled ``Applicability of certain
provisions to Vice President,'' which reads: ``Subsections 207(d)
(relating to restrictions on very senior personnel) and 207(f)
(restrictions with regard to foreign entities) of title 18, United
States Code, apply to a Vice President, to the same extent as they
apply to employees and former employees covered by those provisions.
See Sec. Sec. 2641.205 and 2641.206. There are no other restrictions
in 18 U.S.C. 207 applicable to a Vice President.'' Nevertheless, OGE
has omitted one recommended phrase, which would have indicated that the
Vice President is not subject to any other restriction in part 2641:
For one thing, part 2641 itself does not impose any criminal
restrictions, and, furthermore, there are other provisions in part
2641, for example, the sections dealing with certain exemptions or
exceptions, that may be applicable to the Vice President.
The same commenter also recommended a new section governing certain
communications made by former employees at the request of the President
or the Vice President. The recommended new section would state that
whenever the President, in the performance of constitutional, statutory
or ceremonial duties, requests information or advice from a former
employee, the provision of such information or advice is made on behalf
of the United States or on behalf of the former employee himself or
herself and therefore is not prohibited by section 207. The recommended
provision would apply this same standard to requests from the Vice
President for information or advice, in aid of the President's
functions. In support of this proposal, the commenter cited the
President's ``constitutionally-based right to gather information to aid
the President in the performance of Presidential functions,'' including
the gathering of such information ``through the Vice President.''
OGE does not dispute the importance of the authority of the
President and the Vice President to gather information in the
performance of their constitutional duties. OGE also recognizes that
constitutional considerations may have a bearing on post-employment
issues in certain circumstances, including circumstances beyond those
described by the commenter. See, e.g., Conrad v. United Instruments,
988 F. Supp. 1223, 1226 (W.D. Wisc. 1997) (first amendment); U.S. v.
Martin, 39 F.Supp. 2d 1333 (D. Utah 1999) (sixth amendment). However,
OGE does not believe that anything in the post-employment regulations
should be viewed as determining, limiting, or otherwise addressing the
scope of the constitutional authority of the President or Vice
President. Such questions are beyond OGE's jurisdiction and the scope
of this rule, and OGE would have to leave such questions to the
guidance of the Department of Justice.
Subpart B--Prohibitions
Section 2641.201--Permanent Restriction
Section 2641.201(d)--Communication or Appearance
Five agencies raised concerns about the guidance in proposed Sec.
2641.201(d) concerning the meaning of the statutory term
``communication.'' Specifically, these agencies raised questions about
the concept, illustrated in example 5 to Sec. 2641.201(d) as proposed,
that a former employee can make a prohibited communication to the
Government through a third party intermediary, provided that the former
employee intends that the information be attributed to himself or
herself. Several of these agencies also raised similar concerns about
example 7 to proposed Sec. 2641.201(f), as well as the note following
proposed Sec. 2641.205(g) and the related example 5 to proposed Sec.
2641.205. Most of the commenters objected on the ground that these
proposed provisions blurred the distinction between permissible behind-
the-scenes assistance and prohibited contact with Government officials.
Some also objected on the ground that the analysis, particularly in
example 5 to proposed Sec. 2641.201(d), depended too much on
circumstantial evidence of the intent of the former employee that the
information be attributed to himself or herself. Two agencies
recommended that, if OGE were to retain any version of this third party
intermediary concept, it should at least adopt a simpler standard, such
as actual attribution by the third party (e.g., ``Mr. A told me to tell
you this''). Two other agencies also commented that the facts set out
in example 4 to Sec. 2641.201(d) as proposed--which deals with
circumstances in which a former employee prepares a grant application
and is listed as principal investigator--is difficult to reconcile with
the result in example 5.
As OGE pointed out in the preamble to the proposed rule, 68 FR
7850, 7852, 7860, the provisions cited above are based on an opinion
issued by the Office of Legal Counsel, Department of Justice,
Memorandum for Amy L. Comstock, Director, OGE, from Joseph R. Guerra,
Deputy Assistant Attorney General, OLC, January 19, 2001 (OLC Opinion),
available under ``Other Ethics Guidance, Conflict of Interest
Prosecution Surveys and OLC Opinions'' on OGE's Web site, http://
www.usoge.gov. Indeed, the facts of example 5 to proposed section
2641.201(d) are taken directly from the OLC Opinion, which several of
the commenters acknowledged. Although we do not doubt that the OLC
Opinion may make it somewhat more difficult to distinguish between
permissible behind-the-scenes assistance and prohibited communications,
we also think that it is more consistent with the purposes of section
207 to prohibit former employees from using third party intermediaries
to make their contacts for them under circumstances in which the former
employees intend to be recognized as the source of the information
conveyed. See OLC Opinion at 5 (``any attempt to draw bright line rules
would inevitably create artificial distinctions between equally
pernicious types of conduct''). With respect to the concern that the
circumstances in example 5 cannot sufficiently be distinguished from
example 4 or other common situations in which we have said that former
employees may engage in behind-the-scene activities, we believe that
example 5 to section 2641.201(d) contains enough significant facts to
make it clear that the former employee in that scenario does not intend
to limit herself to behind-the-scenes assistance but rather intends to
be identified as the real source of the communication. Accordingly, OGE
has not revised the cited examples in this final rule.
Finally, one agency proposed that the basic definition of
``communication'' in proposed Sec. 2641.201(d)(1) should not itself
contain any references to the former employee's intent that the
information be attributed to himself or herself, but that additional
numbered paragraphs be added to explain in more detail the relevance of
attribution under different circumstances. This agency was concerned
that the significance of the attribution principle might be lost
[[Page 36173]]
on readers if it were simply folded into the basic definition of
communication.
OGE has not changed the definition in the final rule. For one
thing, attribution is clearly part of the basic definition of
communication found in the OLC Opinion. See OLC Opinion at 4 (``we
conclude that a `communication' is the act of imparting or transmitting
information with the intent that the information be attributed to the
former official''). Moreover, we believe that proposed example 5
adequately illustrates the concept of attribution without further
complicating the basic definition in Sec. 2641.201(d)(1).
Section 2641.201(e)--Intent To Influence
OGE received nine substantive comments on the proposed treatment of
the statutory element of intent to influence, including five comments
from components of the Department of Defense that made similar or
identical recommendations.
Two agencies recommended that OGE use the word ``appreciable'' in
various places in proposed Sec. 2641.201(e)(2) and the accompanying
examples--which illustrate situations in which intent to influence is
not present--in order to emphasize, as proposed Sec.
2641.201(e)(1)(ii) already does, that the representational activity
must not merely present the ``potential'' for dispute but that such
potential must be appreciable. Along similar lines, another agency
recommended that OGE add the word ``reasonably'' before the proposed
phrase ``involves an appreciable element of actual or potential dispute
or controversy'' in Sec. 2641.201(e)(1)(ii), which describes the basic
concept of intent to influence. OGE has not adopted either
recommendation in this final rule. The word ``appreciable'' already
appears in the provision that defines the basic concept of intent to
influence, Sec. 2641.201(e)(1)(ii), and we think it is unnecessary to
repeat the entire definition of intent to influence in every subsequent
discussion. Furthermore, we think that insertion of the word
``reasonably'' would add little to the concept of ``appreciable element
of actual or potential dispute or controversy,'' because the ordinary
meaning of ``appreciable'' sufficiently limits the intended scope of
the phrase. See Webster's Third New International Dictionary 105 (1986)
(appreciable means ``capable of being perceived and recognized'').
Two agencies commented on proposed Sec. 2641.201(e)(2)(vi), which
recognizes certain circumstances in which there is no intent to
influence during the course of a routine Government site visit to non-
Federal premises used by actual or prospective contractors or grantees.
Both agencies recommended that the provision not be limited to non-
Federal premises, in recognition of the fact that many Government
contracts are performed in Government space. OGE has not adopted this
recommendation either. Section 2641.201(e)(2)(vi), both as proposed and
in this final rule, restates a provision that has been in the prior
section 207 regulations, in virtually the same form, for over two
decades. See 5 CFR 2637.201(b)(4). This provision was intended to cover
communications ``strictly for the Government's convenience'' given the
practical realities of site visits. OGE Informal Advisory Letter 81 x
35. Government officials who have gone to the effort to conduct a
routine site visit should not have to worry about cutting short their
trip or curtailing their activities simply because they happen to
encounter a former employee at the site. Where performance of the
contract is to occur on Government premises, however, the Government's
practical interests in scheduling site visits are not implicated.
Moreover, where the former employee is present on Government premises
on an ongoing basis to perform the contract, one can envision more
potential for a wider range of communications than would be the case in
an occasional site visit. Of course, the fact that a particular set of
circumstances may not fall directly within one of the specific types of
situations identified in the regulations as involving no intent to
influence does not mean that the element of intent to influence is
necessarily present. The situations addressed in Sec. 2641.201(e)(2)
are not intended to be exclusive, and other situations must be
addressed in light of all the relevant facts.
Another agency commented on Sec. 2641.201(e)(4) of the proposed
rule, which provides guidance on when an employee's mere
``appearance,'' even in the absence of a substantive ``communication,''
can be viewed as involving an intent to influence the Government. This
commenter objected that the rule was too vague because it simply lists
a set of factors that may be considered on a case-by-case basis, rather
than a definitive set of circumstances that must be present for the
statute to be implicated. OGE does not agree that interpretive guidance
is fatally vague just because it provides factors to be considered in
light of the totality of the circumstances. With a statutory concept
such as intent to influence, any analysis unavoidably must involve the
particularized consideration of all the relevant facts. See, e.g.,
United States v. Schaltenbrand, 930 F.2d 1554, 1560-61 (11th Cir. 1991)
(reviewing entire record to determine whether former employee could be
said to have acted as agent of contractor in meeting with Government).
Therefore, this section has not been modified in the final rule OGE is
now promulgating.
Finally, six commenters, including five DOD components, commented
on the application of proposed section 2641.201(e) to communications
made by former employees during the course of performing a Government
contract. The five DOD components made substantially similar proposals
to exclude from the concept of intent to influence all communications
required in order to perform a Government contract. All of the
commenters on this subject indicated that the Government sometimes
needs to hear the expert advice of former employees with respect to
contracts in which they participated as a Government employee, even
though the former employees may have gone to work for contractors on
the same contract in which they participated personally and
substantially for the Government. (Apart from issues under the intent
to influence element, the subject of contacts made during the
performance of contracts also raises issues under the ``on behalf of
another person'' element, see Sec. 2641.201(g), and the exception for
communications on behalf of the United States, see Sec. 2641.301(a),
both of which are discussed below.) Some of the commenters specifically
mentioned the prospect of increasing privatization of Government
functions, for example, through public-private competitions under OMB
Circular A-76, which may result in increasing numbers of former
Government employees working for Government contractors on projects in
which the former employees had prior Government involvement.
OGE has dealt with similar questions many times over the years in
published letters and other informal advice. For example, in OGE
Informal Advisory Letter 99 x 19, we concluded that, although certain
routine or ministerial communications made during contract performance
may lack the requisite intent to influence, many contract performance
communications may involve the potential for improper influence because
the contractor and the Government have potentially differing views or
interests with respect to the matter being discussed. See also OGE
Informal Advisory Letter 03 x 6. The
[[Page 36174]]
fact that a particular Government contract may require certain
communications between the Government and the contractor does not
eliminate this problem, as we noted in an early OGE advisory letter:
``The very terms of the contract between [the Department] and [the
Corporation] require communications between the two entities. Their
personnel must confer on the terms of subcontracts which [the
Corporation] has authority to recommend or award depending on the size
of the subcontract. These communications, contractually appropriate,
would become legally prohibited in most instances * * * if [the former
employee] should perform these services for [the Corporation]. The
purpose of the post-employment provisions is to avoid the `revolving
door' syndrome inherent in which are the potentialities for the use of
inside information and for continuing personal influence.'' OGE
Informal Advisory Letter 81 x 35; see also OGE Informal Advisory
Article 95 x 10; 2 Op. O.L.C. 313 (1978).
We also think it is significant that two related statutes, unlike
section 207, contain express exceptions for certain representational
activity during the performance of Government contracts. Sections 203
and 205 of title 18, which were enacted originally as part of the same
legislation as section 207, expressly exempt certain representational
activity ``in the performance of work under a grant by, or a contract
with or for the benefit of, the United States.'' 18 U.S.C. 203(e),
205(f). These provisions indicate that Congress knew how to exempt,
explicitly, representational activity in the performance of contracts.
Perhaps more telling, these provisions also indicate that Congress
carefully imposed very significant limitations and safeguards when it
did choose to exempt such activity. See section 203(e) (applicable only
to special Government employees; requires certification from agency
head that activity is in national interest; requires publication of
certification in Federal Register); section 205(f) (same). It is
difficult to believe that Congress would have intended a broad
exclusion in section 207 without even mentioning the subject, let alone
without imposing any limits on the circumstances under which such
activity would be permitted.
The proposition that Government contractors may have their own
interests in recommending certain courses of action as opposed to
others should not be surprising. This concern is even illustrated by
newspaper headlines. See Ariana Eunjung Cha, Shuttle Safety vs. Profit:
Contractors Had `Potential' Conflict, Washington Post, August 27, 2003,
at A13. In some cases, for example, it may be more efficient or
economical for a contractor to develop and communicate one option for
the Government, even though the Government's interests might best be
served by a fuller development of a range of alternatives, as discussed
in example 5 following Sec. 2641.201(e)(2). In any event, as we
indicated in advisory opinion 99 x 19, this is not a subject with
respect to which OGE can or should make broad pronouncements of safe
harbor in the abstract. Therefore, we decline to include a broad
exception for all communications required in the course of performing
Government contracts and are not modifying this section in the final
rule. We note, as we did in the preamble to the proposed rule, that
some contract performance communications may well fall within other
categories described in Sec. 2641.201(e)(2), as illustrated by
examples 3 and 7. See 68 Federal Register at 7850.
Several commenters, recognizing that OGE might not be in a position
to read a broad exclusion for contract performance communications into
the statute, asked that OGE at least consider seeking legislation that
would create an exception. OGE appreciates these comments and in fact
has considered the merits of similar proposals in the context of the
agency's review of the effectiveness of the conflict of interest
statutes, which is discussed above under ``Legislative
Recommendations.''
Finally, in this final rulemaking OGE has made minor changes to
example 1 following section 2641.201(e)(3), in order to better
illustrate the concept that changes in circumstances during the course
of an originally permissible communication or appearance may render
further contact impermissible.
Section 2641.201(f)--To or Before an Employee of the United States
One agency objected to the conclusion, in example 7 following
proposed Sec. 2641.201(f), that a communication conveyed to a Federal
employee through an intermediary who is not a Federal employee would be
covered by 18 U.S.C. 207. This issue is addressed above, under
``Section 2641.201(d)--Communication or Appearance,'' in the discussion
of communications through a ``third party intermediary.'' OGE would add
only that the idea of communications conveyed by means of another
person is quite commonplace, as people routinely convey instructions or
requests through a messenger of one kind or another. Therefore, OGE has
not followed this agency's recommendation to revise example 7 in the
final rule. For similar reasons, OGE does not believe it is necessary,
as suggested by this agency and another commenter, to add a reference
to third parties in the text of Sec. 2641.201(f)(2), especially as
example 7 amply illustrates the concept. It should be remembered also
that the definition of ``communication,'' in Sec. 2641.201(d)(1),
expressly requires an intent on the part of the former employee that
the message be attributed to himself or herself, and example 5
following that provision illustrates this attribution principle in the
context of a communication through a third party.
One agency also recommended that example 7 be revised to emphasize
that the communication must not only be directed to, but also received
by, an agency employee. OGE does not believe this change is necessary
either. The basic description of the statutory element, in Sec.
2641.201(f)(2), both as proposed and now final, already uses the
language ``[d]irected to and received by,'' and the facts recited in
example 7 make clear that the information was conveyed to ``the project
supervisor, who is an agency employee.''
The same agency thought that proposed Sec. 2641.201(f), which
includes contacts with independent agencies in the legislative and
judicial branches, was inconsistent with the definition of ``agency''
in Sec. 2641.104, which does not include such legislative and judicial
agencies. OGE does not believe that the provisions are inconsistent or
should be revised. Although the definition of ``agency'' in proposed
and now final Sec. 2641.104 excludes agencies in the legislative and
judicial branches, the relevant provision in Sec. 2641.201(f)(1)
expressly covers more than an agency as defined in Sec. 2641.104: In
subparagraph (i), it includes any ``Agency,'' but in subparagraph (ii)
it also includes any ``Independent agency in the * * * legislative, or
judicial branch.'' This is necessary in order to emphasize that
representational contacts with independent agencies of the legislative
or judicial branches are covered by section 207, which is the point of
subparagraph (ii). See 5 Op. O.L.C. 194 (1981) (related statute, 18
U.S.C. 205, covers representational contact with agencies of
legislative branch).
Another agency commented that example 3 following Sec. 2641.201(f)
as proposed should state that the former employee in that scenario
knows that one of the persons to which she is directing her
communications is a Government employee. The agency stated that the
example as written does
[[Page 36175]]
not account for the knowledge element in section 207(a). OGE has not
followed this recommendation. As discussed elsewhere, it is not OGE's
intent to illustrate every element of the statute in each example in
the rule, as this would be impractical and would detract from the focus
of the examples on individual elements. Moreover, OGE has not attempted
to define the general scienter element in any of the prohibitions in
section 207. Questions about whether a particular representational
activity involves the requisite degree of scienter to warrant
prosecution are usually addressed to the Department of Justice.
Finally, in this final rule OGE has made minor modifications to two
examples following Sec. 2641.201(f) as proposed. OGE has modified
example 5 for reasons discussed below under ``Treaties and Trade
Agreements.'' OGE also has modified example 6 by coordinating it with
the facts of the previous example, which not only illustrates the
relationship among subparagraphs (i), (ii), and (iii) of Sec.
2641.201(f)(3), but also avoids extraneous issues pertaining to base
closure decisions.
Section 2641.201(g)--On Behalf of Any Other Person
One agency recommended that OGE create an ``exception'' in proposed
Sec. 2641.201(g) to permit former employees to make certain contacts
during the performance of a Government contract. According to this
agency, a former employee who is now employed by a Government
contractor should be permitted to make communications and appearances
before the Government during the performance of the contract, provided
that the contractor exerts no control over the former employee in the
making of the communication or appearance. Under such circumstances,
the commenter thought ``it is at least arguable that the communication
is not made on behalf of'' the contractor.
OGE has not followed this recommendation in the final rule. A
contractor's employee is fulfilling his or her duties as an employee
when performing the work of the contractor. Under such circumstances,
OGE cannot avoid the conclusion that the contractor's employee is
acting on behalf of his or her employer. See, e.g., Restatement of the
Law (Second) Agency section 2(2) (1958) (servant is agent employed by
master to perform service in his affairs whose physical conduct in
performance of service is controlled or is subject to right to control
by master); id., comment a (servant is species of agent).
Another agency recommended that OGE revise example 3 following
proposed section 2641.201(g) in order to emphasize that it is primarily
the element of ``control'' by another that is lacking. OGE agrees and
has amended the final sentence in the example in the final rule
accordingly.
Section 2641.201(h)--Particular Matter Involving Specific Parties
Basic Concept
OGE received seven comments on proposed Sec. 2641.201(h)(1), which
articulates the basic statutory concept of ``particular matter
involving specific parties.'' Six agencies objected to the use of the
phrase ``activity or undertaking'' in the last sentence of paragraph
(1): ``These matters involve a specific activity or undertaking
affecting the legal rights of the parties or an isolatable transaction
or related set of transactions between identified parties, such as a
specific contract, grant, license, product approval application,
enforcement action, administrative adjudication, or court case.'' These
commenters perceived this phrase as an expansion beyond the settled
understanding of the scope of the concept of particular matter
involving specific parties. As one commenter pointed out, the
corresponding provision in the old post-employment regulations lacks
this phrase and instead reads: ``Such a matter typically involves a
specific proceeding affecting the legal rights of the parties or an
isolatable transaction or related set of transactions between
identifiable parties.'' 5 CFR 2637.201(c)(1). In the view of these
commenters, the proposed rule reflects a shift in focus from specific
``proceedings'' to a more expansive, and less well-defined, category of
``activities or undertakings.''
It was not OGE's intention to expand, narrow, or otherwise alter
the accepted meaning of a statutory concept that has been fundamental
not only to section 207 but also to many other provisions in the
conflict of interest laws and ethics regulations for many years.
However, in order to dispel any possible confusion concerning the
intent of the rule, OGE is replacing the phrase, ``involve a specific
activity or undertaking,'' with the language found in the former post-
employment regulations (as well as in OGE's current financial conflict
of interest regulations at 5 CFR 2640.102(l)): ``typically involves a
specific proceeding.'' Nevertheless, in making this change, OGE
emphasizes that it does not necessarily agree with several commenters
who argued that the statutory definition of ``particular matter,'' in
18 U.S.C. 207(i)(3), was intended to limit the application of section
207(a) to those types of matters that are specifically enumerated in
that statutory definition. Nothing in the legislative history of the
Ethics Reform Act of 1989, which added the definition, suggests any
intent to contract the scope of section 207(a). More important, the
definition starts with the phrase ``the term `particular matter'
includes * * *'' 18 U.S.C. 207(i)(3) (emphasis added). The word
``includes,'' in a statutory definition, is usually a term of
enlargement, rather than limitation, and indicates that other items are
includable even if not specifically enumerated. See Norman J. Singer,
Sutherland on Statutory Construction 231 (2000).
Four commenters also raised issues concerning the relationship
between the concept of particular matter involving specific parties and
the broader concept of ``particular matter.'' These commenters made
several related points: The treatment of particular matter involving
specific parties should not be more expansive than the statutory
definition of particular matter in 18 U.S.C. 207(i)(3); OGE should not
mix the concept of particular matter with the narrower category of
particular matters involving specific parties; and the rule should make
clear that general policy matters are not covered by the concept of
particular matters involving specific parties.
Although OGE understands these concerns, some of the commenters'
proposals appear mutually inconsistent. For example, if OGE is to
ensure that the description of particular matters involving specific
parties is no broader than the statutory definition of ``particular
matter'' in section 207(i)(3), it must somehow incorporate that
statutory definition into the regulatory definition of particular
matter involving specific parties. That is why the second sentence in
paragraph (h)(1) begins with the definition of particular matter found
in section 207(i)(3). However, in order to emphasize that this
statutory category of particular matters is further narrowed by the
addition of the phrase ``involving a specific party or parties'' in
section 207(a), the second sentence of Sec. 2641.201(h)(1), goes on to
state that ``such particular matters also must involve a specific party
or parties in order to fall within the prohibition'' (emphasis added).
By drafting the rule in this way, it was OGE's intent to remain
faithful to the statutory definition of ``particular matter'' while at
the same time pointing out that the phrase is further limited when used
in section 207(a) because of the additional requirement that the
particular matter
[[Page 36176]]
involve specific parties. Furthermore, OGE thinks it unlikely that
readers might be misled to think that policy matters of general
applicability would be covered by section 207(a), because the very next
paragraph is pointedly titled ``Matters of general applicability not
covered,'' and it expressly excludes ``[l]egislation or rulemaking of
general applicability and the formulation of general policies,
standards or objectives, or other matters of general applicability.''
Sec. 2641.201(h)(2). In response to one comment specifically objecting
to the use of the term ``rulemaking'' in paragraph (h)(1), OGE notes,
first, that the statutory definition in 18 U.S.C. 207(i)(3) itself uses
this word, and, second, that it has long been accepted that certain
rulemakings, although rare, may be so focused on the rights of
specifically identified parties as to fall within the ambit of section
207(a), even though most rulemaking proceedings are matters of general
applicability beyond the scope of section 207(a). See OGE Informal
Advisory Letter 96 x 7, n. 1. In response to all of the comments noted
above, however, OGE has made one change in the final rule in order to
emphasize the ``specific party'' limitation: the second sentence of
paragraph (h)(1), while still starting with the broader statutory
definition of ``particular matter,'' goes on to specify that ``only''
those particular matters that involve specific parties are covered by
section 207(a)(1).
Treaties and Trade Agreements
One agency, whose comment was expressly endorsed by another agency,
commented on proposed example 3 following Sec. 2641.201(h)(1), which
concludes that a treaty between the United States and a foreign
government is a particular matter involving specific parties. See also
proposed example 5 to Sec. 2641.201(f); proposed example 1 to Sec.
2641.202(j) (official responsibility for a class of treaty
negotiations). The commenter objected that example 3 as proposed
implies that all treaties are particular matters involving specific
parties, even though treaties may involve the adoption of broad
national policies that do not focus on the rights of any specific
individual or non-sovereign organization. The basic argument is that
treaties often are more analogous to legislation and rulemaking of
general applicability, which are not particular matters involving
specific parties, than to contracts, which are. Although not the focus
of this comment, international trade agreements also raise similar
concerns, and OGE did receive one comment from another agency, after
the close of the comment period, recommending that OGE change the
analysis in proposed example 3 as it would apply to international trade
agreements.
The conclusion in proposed example 3 is based largely on a 1979
opinion issued to the Department of State by the Office of Legal
Counsel. See 3 Op. O.L.C. 373 (1979). This opinion, which held that the
Panama Canal Treaty was a particular matter involving specific parties,
expressly rejected the argument that treaties are more analogous to
legislation and general rulemaking than to contracts: ``Unlike general
legislation or rulemaking, treaties are intended to affect specific
participating parties, namely their signatories. In form, treaties
closely resemble contracts, which are expressly covered by the statute.
They are signed after the type of quasi-adversarial proceedings or
negotiations that precede or surround the other types of `particular
matters' enumerated in section 207(a). The phrase `involving a specific
party or parties' has been read to limit the section's concern to
`discrete and isolatable transactions between identifiable parties.' *
* * Such a characterization aptly describes the treaty negotiation
process.'' Id. at 375. Relying on this same analysis, OGE later
published an opinion concluding that ``bilateral trade agreements,''
like bilateral treaties, normally are to be viewed as particular
matters involving specific parties. See OGE Informal Advisory Letter 90
x 7.
The commenting agency, however, adduces arguments which it suggests
may not have been considered in the 1979 OLC opinion. The agency
contends that treaties have a status under international law akin to
the status of domestic legislation, in that treaties are the ``primary
way of creating international legal regimes,'' in the absence of any
international legislative body comparable to the U.S. Congress that
could create international legislation. The agency also points out that
the U.S. Constitution expressly recognizes the status of treaties as a
source of law equivalent to Federal legislation: ``This Constitution,
and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the Supreme Law of the Land *
* *.'' United States Constitution, Art. VI, cl. 2. In this connection,
OGE's own examination indicates that courts have long held that
treaties are on the same footing with Federal legislation and in fact
supersede prior acts of Congress. See Foster v. Neilson, 27 U.S. 253
(1829); Whitney v. Robertson, 124 U.S. 190 (1888); Alvarez y Sanchez v.
U.S., 216 U.S. 167 (1910). Finally, the agency cites a more recent
unpublished OLC opinion, which concluded that certain deliberations,
decisions and actions (including discussions with foreign governments)
in response to the 1990 invasion of Kuwait by Iraq were not
``particular matters.'' Based on these arguments, the agency maintains
that treaties should at least be evaluated on a case-by-case basis to
determine whether they are particular matters involving specific
parties.
Although this commenter did not suggest specific criteria for
making such determinations, OGE believes it is possible to articulate
criteria that could be applied on a case-by-case basis. For example,
one might argue that treaties that are narrowly focused on specific
properties or territories are more closely akin to contractual
exchanges of property. Cf. OGE 96 x 7 (although rulemaking usually does
not involve parties, rule establishing health and safety standards for
operations at a specific site was party matter). Arguably, this was the
case with the Panama Canal treaty itself. By contrast, treaties
addressing more general sovereign requirements, such as extradition
procedures, might be viewed as more akin to general legislation.
In the case of trade agreements, we believe that similar
considerations can apply. Some trade agreements, such as the Uruguay
Round Agreements under the auspices of the General Agreement on Tariffs
and Trade, may be ``adopted by the passage of implementing legislation
by both Houses of Congress, together with signing by the President.''
Opinion of Walter Dellinger, Assistant Attorney General, Office of
Legal Counsel, November 22, 1994, available at http://www.usdoj.gov/
olc/gatt.htm. In determining whether trade agreements are more akin to
legislation of general application than to contracts, OGE thinks that
relevant criteria could include such factors as whether the agreement
addresses a wide range of economic sectors and issues. In this
connection, OGE notes the difficulties that some agency ethics
officials have experienced in the past in determining whether such
matters as the various phases of World Trade Organization negotiations
over a wide range of subjects are particular matters involving specific
parties and, if so, how to define the scope or limits of any such
matters. These matters often involve multi-faceted discussions among
representatives of numerous countries in a decision-making process that
more
[[Page 36177]]
closely resembles legislative policymaking than contracting.
Therefore, OGE is adding a new sentence, at the end of Sec.
2641.201(h)(2) of the final rule, to provide guidance with respect to
international agreements between sovereigns, such as treaties and trade
agreements. In this final rule, OGE has moved proposed example 3
following Sec. 2641.201(h)(1) to be a new example 7 following Sec.
2641.201(h)(2), and the example text has been revised to follow more
closely the facts in the OLC Panama Canal opinion. OGE also has added
new example 8 following Sec. 2641.201(h)(2) and has made related
revisions to example 5 following Sec. 2641.201(f) and example 1
following Sec. 2641.202(j).
Parties During Preliminary or Informal Stages
Three agencies commented on the proposed guidance in Sec.
2641.201(h)(4) concerning when a particular matter first may be said to
involve specific parties. The comments particularly concerned the
discussion of contracts in the last sentence of proposed paragraph
(h)(4), as well as examples 4 and 5. The proposed rule stated that
matters such as contracts ``ordinarily'' involve specific parties when
expressions of interest are first received by the Government, but that,
``in unusual circumstances,'' a prospective contract may involve
specific parties even earlier ``if there are sufficient indicia that
the Government has specifically identified a party.'' Two agencies
objected that this provision and the accompanying examples do not
provide adequate guidance as to what might constitute ``sufficient
indicia'' that the Government has identified parties prior to the
expression of interest by those parties. These agencies believed that
ethics officials and others would be led to conclude that a potential
contract involves specific parties virtually any time the Government
has conducted purely internal discussions about the possibility that a
particular potential contractor might be particularly qualified to
perform the work. In the view of these commenters, it will often be the
case that the Government can identify potential contractors who might
bid and who might be particularly well-qualified, and thus the
``ordinary'' rule that the Government must receive expressions of
interest would be swallowed by the exception. Another agency indicated
that sole source procurements are a good example of a contract that
might be said to involve specific parties even before an expression of
interest is received. Along the same lines, another agency suggested
that internal discussions about a potential sole source procurement
would be a clearer example than proposed example 5 of a situation where
specific parties have been identified prior to any expression of
interest by a prospective contractor.
OGE did not mean to suggest in the proposed rule that parties are
involved in a potential contract merely because the Government might be
able to identify potentially qualified bidders in advance. OGE
intended, in proposed example 5, to provide a number of factors
indicating that a particular potential contractor was more directly
involved because of work on a prior contract that is ``intimately
related'' to the potential new contract. OGE recognizes, nonetheless,
that the provision may be difficult to apply. Consequently, OGE is
making two changes to the proposed rule in this final rulemaking.
First, OGE is replacing proposed example 5 with a new example that
deals specifically with a sole source procurement, which is determined
to be a matter involving specific parties even prior to any expression
of interest on the part of the prospective sole source contractor being
considered internally by the Government. Second, OGE is making minor
revisions to the last sentence of Sec. 2641.201(h)(4) as proposed, in
order to refer to sole source procurements, as well as other
procurements (and prospective grants and agreements) in which the
Government explicitly may identify a specific party prior to the
receipt of a proposal or expression of interest. By making these
changes, OGE does not mean to suggest that a sole source procurement is
necessarily the only set of circumstances in which specific parties may
be identified prior to an expression of interest in the contract, but
it is probably the one most often encountered.
Same Particular Matter Involving Specific Parties
Eight agencies commented on proposed Sec. 2641.201(h)(5), which
provides guidance on determining whether two particular matters
involving specific parties are the same.
Five DOD agencies raised related questions concerning the treatment
of multi-contract programs. By ``multi-contract program,'' the
commenters appear to mean a large Government program, such as the
development of a new generation of military aircraft, that is supported
by a number of contracts to develop discrete aspects of the project,
such as separate contracts to develop the engine, body, electronics,
etc. In the view of these agencies, each of the separate contracts
should be viewed as a separate particular matter involving specific
parties, rather than simply as parts of the same project, viewed as one
comprehensive particular matter involving specific parties.
Depending on how the project is structured, OGE agrees with this
point. OGE does not necessarily equate ``Government program'' with
``particular matter involving specific parties.'' For one thing, some
Government programs are not even, in and of themselves, particular
matters involving specific parties. For example, a Government program
to understand the causes of a particular disease is not, in and of
itself, a particular matter involving specific parties, even though the
program may involve several grants, contracts or cooperative agreements
all designed to support or implement different aspects of the overall
program. See, e.g., OGE Informal Advisory Letter 80 x 9; 5 CFR
2637.201(c)(1) (example 4). Furthermore, OGE generally views separate
contracts as being separate particular matters involving specific
parties, absent either some indication that one contract directly
contemplated the other contract or other circumstances indicating that
both contracts are really part of the same proceeding involving
specific parties. See id.; 5 CFR 2637.201(c)(4) (example 1). Although a
number of commenters raised questions about whether OGE's 2002 Yucca
Mountain opinion has opened the door to a general ``doctrine of
convergence,'' whereby multiple contracts in support of a Government
project can be viewed as being merged into a single ``super contract,''
OGE does not agree with that interpretation of the opinion: We
concluded there that all of the contracts in that case were in support
of one adjudicatory proceeding, and work produced under those contracts
was directly involved in the ensuing adjudication, such that former
employees who participated personally and substantially in the support
contracts could not be permitted to represent private parties in the
adjudication. See OGE Informal Advisory Letter 02 x 5, at 9 and n. 7.
Not only did Yucca Mountain involve a very unique set of circumstances,
but nothing in that opinion indicates that separate contracts must be
viewed as being part of the same particular matter involving specific
parties where those contracts are not directly in support of the same
proceeding involving specific parties.
Nevertheless, it is not clear from the examples proffered by the
commenters exactly what the relationship is between the separate
contracts involved in the particular Government programs. If, for
[[Page 36178]]
example, the so-called ``super contract'' is a prime contract involving
oversight of several subcontracts, it could be problematic to view the
subcontracts as being separate particular matters from the prime
contract, depending on the circumstances. Cf. OGE Informal Advisory
Letter 82 x 2. Because the exact scenarios are not specified, and the
same particular matter determination would have to depend on an
examination of the circumstances of each situation, OGE does not
believe this area is ripe for any general standard in the post-
employment regulations at this time.
However, in response to a related comment from another agency, OGE
is making one change in the final rule. This commenter recommended that
OGE add a new sentence at the end of proposed Sec. 2641.201(h)(5)
indicating that new contracts generally will be viewed as being
separate particular matters from each other. The same agency also
recommended the addition of an example illustrating that a new
contract, even if awarded to an existing contractor with no major
changes to the prior contract, is a new particular matter. OGE
generally agrees with this recommendation. Therefore, OGE has
reorganized Sec. 2641.201(h)(5) in this final rule by designating the
first part of the text as proposed, dealing with the same particular
matter generally, as new subparagraph (i) and by creating a new
subparagraph (ii), emphasizing several considerations especially
relevant in the case of contracts and other agreements. The new
subparagraph adds, among other things, the following: ``Generally,
successive or otherwise separate contracts (or other agreements) will
be viewed as different matters from each other, absent some indication
that one contract (or other agreement) contemplated the other or that
both are in support of the same specific proceeding.'' OGE thought it
necessary to include the qualifying clause at the end of the latter
sentence because OGE has encountered various situations in which an
initial contract contemplated additional contracts, see OGE 80 x 9, one
contract was in support of agency operations in connection with another
contract, see OGE 99 x 19, or successive support contracts were deemed
inseparable from the same underlying adjudication, see OGE 02 x 5. We
also agree that a new example 2 illustrating the more typical
``successive contract'' question would be helpful, and we are including
the recommended example in the final rule, with certain modifications.
The new subparagraph (ii) also addresses another related issue that
was raised by several commenters: The treatment of what some have
called ``umbrella'' contracts, which involve multiple task orders or
delivery orders placed against an existing contract. Several DOD
agencies referred to the procurement mechanism for indefinite delivery
contracts, outlined in the Federal Acquisition Regulation at 48 CFR
16.500-16.506, as one example. As described by these agencies, such
contracts often involve a ``broad scope of work encompassing a wide
geographical area.'' Under such contracts, according to these agencies,
``the general nature of the work (e.g., environmental remediation) and
contract terms will remain the same,'' while ``the precise timing,
quantity, location, and specific performance of the work may vary from
delivery order to delivery order.'' In at least some cases, the actual
scope of work under the task or delivery orders is separately
negotiated by different agency offices with different needs, sometimes
even with multiple contractors competing for work under the same task
or delivery order.
In response to these comments, OGE has added subparagraph (ii)(c)
to the final version of Sec. 2641.201(h)(5). This provision states
OGE's general view that a contract is almost always a single particular
matter involving specific parties. However, the provision recognizes
that, in compelling circumstances, an umbrella contract may be of such
magnitude and cover such a large scope of work that it could be divided
into individual particular matters involving specific parties.
Accordingly, the provision acknowledges that agencies may determine
that such a contract is divisible into separate particular matters
involving specific parties where articulated lines of division exist.
The regulation lists various considerations for agencies to take into
account when applying the previously described factors in determining
whether two particular matters involving specific parties are the same.
These agency determinations may be made in consultation with OGE and,
if more than one agency is involved, other affected agencies.
OGE wants to emphasize that the treatment of certain large umbrella
contracts under this rule is a special case, owing to the use of
distinct task or delivery orders that sometimes can involve very
different circumstances. In this connection, it is also relevant that
individual task or delivery orders sometimes are viewed as having the
attributes of contracts in and of themselves. See, e.g., Comptroller
General Decisions B-278404.2 (1998) (task orders are ``contracts''
within the overall contract, under the FAR definition of contract at 48
CFR 2.101); B-277979 (1998) (delivery order is a ``contract'' under FAR
definition of contract). Therefore, nothing in this provision should be
taken as authority for dividing contracts generally, or for dividing
other kinds of particular matters involving specific parties, such as
lawsuits or enforcement actions.
New examples 7 and 8 have been added to Sec. 2641.201(h)(5) of the
final rule to illustrate situations in which it would be justifiable
for an agency to make the determination that an umbrella contract
should be divided into individual particular matters involving specific
parties. Example 7, the substance of which was taken from submitted
comments, also includes a caution that anyone participating personally
and substantially in the overall contract will be deemed to have also
participated personally and substantially in all particular matters
involving specific parties that result from an agency determination to
divide such contract. The basis for this conclusion is that each task
or delivery order is subject to the terms and conditions of the overall
contract. See, e.g., 48 CFR 52.216-18.
Three agencies proposed identical language for a new example to
illustrate that a contract ``may become a different particular matter
involving specific parties as a result of changes in the work to be
performed under the contract, not as a result of a specific milestone,
such as a contract modification.'' OGE has not made the recommended
change in the final rule. OGE already has provided several
``contracting'' examples following Sec. 2641.201(h)(5). The examples
cannot illustrate every type of contract issue that may arise under
that section, nor are those examples that are included intended to be
exhaustive. Another agency proposed a fact-specific and agency-specific
example to illustrate when two proceedings related to antitrust issues
are to be viewed as the same particular matter. Again, OGE believes
that an additional example is unnecessary at this time, in view of the
relatively large number of examples already included.
One agency recommended that re-numbered example 6 (proposed example
5), which concerns the relationship between certain wiretap
applications and subsequent prosecutions, be rewritten with the
assistance of the Department of Justice in order to make the example
more clear and detailed. OGE has not changed the example. This example,
in its present
[[Page 36179]]
form, has been in the prior post-employment regulations for over two
decades, and we are not aware that it has created any particular
difficulties during that time. See 5 CFR 2637.201(c)(4) (example 2).
Moreover, the prior post-employment regulations, like the present
regulations in part 2641, were developed in consultation with the
Department of Justice. See 5 U.S.C. app. section 402(b)(2); Executive
Order 12731, section 201(c) (1990); 5 CFR 2637.101(b). Also in
connection with example 6, we note that another agency recommended that
OGE provide a new example following proposed Sec. 2641.201(h)(3) to
illustrate that the same parties need not always be present for a
matter to be deemed the same particular matter involving specific
parties. We believe that example 6 to Sec. 2641.201(h)(5) already
illustrates this point, and, in fact, the example recommended by this
agency is very similar to example 6. Therefore, we are not including
the recommended new example in the final rule.
Section 2641.201(i)--Personal and Substantial Participation
OGE received several comments on aspects of the proposed provision
dealing with personal and substantial participation. One agency thought
it was potentially confusing to include the phrase, ``to purposefully
forbear in order to affect the outcome of a matter,'' in the definition
of participation. See proposed Sec. 2641.201(i)(1). The agency thought
that this language might suggest that every act of forbearance,
including recusal from a matter, could constitute personal and
substantial participation in a matter. OGE has not changed the text of
proposed Sec. 2641.201(i)(1) in adopting it as final. For one thing,
the prior post-employment rule had similar language concerning the
subject of inaction, and we are not aware that this language created
any particular confusion over the last two decades. See 5 CFR
2637.201(d)(3). Moreover, the proposed rule makes clear that definition
includes only ``purposeful'' forbearance with the object to ``affect
the outcome of the matter,'' which plainly does not include every kind
of inaction. OGE also does not believe that such purposeful forbearance
reasonably can be confused with recusal, as the latter constitutes the
removal of the employee from a matter, whereas the former involves
intentional inaction in order to affect a matter to which an employee
remains assigned. At the recommendation of this agency, however, OGE
has provided a new example to this section in the final rule to
illustrate what is meant by purposeful forbearance to affect the
outcome of a matter. New example 7 pertains to the director of an
office who must personally sign off on every application for a certain
type of agency assistance. A particular application comes across her
desk, but she intentionally takes no action on it because of her belief
that the application may raise difficult policy concerns for her agency
at this time. As a consequence of her inaction, resolution of the
application is deferred indefinitely. The example concludes that the
employee has participated personally and substantially in the matter.
Another agency commented that example 2 following proposed Sec.
2641.201(i) did not contain sufficient facts to support the conclusion
that the attorney in that scenario, who provided advice concerning
discovery strategy in a lawsuit, participated substantially in that
matter. OGE does not believe that further detail is needed and has not
modified the text of the example in this final rule. Advice concerning
discovery strategy requires the exercise of discretion and professional
judgment and does not concern an aspect that is merely peripheral to a
lawsuit, but rather pertains to an integral and important part of the
litigation process.
One agency commented on example 4, which concludes that a
supervisor did not participate in any particular matter merely by
checking on the status of a subordinate's work on all matters of a
certain type without commenting on any particular matter. The agency
recommended that OGE state more specifically that the supervisor did
not participate ``substantially'' in any particular matter. OGE agrees
that the agency's recommendation more fully describes the application
of the statutory element and has revised the wording of the example
accordingly.
Section 2641.201(j)--U.S. Is Party or Has Direct and Substantial
Interest
One agency commented on OGE's proposed treatment of what it means
for the United States to have a direct and substantial interest. This
agency stated that it frequently must advise former employees
concerning representational activity in various antitrust proceedings
and that it has found the example dealing with antitrust proceedings in
the prior post-employment regulations to be particularly helpful. See 5
CFR 2637.201(c)(5) (example 1). The agency noted that the proposed rule
did not include this example and requested that OGE restore the example
to Sec. 2641.201(j). OGE agrees that the particular example from the
old post-employment regulations is useful, not only for the reasons
stated by the commenter, but also because it illustrates circumstances
in which an agency can be said to have a direct and substantial
interest in a matter involving purely private parties, which is a
question that arises periodically. See OGE Informal Advisory Letter 94
x 7 (relying on example 1 to 5 CFR 2637.201(c)(5)). Therefore, OGE is
adding this example to the final rule.
Section 2641.202--Two-Year Restriction Concerning Matters Under
Official Responsibility
Four agencies commented on proposed Sec. 2641.202, interpreting 18
U.S.C. 207(a)(2), the two-year restriction on representation of others
in connection with a particular matter involving specific parties with
respect to which the former employee had official responsibility.
One agency commented on example 7 following proposed Sec.
2641.202(j), which illustrates when an employee temporarily acting as
head of an office does not acquire official responsibility for all
matters pending in the office. This commenter recommended that OGE add
an additional scenario to the example, positing that the acting
official actually assigned a matter to a subordinate during this period
of temporary service. OGE has not made this change in the final rule,
as it would raise complicated questions, extraneous to the purpose of
the example, concerning whether, or under what factual circumstances,
the assignment of work might constitute personal and substantial
participation, not just official responsibility.
Another agency objected that example 4 following proposed Sec.
2641.202(j) is not a good illustration of the knowledge requirement in
section 207(a)(2), which is set out in proposed Sec. 2641.202(j)(7).
The same agency also recommended that the basic definition of
``official responsibility'' in proposed Sec. 2641.202(j)(1) should
specify that nonsupervisory employees have no official responsibility
for their own work. Example 4 was not intended to address the issue of
knowledge of one's official responsibility, and, in fact, makes no
reference to this subject. Moreover, Sec. 2641.202(j)(1) already does
state that ``[a] nonsupervisory employee does not have official
responsibility for his own assignments within the meaning of section
207(a)(2).''
A different agency objected to the latter provision and found it
illogical to say that a nonsupervisory employee does not have official
responsibility for his or her own assignments. OGE does not agree with
this comment. As described by the Senate Judiciary
[[Page 36180]]
Committee in connection with the 1962 act, the rationale for the
restriction is that there is ``a distinct possibility of harm to the
Government when a supervisory employee may sever his connection with it
one day and come back the next seeking an advantage for a private
interest in the very area where he has just had supervisory
functions.'' S. Rep. 2213, 87th Cong., 2d Sess., 1962 U.S.C.C.A.N. 3861
(emphasis added). The proposed rule, by limiting ``official
responsibility'' to persons with supervisory functions, is consistent
with the legislative purpose.
The same agency also objected to two other aspects of the treatment
of official responsibility. First, the agency argued that the list of
sources that ordinarily determine the scope of an employee's official
responsibility--i.e., ``those functions assigned by statute,
regulation, Executive order, job description, or delegation of
authority''--is too limited and ignores the reality of the workplace.
See Sec. 2641.202(j)(1). The commenter, however, did not suggest any
additional or alternative sources of official authority, or any other
method for determining the scope of official authority. More important,
the language in question is virtually identical to the language that
has been used in the prior post-employment regulation for over two
decades, and OGE is not aware that this provision has proven
inadequate. See 5 CFR 2637.202(b)(2). Therefore, as noted, OGE is not
changing Sec. 2641.202(j)(1) in this final rule.
Second, the agency objected to proposed Sec. 2641.202(j)(5), which
indicates that an employee's self-disqualification or avoidance of
personal participation in a matter is not sufficient to remove the
matter from his or her official responsibility. The agency recommended,
instead, a kind of totality-of-the-circumstances test that would
recognize recusal as an appropriate means to limit official
responsibility in some cases. OGE has not made the recommended change
to this section of the final rule. A very similar provision concerning
self-disqualification has been a part of the post-employment rules
since 1979, and OGE has seen no indication during that time that this
approach has, as the commenter predicted with respect to the proposed
rule, done ``serious harm to the Executive Branch's continuing problems
in recruiting and retaining talented individuals from outside of
Government to serve in managerial positions.'' See 5 CFR
2637.202(b)(5). Moreover, the court in United States v. Dorfman
specifically endorsed OGE's approach with respect to self-
disqualification and added that a contrary rule would mean that
employees ``could selectively recuse themselves from particular matters
actually pending under their official responsibility enabling them to
participate directly in those matters a year hence,'' thus evading the
intent of Congress `` `to avoid even the appearance of a public office
being used for personal or private gain.' '' 542 F. Supp. 402, 409-410
(N.D. Ill. 1982) (quoting S. Rep. 170, 95th Cong., 2d Sess. 32 (1977)).
One agency acknowledged that example 9 following proposed Sec.
2641.202(j) was intended to illustrate the effect of a break in
Government service on the application of 18 U.S.C. 207(a)(2), as
discussed in the preamble to the proposed rule at 68 FR 7857. However,
this agency recommended that the effect of a break in service be
discussed in the regulatory text of this provision as well. The agency
made a similar comment in connection with proposed Sec. 2641.204,
concerning the effect of a break in service on the application of 18
U.S.C. 207(c), as illustrated by example 3 following proposed section
2641.204(g). OGE has not made the recommended changes to these sections
in the final rule. The effect of a break in service is a subject
relevant to all of the prohibitions discussed in the rule, not just the
prohibitions discussed in Sec. Sec. 2641.202 and 2641.204.
Consequently, the requirement that an individual must have ``completed
a period of service as an employee'' is already treated generally in
the definition of ``former employee'' in Sec. 2641.104 and is
illustrated in example 3 following that definition, which discusses
``break in service.'' In any event, we believe that the examples cited
by the agency adequately illustrate the application of 18 U.S.C. 207 in
situations involving a break in service. Moreover, as noted above, OGE
has revised the definition of ``Government service'' in Sec. 2641.104
of the final rule to illustrate the effect of a break in service.
Finally, OGE has modified example 1 following Sec. 2641.202(j),
for reasons discussed above under ``Treaties and Trade Agreements.''
Section 2641.203--One-Year Restriction Concerning Trade or Treaty
Negotiations
One agency commented that it was not immediately clear, from the
language of proposed Sec. 2641.203(a), whether ``on the basis of
covered information'' modifies only ``advise'' or also modifies
``represent'' and ``aid.'' This commenter recommended that the rule be
revised to track the language of the statute more closely by placing
the phrase ``on the basis of covered information'' before ``represent,
aid, or advise,'' thus clarifying that the phrase modifies all three
verbs. It was not OGE's intention, in proposed Sec. 2641.203(a), to go
beyond a recitation of the basic statutory prohibition. As discussed in
the preamble to the proposed rule, 68 FR 7857, the present rule is
intended only to provide a brief introductory summary of the statute,
and paragraphs have been reserved for additional guidance in the
future. Therefore, OGE is making the recommended change to Sec.
2641.203(a) of the final rule, in order to follow the statutory
language more closely.
Section 2641.204--One-Year Restriction for Senior Employees
Proposed section 2641.204 interprets various elements of the so-
called ``one-year cooling-off period'' for senior employees. OGE
received comments on several parts of this provision, discussed below.
As noted above, in connection with the definition of ``senior
employee'' in Sec. 2641.104, 18 U.S.C. 207(c) has been amended twice
since the proposed rule was developed, and those amendments are
implemented in the final definition of ``senior employee.''
Section 2641.204(c)--SGEs and IPAs
Five agencies, including four DOD components, commented on proposed
Sec. 2641.204(c), which concerns special issues arising in the
application of section 207(c) to special Government employees (SGEs)
and persons assigned to the Federal Government under the
Intergovernmental Personnel Act (IPAs).
With respect to SGEs, one agency commented on the statement in the
preamble to the proposed rule that ``certain de minimis activities
performed by an SGE on a given day might not be sufficient to count
that day, under limited circumstances.'' 68 FR 7858. The commenter
agreed with this statement, but recommended that it be incorporated
into the text of Sec. 2641.204(c)(1). OGE has not changed the text of
this section in the final rule. Delineation of the circumstances in
which certain de minimis activities would not be sufficient to count as
a day of service would require an extended explication that is not
well-suited to the text of this provision. Moreover, the question of
when to count a particular day of service for an SGE is not peculiar to
section 207(c), and we believe this issue is better addressed in more
general guidance concerning the ethical requirements applicable to
SGEs. See
[[Page 36181]]
OGE DAEOgram DO-07-002, available on OGE's Web site at http://
www.usoge.gov/pages/daeograms/dgr_files/2007/do07002.pdf.
With respect to IPAs, four DOD components made essentially the same
point concerning proposed Sec. 2641.204(c)(2). These commenters
objected to the fact that the proposed rule makes the applicability of
section 207(c) turn on the amount of pay received by IPA detailees and
appointees, without sufficient regard for either the source of pay
(i.e., Federal or non-Federal) or the level of responsibility
associated with the particular position. OGE has not changed the rule
in response to these comments. As explained in the preamble to the
proposed rule, 68 FR 7858, Sec. 2641.204(c)(2) merely implements an
opinion on this subject issued by the Office of Legal Counsel,
Department of Justice. See ``Applicability of the Post-Employment
Restrictions of 18 U.S.C. 207(c) to Assignees Under the
Intergovernmental Personnel Act,'' Memorandum of Daniel L. Koffsky,
Acting Deputy Assistant Attorney General, Office of Legal Counsel,
Department of Justice, to Susan F. Beard, Acting Assistant General
Counsel, Department of Energy, June 26, 2000, available at http://
www.usdoj.gov/olc/doe207.htm.
One commenter also objected that the focus on an individual's pay,
for purposes of applying section 207(c) to IPA personnel, appears to be
at odds with OGE's recent guidance concerning the circumstances in
which IPA detailees are required to file a public financial disclosure
statement, under section 101 of the Ethics in Government Act of 1978
(EIGA), as amended. See OGE Informal Advisory Memorandum 02 x 11. As
OGE has explained on other occasions, the language and legislative
history of the financial disclosure provisions in EIGA differ from
those of 18 U.S.C. 207(c), and different approaches to coverage are
warranted. See OGE Informal Advisory Letter 98 x 2.
Section 2641.204(g)--To or Before an Employee of Former Agency
One commenter suggested that proposed Sec. 2641.204(g)(1)(iii),
which states that a former senior employee may not contact ``an
individual detailed to the former senior employee's former agency from
another agency,'' is inconsistent with a provision in proposed Sec.
2641.201(f), which states that the permanent restriction of section
207(a)(1) applies to contacts with any employee who is detailed to the
various entities listed in proposed Sec. 2641.201(f). The reference to
detailees in proposed Sec. 2641.204(g)(1)(iii) was intended to
implement a statutory provision that has particular significance in
connection with the senior employee restriction. Specifically, Sec.
2641.204(g)(1)(iii) implements 18 U.S.C. 207(g), which states that ``a
person who is detailed from one department, agency, or other entity to
another department, agency, or other entity shall, during the period
such person is detailed, be deemed to be an officer or employee of both
departments, agencies, or such entities.'' Proposed Sec.
2641.204(g)(1)(iii) therefore emphasized that a detailee from another
agency is also deemed to be an employee of the former senior employee's
former agency. However, to clarify that the rule is intended to
implement section 207(g), OGE is revising the provision in this final
rule to track the language of the statute more closely. The revised
final rule provision also indicates that detailees from the legislative
and judicial branches are included.
For similar reasons, OGE is making a minor change to Sec.
2641.204(g)(3)(ii). As proposed, this provision stated that a
communication or appearance is to or before an employee of the former
senior employee's former agency if, inter alia, it is directed to and
received by ``an employee in his capacity as an employee of a former
senior employee's former agency'' (emphasis added). OGE is concerned
that the highlighted language could be interpreted as indicating that
an employee of the former senior employee's agency may be contacted if
that employee is serving on a detail to a different agency and is
acting in his capacity as a detailee to that agency. Such an
interpretation would be inconsistent with 18 U.S.C. 207(g), as
explained in OGE Informal Advisory Letter 03 x 9, which concluded that
the representational bar applies to contacts with current employees of
the former senior employee's former agency, even if those employees
happen to be on a detail to another agency in which the former senior
employee did not serve. Therefore, the final rule simply uses the
phrase, ``in his official capacity,'' without the further limitation
that the contact be made with an employee specifically in his capacity
as an employee of the former senior employee's former agency.
Another commenter asked why proposed Sec. 2641.204(g)(4) repeated
the ``public commentary'' provision from proposed Sec. 2641.201(f)(3),
even though other elements common to the senior employee restriction
and the permanent restriction are handled simply by cross-references to
Sec. 2641.201. The treatment in Sec. 2641.204(g)(4) actually differs
from the provision in 2641.201(f)(3) in an important respect. Whereas
the permanent restriction covers contacts with employees of a broad
range of Federal entities, the senior employee cooling-off period
applies only to contacts with the individual's own former agency.
Therefore, the provisions in Sec. 2641.204(g)(4) contain references to
the former agency, in place of the broader language found in Sec.
2641.201(f)(3).
Section 2641.205--Two-Year Restriction for Very Senior Employees
Two agencies commented on proposed Sec. 2641.205(g), specifically
the conclusion, which is reflected in the proposed explanatory note to
paragraph (g) and in proposed example 5 to Sec. 2641.205, that a
former very senior employee is considered to be communicating with an
official described in 5 U.S.C. 5312-5316 if the communication is made
to a subordinate of such official with the intent that the information
be conveyed directly to the official and attributed to the former very
senior employee. Both commenters objected to this conclusion on the
same grounds on which they objected to similar provisions in proposed
Sec. 2641.201(d) and (f), i.e., they disagreed that a prohibited
communication could include a communication conveyed through a third
party to an officer or employee of the United States. As discussed in
the preamble to the proposed rule, 68 FR 7860, the principle that
section 207 may cover certain communications conveyed through a third
party is supported by a 2001 opinion issued by the Office of Legal
Counsel. Memorandum for Amy L. Comstock, Director, OGE, from Joseph R.
Guerra, Deputy Assistant Attorney General, OLC, January 19, 2001,
available under ``Other Ethics Guidance, Conflict of Interest
Prosecution Surveys and OLC Opinions'' on OGE's Web site, http://
www.usoge.gov.
The rationale is further discussed above, under ``Section
2641.201(d)--Communication or Appearance'' and ``Section 2641.201(f)--
To or Before an Employee of the United States.'' For these reasons, OGE
has retained the explanatory note to paragraph (g) of Sec. 2641.205
and example 5 to that section in this final rule. OGE has, however,
made minor changes to example 5, including an additional sentence at
the end of the example, to emphasize that the circumstances indicate
the former very senior employee intends that the information he
provides to the subordinate will be conveyed directly to
[[Page 36182]]
the Secretary of Labor and attributed to the former senior employee;
these changes are consistent with the language of the explanatory note.
Finally, subsequent to the publication of the proposed rule,
Congress amended 18 U.S.C. 207(d) to extend the cooling-off period for
very senior employees from one year to two years. See Public Law 110-
81, Sec. 101(a), September 14, 2007. Therefore, Sec. 2641.205 has
been modified in the final rule to replace all references to a one-year
cooling-off period with references to a two-year period. The two-year
restriction provided in the amendments to 18 U.S.C. 207(d) is
applicable to very senior employees who ``who leave Federal office or
employment to which such amendments apply on or after * * * December
31, 2007.'' Public Law 110-81, section 105(a). Very senior employees
who left office or employment prior to this effective date remain
subject to the previous one-year restriction.
Section 2641.206--Foreign Entity Restriction
Three DOD components submitted virtually identical comments on
proposed Sec. 2641.206, pertaining to the foreign entity restriction
found in 18 U.S.C. 207(f). They pointed out that recitation of the
basic prohibition, in proposed Sec. 2641.201(a), does not reproduce
the statutory language limiting the restriction on representation of
foreign entities to representation before ``an officer or employee of
any department or agency of the United States.'' The omission of the
language cited by these commenters was inadvertent, and OGE agrees that
the rule as proposed should be changed and has done so in this final
rule to reflect more clearly the statutory language. It should be
noted, however, that this change will not affect the final rule's
treatment of the separate prohibition on aiding and advising foreign
entities.
Additionally, OGE has modified proposed Sec. 2641.206(a) in this
final rule to reflect subsequent guidance provided by the Office of
Legal Counsel in a 2004 opinion issued to OGE. Memorandum of
Ren[eacute]e Lettow Lerner, Deputy Assistant Attorney General, for
Marilyn L. Glynn, Acting Director, OGE, June 22, 2004, available at
http://www.usoge.gov/pages/laws_regs_fedreg_stats/lrfs_files/othr_
gdnc/olc_06_22_04.pf.
This opinion concludes that 18 U.S.C. 207(f) prohibits covered
former employees from representing a foreign entity before Members of
Congress. The opinion cites the language in section 207(i)(1)(B), which
indicates that Members of Congress are included in the term ``officer
or employee'' for purposes of describing the persons to whom
representational contacts may not be made under section 207(f). In this
connection, the opinion also concludes that the term ``department,'' as
included in the language of section 207(f) prohibiting representational
contact with an ``officer or employee of any department or agency,''
includes the legislative department, i.e., the legislative branch of
the Federal Government. OGE has reworked the final rule consistent with
the OLC opinion.
Section 2641.207--Information Technology Exchange Program Assignee
Restriction
The final rule includes a new section, Sec. 2641.207, which
provides a brief description of a new restriction in 18 U.S.C. 207(l)
that became effective after the proposed rule was published. Section
209(c) of the E-Government Act of 2002, Public Law 107-347, December
17, 2002, created the Information Technology Exchange Program. Under
this new program, an agency and a ``private sector organization'' may
agree to the assignment of certain information technology personnel
from the private sector organization to the agency for a period of
time. Section 209(d)(3) of the Act amended 18 U.S.C. 207 by adding a
new section (l), which applies to former assignees to an agency under
the program. Specifically, section 207(l) prohibits these former
assignees, for one year after the termination of their assignment, from
representing or aiding, counseling or assisting in representing any
other person in connection with any contract with their former agency.
Section 2641.207 is not intended to provide comprehensive guidance
with respect to 18 U.S.C. 207(l). Rather, it is intended to provide a
basic description of the restriction, and consequently paragraphs (d)
and (e) are reserved. As OGE and other officials in the executive
branch acquire more experience with the operation of the Information
Technology Exchange Program and the post-employment issues related to
former private sector assignees under the program, it is expected that
OGE will revisit the reserved provisions.
Subpart C--Exceptions, Waivers and Separate Components
Section 2641.301--Statutory Exceptions and Waivers
Section 2641.301(a)--Action on Behalf of United States
Section 2641.301(a) interprets both the exemption in 18 U.S.C.
207(j)(1) for acts done in carrying out official duties on behalf of
the United States and the parenthetical exemption, found in sections
207(a), (b), (c), and (d), for communications and appearances on behalf
of the United States. One agency recommended that the rule as proposed
be revised to permit certain communications and appearances made by a
former employee during the performance of a contract with the
Government. Specifically, this agency argued that communications made
to perform contracts pertaining to ``internal agency operations'' would
be analogous to the other types of activities recognized to be on
behalf the United States in proposed Sec. 2641.301(a)(2).
For the reasons discussed above, under ``Section 2641.201(e)--
Intent to Influence,'' we do not view contacts made during the
performance of a Government contract to be free from the concerns at
which section 207 is directed. As we indicated in that earlier
discussion, the Government and its contractors have their own interests
in the performance of a contract, which are not necessarily identical.
Moreover, as we discussed in the preamble to the proposed rule, not all
contractors agree to represent or act on behalf of the Government. See
68 Federal Register at 7862. Accordingly, with the exception of the one
change discussed in the next paragraph, OGE has not modified the text
of Sec. 2641.301(a) in adopting it as final in this rulemaking
document.
We have made one change, however, to the language of Sec.
2641.301(a)(2)(ii)(1). As proposed, this provision required that the
activity be undertaken as a ``representative of the United States
pursuant to a specific agreement with the United States to provide
representational services involving a fiduciary duty to the United
States'' (emphasis added). The final rule omits the phrase pertaining
to fiduciary services. OGE has made this change so that this provision
will more closely parallel the provision in the rule in which OGE
states what it means for a former employee to act ``on behalf of''
another person, Sec. 2641.201(g)(1). Although the latter provision
describes a number of circumstances that no doubt involve fiduciary
duties, the rule does not require a showing that a former employee has
fiduciary duties in order to be acting on behalf of another person.
Since the same statutory language is at issue in Sec. 2641.301(a)(2),
OGE has concluded that it is unnecessary to include the fiduciary duty
phrase in this provision. The practical effect of this change may not
be great, as we would expect that most instances in which there is a
specific agreement to provide
[[Page 36183]]
representational services to the United States will involve some kind
of fiduciary relationship, such as a contract to provide legal services
to the Government.
Another agency proposed that OGE add a new example following Sec.
2641.301(a) to illustrate that the representation of a ``co-party,''
such as a co-defendant in a lawsuit in which the United States also is
a defendant, does not constitute acting on behalf of the United States.
This agency reported that former employees frequently assume,
erroneously, that they may represent a co-party with the United States
because they do not see this as switching sides. OGE certainly agrees
that the representation of a co-party does not constitute acting on
behalf of the United States. OGE is not sure, however, how frequently
this is misunderstood. Moreover, the potential for misunderstanding is
diminished by Sec. 2641.301(a)(2)(B), which states that a ``former
employee will not be deemed to engage in an activity on behalf of the
United States merely because * * * he or the person on whose behalf he
is acting may share the same objective as the Government.'' OGE also
notes that there are already seven examples following paragraph (a) of
Sec. 2641.301. Therefore, OGE has determined that the proposed new
example is not necessary and has not made the recommended change in
this final rule.
Section 2641.301(b)--Acting as Elected Official of State or Local
Government
One agency commented on proposed Sec. 2641.301(b), which
interprets the part of 18 U.S.C. 207(j)(1) that excepts acts done in
carrying out official duties as an elected official of a State or local
government. The commenter objected to example 2 following the proposed
provision. Example 2 states that a former employee who serves in a non-
elective position with a State government is not eligible for this
exception. The commenter stated that the proposed communication in that
example is otherwise permissible under a different exception--18 U.S.C.
207(j)(2)(A), as implemented by proposed 5 CFR 2641.301(c)--and
recommended that OGE use a different scenario that is not covered by
some other exception. OGE does not agree that the scenario in proposed
example 2 would be covered by the exception in section 207(j)(2)(A)
and, therefore, is not changing this example in the final rule. In this
example, the individual had participated personally and substantially
as a Federal employee in the decision to award a grant to a state for a
particular construction project. The exception in section 207(j)(2)(A)
does not apply to the permanent restriction on representation of others
in connection with particular matters involving specific parties in
which the former employee participated personally and substantially.
Section 2641.301(c)--Representation of Specified Entities
Two agencies commented on proposed section 2641.301(c), which
interprets 18 U.S.C. 207(j)(2), the exception to the prohibitions of
section 207(c) and (d) for representation of certain specified
entities. One agency requested that OGE provide an additional example
to illustrate the scope of the exception for representation as an
employee of an ``accredited, degree-granting institution of higher
education, as defined in section 101 of the Higher Education Act of
1965 [20 U.S.C. 1001].'' Section 207(j)(2)(B). Specifically, this
commenter requested a new example ``clarifying'' that private colleges
are included in the definition. OGE does not believe that an additional
example is necessary and has not added one in the final rule. The
definition of institution of higher education, which is referenced in
both the rule and the statute, makes clear that both ``public'' and
``other nonprofit'' institutions are covered. 20 U.S.C. 1001(a)(4).
Moreover, if only public institutions, and not private colleges, were
included in section 207(j)(2)(B), the provision would be surplusage, as
section 207(j)(2)(A) already covers ``an agency or instrumentality of a
State or local government.''
As discussed above, under ``Section 2641.301(b)--Acting as Elected
Official of State or Local Government,'' another agency suggested that
the exception in section 207(j)(2)(A) would cover activity otherwise
prohibited by the permanent restriction in section 207(a)(1). It bears
repeating that section 207(j)(2)(A)--unlike the exception for actions
as an elected State or local government official in section 207(j)(1)--
is not an exception to the permanent restriction or any other
prohibition applicable to executive branch personnel besides the
cooling-off provisions in section 207(c) and (d).
Section 2641.301(d)--Uncompensated Statements Based on Special
Knowledge
Two agencies commented on Sec. 2641.301(d) as proposed,
interpreting the exception in 18 U.S.C. 207(j)(4). One agency objected
that the proposed definition of ``statement'' is too narrow. Proposed
Sec. 2641.301(d) provides that a ``statement for purposes of this
paragraph is a communication of facts directly observed by the former
employee.'' The commenter asserted that this definition would preclude
certain ``innocent'' communications that are not, strictly speaking,
facts that the former employee observed, ``such as a statement defining
a technical principle or asserting that the principle is widely
interpreted a certain way.''
OGE acknowledges that its interpretation of the exception for
statements based on special knowledge is relatively narrow, but this is
consistent with the history of the provision. As discussed more fully
in the preamble to the proposed rule, this exception was originally
provided in the 1978 Act to mitigate the impact of the new senior
employee cooling-off restriction, which then prohibited even self-
representation. 68 Federal Register 7863. After section 207(c) was
amended in 1989 to remove the ban on self-representation, the need for
reliance on the special knowledge exception was greatly reduced, and
OGE believes it would undermine the purposes of section 207(c) to take
an expansive view of the exception that would allow a wide range of
representational activity solely on the ground that the former employee
has personal familiarity with certain ``principles.'' Moreover, OGE
notes that its definition of ``statement'' is not unusual. See Black's
Law Dictionary 1263 (1979) (``a declaration of matters of fact''). That
is not to say that a statement of fact would fall outside the scope of
the exception simply because the former employee made incidental
references to certain principles necessary to understand the
significance of the facts conveyed. Nevertheless, in view of the fact
that the statute already contains other exceptions allowing ``expert''
communications under carefully limited circumstances--e.g., 18 U.S.C.
207(j)(5), (6)(A)--OGE cannot read section 207(j)(4) as a broad license
for former employees to engage in communications focusing on general
principles with which they may claim some particular expertise.
However, recognizing that statements based on inferences from facts
observed by a former employee may be permissible, OGE has revised the
text of Sec. 2641.301(d)(2) by removing the word ``directly.''
A second agency proposed that OGE include an express statement,
either in a note or in the text of section 2641.301(d), to the effect
that ``statements and opinions made on one's own behalf are not
prohibited.'' OGE has not followed this recommendation in the final
rule. The provisions stating the basic prohibitions to which this
[[Page 36184]]
exception applies are quite clear in excluding self-representation. See
Sec. 2641.201(g)(2), as referenced in Sec. Sec. 2641.204(h) and
2641.205(h).
Section 2641.301(e)--Scientific or Technological Information
Two agencies commented on proposed Sec. 2641.301(e), which
implements the exception in 18 U.S.C. 207(j)(5) for communicating
scientific or technological information. One agency recommended that
OGE remove a parenthetical reference in proposed Sec.
2641.301(e)(5)(iii)(E) to a deputy or acting head of an agency, since
there are no other references to deputy or acting agency heads in the
provision. By technical correction published in the Federal Register on
March 31, 2003, 68 FR 15385, OGE already removed this phrase from the
proposed rule as ``unintended text.''
Another agency commented on the list of possible considerations for
agency procedures in Sec. 2641.301(e)(4)(i) as proposed. The agency
recommended that OGE specify, in Sec. 2641.301(e)(4)(i)(B), when a
former employee must give notice that he or she is invoking the
exemption pursuant to agency procedures. OGE does not agree with this
recommendation and is adopting this section as final without change. It
is not OGE's intent to mandate any particular procedures for agencies
that wish to implement section 207(j)(5) through agency procedures. The
statute itself specifies that the procedures must be ``acceptable to
the department or agency concerned.'' Agencies may well have different
preferences with respect to the timing of any notices or the need for
any such notices at all.
Section 2641.301(f)--Testimony Under Oath and Statements Under Penalty
of Perjury
One agency commented on proposed Sec. 2641.301(f), which
interprets the exception in 18 U.S.C. 207(j)(6) for testimony under
oath and statements required to be made under the penalty of perjury.
The agency referenced Sec. 2641.301(f)(2)(ii), which deals with the
limitation, found in section 207(j)(6)(A), on service as an expert
witness in matters covered by the permanent ban in section 207(a)(1).
This provision states that the limitation on expert testimony may be
lifted by court order and then specifies that neither a subpoena nor a
court order qualifying an individual as an expert satisfies the court
order requirement in section 207(j)(6)(A). The commenter asked that OGE
address specifically whether experts appointed by a court itself,
pursuant to Rule 706 of the Federal Rules of Evidence, would be covered
by the ``pursuant to court order'' language in the exception.
In adopting Sec. 2641.301(f) as final, OGE has not changed the
rule text as proposed to address this subject. By its own terms, Rule
706 does not displace authorities permitting parties to call ``expert
witnesses of their own selection.'' Rule 706(d). Under Rule 706, court-
appointed experts may be appointed by the court either upon the motion
of the parties or upon the court's own motion, and the latter may be
either with or without nominations by the parties. Rule 706 also
contemplates that the parties may agree upon an expert to be appointed
by the court. Furthermore, Rule 706 provides that the appointed expert
then may be called to testify by either party, or by the court itself,
and that either party may cross-examine the expert, including that
party that called the expert as a witness. Under some or all of these
possible scenarios, there may be questions as to whether 18 U.S.C.
207(a)(1) even applies in the first place, as it may not be clear
whether the court-appointed experts are acting ``on behalf of'' any
party within the meaning of the statute. See Sec. 2641.201(g). OGE
does not believe this regulation is the appropriate place to opine
generally about Rule 706. Such questions as may actually arise can be
handled on a case-by-case basis.
The same agency also commented on the relationship between section
207(j)(6) and a provision in the Indian Self-Determination and
Education Assistance Act, 25 U.S.C. 450i(j), which is listed as a
miscellaneous statutory exception in section 2641.301(k) of the
proposed rule. This comment is addressed below, under ``Section
2641.301(k)--Miscellaneous Statutory Exemptions.''
Section 2641.301(h)--Acting on Behalf of International Organization
OGE received one comment on proposed Sec. 2641.301(h), which
concerns the provision in 18 U.S.C. 207(j)(3) for waivers issued by the
Secretary of State to permit former employees to represent, aid or
advise an international organization in which the United States
participates. The comment, from the Department of State, suggested that
a statement in the preamble to the proposed rule, to the effect that
the ``Secretary of State has issued several section 207(j)(3)
waivers,'' does not completely reflect the actual operation of this
provision in the Department. 68 Federal Register 7866. Specifically,
the comment pointed out that the Secretary of State had delegated the
authority to issue such waivers to the Assistant Secretary for
International Affairs, who has issued a number of waivers. OGE takes
notice of this delegation, which was issued by the Secretary of State
in 1992.
The same commenter objected to the language of the proposed rule
stating that ``the Secretary of State may grant a former employee a
waiver.'' Proposed Sec. 2641.301(h)(1) (emphasis added). The commenter
pointed out that the statutory provision itself does not even use the
phrase ``former employee'' or otherwise specify that a waiver must be
issued to a former employee, as opposed to a current employee who has
plans for post-employment activity on behalf of an international
organization. The commenter noted that ``207(j)(3) certifications are
usually issued prior to the employees' departure from U.S. Government
service, to apply prospectively with the employees' taking up of the
position at the international organization.'' The commenter recommended
that OGE use the following substitute language in the first sentence of
Sec. 2641.301(h)(1): ``(1) The Secretary of State may grant an
individual certification that one or more of the restrictions in 18
U.S.C. 207 not apply where the former employee would act on behalf of,
or provide advice or aid to, an international organization in which the
United States participates.''
OGE has largely adopted the recommended language in this final
rule, with minor modifications for the sake of consistency with the
statutory language and the treatment of other waiver provisions in
subpart C of the rule: ``(1) The Secretary of State may grant an
individual waiver of one or more of the restrictions in 18 U.S.C. 207
where the former employee would appear or communicate on behalf of, or
provide aid or advice to, an international organization in which the
United States participates.'' OGE recommends, however, that any current
employees who receive such waivers be counseled that the waivers permit
only certain activities covered by section 207 and do not affect any
restrictions still applicable to current employees under 18 U.S.C. 203
and 205.
Section 2641.301(j)--Waiver of Certain Senior Positions
In this final rule, OGE has modified the proposed version of Sec.
2641.301(j), which pertains to the authority of OGE, under 18 U.S.C.
207(c)(2)(C), to waive the application of section 207(c) and (f) with
respect to certain senior positions. The revisions were necessary
because, as described above in connection with
[[Page 36185]]
the definition of ``senior employee,'' a new category of senior
employee was added by the E-Government Act of 2002. See 18 U.S.C.
207(c)(2)(A)(v). This new category, assignees from private
organizations under the Information Technology Exchange Program, is not
covered by the position waiver provision in section 207(c)(2)(C).
Therefore, this section of the rule being adopted as final has been
changed to make clear that assignees under the Information Technology
Exchange Program may not benefit from a position waiver.
Section 2641.301(k)--Miscellaneous Statutory Exemptions
Proposed Sec. 2641.301(k) lists statutes, other than section 207
itself, that provide relief from the post-employment restrictions. OGE
specifically invited commenters on the proposed rule to review the list
of miscellaneous statutory exceptions and suggest modifications or
additions, in part because such provisions occasionally are enacted as
part of organic acts and other legislation not primarily focused on
conflict of interest subjects. 68 Federal Register 7868.
Only one agency responded to this invitation, and it proposed the
addition of three statutory provisions. Two of those statutes, however,
do not actually provide exceptions to the prohibitions of 18 U.S.C.
207, but rather add certain post-employment restrictions or
requirements for employees in specific positions or agencies. See
Public Law 99-239, section 107 (1986) (extending certain provisions of
section 207(b), as it then read, with respect to persons involved in
Micronesian status negotiations or Micronesian Interagency Group);
Public Law 104-293, section 402 (1996) (requiring agreements
restricting post-employment activities of Central Intelligence Agency
employees). Consequently, OGE does not believe it would be appropriate
to list these statutes in a provision devoted to ``Miscellaneous
statutory exceptions.'' The third statute suggested by the commenter,
Public Law 97-241, section 120 (1982), is an actual exception to
section 207. The exception is applicable to private sector
representatives, designated to speak on behalf of or otherwise
represent the interests of the United States on a United States
delegation to an international telecommunication meeting or conference,
provided that the Secretary of State (or a designee) certifies that no
Government employee on the delegation is well qualified to represent
United States interests with respect to such matter and that the
designation serves the national interest. OGE has added a new paragraph
(k)(8) to Sec. 2641.301 of this final rule to reflect this statutory
exemption.
Another agency submitted detailed comments on proposed Sec.
2641.301(k)(4), which lists a statutory exception, found in the Indian
Self-Determination and Education Assistance Act, 25 U.S.C. 450i(j), for
certain activity on behalf of Indian tribal organizations and inter-
tribal consortia. Among other things, the commenter recommended that
OGE's rule ``elaborate'' on the scope of coverage of this provision,
explain the effect of a notice requirement specified in the provision,
clarify the applicability of this provision to expert testimony, and
reflect the charging practices of the Department of Justice. OGE has
not made these recommended changes in the final rule. OGE does not
believe that part 2641 is the appropriate place to provide detailed
guidance concerning the Indian Self-Determination and Education
Assistance Act. The rule as proposed and as now being adopted as final
does not contemplate detailed guidance with respect to any of the
miscellaneous provisions not set out in section 207 itself. (As noted
below, section 207 now has been amended to add a cross-reference to the
provision in the Indian Self-Determination and Education Assistance
Act, but the substance of the exception continues to be set out in the
latter, rather than in section 207.) Section 2641.301(k) is intended
simply to alert readers to the general substance of certain exceptions
that would not be apparent from a reading of section 207 alone.
Moreover, with respect to the Indian Self-Determination and Education
Assistance Act specifically, we have stated that ``this statute would
normally be interpreted by the Office of the Solicitor of the
Department of the Interior,'' OGE Informal Advisory Letter 82 x 11, and
we ordinarily would not address significant legal issues arising under
the statute without the benefit of review by that Department. In this
connection, we note that the Department of the Interior did not comment
on proposed Sec. 2641.301(k)(4).
Finally, subsequent to the publication of the proposed rule and the
receipt of comments, Congress amended the exception in the Indian Self-
Determination and Education Assistance Act, and also added a cross-
reference to this provision in 18 U.S.C. 207(j)(1)(B). See Public Law
110-81, section 104, September 14, 2007. The general description of
this exception in Sec. 2641.301(k)(4) has been modified accordingly.
Section 2641.301(l)--Guide to Available Exceptions and Waivers
OGE has revised the chart set out at Sec. 2641.301(l) as proposed
by adding a new column indicating which exemption or waiver provisions
are applicable to the new restriction, 18 U.S.C. 207(l), with regard to
private sector assignees under the Information Technology Exchange
Program.
Appendix A--Positions Waived Pursuant to 18 U.S.C. 207(c)(2)(C)
Appendix A of part 2641 lists those positions that have been waived
by OGE, pursuant to its authority under 18 U.S.C. 207(c)(2)(C).
Regulations implementing this provision have been previously codified
at 5 CFR 2641.201(d) and will be set forth in Sec. 2641.301(j) of this
final rule once it becomes effective on July 25, 2008.
Subsequent to the proposed rule, OGE revised the list of waived
positions in appendix A. See 72 FR 10339-10342 (March 8, 2007). This
final rule therefore reflects the revised list.
Appendix B--Agency Components for Purposes of 18 U.S.C. 207(c)
OGE received comments from one agency concerning appendix B to part
2641, which sets out agency components that have been designated by
OGE, pursuant to 18 U.S.C. 207(h), as separate agencies, for purposes
of the one-year cooling-off restriction for senior employees. The
comments proposed certain amendments to the list of components for this
agency. It was not OGE's intent to use this rulemaking as the vehicle
to add or delete components in appendix B. OGE requires that agencies
submit annual updates verifying the accuracy and appropriateness of the
list of components and has made numerous additions and deletions with
respect to the list since 1991, as described above and in the preamble
to the proposed rule. 68 Federal Register 7844. OGE contacted this
commenting agency and advised that its proposed amendments to appendix
B would be considered separately, in connection with OGE's annual
review of agency submissions.
Therefore, Appendix B is revised as proposed, except that the final
rule also reflects amendments to Appendix B made by final rules
published on November 23, 2004, March 8, 2007, and March 6, 2008, which
were issued subsequent to the proposed rule. See 69 FR 68053-68056
(November 23, 2004); 72 FR 10339-10342 (March 8, 2007); 73 FR 12007-
12009 (March 6, 2008).
[[Page 36186]]
III. Matters of Regulatory Procedure
Regulatory Flexibility Act
As Director of OGE, I certify under the Regulatory Flexibility Act
(5 U.S.C. chapter 6) that this rule will not have a significant
economic impact on a substantial number of small entities because it
affects only current and former Federal employees.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply
to this rule because it does not contain an information collection
requirement that requires the approval of the Office of Management and
Budget.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
chapter 25, subchapter II), this final rule will not significantly or
uniquely affect small governments and will not result in increased
expenditures by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more (as adjusted for
inflation) in any one year.
Congressional Review Act
The Office of Government Ethics has determined that this rulemaking
involves a nonmajor rule under the Congressional Review Act (5 U.S.C.
chapter 8) and will submit a report thereon to the U.S. Senate, House
of Representatives and Government Accountability Office in accordance
with that law at the same time this rulemaking document is sent to the
Office of the Federal Register for publication in the Federal Register.
Executive Order 12866
In promulgating this final rule, OGE has adhered to the regulatory
philosophy and the applicable principles of regulation set forth in
section 1 of Executive Order 12866, Regulatory Planning and Review.
This rule has also been reviewed by the Office of Management and Budget
under that Executive order. Moreover, in accordance with section
6(a)(3)(B) of E.O. 12866, the preamble to this final regulation notes
the legal basis and benefits of, as well as the need for, the
regulatory action. There should be no appreciable increase in costs to
OGE or the executive branch of the Federal Government in administering
the final rule because provisions only concern the current post-
employment law in effect. Finally, this rulemaking is not economically
significant under the Executive Order and will not interfere with
State, local or tribal governments.
Executive Order 12988
As Director of the Office of Government Ethics, I have reviewed
this final regulation in light of section 3 of Executive Order 12988,
Civil Justice Reform, and certify that it meets the applicable
standards provided therein.
List of Subjects in 5 CFR Parts 2637 and 2641
Conflict of interests, Government employees.
Approved: June 4, 2008.
Robert I. Cusick,
Director, Office of Government Ethics.
0
Accordingly, for the reasons set forth in the preamble, under the
authority of 5 U.S.C. App. (Ethics in Government Act of 1978), 18
U.S.C. 207, and Executive Order 12674, as modified by Executive Order
12731, the Office of Government Ethics is amending 5 CFR chapter XVI as
follows.
0
1. Part 2637 is removed; and
0
2. Part 2641 is revised to read as follows:
PART 2641--POST-EMPLOYMENT CONFLICT OF INTEREST RESTRICTIONS
Subpart A--General Provisions
Sec.
2641.101 Purpose.
2641.102 Applicability.
2641.103 Enforcement and penalties.
2641.104 Definitions.
2641.105 Advice.
2641.106 Applicability of certain provisions to Vice President.
Subpart B--Prohibitions
2641.201 Permanent restriction on any former employee's
representations to United States concerning particular matter in
which the employee participated personally and substantially.
2641.202 Two-year restriction on any former employee's
representations to United States concerning particular matter for
which the employee had official responsibility.
2641.203 One-year restriction on any former employee's
representations, aid, or advice concerning ongoing trade or treaty
negotiation.
2641.204 One-year restriction on any former senior employee's
representations to former agency concerning any matter, regardless
of prior involvement.
2641.205 Two-year restriction on any former very senior employee's
representations to former agency or certain officials concerning any
matter, regardless of prior involvement.
2641.206 One-year restriction on any former senior or very senior
employee's representations on behalf of, or aid or advice to,
foreign entity.
2641.207 One-year restriction on any former private sector assignee
under the Information Technology Exchange Program representing,
aiding, counseling or assisting in representing in connection with
any contract with former agency.
Subpart C--Exceptions, Waivers and Separate Components
2641.301 Statutory exceptions and waivers.
2641.302 Separate agency components.
Appendix A to Part 2641--Positions Waived From 18 U.S.C. 207(c) and
(f)
Appendix B to Part 2641--Agency Components for Purposes of 18 U.S.C.
207(c)
Authority: 5 U.S.C. App. (Ethics in Government Act of 1978); 18
U.S.C. 207; 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.
Subpart A--General Provisions
Sec. 2641.101 Purpose.
18 U.S.C. 207 prohibits certain acts by former employees (including
current employees who formerly served in ``senior'' or ``very senior''
employee positions) which involve, or may appear to involve, the unfair
use of prior Government employment. None of the restrictions of section
207 prohibits any former employee, regardless of Government rank or
position, from accepting employment with any particular private or
public employer. Rather, section 207 prohibits a former employee from
providing certain services to or on behalf of non-Federal employers or
other persons, whether or not done for compensation. These restrictions
are personal to the employee and are not imputed to others. (See,
however, the note following Sec. 2641.103 concerning 18 U.S.C. 2.)
(a) This part 2641 explains the scope and content of 18 U.S.C. 207
as it applies to former employees of the executive branch or of certain
independent agencies (including current employees who formerly served
in ``senior'' or ``very senior'' employee positions). Although certain
restrictions in section 207 apply to former employees of the District
of Columbia, Members and elected officials of the Congress and certain
legislative staff, and employees of independent agencies in the
legislative and judicial branches, this part is not intended to provide
guidance to those individuals.
(b) Part 2641 does not address post-employment restrictions that
may be contained in laws or authorities other than 18 U.S.C. 207. These
restrictions include those in 18 U.S.C. 203 and 41 U.S.C. 423(d).
Sec. 2641.102 Applicability.
Since its enactment in 1962, 18 U.S.C. 207 has been amended several
times. As a consequence of these amendments,
[[Page 36187]]
former executive branch employees are subject to varying post-
employment restrictions depending upon the date they terminated
Government service (or service in a ``senior'' or ``very senior''
employee position).
(a) Employees terminating on or after January 1, 1991. Former
employees who terminated or employees terminating Government service
(or service in a ``senior'' or ``very senior'' employee position) on or
after January 1, 1991, are subject to the provisions of 18 U.S.C. 207
as amended by the Ethics Reform Act of 1989, title I, Public Law 101-
194, 103 Stat. 1716 (with amendments enacted by Act of May 4, 1990,
Pub. L. 101-280, 104 Stat. 149) and by subsequent amendments. This part
2641 provides guidance concerning section 207 to these former
employees.
(b) Employees terminating between July 1, 1979 and December 31,
1990. Former employees who terminated service between July 1, 1979, and
December 31, 1990, are subject to the provisions of section 207 as
amended by the Ethics in Government Act of 1978, title V, Public Law
95-521, 92 Stat. 1864 (with amendments enacted by Act of June 22, 1979,
Pub. L. 96-28, 93 Stat. 76). Regulations providing guidance concerning
18 U.S.C. 207 to these employees were last published in the 2008
edition of title 5 of the Code of Federal Regulations, revised as of
January 1, 2008.
(c) Employees terminating prior to July 1, 1979. Former employees
who terminated service prior to July 1, 1979, are subject to the
provisions of 18 U.S.C. 207 as enacted in 1962 by the Act of October
23, 1962, Public Law 87-849, 76 Stat. 1123.
Note to Sec. 2641.102: The provisions of this part 2641 reflect
amendments to 18 U.S.C. 207 enacted subsequent to the Ethics Reform
Act of 1989 and before July 25, 2008. An employee who terminated
Government service (or service in a ``senior'' or ``very senior''
employee position) between January 1, 1991, and July 25, 2008 may
have become subject, upon termination, to a version of the statute
that existed prior to the effective date of one or more of those
amendments. Those amendments concerned (1) changes, effective in
1990, 1996, and 2004 concerning the rate of basic pay triggering
``senior employee'' status for purposes of section 207(c); (2) the
reinstatement and subsequent amendment of the Presidential waiver
authority in section 207(k); (3) the length of the restriction set
forth in section 207(f) as applied to a former United States Trade
Representative or Deputy United States Trade Representative; (4) the
addition of section 207(j)(7), an exception to section 207(c) and
(d); (5) a change to section 207(j)(2)(B), an exception to section
207(c) and (d); (6) the addition of assignees under the Information
Technology Exchange Program to the categories of ``senior employee''
for purposes of section 207(c); (7) the addition of section 207(l),
applicable to former private sector assignees under the Information
Technology Exchange Program; (8) a change to the length of the
restriction set forth in section 207(d); and (9) the addition of a
cross-reference in section 207(j)(1)(B) to a revised exception in
the Indian Self-Determination and Education Assistance Act.
Sec. 2641.103 Enforcement and penalties.
(a) Enforcement. Criminal and civil enforcement of the provisions
of 18 U.S.C. 207 is the responsibility of the Department of Justice. An
agency is required to report to the Attorney General any information,
complaints or allegations of possible criminal conduct in violation of
title 18 of the United States Code, including possible violations of
section 207 by former officers and employees. See 28 U.S.C. 535. When a
possible violation of section 207 is referred to the Attorney General,
the referring agency shall concurrently notify the Director of the
Office of Government Ethics of the referral in accordance with 5 CFR
2638.603.
(b) Penalties and injunctions. 18 U.S.C. 216 provides for the
imposition of one or more of the following penalties and injunctions
for a violation of section 207:
(1) Criminal penalties. 18 U.S.C. 216(a) sets forth the maximum
imprisonment terms for felony and misdemeanor violations of section
207. Section 216(a) also provides for the imposition of criminal fines
for violations of section 207. For the amount of the criminal fines
that may be imposed, see 18 U.S.C. 3571.
(2) Civil penalties. 18 U.S.C. 216(b) authorizes the Attorney
General to take civil actions to impose civil penalties for violations
of section 207 and sets forth the amounts of the civil fines.
(3) Injunctive relief. 18 U.S.C. 216(c) authorizes the Attorney
General to seek an order from a United States District Court to
prohibit a person from engaging in conduct which violates section 207.
(c) Other relief. In addition to any other remedies provided by
law, the United States may, pursuant to 18 U.S.C. 218, void or rescind
contracts, transactions, and other obligations of the United States in
the event of a final conviction pursuant to section 207, and recover
the amount expended or the thing transferred or its reasonable value.
Note to Sec. 2641.103: A person or entity who aids, abets,
counsels, commands, induces, or procures commission of a violation
of section 207 is punishable as a principal under 18 U.S.C. 2.
Sec. 2641.104 Definitions.
For purposes of this part:
Agency means any department, independent establishment, commission,
administration, authority, board or bureau of the United States or
Government corporation. The term includes any independent agency not in
the legislative or judicial branches.
Agency ethics official means the designated agency ethics official
(DAEO) or the alternate DAEO, appointed in accordance with 5 CFR
2638.202(b), and any deputy ethics official described in 5 CFR
2638.204.
Department means one of the executive departments listed in 5
U.S.C. 101.
Designated agency ethics official (DAEO) means the official
designated under 5 CFR 2638.201 to coordinate and manage an agency's
ethics program.
Employee means, for purposes of determining the individuals subject
to 18 U.S.C. 207, any officer or employee of the executive branch or
any independent agency that is not a part of the legislative or
judicial branches. The term does not include the President or the Vice
President, an enlisted member of the Armed Forces, or an officer or
employee of the District of Columbia. The term includes an individual
appointed as an employee or detailed to the Federal Government under
the Intergovernmental Personnel Act (5 U.S.C. 3371-3376) or
specifically subject to section 207 under the terms of another statute.
It encompasses senior employees, very senior employees, special
Government employees, and employees serving without compensation. (This
term is redefined elsewhere in this part, as necessary, when the term
is used for other purposes.)
Executive branch includes an executive department as defined in 5
U.S.C. 101, a Government corporation, an independent establishment
(other than the Government Accountability Office), the Postal Service,
the Postal Regulatory Commission, and also includes any other entity or
administrative unit in the executive branch.
Former employee means an individual who has completed a period of
service as an employee. Unless otherwise indicated, the term
encompasses a former senior employee and a former very senior employee.
An individual becomes a former employee at the termination of
Government service, whereas an individual becomes a former senior
employee or a former very senior employee at the termination of service
in a senior or very senior employee position.
[[Page 36188]]
Example 1 to the definition of former employee: An individual
served as an employee of the Agency for International Development,
an agency within the executive branch. Since he was, therefore, an
``employee'' as that term is defined in this section by virtue of
having served in the executive branch, he became a ``former
employee'' when he terminated Government service to pursue his
hobbies.
Example 2 to the definition of former employee: An individual
served as an employee of the Tennessee Valley Authority (TVA). Since
the TVA is a corporation owned or controlled by the Government of
the United States, she served as an employee in the ``executive
branch'' as that term is defined in this section. She became a
``former employee,'' therefore, when she terminated Government
service to do some traveling.
Example 3 to the definition of former employee: An individual
terminated a GS-14 position in the executive branch to accept a
position in the legislative branch. He did not become a ``former
employee'' when he terminated service in the executive branch since
he did not terminate ``Government service'' as that term is defined
in this section.
Example 4 to the definition of former employee: An individual is
appointed by the President to serve as a special Government employee
on the Oncological Drug Advisory Committee at the Department of
Health and Human Services. The special Government employee meets
with the committee five days per year. She does not terminate
Government service at the end of each meeting of the committee and
therefore does not at that time become a ``former employee.'' She
becomes a ``former employee'' when her appointment terminates,
provided that she is not reappointed without break in service to the
same or another Federal Government position.
Example 5 to the definition of former employee: An individual is
a Major in the U.S. Army Reserve. The Major earns points toward
retirement by participating in weekend drills and performing active
duty for training for two weeks each year. The Major is not a
special Government employee when he performs weekend drills, but is
considered to be one while on active duty for training. The Major is
considered to be a ``former employee'' when he terminates each
period of active duty for training.
Example 6 to the definition of former employee: A foreign
service officer served as a ``senior employee'' of the Department of
State. After retiring, and with no break in service, he accepted a
civil service appointment on a temporary basis, at the GS-15 level.
Since he did not terminate Government service, he did not become a
``former employee'' when he retired from the foreign service. He
did, however, become a ``former senior employee.''
Former senior employee is an individual who terminates service in a
senior employee position (without successive Government service in
another senior position).
Former very senior employee is an individual who terminates service
in a very senior employee position (without successive Government
service in another very senior employee position).
Government corporation means, for purposes of determining the
individuals subject to 18 U.S.C. 207, a corporation that is owned or
controlled by the Government of the United States. For purposes of
identifying or determining individuals with whom post-employment
contact is restricted, matters to which the United States is a party or
has a direct and substantial interest, decisions which a former senior
or very senior employee cannot seek to influence on behalf of a foreign
entity, and whether a former employee is acting on behalf of the United
States, it means a corporation in which the United States has a
proprietary interest as distinguished from a custodial or incidental
interest as shown by the functions, financing, control, and management
of the corporation.
Government service means a period of time during which an
individual is employed by the Federal Government without a break in
service. As applied to a special Government employee (SGE), Government
service refers to the period of time covered by the individual's
appointment or appointments (or other act evidencing employment with
the Government), regardless of any interval or intervals between days
actually served. See example 4 to the definition of former employee in
this section. In the case of Reserve officers of the Armed Forces or
officers of the National Guard of the United States who are not
otherwise employees of the United States, Government service shall be
considered to end upon the termination of a period of active duty or
active duty for training during which they served as SGEs. See example
5 to the definition of former employee in this section.
He, his, and him include she, hers, and her, and vice versa.
Judicial branch means the Supreme Court of the United States; the
United States courts of appeals; the United States district courts; the
Court of International Trade; the United States bankruptcy courts; any
court created pursuant to Article I of the United States Constitution,
including the United States Court of Appeals for the Armed Forces, the
United States Claims Court, and the United States Tax Court, but not
including a court of a territory or possession of the United States;
the Federal Judicial Center; and any other agency, office, or entity in
the judicial branch.
Legislative branch means the Congress; it also means the Office of
the Architect of the Capitol, the United States Botanic Garden, the
Government Accountability Office, the Government Printing Office, the
Library of Congress, the Office of Technology Assessment, the
Congressional Budget Office, the United States Capitol Police, and any
other agency, entity, office, or commission established in the
legislative branch.
Person includes an individual, corporation, company, association,
firm, partnership, society, joint stock company, or any other
organization, institution, or entity, including any officer, employee,
or agent of such person or entity. Unless otherwise indicated, the term
is all-inclusive and applies to commercial ventures and nonprofit
organizations as well as to foreign, State and local governments. The
term includes the ``United States'' as that term is defined in Sec.
2641.301(a)(1).
Senior employee means an employee, other than a very senior
employee, who is:
(1) Employed in a position for which the rate of pay is specified
in or fixed according to 5 U.S.C. 5311-5318 (the Executive Schedule);
(2) Employed in a position for which the employee is paid at a rate
of basic pay which is equal to or greater than 86.5 percent of the rate
of basic pay for level II of the Executive Schedule; or, for a period
of two years following November 24, 2003, was employed on November 23,
2003 in a position for which the rate of basic pay was equal to or
greater than the rate of basic pay payable for level 5 of the Senior
Executive Service; for purposes of this paragraph, ``rate of basic
pay'' does not include locality-based adjustments or additional pay
such as bonuses, awards and various allowances;
(3) Appointed by the President to a position under 3 U.S.C.
105(a)(2)(B);
(4) Appointed by the Vice President to a position under 3 U.S.C.
106(a)(1)(B);
(5) An active duty commissioned officer of the uniformed services
serving in a position for which the pay grade (as specified in 37
U.S.C. 201) is pay grade O-7 or above; or
(6) Assigned from a private sector organization under chapter 37 of
5 U.S.C. (Information Technology Exchange Program).
Example 1 to the definition of senior employee: A former
administrative law judge serves on a commission created within the
executive branch to adjudicate certain claims arising from a recent
military operation. The position is uncompensated but the judge
receives travel expenses. The judge is not employed in a position
for which the rate of pay is specified in or fixed according to the
Executive Schedule, is not serving in a
[[Page 36189]]
position to which he was appointed by the President or Vice
President under 3 U.S.C. 105(a)(2)(B) or 106(a)(1)(B), and is not
employed in a position for which his rate of basic pay is equal to
or greater than 86.5 percent of the rate of basic pay for level II
of the Executive Schedule. He is not a senior employee.
Example 2 to the definition of senior employee: A doctor is
hired to fill a ``senior-level'' position and is initially
compensated pursuant to 5 U.S.C. 5376 at a rate of basic pay
slightly less than 86.5 percent of the rate of basic pay payable for
level II of the Executive Schedule. If both the annual pay
adjustment provided for in 5 CFR 534.504 and the periodic pay
adjustment authorized in 5 CFR 534.503 result in a rate of basic pay
equal to or above 86.5 percent of the rate of basic pay payable for
level II of the Executive Schedule, the doctor will become a senior
employee.
Example 3 to the definition of senior employee: A criminal
investigator in the Office of the Inspector General at the
Department of Housing and Urban Development is a GS-15 employee but
also receives Law Enforcement Availability Pay (LEAP), pursuant to 5
U.S.C. 5545a. Even if the sum of the employee's LEAP payment plus
the employee's basic pay for GS-15 equaled 86.5 percent of the rate
of basic pay for level II of the Executive Schedule, LEAP is not
considered part of an employee's ``rate of basic pay'' for purposes
of section 207(c), and therefore the employee would not be a
``senior employee.''
Special Government employee means an officer or employee of the
executive branch or an independent agency, as specified in 18 U.S.C.
202(a). A special Government employee is retained, designated,
appointed, or employed to perform temporary duties either on a full-
time or intermittent basis, with or without compensation, for a period
not to exceed 130 days during any period of 365 consecutive days.
State means one of the fifty States of the United States and the
District of Columbia, the Commonwealth of Puerto Rico, and any
territory or possession of the United States.
Very senior employee means an employee who is:
(1) Employed in a position which is either listed in 5 U.S.C. 5312
or for which the rate of pay is equal to the rate of pay payable for
level I of the Executive Schedule;
(2) Employed in a position in the Executive Office of the President
which is either listed in 5 U.S.C. 5313 or for which the rate of pay is
equal to the rate of pay payable for level II of the Executive
Schedule;
(3) Appointed by the President to a position under 3 U.S.C.
105(a)(2)(A); or
(4) Appointed by the Vice President to a position under 3 U.S.C.
106(a)(1)(A).
Sec. 2641.105 Advice.
(a) Agency ethics officials. Current or former employees or others
who have questions about 18 U.S.C. 207 or about this part 2641 should
seek advice from a designated agency ethics official or another agency
ethics official. The agency in which an individual formerly served has
the primary responsibility to provide oral or written advice concerning
a former employee's post-employment activities. An agency ethics
official, in turn, may consult with other agencies, such as those
before whom a post-employment communication or appearance is
contemplated, and with the Office of Government Ethics.
(b) Office of Government Ethics. The Office of Government Ethics
(OGE) will provide advice to agency ethics officials and others
concerning 18 U.S.C. 207 and this part 2641. OGE may provide advice
orally or through issuance of a written advisory opinion and shall, as
appropriate, consult with the agency or agencies concerned and with the
Department of Justice.
(c) Effect of advice. Reliance on the oral or written advice of an
agency ethics official or the OGE cannot ensure that a former employee
will not be prosecuted for a violation of 18 U.S.C. 207. However, good
faith reliance on such advice is a factor that may be taken into
account by the Department of Justice (DOJ) in the selection of cases
for prosecution. In the case in which OGE issues a formal advisory
opinion in accordance with subpart C of 5 CFR part 2638, the DOJ will
not prosecute an individual who acted in good faith in accordance with
that opinion. See 5 CFR 2638.309.
(d) Contacts to seek advice. A former employee will not be deemed
to act on behalf of any other person in violation of 18 U.S.C. 207 when
he contacts an agency ethics official or other employee of the United
States for the purpose of seeking guidance concerning the applicability
or meaning of section 207 as applied to his own activities.
(e) No personal attorney-client privilege. A current or former
employee who discloses information to an agency ethics official, to a
Government attorney, or to an employee of the Office of Government
Ethics does not personally enjoy an attorney-client privilege with
respect to such communications.
Sec. 2641.106 Applicability of certain provisions to Vice President.
Subsections 207(d) (relating to restrictions on very senior
personnel) and 207(f) (restrictions with regard to foreign entities) of
title 18, United States Code, apply to a Vice President, to the same
extent as they apply to employees and former employees covered by those
provisions. See Sec. Sec. 2641.205 and 2641.206. There are no other
restrictions in 18 U.S.C. 207 applicable to a Vice President.
Subpart B--Prohibitions
Sec. 2641.201 Permanent restriction on any former employee's
representations to United States concerning particular matter in which
the employee participated personally and substantially.
(a) Basic prohibition of 18 U.S.C. 207(a)(1). No former employee
shall knowingly, with the intent to influence, make any communication
to or appearance before an employee of the United States on behalf of
any other person in connection with a particular matter involving a
specific party or parties, in which he participated personally and
substantially as an employee, and in which the United States is a party
or has a direct and substantial interest.
(b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(a)(1)
does not apply to a former employee who is:
(1) Acting on behalf of the United States. See Sec. 2641.301(a).
(2) Acting as an elected State or local government official. See
Sec. 2641.301(b).
(3) Communicating scientific or technological information pursuant
to procedures or certification. See Sec. 2641.301(e).
(4) Testifying under oath. See Sec. 2641.301(f). (Note that this
exception from Sec. 2641.201 is generally not available for expert
testimony. See Sec. 2641.301(f)(2).)
(5) Acting on behalf of an international organization pursuant to a
waiver. See Sec. 2641.301(h).
(6) Acting as an employee of a Government-owned, contractor-
operated entity pursuant to a waiver. See Sec. 2641.301(i).
(c) Commencement and length of restriction. 18 U.S.C. 207(a)(1) is
a permanent restriction that commences upon an employee's termination
from Government service. The restriction lasts for the life of the
particular matter involving specific parties in which the employee
participated personally and substantially.
(d) Communication or appearance--(1) Communication. A former
employee makes a communication when he imparts or transmits information
of any kind, including facts, opinions, ideas, questions or direction,
to an employee of the United States, whether orally, in written
correspondence, by electronic media, or by any other means. This
includes only those communications
[[Page 36190]]
with respect to which the former employee intends that the information
conveyed will be attributed to himself, although it is not necessary
that any employee of the United States actually recognize the former
employee as the source of the information.
(2) Appearance. A former employee makes an appearance when he is
physically present before an employee of the United States, in either a
formal or informal setting. Although an appearance also may be
accompanied by certain communications, an appearance need not involve
any communication by the former employee.
(3) Behind-the-scenes assistance. Nothing in this section prohibits
a former employee from providing assistance to another person, provided
that the assistance does not involve a communication to or an
appearance before an employee of the United States.
Example 1 to paragraph (d): A former employee of the Federal
Bureau of Investigation makes a brief telephone call to a colleague
in her former office concerning an ongoing investigation. She has
made a communication. If she personally attends an informal meeting
with agency personnel concerning the matter, she will have made an
appearance.
Example 2 to paragraph (d): A former employee of the National
Endowment for the Humanities (NEH) accompanies other representatives
of an NEH grantee to a meeting with the agency. Even if the former
employee does not say anything at the meeting, he has made an
appearance (although that appearance may or may not have been made
with the intent to influence, depending on the circumstances).
Example 3 to paragraph (d): A Government employee administered a
particular contract for agricultural research with Q Company. Upon
termination of her Government employment, she is hired by Q Company.
She works on the matter covered by the contract, but has no direct
contact with the Government. At the request of a company vice
president, she prepares a paper describing the persons at her former
agency who should be contacted and what should be said to them in an
effort to increase the scope of funding of the contract and to
resolve favorably a dispute over a contract clause. She may do so.
Example 4 to paragraph (d): A former employee of the National
Institutes of Health (NIH) prepares an application for an NIH
research grant on behalf of her university employer. The application
is signed and submitted by another university officer, but it lists
the former employee as the principal investigator who will be
responsible for the substantive work under the grant. She has not
made a communication. She also may sign an assurance to the agency
that she will be personally responsible for the direction and
conduct of the research under the grant, pursuant to Sec.
2641.201(e)(2)(iv). Moreover, she may personally communicate
scientific or technological information to NIH concerning the
application, provided that she does so under circumstances
indicating no intent to influence the Government pursuant to Sec.
2641.201(e)(2) or she makes the communication in accordance with the
exception for scientific or technological information in Sec.
2641.301(e).
Example 5 to paragraph (d): A former employee established a
small government relations firm with a highly specialized practice
in certain environmental compliance issues. She prepared a report
for one of her clients, which she knew would be presented to her
former agency by the client. The report is not signed by the former
employee, but the document does bear the name of her firm. The
former employee expects that it is commonly known throughout the
industry and the agency that she is the author of the report. If the
report were submitted to the agency, the former employee would be
making a communication and not merely confining herself to behind-
the-scenes assistance, because the circumstances indicate that she
intended the information to be attributed to herself.
(e) With the intent to influence--(1) Basic concept. The
prohibition applies only to communications or appearances made by a
former Government employee with the intent to influence the United
States. A communication or appearance is made with the intent to
influence when made for the purpose of:
(i) Seeking a Government ruling, benefit, approval, or other
discretionary Government action; or
(ii) Affecting Government action in connection with an issue or
aspect of a matter which involves an appreciable element of actual or
potential dispute or controversy.
Example 1 to paragraph (e)(1): A former employee of the
Administration on Children and Families (ACF) signs a grant
application and submits it to ACF on behalf of a nonprofit
organization for which she now works. She has made a communication
with the intent to influence an employee of the United States
because her communication was made for the purpose of seeking a
Government benefit.
Example 2 to paragraph (e)(1): A former Government employee
calls an agency official to complain about the auditing methods
being used by the agency in connection with an audit of a Government
contractor for which the former employee serves as a consultant. The
former employee has made a communication with the intent to
influence because his call was made for the purpose of seeking
Government action in connection with an issue involving an
appreciable element of dispute.
(2) Intent to influence not present. Certain communications to and
appearances before employees of the United States are not made with the
intent to influence, within the meaning of paragraph (e)(1) of this
section, including, but not limited to, communications and appearances
made solely for the purpose of:
(i) Making a routine request not involving a potential controversy,
such as a request for publicly available documents or an inquiry as to
the status of a matter;
(ii) Making factual statements or asking factual questions in a
context that involves neither an appreciable element of dispute nor an
effort to seek discretionary Government action, such as conveying
factual information regarding matters that are not potentially
controversial during the regular course of performing a contract;
(iii) Signing and filing the tax return of another person as
preparer;
(iv) Signing an assurance that one will be responsible as principal
investigator for the direction and conduct of research under a Federal
grant (see example 4 to paragraph (d) of this section);
(v) Filing a Securities and Exchange Commission (SEC) Form 10-K or
similar disclosure forms required by the SEC;
(vi) Making a communication, at the initiation of the Government,
concerning work performed or to be performed under a Government
contract or grant, during a routine Government site visit to premises
owned or occupied by a person other than the United States where the
work is performed or would be performed, in the ordinary course of
evaluation, administration, or performance of an actual or proposed
contract or grant; or
(vii) Purely social contacts (see example 4 to paragraph (f) of
this section).
Example 1 to paragraph (e)(2): A former Government employee
calls an agency to ask for the date of a scheduled public hearing on
her client's license application. This is a routine request not
involving a potential controversy and is not made with the intent to
influence.
Example 2 to paragraph (e)(2): In the previous example, the
agency's hearing calendar is quite full, as the agency has a
significant backlog of license applications. The former employee
calls a former colleague at the agency to ask if the hearing date
for her client could be moved up on the schedule, so that her client
can move forward with its business plans more quickly. This is a
communication made with the intent to influence.
Example 3 to paragraph (e)(2): A former employee of the
Department of Defense (DOD) now works for a firm that has a DOD
contract to produce an operator's manual for a radar device used by
DOD. In the course of developing a chapter about certain technical
features of the device, the former employee asks a DOD official
certain factual questions about the device and its properties. The
discussion does not concern any matter that is known to involve a
potential controversy between the agency and the contractor. The
former employee has not
[[Page 36191]]
made a communication with the intent to influence.
Example 4 to paragraph (e)(2): A former medical officer of the
Food and Drug Administration (FDA) sends a letter to the agency in
which he sets out certain data from safety and efficacy tests on a
new drug for which his employer, ABC Drug Co., is seeking FDA
approval. Even if the letter is confined to arguably ``factual''
matters, such as synopses of data from clinical trials, the
communication is made for the purpose of obtaining a discretionary
Government action, i.e., approval of a new drug. Therefore, this is
a communication made with the intent to influence.
Example 5 to paragraph (e)(2): A former Government employee now
works for a management consulting firm, which has a Government
contract to produce a study on the efficiency of certain agency
operations. Among other things, the contract calls for the
contractor to develop a range of alternative options for potential
restructuring of certain internal Government procedures. The former
employee would like to meet with agency representatives to present a
tentative list of options developed by the contractor. She may not
do so. There is a potential for controversy between the Government
and the contractor concerning the extent and adequacy of any options
presented, and, moreover, the contractor may have its own interest
in emphasizing certain options as opposed to others because some
options may be more difficult and expensive for the contractor to
develop fully than others.
Example 6 to paragraph (e)(2): A former employee of the Internal
Revenue Service (IRS) prepares his client's tax return, signs it as
preparer, and mails it to the IRS. He has not made a communication
with the intent to influence. In the event that any controversy
should arise concerning the return, the former employee may not
represent the client in the proceeding, although he may answer
direct factual questions about the records he used to compile
figures for the return, provided that he does not argue any theories
or positions to justify the use of one figure rather than another.
Example 7 to paragraph (e)(2): An agency official visits the
premises of a prospective contractor to evaluate the testing
procedure being proposed by the contractor for a research contract
on which it has bid. A former employee of the agency, now employed
by the contractor, is the person most familiar with the technical
aspects of the proposed testing procedure. The agency official asks
the former employee about certain technical features of the
equipment used in connection with the testing procedure. The former
employee may provide factual information that is responsive to the
questions posed by the agency official, as such information is
requested by the Government under circumstances for its convenience
in reviewing the bid. However, the former employee may not argue for
the appropriateness of the proposed testing procedure or otherwise
advocate any position on behalf of the contractor.
(3) Change in circumstances. If, at any time during the course of a
communication or appearance otherwise permissible under paragraph
(e)(2) of this section, it becomes apparent that circumstances have
changed which would indicate that any further communication or
appearance would be made with the intent to influence, the former
employee must refrain from such further communication or appearance.
Example 1 to paragraph (e)(3): A former Government employee
accompanies another employee of a contractor to a routine meeting
with agency officials to deliver technical data called for under a
Government contract. During the course of the meeting, an unexpected
dispute arises concerning certain terms of the contract. The former
employee may not participate in any discussion of this issue.
Moreover, if the circumstances clearly indicate that even her
continued presence during this discussion would be an appearance
made with the intent to influence, she should excuse herself from
the meeting.
(4) Mere physical presence intended to influence. Under some
circumstances, a former employee's mere physical presence, without any
communication by the employee concerning any material issue or
otherwise, may constitute an appearance with the intent to influence an
employee of the United States. Relevant considerations include such
factors as whether:
(i) The former employee has been given actual or apparent authority
to make any decisions, commitments, or substantive arguments in the
course of the appearance;
(ii) The Government employee before whom the appearance is made has
substantive responsibility for the matter and does not simply perform
ministerial functions, such as the acceptance of paperwork;
(iii) The former employee's presence is relatively prominent;
(iv) The former employee is paid for making the appearance;
(v) It is anticipated that others present at the meeting will make
reference to the views or past or present work of the former employee;
(vi) Circumstances do not indicate that the former employee is
present merely for informational purposes, for example, merely to
listen and record information for later use;
(vii) The former employee has entered a formal appearance in
connection with a legal proceeding at which he is present; and
(viii) The appearance is before former subordinates or others in
the same chain of command as the former employee.
Example 1 to paragraph (e)(4): A former Regional Administrator
of the Occupational Safety and Health Administration (OSHA) becomes
a consultant for a company being investigated for possible
enforcement action by the regional OSHA office. She is hired by the
company to coordinate and guide its response to the OSHA
investigation. She accompanies company officers to an informal
meeting with OSHA, which is held for the purpose of airing the
company's explanation of certain findings in an adverse inspection
report. The former employee is introduced at the meeting as the
company's compliance and governmental affairs adviser, but she does
not make any statements during the meeting concerning the
investigation. She is paid a fee for attending this meeting. She has
made an appearance with the intent to influence.
Example 2 to paragraph (e)(4): A former employee of an agency
now works for a manufacturer that seeks agency approval for a new
product. The agency convenes a public advisory committee meeting for
the purpose of receiving expert advice concerning the product.
Representatives of the manufacturer will make an extended
presentation of the data supporting the application for approval,
and a special table has been reserved for them in the meeting room
for this purpose. The former employee does not participate in the
manufacturer's presentation to the advisory committee and does not
even sit in the section designated for the manufacturer. Rather, he
sits in the back of the room in a large area reserved for the public
and the media. The manufacturer's speakers make no reference to the
involvement or views of the former employee with respect to the
matter. Even though the former employee may be recognized in the
audience by certain agency employees, he has not made an appearance
with the intent to influence because his presence is relatively
inconspicuous and there is little to identify him with the
manufacturer or the advocacy of its representatives at the meeting.
(f) To or before an employee of the United States--(1) Employee of
the United States. For purposes of this paragraph, an ``employee of the
United States'' means the President, the Vice President, and any
current Federal employee (including an individual appointed as an
employee or detailed to the Federal Government under the
Intergovernmental Personnel Act (5 U.S.C. 3371-3376)) who is detailed
to or employed by any:
(i) Agency (including a Government corporation);
(ii) Independent agency in the executive, legislative, or judicial
branch;
(iii) Federal court; or
(iv) Court-martial.
(2) To or before. Except as provided in paragraph (f)(3) of this
section, a communication ``to'' or appearance ``before'' an employee of
the United States is one:
(i) Directed to and received by an entity specified in paragraphs
(f)(1)(i) through (f)(1)(iv) of this section even though not addressed
to a particular employee, e.g., as when a former employee mails
correspondence to an
[[Page 36192]]
agency but not to any named employee; or
(ii) Directed to and received by an employee in his capacity as an
employee of an entity specified in paragraphs (f)(1)(i) through
(f)(1)(iv) of this section, e.g., as when a former employee directs
remarks to an employee representing the United States as a party or
intervenor in a Federal or non-Federal judicial proceeding. A former
employee does not direct his communication or appearance to a bystander
who merely happens to overhear the communication or witness the
appearance.
(3) Public commentary. (i) A former employee who addresses a public
gathering or a conference, seminar, or similar forum as a speaker or
panel participant will not be considered to be making a prohibited
communication or appearance if the forum:
(A) Is not sponsored or co-sponsored by an entity specified in
paragraphs (f)(1)(i) through (f)(1)(iv) of this section;
(B) Is attended by a large number of people; and
(C) A significant proportion of those attending are not employees
of the United States.
(ii) In the circumstances described in paragraph (f)(3)(i) of this
section, a former employee may engage in exchanges with any other
speaker or with any member of the audience.
(iii) A former employee also may permit the broadcast or
publication of a commentary provided that it is broadcast or appears in
a newspaper, periodical, or similar widely available publication.
Example 1 to paragraph (f): A Federal Trade Commission (FTC)
employee participated in the FTC's decision to initiate an
enforcement proceeding against a particular company. After
terminating Government service, the former employee is hired by the
company to lobby key Members of Congress concerning the necessity of
the proceeding. He may contact Members of Congress or their staff
since a communication to or appearance before such persons is not
made to or before an ``employee of the United States'' as that term
is defined in paragraph (f)(1) of this section.
Example 2 to paragraph (f): In the previous example, the former
FTC employee arranges to meet with a Congressional staff member to
discuss the necessity of the proceeding. A current FTC employee is
invited by the staff member to attend and is authorized by the FTC
to do so in order to present the agency's views. The former employee
may not argue his new employer's position at that meeting since his
arguments would unavoidably be directed to the FTC employee in his
capacity as an employee of the FTC.
Example 3 to paragraph (f): The Department of State granted a
waiver pursuant to 18 U.S.C. 208(b)(1) to permit one of its
employees to serve in his official capacity on the Board of
Directors of a private association. The employee participates in a
Board meeting to discuss what position the association should take
concerning the award of a recent contract by the Department of
Energy (DOE). When a former DOE employee addresses the Board to
argue that the association should object to the award of the
contract, she is directing her communication to a Department of
State employee in his capacity as an employee of the Department of
State.
Example 4 to paragraph (f): A Federal Communications Commission
(FCC) employee participated in a proceeding to review the renewal of
a license for a television station. After terminating Government
service, he is hired by the company that holds the license. At a
cocktail party, the former employee meets his former supervisor who
is still employed by the FCC and begins to discuss the specifics of
the license renewal case with him. The former employee is directing
his communication to an FCC employee in his capacity as an employee
of the FCC. Moreover, as the conversation concerns the license
renewal matter, it is not a purely social contact and satisfies the
element of the intent to influence the Government within the meaning
of paragraph (e) of this section.
Example 5 to paragraph (f): A Federal Trade Commission economist
participated in her agency's review of a proposed merger between two
companies. After terminating Government service, she goes to work
for a trade association that is interested in the proposed merger.
She would like to speak about the proposed merger at a conference
sponsored by the trade association. The conference is attended by
100 individuals, 50 of whom are employees of entities specified in
paragraphs (f)(1)(i) through (f)(1)(iv) of this section. The former
employee may speak at the conference and may engage in a discussion
of the merits of the proposed merger in response to a question posed
by a Department of Justice employee in attendance.
Example 6 to paragraph (f): The former employee in the previous
example may, on behalf of her employer, write and permit publication
of an op-ed piece in a metropolitan newspaper in support of a
particular resolution of the merger proposal.
Example 7 to paragraph (f): ABC Company has a contract with the
Department of Energy which requires that contractor personnel work
closely with agency employees in adjoining offices and work stations
in the same building. After leaving the Department, a former
employee goes to work for another corporation that has an interest
in performing certain work related to the same contract, and he
arranges a meeting with certain ABC employees at the building where
he previously worked on the project. At the meeting, he asks the ABC
employees to mention the interest of his new employer to the project
supervisor, who is an agency employee. Moreover, he tells the ABC
employees that they can say that he was the source of this
information. The ABC employees in turn convey this information to
the project supervisor. The former employee has made a communication
to an employee of the Department of Energy. His communication is
directed to an agency employee because he intended that the
information be conveyed to an agency employee with the intent that
it be attributed to himself, and the circumstances indicate such a
close working relationship between contractor personnel and agency
employees that it was likely that the information conveyed to
contractor personnel would be received by the agency.
(g) On behalf of any other person--(1) On behalf of. (i) A former
employee makes a communication or appearance on behalf of another
person if the former employee is acting as the other person's agent or
attorney or if:
(A) The former employee is acting with the consent of the other
person, whether express or implied; and
(B) The former employee is acting subject to some degree of control
or direction by the other person in relation to the communication or
appearance.
(ii) A former employee does not act on behalf of another merely
because his communication or appearance is consistent with the
interests of the other person, is in support of the other person, or
may cause the other person to derive a benefit as a consequence of the
former employee's activity.
(2) Any other person. The term ``person'' is defined in Sec.
2641.104. For purposes of this paragraph, the term excludes the former
employee himself or any sole proprietorship owned by the former
employee.
Example 1 to paragraph (g): An employee of the Bureau of Land
Management (BLM) participated in the decision to grant a private
company the right to explore for minerals on certain Federal lands.
After retiring from Federal service to pursue her hobbies, the
former employee becomes concerned that BLM is misinterpreting a
particular provision of the lease. The former employee may contact a
current BLM employee on her own behalf in order to argue that her
interpretation is correct.
Example 2 to paragraph (g): The former BLM employee from the
previous example later joins an environmental organization as an
uncompensated volunteer. The leadership of the organization
authorizes the former employee to engage in any activity that she
believes will advance the interests of the organization. She makes a
communication on behalf of the organization when, pursuant to this
authority, she writes to BLM on the organization's letterhead in
order to present an additional argument concerning the
interpretation of the lease provision. Although the organization did
not direct her to send the specific communication to BLM, the
circumstances establish that she made the communication with the
consent of the organization and subject to a degree of control or
direction by the organization.
Example 3 to paragraph (g): An employee of the Administration
for Children and
[[Page 36193]]
Families wrote the statement of work for a cooperative agreement to
be issued to study alternative workplace arrangements. After
terminating Government service, the former employee joins a
nonprofit group formed to promote family togetherness. He is asked
by his former agency to attend a meeting in order to offer his
recommendations concerning the ranking of the grant applications he
had reviewed while still a Government employee. The management of
the nonprofit group agrees to permit him to take leave to attend the
meeting in order to present his personal views concerning the
ranking of the applications. Although the former employee is a
salaried employee of the non-profit group and his recommendations
may be consistent with the group's interests, the circumstances
establish that he did not make the communication subject to the
control of the group.
Example 4 to paragraph (g): An Assistant Secretary of Defense
participated in a meeting at which a defense contractor pressed
Department of Defense (DOD) officials to continue funding the
contractor's sole source contract to develop the prototype of a
specialized robot. After terminating Government service, the former
Assistant Secretary approaches the contractor and suggests that she
can convince her former DOD colleagues to pursue development of the
prototype robot. The contractor agrees that the former Assistant
Secretary's proposed efforts could be useful and asks her to set up
a meeting with key DOD officials for the following week. Although
the former Assistant Secretary is not an employee of the contractor,
the circumstances establish that she is acting subject to some
degree of control or direction by the contractor.
(h) Particular matter involving a specific party or parties--(1)
Basic concept. The prohibition applies only to communications or
appearances made in connection with a ``particular matter involving a
specific party or parties.'' Although the statute defines ``particular
matter'' broadly to include ``any investigation, application, request
for a ruling or determination, rulemaking, contract, controversy,
claim, charge, accusation, arrest, or judicial or other proceeding,''
18 U.S.C. 207(i)(3), only those particular matters that involve a
specific party or parties fall within the prohibition of section
207(a)(1). Such a matter typically involves a specific proceeding
affecting the legal rights of the parties or an isolatable transaction
or related set of transactions between identified parties, such as a
specific contract, grant, license, product approval application,
enforcement action, administrative adjudication, or court case.
Example 1 to paragraph (h)(1): An employee of the Department of
Housing and Urban Development approved a specific city's application
for Federal assistance for a renewal project. After leaving
Government service, she may not represent the city in relation to
that application as it is a particular matter involving specific
parties in which she participated personally and substantially as a
Government employee.
Example 2 to paragraph (h)(1): An attorney in the Department of
Justice drafted provisions of a civil complaint that is filed in
Federal court alleging violations of certain environmental laws by
ABC Company. The attorney may not subsequently represent ABC before
the Government in connection with the lawsuit, which is a particular
matter involving specific parties.
(2) Matters of general applicability not covered. Legislation or
rulemaking of general applicability and the formulation of general
policies, standards or objectives, or other matters of general
applicability are not particular matters involving specific parties.
International agreements, such as treaties and trade agreements, must
be evaluated in light of all relevant circumstances to determine
whether they should be considered particular matters involving specific
parties; relevant considerations include such factors as whether the
agreement focuses on a specific property or territory, a specific
claim, or addresses a large number of diverse issues or economic
interests.
Example 1 to paragraph (h)(2): A former employee of the Mine
Safety and Health Administration (MSHA) participated personally and
substantially in the development of a regulation establishing
certain new occupational health and safety standards for mine
workers. Because the regulation applies to the entire mining
industry, it is a particular matter of general applicability, not a
matter involving specific parties, and the former employee would not
be prohibited from making post-employment representations to the
Government in connection with this regulation.
Example 2 to paragraph (h)(2): The former employee in the
previous example also assisted MSHA in its defense of a lawsuit
brought by a trade association challenging the same regulation. This
lawsuit is a particular matter involving specific parties, and the
former MSHA employee would be prohibited from representing the trade
association or anyone else in connection with the case.
Example 3 to paragraph (h)(2): An employee of the National
Science Foundation formulated policies for a grant program for
organizations nationwide to produce science education programs
targeting elementary school age children. She is not prohibited from
later representing a specific organization in connection with its
application for assistance under the program.
Example 4 to paragraph (h)(2): An employee in the legislative
affairs office of the Department of Homeland Security (DHS) drafted
official comments submitted to Congress with respect to a pending
immigration reform bill. After leaving the Government, he contacts
DHS on behalf of a private organization seeking to influence the
Administration to insist on certain amendments to the bill. This is
not prohibited. Generally, legislation is not a particular matter
involving specific parties. However, if the same employee had
participated as a DHS employee in formulating the agency's position
on proposed private relief legislation granting citizenship to a
specific individual, this matter would involve specific parties, and
the employee would be prohibited from later making representational
contacts in connection with this matter.
Example 5 to paragraph (h)(2): An employee of the Food and Drug
Administration (FDA) drafted a proposed rule requiring all
manufacturers of a particular type of medical device to obtain pre-
market approval for their products. It was known at the time that
only three or four manufacturers currently were marketing or
developing such products. However, there was nothing to preclude
other manufacturers from entering the market in the future.
Moreover, the regulation on its face was not limited in application
to those companies already known to be involved with this type of
product at the time of promulgation. Because the proposed rule would
apply to an open-ended class of manufacturers, not just specifically
identified companies, it would not be a particular matter involving
specific parties. After leaving Government, the former FDA employee
would not be prohibited from representing a manufacturer in
connection with the final rule or the application of the rule in any
specific case.
Example 6 to paragraph (h)(2): A former agency attorney
participated in drafting a standard form contract and certain
standard terms and clauses for use in all future contracts. The
adoption of a standard form and language for all contracts is a
matter of general applicability, not a particular matter involving
specific parties. Therefore, the attorney would not be prohibited
from representing another person in a dispute involving the
application of one of the standard terms or clauses in a specific
contract in which he did not participate as a Government employee.
Example 7 to paragraph (h)(2): An employee of the Department of
State participated in the development of the United States' position
with respect to a proposed treaty with a foreign government
concerning transfer of ownership with respect to a parcel of real
property and certain operations there. After terminating Government
employment, this individual seeks to represent the foreign
government before the Department with respect to certain issues
arising in the final stage of the treaty negotiations. This
bilateral treaty is a particular matter involving specific parties,
and the former employee had participated personally and
substantially in this matter. Note also that certain employees may
be subject to additional restrictions with respect to trade and
treaty negotiations or representation of a foreign entity, pursuant
to 18 U.S.C. 207(b) and (f).
Example 8 to paragraph (h)(2): The employee in the previous
example participated for the Department in negotiations with respect
to a multilateral trade agreement concerning tariffs and other
[[Page 36194]]
trade practices in regard to various industries in 50 countries. The
proposed agreement would provide various stages of implementation,
with benchmarks for certain legislative enactments by signatory
countries. These negotiations do not concern a particular matter
involving specific parties. Even though the former employee would
not be prohibited under section 207(a)(1) from representing another
person in connection with this matter, she must comply with any
applicable restrictions in 18 U.S.C. 207(b) and (f).
(3) Specific parties at all relevant times. The particular matter
must involve specific parties both at the time the individual
participated as a Government employee and at the time the former
employee makes the communication or appearance, although the parties
need not be identical at both times.
Example 1 to paragraph (h)(3): An employee of the Department of
Defense (DOD) performed certain feasibility studies and other basic
conceptual work for a possible innovation to a missile system. At
the time she was involved in the matter, DOD had not identified any
prospective contractors who might perform the work on the project.
After she left Government, DOD issued a request for proposals to
construct the new system, and she now seeks to represent one of the
bidders in connection with this procurement. She may do so. Even
though the procurement is a particular matter involving specific
parties at the time of her proposed representation, no parties to
the matter had been identified at the time she participated in the
project as a Government employee.
Example 2 to paragraph (h)(3): A former employee in an agency
inspector general's office conducted the first investigation of its
kind concerning a particular fraudulent accounting practice by a
grantee. This investigation resulted in a significant monetary
recovery for the Government, as well as a settlement agreement in
which the grantee agreed to use only certain specified accounting
methods in the future. As a result of this case, the agency decided
to issue a proposed rule expressly prohibiting the fraudulent
accounting practice and requiring all grantees to use the same
accounting methods that had been developed in connection with the
settlement agreement. The former employee may represent a group of
grantees submitting comments critical of the proposed regulation.
Although the proposed regulation in some respects evolved from the
earlier fraud case, which did involve specific parties, the
subsequent rulemaking proceeding does not involve specific parties.
(4) Preliminary or informal stages in a matter. When a particular
matter involving specific parties begins depends on the facts. A
particular matter may involve specific parties prior to any formal
action or filings by the agency or other parties. Much of the work with
respect to a particular matter is accomplished before the matter
reaches its final stage, and preliminary or informal action is covered
by the prohibition, provided that specific parties to the matter
actually have been identified. With matters such as grants, contracts,
and other agreements, ordinarily specific parties are first identified
when initial proposals or indications of interest, such as responses to
requests for proposals (RFP) or earlier expressions of interest, are
received by the Government; in unusual circumstances, however, such as
a sole source procurement or when there are sufficient indicia that the
Government has explicitly identified a specific party in an otherwise
ordinary prospective grant, contract, or agreement, specific parties
may be identified even prior to the receipt of a proposal or expression
of interest.
Example 1 to paragraph (h)(4): A Government employee
participated in internal agency deliberations concerning the merits
of taking enforcement action against a company for certain trade
practices. He left the Government before any charges were filed
against the company. He has participated in a particular matter
involving specific parties and may not represent another person in
connection with the ensuing administrative or judicial proceedings
against the company.
Example 2 to paragraph (h)(4): A former special Government
employee (SGE) of the Agency for Health Care Policy and Research
served, before leaving the agency, on a ``peer review'' committee
that made a recommendation to the agency concerning the technical
merits of a specific grant proposal submitted by a university. The
committee's recommendations are nonbinding and constitute only the
first of several levels of review within the agency. Nevertheless,
the SGE participated in a particular matter involving specific
parties and may not represent the university in subsequent efforts
to obtain the same grant.
Example 3 to paragraph (h)(4): Prior to filing a product
approval application with a regulatory agency, a company sought
guidance from the agency. The company provided specific information
concerning the product, including its composition and intended uses,
safety and efficacy data, and the results and designs of prior
studies on the product. After a series of meetings, the agency
advised the company concerning the design of additional studies that
it should perform in order to address those issues that the agency
still believed were unresolved. Even though no formal application
had been filed, this was a particular matter involving specific
parties. The agency guidance was sufficiently specific, and it was
clearly intended to address the substance of a prospective
application and to guide the prospective applicant in preparing an
application that would meet approval requirements. An agency
employee who was substantially involved in developing this guidance
could not leave the Government and represent the company when it
submits its formal product approval application.
Example 4 to paragraph (h)(4): A Government scientist
participated in preliminary, internal deliberations about her
agency's need for additional laboratory facilities. After she
terminated Government service, the General Services Administration
issued a request for proposals (RFP) seeking private architectural
services to design the new laboratory space for the agency. The
former employee may represent an architectural firm in connection
with its response to the RFP. During the preliminary stage in which
the former employee participated, no specific architectural firms
had been identified for the proposed work.
Example 5 to paragraph (h)(4): In the previous example, the
proposed laboratory was to be an extension of a recently completed
laboratory designed by XYZ Architectural Associates, and the
Government had determined to pursue a sole source contract with that
same firm for the new work. Even before the firm was contacted or
expressed any interest concerning the sole source contract, the
former employee participated in meetings in which specifications for
a potential sole source contract with the firm were discussed. The
former employee may not represent XYZ before the Government in
connection with this matter.
(5) Same particular matter--(i) General. The prohibition applies
only to communications or appearances in connection with the same
particular matter involving specific parties in which the former
employee participated as a Government employee. The same particular
matter may continue in another form or in part. In determining whether
two particular matters involving specific parties are the same, all
relevant factors should be considered, including the extent to which
the matters involve the same basic facts, the same or related parties,
related issues, the same confidential information, and the amount of
time elapsed.
(ii) Considerations in the case of contracts, grants, and other
agreements. With respect to matters such as contracts, grants or other
agreements:
(A) A new matter typically does not arise simply because there are
amendments, modifications, or extensions of a contract (or other
agreement), unless there are fundamental changes in objectives or the
nature of the matter;
(B) Generally, successive or otherwise separate contracts (or other
agreements) will be viewed as different matters from each other, absent
some indication that one contract (or other agreement) contemplated the
other or that both are in support of the same specific proceeding;
(C) A contract is almost always a single particular matter
involving
[[Page 36195]]
specific parties. However, under compelling circumstances, distinct
aspects or phases of certain large umbrella-type contracts, involving
separate task orders or delivery orders, may be considered separate
individual particular matters involving specific parties, if an agency
determines that articulated lines of division exist. In making this
determination, an agency should consider the relevant factors as
described above. No single factor should be determinative, and any
divisions must be based on the contract's characteristics, which may
include, among other things, performance at different geographical
locations, separate and distinct subject matters, the separate
negotiation or competition of individual task or delivery orders, and
the involvement of different program offices or even different
agencies.
Example 1 to paragraph (h)(5): An employee drafted one provision
of an agency contract to procure new software. After she left
Government, a dispute arose under the same contract concerning a
provision that she did not draft. She may not represent the
contractor in this dispute. The contract as a whole is the
particular matter involving specific parties and may not be
fractionalized into separate clauses for purposes of avoiding the
prohibition of 18 U.S.C. 207(a)(1).
Example 2 to paragraph (h)(5): In the previous example, a new
software contract was awarded to the same contractor through a full
and open competition, following the employee's departure from the
agency. Although no major changes were made in the contract terms,
the new contract is a different particular matter involving specific
parties.
Example 3 to paragraph (h)(5): A former special Government
employee (SGE) recommended that his agency approve a new food
additive made by Good Foods, Inc., on the grounds that it was proven
safe for human consumption. The Healthy Food Alliance (HFA) sued the
agency in Federal court to challenge the decision to approve the
product. After leaving Government service, the former SGE may not
serve as an expert witness on behalf of HFA in this litigation
because it is a continuation of the same product approval matter in
which he participated personally and substantially.
Example 4 to paragraph (h)(5): An employee of the Department of
the Army negotiated and supervised a contract with Munitions, Inc.
for four million mortar shells meeting certain specifications. After
the employee left Government, the Army sought a contract
modification to add another one million shells. All specifications
and contractual terms except price, quantity and delivery dates were
identical to those in the original contract. The former Army
employee may not represent Munitions in connection with this
modification, because it is part of the same particular matter
involving specific parties as the original contract.
Example 5 to the paragraph (h)(5): In the previous example,
certain changes in technology occurred since the date of the
original contract, and the proposed contract modifications would
require the additional shells to incorporate new design features.
Moreover, because of changes in the Army's internal system for
storing and distributing shells to various locations, the
modifications would require Munitions to deliver its product to
several de-centralized destination points, thus requiring Munitions
to develop novel delivery and handling systems and incur new
transportation costs. The Army considers these modifications to be
fundamental changes in the approach and objectives of the contract
and may determine that these changes constitute a new particular
matter.
Example 6 to paragraph (h)(5): A Government employee reviewed
and approved certain wiretap applications. The prosecution of a
person overheard during the wiretap, although not originally
targeted, must be regarded as part of the same particular matter as
the original wiretap application. The reason is that the validity of
the wiretap may be put in issue and many of the facts giving rise to
the wiretap application would be involved.
Example 7 to paragraph (h)(5): The Navy awards an indefinite
delivery contract for environmental remediation services in the
northeastern U.S. A Navy engineer is assigned as the Navy's
technical representative on a task order for remediation of an oil
spill at a Navy activity in Maine. The Navy engineer is personally
and substantially involved in the task order (e.g., he negotiates
the scope of work, the labor hours required, and monitors the
contractor's performance). Following successful completion of the
remediation of the oil spill in Maine, the Navy engineer leaves
Government service and goes to work for the Navy's remediation
contractor. In year two of the contract, the Navy issues a task
order for the remediation of lead-based paint at a Navy housing
complex in Connecticut. The contractor assigns the former Navy
engineer to be its project manager for this task order, which will
require him to negotiate with the Navy about the scope of work and
the labor hours under the task order. Although the task order is
placed under the same indefinite delivery contract (the terms of
which remain unchanged), the Navy would be justified in determining
that the lead-based paint task order is a separate particular matter
as it involves a different type of remediation, at a different
location, and at a different time. Note, however, that the engineer
in this example had not participated personally and substantially in
the overall contract. Any former employee who had--for example, by
participating personally and substantially in the initial award or
subsequent oversight of the umbrella contract--will be deemed to
have also participated personally and substantially in any
individual particular matters resulting from the agency's
determination that such contract is divisible.
Example 8 to paragraph (h)(5): An agency contracts with Company
A to install a satellite system connecting the headquarters office
to each of its twenty field offices. Although the field offices are
located at various locations throughout the country, each
installation is essentially identical, with the terms of each
negotiated in the main contract. Therefore, this contract should not
be divided into separate particular matters involving specific
parties.
(i) Participated personally and substantially--(1) Participate. To
``participate'' means to take an action as an employee through
decision, approval, disapproval, recommendation, the rendering of
advice, investigation, or other such action, or to purposefully forbear
in order to affect the outcome of a matter. An employee can participate
in particular matters that are pending other than in his own agency. An
employee does not participate in a matter merely because he had
knowledge of its existence or because it was pending under his official
responsibility. An employee does not participate in a matter within the
meaning of this section unless he does so in his official capacity.
(2) Personally. To participate ``personally'' means to participate:
(i) Directly, either individually or in combination with other
persons; or
(ii) Through direct and active supervision of the participation of
any person he supervises, including a subordinate.
(3) Substantially. To participate ``substantially'' means that the
employee's involvement is of significance to the matter. Participation
may be substantial even though it is not determinative of the outcome
of a particular matter. However, it requires more than official
responsibility, knowledge, perfunctory involvement, or involvement on
an administrative or peripheral issue. A finding of substantiality
should be based not only on the effort devoted to a matter, but also on
the importance of the effort. While a series of peripheral involvements
may be insubstantial, the single act of approving or participating in a
critical step may be substantial. Provided that an employee
participates in the substantive merits of a matter, his participation
may be substantial even though his role in the matter, or the aspect of
the matter in which he is participating, may be minor in relation to
the matter as a whole. Participation in peripheral aspects of a matter
or in aspects not directly involving the substantive merits of a matter
(such as reviewing budgetary procedures or scheduling meetings) is not
substantial.
Example 1 to paragraph (i): A General Services Administration
(GSA) attorney drafted a standard form contract and certain standard
terms and clauses for use in future contracts. A contracting officer
uses one of the standard clauses in a subsequent contract without
consulting the GSA attorney. The
[[Page 36196]]
attorney did not participate personally in the subsequent contract.
Example 2 to paragraph (i): An Internal Revenue Service (IRS)
attorney is neither in charge of nor does she have official
responsibility for litigation involving a particular delinquent
taxpayer. At the request of a co-worker who is assigned
responsibility for the litigation, the lawyer provides advice
concerning strategy during the discovery stage of the litigation.
The IRS attorney participated personally in the litigation.
Example 3 to paragraph (i): The IRS attorney in the previous
example had no further involvement in the litigation. She
participated substantially in the litigation notwithstanding that
the post-discovery stages of the litigation lasted for ten years
after the day she offered her advice.
Example 4 to paragraph (i): The General Counsel of the Office of
Government Ethics (OGE) contacts the OGE attorney who is assigned to
evaluate all requests for ``certificates of divestiture'' to check
on the status of the attorney's work with respect to all pending
requests. The General Counsel makes no comment concerning the merits
or relative importance of any particular request. The General
Counsel did not participate substantially in any particular request
when she checked on the status of all pending requests.
Example 5 to paragraph (i): The OGE attorney in the previous
example completes his evaluation of a particular certificate of
divestiture request and forwards his recommendation to the General
Counsel. The General Counsel forwards the package to the Director of
OGE with a note indicating her concurrence with the attorney's
recommendation. The General Counsel participated substantially in
the request.
Example 6 to paragraph (i): An International Trade Commission
(ITC) computer programmer developed software designed to analyze
data related to unfair trade practice complaints. At the request of
an ITC employee who is considering the merits of a particular
complaint, the programmer enters all the data supplied to her, runs
the computer program, and forwards the results to the employee who
will make a recommendation to an ITC Commissioner concerning the
disposition of the complaint. The programmer did not participate
substantially in the complaint.
Example 7 to paragraph (i): The director of an agency office
must concur in any decision to grant an application for technical
assistance to certain nonprofit entities. When a particular
application for assistance comes into her office and is presented to
her for decision, she intentionally takes no action on it because
she believes the application will raise difficult policy questions
for her agency at this time. As a consequence of her inaction, the
resolution of the application is deferred indefinitely. She has
participated personally and substantially in the matter.
(j) United States is a party or has a direct and substantial
interest--(1) United States. For purposes of this paragraph, the
``United States'' means:
(i) The executive branch (including a Government corporation);
(ii) The legislative branch; or
(iii) The judicial branch.
(2) Party or direct and substantial interest. The United States may
be a party to or have a direct and substantial interest in a particular
matter even though it is pending in a non-Federal forum, such as a
State court. The United States is neither a party to nor does it have a
direct and substantial interest in a particular matter merely because a
Federal statute is at issue or a Federal court is serving as the forum
for resolution of the matter. When it is not clear whether the United
States is a party to or has a direct and substantial interest in a
particular matter, this determination shall be made in accordance with
the following procedure:
(i) Coordination by designated agency ethics official. The
designated agency ethics official (DAEO) for the former employee's
agency shall have the primary responsibility for coordinating this
determination. When it appears likely that a component of the United
States Government other than the former employee's former agency may be
a party to or have a direct and substantial interest in the particular
matter, the DAEO shall coordinate with agency ethics officials serving
in those components.
(ii) Agency determination. A component of the United States
Government shall determine if it is a party to or has a direct and
substantial interest in a matter in accordance with its own internal
procedures. It shall consider all relevant factors, including whether:
(A) The component has a financial interest in the matter;
(B) The matter is likely to have an effect on the policies,
programs, or operations of the component;
(C) The component is involved in any proceeding associated with the
matter, e.g., as by having provided witnesses or documentary evidence;
and
(D) The component has more than an academic interest in the outcome
of the matter.
Example 1 to paragraph (j): An attorney participated in
preparing the Government's antitrust action against Z Company. After
leaving the Government, she may not represent Z Company in a private
antitrust action brought against it by X Company on the same facts
involved in the Government action. Nor may she represent X Company
in that matter. The interest of the United States in preventing both
inconsistent results and the appearance of impropriety in the same
factual matter involving the same party, Z Company, is direct and
substantial. However, if the Government's antitrust investigation or
case is closed, the United States no longer has a direct and
substantial interest in the case.
Sec. 2641.202 Two-year restriction on any former employee's
representations to United States concerning particular matter for which
the employee had official responsibility.
(a) Basic prohibition of 18 U.S.C. 207(a)(2). For two years after
his Government service terminates, no former employee shall knowingly,
with the intent to influence, make any communication to or appearance
before an employee of the United States on behalf of any other person
in connection with a particular matter involving a specific party or
parties, in which the United States is a party or has a direct and
substantial interest, and which such person knows or reasonably should
know was actually pending under his official responsibility within the
one-year period prior to the termination of his Government service.
(b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(a)(2)
does not apply to a former employee who is:
(1) Acting on behalf of the United States. See Sec. 2641.301(a).
(2) Acting as an elected State or local government official. See
Sec. 2641.301(b).
(3) Communicating scientific or technological information pursuant
to procedures or certification. See Sec. 2641.301(e).
(4) Testifying under oath. See Sec. 2641.301(f).
(5) Acting on behalf of an international organization pursuant to a
waiver. See Sec. 2641.301(h).
(6) Acting as an employee of a Government-owned, contractor-
operated entity pursuant to a waiver. See Sec. 2641.301(i).
(c) Commencement and length of restriction. 18 U.S.C. 207(a)(2) is
a two-year restriction that commences upon an employee's termination
from Government service. See example 9 to paragraph (j) of this
section.
(d) Communication or appearance. See Sec. 2641.201(d).
(e) With the intent to influence. See Sec. 2641.201(e).
(f) To or before an employee of the United States See Sec.
2641.201(f).
(g) On behalf of any other person. See Sec. 2641.201(g).
(h) Particular matter involving a specific party or parties. See
Sec. 2641.201(h).
(i) United States is a party or has a direct and substantial
interest. See Sec. 2641.201(j).
(j) Official responsibility--(1) Definition. ``Official
responsibility'' means the direct administrative or operating
authority, whether
[[Page 36197]]
intermediate or final, and either exercisable alone or with others, and
either personally or through subordinates, to approve, disapprove, or
otherwise direct Government action. Ordinarily, the scope of an
employee's official responsibility is determined by those functions
assigned by statute, regulation, Executive order, job description, or
delegation of authority. All particular matters under consideration in
an agency are under the official responsibility of the agency head and
each is under that of any intermediate supervisor who supervises a
person, including a subordinate, who actually participates in the
matter or who has been assigned to participate in the matter within the
scope of his official duties. A nonsupervisory employee does not have
official responsibility for his own assignments within the meaning of
section 207(a)(2). Authority to direct Government action concerning
only ancillary or nonsubstantive aspects of a matter, such as
budgeting, equal employment, scheduling, or format requirements does
not, ordinarily, constitute official responsibility for the matter as a
whole.
(2) Actually pending. A matter is actually pending under an
employee's official responsibility if it has been referred to the
employee for assignment or has been referred to or is under
consideration by any person he supervises, including a subordinate. A
matter remains pending even when it is not under ``active''
consideration. There is no requirement that the matter must have been
pending under the employee's official responsibility for a certain
length of time.
(3) Temporary duties. An employee ordinarily acquires official
responsibility for all matters within the scope of his position
immediately upon assuming the position. However, under certain
circumstances, an employee who is on detail (or other temporary
assignment) to a position or who is serving in an ``acting'' status
might not be deemed to have official responsibility for any matter by
virtue of such temporary duties. Specifically, an employee performing
such temporary duties will not thereby acquire official responsibility
for matters within the scope of the position where he functions only in
a limited ``caretaker'' capacity, as evidenced by such factors as:
(i) Whether the employee serves in the position for no more than 60
consecutive calendar days;
(ii) Whether there is actually another incumbent for the position,
who is temporarily absent, for example, on travel or leave;
(iii) Whether there has been no event triggering the provisions of
5 U.S.C. 3345(a); and
(iv) Whether there are any other circumstances indicating that,
given the temporary nature of the detail or acting status, there was no
reasonable expectation of the full authority of the position.
(4) Effect of leave status. The scope of an employee's official
responsibility is not affected by annual leave, terminal leave, sick
leave, excused absence, leave without pay, or similar absence from
assigned duties.
(5) Effect of disqualification. Official responsibility for a
matter is not eliminated through self-disqualification or avoidance of
personal participation in a matter, as when an employee is disqualified
from participating in a matter in accordance with subparts D, E, or F
of 5 CFR part 2635 or part 2640. Official responsibility for a matter
can be terminated by a formal modification of an employee's
responsibilities, such as by a change in the employee's position
description.
(6) One-year period before termination. 18 U.S.C. 207(a)(2) applies
only with respect to a particular matter that was actually pending
under the former employee's official responsibility:
(i) At some time when the matter involved a specific party or
parties; and
(ii) Within his last year of Government service.
(7) Knowledge of official responsibility. A communication or
appearance is not prohibited unless, at the time of the proposed post-
employment communication or appearance, the former employee knows or
reasonably should know that the matter was actually pending under his
official responsibility within the one-year period prior to his
termination from Government service. It is not necessary that a former
employee have known during his Government service that the matter was
actually pending under his official responsibility.
Note to paragraph (j): 18 U.S.C. 207(a)(2) requires only that
the former employee ``reasonably should know'' that the matter was
pending under his official responsibility. Consequently, when the
facts suggest that a particular matter involving specific parties
could have been actually pending under his official responsibility,
a former employee should seek information from an agency ethics
official or other Government official to clarify his role in the
matter. See Sec. 2641.105 concerning advice.
Example 1 to paragraph (j): The position description of an
Assistant Secretary of Housing and Urban Development specifies that
he is responsible for a certain class of grants. These grants are
handled by an office under his supervision. As a practical matter,
however, the Assistant Secretary has not become involved with any
grants of this type. The Assistant Secretary has official
responsibility for all such grants as specified in his position
description.
Example 2 to paragraph (j): A budget officer at the National
Oceanic and Atmospheric Administration (NOAA) is asked to review
NOAA's budget to determine if there are funds still available for
the purchase of a new hurricane tracking device. The budget officer
does not have official responsibility for the resulting contract
even though she is responsible for all budget matters within the
agency. The identification of funds for the contract is an ancillary
aspect of the contract.
Example 3 to paragraph (j): An Internal Revenue Service (IRS)
auditor worked in the office responsible for the tax-exempt status
of nonprofit organizations. Subsequently, he was transferred to the
IRS office concerned with public relations. When contacted by an
employee of his former office for advice concerning a matter
involving a certain nonprofit organization, the auditor provides
useful suggestions. The auditor's supervisor in the public relations
office does not have official responsibility for the nonprofit
matter since it does not fall within the scope of the auditor's
current duties.
Example 4 to paragraph (j): An information manager at the
Central Intelligence Agency (CIA) assigns a nonsupervisory
subordinate to research an issue concerning a request from a news
organization for information concerning past agency activities.
Before she commences any work on the assignment, the subordinate
terminates employment with the CIA. The request was not pending
under the subordinate's official responsibility since a non-
supervisory employee does not have official responsibility for her
own assignments. (Once the subordinate commences work on the
assignment, she may be participating ``personally and
substantially'' within the meaning of 18 U.S.C. 207(a)(1) and Sec.
2641.201(i).)
Example 5 to paragraph (j): A regional employee of the Federal
Emergency Management Agency requests guidance from the General
Counsel concerning a contractual dispute with Baker Company. The
General Counsel immediately assigns the matter to a staff attorney
whose workload can accommodate the assignment, then retires from
Government two days later. Although the staff attorney did not
retrieve the assignment from his in-box prior to the General
Counsel's departure, the Baker matter was actually pending under the
General Counsel's official responsibility from the time the General
Counsel received the request for guidance.
Example 6 to paragraph (j): A staff attorney in the Federal
Emergency Management Agency's Office of General Counsel is consulted
by procurement officers concerning the correct resolution of a
contractual matter involving Able Company. The attorney renders an
opinion resolving the question. The same legal question arises later
in several contracts with other companies but none of the disputes
with
[[Page 36198]]
such companies is referred to the Office of General Counsel. The
General Counsel had official responsibility for the determination of
the Able Company matter, but the subsequent matters were never
actually pending under his official responsibility.
Example 7 to paragraph (j): An employee of the National
Endowment for the Humanities becomes ``acting'' Division Director of
the Division of Education Programs when the Division Director is
away from the office for three days to attend a conference. During
those three days, the employee has authority to direct Government
action in connection with many matters with which she ordinarily
would have no involvement. However, in view of the brief time period
and the fact that there remains an incumbent in the position of
Division Director, the agency ethics official properly may determine
that the acting official did not acquire official responsibility for
all matters then pending in the Division.
Example 8 to paragraph (j): A division director at the Food and
Drug Administration disqualified himself from participating in the
review of a drug for Alzheimer's disease, in accordance with subpart
E of 5 CFR part 2635, because his brother headed the private sector
team which developed the drug. The matter was instead assigned to
the division director's deputy. The director continues to have
official responsibility for review of the drug. The division
director also would have retained official responsibility for the
matter had he either asked his supervisor or another division
director to oversee the matter.
Example 9 to paragraph (j): The Deputy Secretary of a department
terminates Government service to stay home with her newborn
daughter. Four months later, she returns to the department to serve
on an advisory committee as a special Government employee (SGE).
After three months, she terminates Government service once again in
order to accept a part-time position with a public relations firm.
The 18 U.S.C. 207(a)(2) bar commences when she resigns as Deputy
Secretary and continues to run for two years. (Any action taken in
carrying out official duties as a member of the advisory committee
would be undertaken on behalf of the United States and would,
therefore, not be restricted by 18 U.S.C. 207(a)(2). See Sec.
2641.301(a).) A second two-year restriction commences when she
terminates from her second period of Government service but it
applies only with respect to any particular matter actually pending
under her official responsibility during her three-month term as an
SGE.
Sec. 2641.203 One-year restriction on any former employee's
representations, aid, or advice concerning ongoing trade or treaty
negotiation.
(a) Basic prohibition of 18 U.S.C. 207(b). For one year after his
Government service terminates, no former employee shall, on the basis
of ``covered information,'' knowingly represent, aid, or advise any
other person concerning an ongoing trade or treaty negotiation in
which, during his last year of Government service, he participated
personally and substantially as an employee. ``Covered information''
refers to agency records which were accessible to the employee which he
knew or should have known were designated as exempt from disclosure
under the Freedom of Information Act (5 U.S.C. 552).
(b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(b)
does not apply to a former employee who is:
(1) Acting on behalf of the United States. See Sec. 2641.301(a).
(2) Acting as an elected State or local government official. See
Sec. 2641.301(b).
(3) Testifying under oath. See Sec. 2641.301(f).
(4) Acting on behalf of an international organization pursuant to a
waiver. See Sec. 2641.301(h).
(5) Acting as an employee at a Government-owned, contractor-
operated entity pursuant to a waiver. See Sec. 2641.301(i).
(c) Commencement and length of restriction. 18 U.S.C. 207(b)
commences upon an employee's termination from Government service. The
restriction lasts for one year or until the termination of the
negotiation, whichever occurs first.
(d) Represent, aid, or advise. [Reserved]
(e) Any other person. [Reserved]
(f) On the basis of. [Reserved]
(g) Covered Information. [Reserved]
(h) Ongoing trade or treaty negotiation. [Reserved]
(i) Participated personally and substantially. [Reserved]
Sec. 2641.204 One-year restriction on any former senior employee's
representations to former agency concerning any matter, regardless of
prior involvement.
(a) Basic prohibition of 18 U.S.C. 207(c). For one year after his
service in a senior position terminates, no former senior employee may
knowingly, with the intent to influence, make any communication to or
appearance before an employee of an agency in which he served in any
capacity within the one-year period prior to his termination from a
senior position, if that communication or appearance is made on behalf
of any other person in connection with any matter on which the former
senior employee seeks official action by any employee of such agency.
An individual who served in a ``very senior employee'' position is
subject to the broader two-year restriction set forth in 18 U.S.C.
207(d) in lieu of that set forth in section 207(c). See Sec. 2641.205.
(b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(c)
does not apply to a former senior employee who is:
(1) Acting on behalf of the United States. See Sec. 2641.301(a).
(2) Acting as an elected State or local government official. See
Sec. 2641.301(b).
(3) Acting on behalf of specified entities. See Sec. 2641.301(c).
(4) Making uncompensated statements based on special knowledge. See
Sec. 2641.301(d).
(5) Communicating scientific or technological information pursuant
to procedures or certification. See Sec. 2641.301(e).
(6) Testifying under oath. See Sec. 2641.301(f).
(7) Acting on behalf of a candidate or political party. See Sec.
2641.301(g).
(8) Acting on behalf of an international organization pursuant to a
waiver. See Sec. 2641.301(h).
(9) Acting as an employee of a Government-owned, contractor-
operated entity pursuant to a waiver. See Sec. 2641.301(i).
(10) Subject to a waiver issued for certain positions. See Sec.
2641.301(j).
(c) Applicability to special Government employees and
Intergovernmental Personnel Act appointees or detailees--(1) Special
Government employees. (i) 18 U.S.C. 207(c) applies to an individual as
a result of service as a special Government employee (SGE) who:
(A) Served in a senior employee position while serving as an SGE;
and
(B) Served 60 or more days as an SGE during the one-year period
before terminating service as a senior employee.
(ii) Any day on which work is performed shall count toward the 60-
day threshold without regard to the number of hours worked that day or
whether the day falls on a weekend or holiday. For purposes of
determining whether an SGE's rate of basic pay is equal to or greater
than 86.5 percent of the rate of basic pay for level II of the
Executive Schedule, within the meaning of the definition of senior
employee in Sec. 2641.104, the employee's hourly rate of pay (or daily
rate divided by eight) shall be multiplied by 2087, the number of
Federal working hours in one year. (In the case of a Reserve officer of
the Armed Forces or an officer of the National Guard who is an SGE
serving in a senior employee position, 18 U.S.C. 207(c) applies if the
officer served 60 or more days as an SGE within the one-year period
prior to his termination from a period of active duty or active duty
for training.)
(2) Intergovernmental Personnel Act appointees or detailees. 18
U.S.C. 207(c) applies to an individual serving as a senior employee
pursuant to an appointment or detail under the
[[Page 36199]]
Intergovernmental Personnel Act, 5 U.S.C. 3371-3376. An individual is a
senior employee if he received total pay from Federal or non-Federal
sources equal to or greater than 86.5 percent of the rate of basic pay
for level II of the Executive Schedule (exclusive of any reimbursement
for a non-Federal employer's share of benefits not paid to the employee
as salary), and:
(i) The individual served in a Federal position ordinarily
compensated at a rate equal to or greater than 86.5 percent of level II
of the Executive Schedule, regardless of what portion of the pay is
derived from Federal expenditures or expenditures by the individual's
non-Federal employer;
(ii) The individual received a direct Federal payment, pursuant to
5 U.S.C. 3374(c)(1), that supplemented the salary that he received from
his non-Federal employer; or
(iii) The individual's non-Federal employer received Federal
reimbursement equal to or greater than 86.5 percent of level II of the
Executive Schedule.
Example 1 to paragraph (c): An employee of a private research
institution serves on an advisory committee that convenes
periodically to discuss United States policy on foreign arms sales.
The expert is compensated at a daily rate which is the equivalent of
86.5 percent of the rate of basic pay for a full-time employee at
level II of the Executive Schedule. The individual serves two hours
per day for 65 days before resigning from the advisory committee
nine months later. The individual becomes subject to 18 U.S.C.
207(c) when she resigns from the advisory committee since she served
60 or more days as a special Government employee during the one-year
period before terminating service as a senior employee.
Example 2 to paragraph (c): An individual is detailed from a
university to a Federal department under the Intergovernmental
Personnel Act to do work that had previously been performed by a GS-
15 employee. While on detail, the individual continues to receive
pay from the university in an amount $5,000 less than 86.5 percent
of the rate of basic pay for level II of the Executive Schedule. In
addition, the department pays a $25,000 supplement directly to the
individual, as authorized by 5 U.S.C. 3374(c)(1). Since the
employee's total pay is equal to or greater than 86.5 percent of the
rate of basic pay for level II of the Executive Schedule, and a
portion of that compensation is paid directly to the individual by
the department, he becomes subject to 18 U.S.C. 207(c) when his
detail ends.
(d) Commencement and length of restriction. 18 U.S.C. 207(c) is a
one-year restriction. The one-year period is measured from the date
when the employee ceases to serve in a senior employee position, not
from the termination of Government service, unless the two events occur
simultaneously. (In the case of a Reserve officer of the Armed Forces
or an officer of the National Guard who is a special Government
employee serving in a senior employee position, section 207(c) is
measured from the date when the officer terminates a period of active
duty or active duty for training.)
Example 1 to paragraph (d): An employee at the Department of
Labor (DOL) serves in a senior employee position. He then accepts a
GS-15 position at the Federal Labor Relations Authority (FLRA) but
terminates Government service six months later to accept a job with
private industry. 18 U.S.C. 207(c) commences when he ceases to be a
senior employee at DOL, even though he does not terminate Government
service at that time. (Any action taken in carrying out official
duties on behalf of FLRA while still employed by that agency would
be undertaken on behalf of the United States and would, therefore,
not be restricted by section 207(c). See Sec. 2641.301(a).)
Example 2 to paragraph (d): In the previous example, the DOL
employee accepts a senior employee position at FLRA rather than a
GS-15 position. The bar of section 207(c) commences when, six months
later, he terminates service in the second senior employee position
to accept a job with private industry. (The bar will apply with
respect to both the DOL and FLRA. See paragraph (g) of Sec.
2641.204 and examples 2 and 3 to that paragraph.)
(e) Communication or appearance. See Sec. 2641.201(d).
(f) With the intent to influence. See Sec. 2641.201(e).
(g) To or before employee of former agency--(1) Employee. For
purposes of this paragraph, a former senior employee may not contact:
(i) Any current Federal employee of the former senior employee's
``former agency'' as defined in paragraph (g)(2) of this section;
(ii) An individual detailed under the Intergovernmental Personnel
Act (5 U.S.C. 3371-3376) to the former senior employee's former agency;
(iii) An individual detailed to the former senior employee's former
agency from another department, agency or other entity, including
agencies and entities within the legislative or judicial branches;
(iv) An individual serving with the former senior employee's former
agency as a collateral duty pursuant to statute or Executive order; and
(v) In the case of a communication or appearance made by a former
senior employee who is barred by 18 U.S.C. 207(c) from communicating to
or appearing before the Executive Office of the President, the
President and Vice President.
(2) Former agency. The term ``agency'' is defined in Sec.
2641.104. Unless eligible to benefit from the designation of distinct
and separate agency components as described in Sec. 2641.302, a former
senior employee's former agency will ordinarily be considered to be the
whole of any larger agency of which his former agency was a part on the
date he terminated senior service.
(i) One-year period before termination. 18 U.S.C. 207(c) applies
with respect to agencies in which the former senior employee served
within the one-year period prior to his termination from a senior
employee position.
(ii) Served in any capacity. Once the restriction commences, 18
U.S.C. 207(c) applies with respect to any agency in which the former
senior employee served in any capacity during the one-year period,
regardless of his position, rate of basic pay, or pay grade.
(iii) Multiple Assignments. An employee can simultaneously serve in
more than one agency. A former senior employee will be considered to
have served in his own employing entity and in any entity to which he
was detailed for any length of time or with which he was required to
serve as a collateral duty pursuant to statute or Executive order.
(iv) Effect of organizational changes. If a former senior
employee's former agency has been significantly altered by
organizational changes after his termination from senior service, it
may be necessary to determine whether a successor entity is the same
agency as the former senior employee's former agency. The appropriate
designated agency ethics official, in consultation with the Office of
Government Ethics, shall identify the entity that is the individual's
former agency. Whether a successor entity is the same as the former
agency depends upon whether it has substantially the same
organizational mission, the extent of the termination or dispersion of
the agency's functions, and other factors as may be appropriate.
(A) Agency abolished or substantially changed. If a successor
entity is not identifiable as substantially the same agency from which
the former senior employee terminated, the 18 U.S.C. 207(c) prohibition
will not bar communications or appearances by the former senior
employee to that successor entity.
(B) Agency substantially the same. If a successor entity remains
identifiable as substantially the same entity from which the former
senior employee terminated, the 18 U.S.C. 207(c) bar will extend to the
whole of the successor entity.
(C) Employing entity is made separate. If an employing entity is
made
[[Page 36200]]
separate from an agency of which it was a part, but it remains
identifiable as substantially the same entity from which the former
senior employee terminated senior service before the entity was made
separate, the 18 U.S.C. 207(c) bar will apply to a former senior
employee of that entity only with respect to the new separate entity.
(D) Component designations. If a former senior employee's former
agency was a designated ``component'' within the meaning of Sec.
2641.302 on the date of his termination as senior employee, see Sec.
2641.302(g).
(3) To or before. Except as provided in paragraph (g)(4) of this
section, a communication ``to'' or appearance ``before'' an employee of
a former senior employee's former agency is one:
(i) Directed to and received by the former senior employee's former
agency, even though not addressed to a particular employee; or
(ii) Directed to and received by an employee of a former senior
employee's former agency in his official capacity, including in his
capacity as an employee serving in the agency on detail or, if pursuant
to statute or Executive order, as a collateral duty. A former senior
employee does not direct his communication or appearance to a bystander
who merely happens to overhear the communication or witness the
appearance.
(4) Public commentary. (i) A former senior employee who addresses a
public gathering or a conference, seminar, or similar forum as a
speaker or panel participant will not be considered to make a
prohibited communication or appearance if the forum:
(A) Is not sponsored or co-sponsored by the former senior
employee's former agency;
(B) Is attended by a large number of people; and
(C) A significant proportion of those attending are not employees
of the former senior employee's former agency.
(ii) In the circumstances described in paragraph (g)(4)(i) of this
section, a former senior employee may engage in exchanges with any
other speaker or with any member of the audience.
(iii) A former senior employee also may permit the broadcast or
publication of a commentary provided that it is broadcast or appears in
a newspaper, periodical, or similar widely-available publication.
Example 1 to paragraph (g): Two months after retiring from a
senior employee position at the United States Department of
Agriculture (USDA), the former senior employee is asked to represent
a poultry producer in a compliance matter involving the producer's
storage practices. The former senior employee may not represent the
poultry producer before a USDA employee in connection with the
compliance matter or any other matter in which official action is
sought from the USDA. He has ten months remaining of the one-year
bar which commenced upon his termination as a senior employee with
the USDA.
Example 2 to paragraph (g): An individual serves for several
years at the Commodity Futures Trading Commission (CFTC) as a GS-15.
With no break in service, she then accepts a senior employee
position at the Export-Import Bank of the United States (Ex-Im Bank)
where she remains for nine months until she leaves Government
service in order to accept a position in the private sector. Since
the individual served in both the CFTC and the Ex-Im Bank within her
last year of senior service, she is barred by 18 U.S.C. 207(c) as to
both agencies for one year commencing from her termination from the
senior employee position at the Ex-Im Bank.
Example 3 to paragraph (g): An individual serves for several
years at the Securities and Exchange Commission (SEC) in a senior
employee position. He terminates Government service in order to care
for his parent who is recovering from heart surgery. Two months
later, he accepts a senior employee position at the Overseas Private
Investment Corporation (OPIC) where he remains for nine months until
he leaves Government service in order to accept a position in the
private sector. The 18 U.S.C. 207(c) bar commences when he resigns
from the SEC and continues to run for one year. (Any action taken in
carrying out official duties as an employee of OPIC would be
undertaken on behalf of the United States and would, therefore, not
be restricted by section 207(c). See Sec. 2641.301(a).) A second
one-year restriction commences when he resigns from OPIC. The second
restriction will apply with respect to OPIC only. Upon his
termination from the OPIC position, he will have one remaining month
of the section 207(c) restriction arising from his termination of
his SEC position. This remaining month of restriction will run
concurrently with the first month of the one-year OPIC restriction.
Example 4 to paragraph (g): An architect serves in a senior
employee position in the Agency for Affordable Housing. Subsequent
to her termination from the position, the agency is abolished and
its functions are distributed among three other agencies within
three departments, the Department of Housing and Urban Development,
the Department of the Interior, and the Department of Justice. None
of these successor entities is identifiable as substantially the
same entity as the Agency for Affordable Housing, and, accordingly,
the 18 U.S.C. 207(c) bar will not apply to the architect.
Example 5 to paragraph (g): A chemist serves in a senior
employee position in the Agency for Clean Rivers. Subsequent to his
termination from the position, the mission of the Agency for Clean
Rivers is expanded and it is renamed the Agency for Clean Water. A
number of employees from the Agency for Marine Life are transferred
to the reorganized agency. If it is determined that the Agency for
Clean Water is substantially the same entity from which the chemist
terminated, the section 207(c) bar will apply with respect to the
chemist's contacts with all of the employees of the Agency for Clean
Water, including those employees who recently transferred from the
Agency for Marine Life. He would not be barred from contacting an
employee serving in one of the positions that had been transferred
from the Agency for Clean Rivers to the Agency for Clean Land.
(h) On behalf of any other person. See Sec. 2641.201(g).
(i) Matter on which former senior employee seeks official action--
(1) Seeks official action. A former senior employee seeks official
action when the circumstances establish that he is making his
communication or appearance for the purpose of inducing a current
employee, as defined in paragraph (g) of this section, to make a
decision or to otherwise act in his official capacity.
(2) Matter. The prohibition on seeking official action applies with
respect to any matter, including:
(i) Any ``particular matter involving a specific party or parties''
as defined in Sec. 2641.201(h);
(ii) The consideration or adoption of broad policy options that are
directed to the interests of a large and diverse group of persons;
(iii) A new matter that was not previously pending at or of
interest to the former senior employee's former agency; and
(iv) A matter pending at any other agency in the executive branch,
an independent agency, the legislative branch, or the judicial branch.
Example 1 to paragraph (i): A former senior employee at the
National Capital Planning Commission (NCPC) wishes to contact a
friend who still works at the NCPC to solicit a donation for a local
charitable organization. The former senior employee may do so since
the circumstances establish that he would not be making the
communication for the purpose of inducing the NCPC employee to make
a decision in his official capacity about the donation.
Example 2 to paragraph (i): A former senior employee at the
Department of Defense wishes to contact the Secretary of Defense to
ask him if he would be interested in attending a cocktail party. At
the party, the former senior employee would introduce the Secretary
to several of the former senior employee's current business clients
who have sought the introduction. The former senior employee and the
Secretary do not have a history of socializing outside the office,
the Secretary is in a position to affect the interests of the
business clients, and all expenses associated with the party will be
paid by the former senior employee's consulting firm. The former
senior employee should not contact the Secretary. The circumstances
do not establish that the communication would be made other than for
the purpose of inducing the Secretary to
[[Page 36201]]
make a decision in his official capacity about the invitation.
Example 3 to paragraph (i): A former senior employee at the
National Science Foundation (NSF) accepts a position as vice
president of a company that was hurt by recent cuts in the defense
budget. She contacts the NSF's Director of Legislative and Public
Affairs to ask the Director to contact a White House official in
order to press the need for a new science policy to benefit her
company. The former senior employee made a communication for the
purpose of inducing the NSF employee to make a decision in his
official capacity about contacting the White House.
Sec. 2641.205 Two-year restriction on any former very senior
employee's representations to former agency or certain officials
concerning any matter, regardless of prior involvement.
(a) Basic prohibition of 18 U.S.C. 207(d). For two years after his
service in a very senior employee position terminates, no former very
senior employee shall knowingly, with the intent to influence, make any
communication to or appearance before any official appointed to an
Executive Schedule position listed in 5 U.S.C. 5312-5316 or before any
employee of an agency in which he served as a very senior employee
within the one-year period prior to his termination from a very senior
employee position, if that communication or appearance is made on
behalf of any other person in connection with any matter on which the
former very senior employee seeks official action by any official or
employee.
(b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(d)
does not apply to a former very senior employee who is:
(1) Acting on behalf of the United States. See Sec. 2641.301(a).
(2) Acting as an elected State or local government official. See
Sec. 2641.301(b).
(3) Acting on behalf of specified entities. See Sec. 2641.301(c).
(4) Making uncompensated statements based on special knowledge. See
Sec. 2641.301(d).
(5) Communicating scientific or technological information pursuant
to procedures or certification. See Sec. 2641.301(e).
(6) Testifying under oath. See Sec. 2641.301(f).
(7) Acting on behalf of a candidate or political party. See Sec.
2641.301(g).
(8) Acting on behalf of an international organization pursuant to a
waiver. See Sec. 2641.301(h).
(9) Acting as an employee of a Government-owned, contractor-
operated entity pursuant to a waiver. See Sec. 2641.301(i).
(c) Commencement and length of restriction. 18 U.S.C. 207(d) is a
two-year restriction. The two-year period is measured from the date
when the employee ceases to serve in a very senior employee position,
not from the termination of Government service, unless the two events
occur simultaneously. See examples 1 and 2 to paragraph (d) of Sec.
2641.204.
(d) Communication or appearance. See Sec. 2641.201(d).
(e) With the intent to influence. See Sec. 2641.201(e).
(f) To or before employee of former agency. See Sec. 2641.204(g),
except that this section covers only former very senior employees and
applies only with respect to the agency or agencies in which a former
very senior employee served as a very senior employee, and very senior
employees do not benefit from the designation of distinct and separate
agency components as referenced in Sec. 2641.204(g)(2).
(g) To or before an official appointed to an Executive Schedule
position. See Sec. 2641.204(g)(3) for ``to or before,'' except that
this section covers only former very senior employees and also extends
to a communication or appearance before any official currently
appointed to a position that is listed in sections 5 U.S.C. 5312-5316.
Note to paragraph (g): A communication made to an official
described in 5 U.S.C. 5312-5316 can include a communication to a
subordinate of such official with the intent that the information be
conveyed directly to the official and attributed to the former very
senior employee.
(h) On behalf of any other person. See Sec. 2641.201(g).
(i) Matter on which former very senior employee seeks official
action. See Sec. 2641.204(i), except that this section only covers
former very senior employees.
Example 1 to Sec. 2641.205: The former Attorney General may not
contact the Assistant Attorney General of the Antitrust Division on
behalf of a professional sports league in support of a proposed
exemption from certain laws, nor may he contact the Secretary of
Labor. He may, however, speak directly to the President or Vice
President concerning the issue.
Example 2 to Sec. 2641.205: The former Director of the Office
of Management and Budget (OMB) is now the Chief Executive Officer of
a major computer firm and wishes to convince the new Administration
to change its new policy concerning computer chips. The former OMB
Director may contact an employee of the Department of Commerce who,
although paid at a level fixed according to level III of the
Executive Schedule, does not occupy a position actually listed in 5
U.S.C. 5312-5316. She could not contact an employee working in the
Office of the United States Trade Representative, an office within
the Executive Office of the President (her former agency).
Example 3 to Sec. 2641.205: A senior employee serves in the
Department of Agriculture for several years. He is then appointed to
serve as the Secretary of Health and Human Services (HHS) but
resigns seven months later. Since the individual served as a very
senior employee only at HHS, he is barred for two years by 18 U.S.C.
207(d) as to any employee of HHS and any official currently
appointed to an Executive Schedule position listed in 5 U.S.C. 5312-
5316, including any such official serving in the Department of
Agriculture. (In addition, a one-year section 207(c) bar commenced
when he terminated service as a senior employee at the Department of
Agriculture.)
Example 4 to Sec. 2641.205: The former Secretary of the
Department of Labor may not represent another person in a meeting
with the current Secretary of Transportation to discuss a proposed
regulation on highway safety standards.
Example 5 to Sec. 2641.205: In the previous example, the former
very senior employee would like to meet instead with the special
assistant to the Secretary of Transportation. The former employee
knows that the special assistant has a close working relationship
with the Secretary. The former employee expects that the special
assistant would brief the Secretary about any discussions at the
proposed meeting and refer specifically to the former employee.
Because the circumstances indicate that the former employee intends
that the information provided at the meeting would be conveyed by
the assistant directly to the Secretary and attributed to the former
employee, he may not meet with the assistant.
Sec. 2641.206 One-year restriction on any former senior or very
senior employee's representations on behalf of, or aid or advice to, a
foreign entity.
(a) Basic prohibition of 18 U.S.C. 207(f). For one year after
service in a senior or very senior employee position terminates, no
former senior employee or former very senior employee shall knowingly
represent a foreign government or foreign political party before an
officer or employee of an agency or department of the United States, or
aid or advise such a foreign entity, with the intent to influence a
decision of such officer or employee. For purposes of describing
persons who may not be contacted with the intent to influence, under 18
U.S.C. 207(f) and this section, the phrase ``officer or employee''
includes the President, the Vice President, and Members of Congress,
and the term ``department'' includes the legislative branch of
government.
(b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(f)
does not apply to a former senior or former very senior employee who
is:
(1) Acting on behalf of the United States. See Sec. 2641.301(a).
(Note, however, the limitation in Sec. 2641.301(a)(2)(ii).)
[[Page 36202]]
(2) Acting as an elected State or local government official. See
Sec. 2641.301(b).
(3) Testifying under oath. See Sec. 2641.301(f).
(4) Acting on behalf of an international organization pursuant to a
waiver. See Sec. 2641.301(h).
(5) Acting as an employee of a Government-owned, contractor-
operated entity pursuant to a waiver. See Sec. 2641.301(i).
(6) Subject to a waiver issued for certain positions. See Sec.
2641.301(j).
(c) Commencement and length of restriction--(1) Generally. Except
as provided in paragraph (c)(2) of this section, 18 U.S.C. 207(f) is a
one-year restriction. The one-year period is measured from the date
when an employee ceases to be a senior or very senior employee, not
from the termination of Government service, unless the two occur
simultaneously. See examples 1 and 2 to paragraph (d) of Sec.
2641.204.
(2) U.S. Trade Representative or Deputy U.S. Trade Representative.
18 U.S.C. 207(f) is a permanent restriction as applied to a former U.S.
Trade Representative or Deputy U.S. Trade Representative.
(d) Represent, aid, or advise. [Reserved]
(e) With the intent to influence. [Reserved]
(f) Decision of employee of an agency. [Reserved]
(g) Foreign entity. [Reserved]
Sec. 2641.207 One-year restriction on any former private sector
assignee under the Information Technology Exchange Program
representing, aiding, counseling or assisting in representing in
connection with any contract with former agency.
(a) Basic prohibition of 18 U.S.C. 207(l). For one year after the
termination of his assignment from a private sector organization to an
agency under the Information Technology Exchange Program, 5 U.S.C.
chapter 37, no former assignee shall knowingly represent, or aid,
counsel or assist in representing any other person in connection with
any contract with that agency.
(b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(l)
does not apply to a former employee who is:
(1) Acting on behalf of the United States. See Sec. 2641.301(a).
(2) Acting as an elected State or local government official. See
Sec. 2641.301(b).
(3) Testifying under oath. See Sec. 2641.301(f).
(4) Acting on behalf of an international organization pursuant to a
waiver. See Sec. 2641.301(h).
(5) Acting as an employee of a Government-owned, contractor-
operated entity pursuant to a waiver. See Sec. 2641.301(i).
(c) Commencement and length of restriction. 18 U.S.C. 207(l) is a
one-year restriction. The one-year period is measured from the date
when the individual's assignment under the Information Technology
Exchange Program terminates.
(d) Represent, aid, counsel, or assist in representing. [Reserved]
(e) In connection with any contract with the former agency.
[Reserved]
Subpart C--Exceptions, Waivers and Separate Components
Sec. 2641.301 Statutory exceptions and waivers.
(a) Exception for acting on behalf of United States. A former
employee is not prohibited by any of the prohibitions of 18 U.S.C. 207
from engaging in any activity on behalf of the United States.
(1) United States. For purposes of this paragraph, the term
``United States'' means:
(i) The executive branch (including a Government corporation);
(ii) The legislative branch; or
(iii) The judicial branch.
(2) On behalf of the United States. A former employee will be
deemed to engage in the activity on behalf of the United States if he
acts in accordance with paragraph (a)(2)(i) or (a)(2)(ii) of this
section.
(i) As employee of the United States. A former employee engages in
an activity on behalf of the United States when he carries out official
duties as a current employee of the United States.
(ii) As other than employee of the United States. (A) Provided that
he does not represent, aid, or advise a foreign entity in violation of
18 U.S.C. 207(f), a former employee engages in an activity on behalf of
the United States when he serves:
(1) As a representative of the United States pursuant to a specific
agreement with the United States to provide representational services
to the United States; or
(2) As a witness called by the United States (including a
Congressional committee or subcommittee) to testify at a Congressional
hearing (even if applicable procedural rules do not require him to
declare by oath or affirmation that he will testify truthfully).
(B) A former employee will not be deemed to engage in an activity
on behalf of the United States merely because he is performing work
funded by the Government, because he is engaging in the activity in
response to a contact initiated by the Government, because the
Government will derive some benefit from the activity, or because he or
the person on whose behalf he is acting may share the same objective as
the Government.
Note to paragraph (a)(2)(ii): See also Sec. 2641.301(f)
concerning the permissibility of testimony under oath, including
testimony as an expert witness, when a former employee is called as
a witness by the United States.
Example 1 to paragraph (a): An employee of the Department of
Transportation (DOT) transfers to become an employee of the Pension
Benefit Guaranty Corporation (PBGC). The PBGC, a wholly owned
Government corporation, is a corporation in which the United States
has a proprietary interest. The former DOT employee may press the
PBGC's point of view in a meeting with DOT employees concerning an
airline bankruptcy case in which he was personally and substantially
involved while at the DOT. His communications to the DOT on behalf
of the PBGC would be made on behalf of the United States.
Example 2 to paragraph (a): A Federal Transit Administration
(FTA) employee recommended against the funding of a certain subway
project. After terminating Government service, she is hired by a
Congressman as a member of his staff to perform a variety of duties,
including miscellaneous services for the Congressman's constituents.
The former employee may contact the FTA on behalf of a constituent
group as part of her official duties in order to argue for the
reversal of the subway funding decision in which she participated
while still an employee of the FTA. Her communications to the FTA on
behalf of the constituent group would be made on behalf of the
United States.
Example 3 to paragraph (a): A Postal Service attorney
participated in discussions with the Office of Personnel Management
(OPM) concerning a dispute over the mailing of health plan
brochures. After terminating Government service, the attorney joins
a law firm as a partner. He is assigned by the firm's managing
partner to represent the Postal Service pursuant to a contract
requiring the firm to provide certain legal services. The former
senior employee may represent the Postal Service in meetings with
OPM concerning the dispute about the health plan brochures. The
former senior employee's suggestions to the Postal Service
concerning strategy and his arguments to OPM concerning the dispute
would be made on behalf of the United States (even though he is also
acting on behalf of his law firm when he performs representational
services for the United States). A communication to the Postal
Service concerning a disagreement about the law firm's fee, however,
would not be made on behalf of the United States.
Example 4 to paragraph (a): A former senior employee of the Food
and Drug Administration (FDA), now an employee of a drug company, is
called by a Congressional committee to give unsworn testimony
concerning the desirability of instituting cost controls in the
pharmaceutical industry. The former senior employee may address the
committee even though her testimony will
[[Page 36203]]
unavoidably also be directed to a current employee of the FDA who
has also been asked to testify as a member of the same panel of
experts. The former employee's communications at the hearing,
provided at the request of the United States, would be made on
behalf of the United States.
Example 5 to paragraph (a): A National Security Agency (NSA)
analyst drafted the specifications for a contract that was awarded
to the Secure Data Corporation to develop prototype software for the
processing of foreign intelligence information. After terminating
Government service, the analyst is hired by the corporation. The
former employee may not attempt to persuade NSA officials that the
software is in accord with the specifications. Although the
development of the software is expected to significantly enhance the
processing of foreign intelligence information and the former
employee's opinions might be useful to current NSA employees, his
communications would not be made on behalf of the United States.
Example 6 to paragraph (a): A senior employee at the Department
of the Air Force specialized in issues relating to the effective
utilization of personnel.
After terminating Government service, the former senior employee
is hired by a contractor operating a Federally Funded Research and
Development Center (FFRDC). The FFRDC is not a ``Government
corporation'' as defined in Sec. 2641.104. The former senior
employee may not attempt to convince the Air Force of the manner in
which Air Force funding should be allocated among projects proposed
to be undertaken by the FFRDC. Although the work performed by the
FFRDC will be determined by the Air Force, may be accomplished at
Government-owned facilities, and will benefit the Government, her
communications would not be made on behalf of the United States.
Example 7 to paragraph (a): A Department of Justice (DOJ)
attorney represented the United States in a civil enforcement action
against a company that had engaged in fraudulent activity. The
settlement of the case required that the company correct certain
deficiencies in its operating procedures. After terminating
Government service, the attorney is hired by the company. When DOJ
auditors schedule a meeting with the company's legal staff to review
company actions since the settlement, the former employee may not
attempt to persuade the auditors that the company is complying with
the terms of the settlement. Although the former employee's insights
might facilitate the audit, his communications would not be made on
behalf of the United States even though the Government's auditors
initiated the contact with the former employee.
Note to paragraph (a): See also example 9 to paragraph (j) of
Sec. 2641.202 and example 1 to paragraph (d) of Sec. 2641.204.
(b) Exception for acting on behalf of State or local government as
elected official. A former employee is not prohibited by any of the
prohibitions of 18 U.S.C. 207 from engaging in any post-employment
activity on behalf of one or more State or local governments, provided
the activity is undertaken in carrying out official duties as an
elected official of a State or local government.
Example 1 to paragraph (b): A former employee of the Department
of Housing and Urban Development (HUD) participated personally and
substantially in the evaluation of a grant application from a
certain city. After terminating Government service, he was elected
mayor of that city. The former employee may contact an Assistant
Secretary at HUD to argue that additional funds are due the city
under the terms of the grant.
Example 2 to paragraph (b): A former employee of the Federal
Highway Administration (FHWA) participated personally and
substantially in the decision to provide funding for a bridge across
the White River in Arkansas. After terminating Government service,
she accepted the Governor's offer to head the highway department in
Arkansas. A communication to or appearance before the FHWA
concerning the terms of the construction grant would not be made as
an elected official of a State or local government.
(c) Exception for acting on behalf of specified entities. A former
senior or very senior employee is not prohibited by 18 U.S.C. 207(c) or
(d), or Sec. Sec. 2641.204 or 2641.205, from making a communication or
appearance on behalf of one or more entities specified in paragraph
(c)(1) of this section, provided the communication or appearance is
made in carrying out official duties as an employee of a specified
entity.
(1) Specified entities. For purposes of this paragraph, a specified
entity is:
(i) An agency or instrumentality of a State or local government;
(ii) A hospital or medical research organization, if exempted from
taxation under 26 U.S.C. 501(c)(3); or
(iii) An accredited, degree-granting institution of higher
education, as defined in 20 U.S.C. 1001.
(2) Employee. For purposes of this paragraph, the term ``employee''
of a specified entity means a person who has an employee-employer
relationship with an entity specified in paragraph (c)(1) of this
section. It includes a person who is employed to work part-time for a
specified entity. The term excludes an individual performing services
for a specified entity as a consultant or independent contractor.
Example 1 to paragraph (c): A senior employee leaves her
position at the National Institutes of Health (NIH) and takes a
full-time position at the Gene Research Foundation, a tax-exempt
organization pursuant to 26 U.S.C. 501(c)(3). As an employee of a
501(c)(3) tax-exempt medical research organization, the former
senior employee is not barred by 18 U.S.C. 207(c) from representing
the Foundation before the NIH.
Example 2 to paragraph (c): A former senior employee of the
Environmental Protection Agency (EPA) joins a law firm in Richmond,
Virginia. The firm is hired by the Commonwealth of Virginia to
represent it in discussions with the EPA about an environmental
impact statement concerning the construction of a highway
interchange. The former senior employee's arguments concerning the
environmental impact statement would not be made as an employee of
the Commonwealth of Virginia.
Example 3 to paragraph (c): A former senior employee becomes an
employee of the ABC Association. The ABC Association is a nonprofit
organization whose membership consists of a broad representation of
State health agencies and senior State health officials, and it
performs services from which certain State governments benefit,
including collecting information from its members and conveying that
information and views to the Federal Government. However, the ABC
Association has not been delegated authority by any State government
to perform any governmental functions, and it does not operate under
the regulatory, financial, or management control of any State
government. Therefore, the ABC Association is not an agency or
instrumentality of a State government, and the former senior
employee may not represent the organization before his former agency
within one year after terminating his senior employee position.
(d) Exception for uncompensated statements based on special
knowledge. A former senior or very senior employee is not prohibited by
18 U.S.C. 207(c) or (d), or Sec. Sec. 2641.204 or 2641.205, from
making a statement based on his own special knowledge in the particular
area that is the subject of the statement, provided that he receives no
compensation for making the statement.
(1) Special knowledge. A former employee has special knowledge
concerning a subject area if he is familiar with the subject area as a
result of education, interaction with experts, or other unique or
particularized experience.
(2) Statement. A statement for purposes of this paragraph is a
communication of facts observed by the former employee.
(3) Compensation. Compensation includes any form of remuneration or
income that is given in consideration, in whole or in part, for the
statement. It does not include the payment of actual and necessary
expenses incurred in connection with making the statement.
Example 1 to paragraph (d): A senior employee of the Department
of the Treasury was personally and substantially involved in
discussions with other Department officials concerning the
advisability of a three-phase reduction in the capital gains tax.
After Government service, the former senior employee affiliates with
a nonprofit group that advocates a position on the three-phase
capital gains issue that is similar to his own.
[[Page 36204]]
The former senior employee, who receives no salary from the
nonprofit organization, may meet with current Department officials
on the organization's behalf to state what steps had previously been
taken by the Department to address the issue. The statement would be
permissible even if the nonprofit organization reimbursed the former
senior employee for his actual and necessary travel expenses
incurred in connection with making the statement.
Example 2 to paragraph (d): A former senior employee becomes a
government relations consultant, and he enters into a $5,000 per
month retainer agreement with XYZ Corporation for government
relations services. He would like to meet with his former agency to
discuss a regulatory matter involving his client. Even though he
would not be paid by XYZ specifically for this particular meeting,
he nevertheless would receive compensation for any statements at the
meeting, because of the monthly payments under his standing retainer
agreement. Therefore he may not rely on the exception for
uncompensated statements based on special knowledge.
(e) Exception for furnishing scientific or technological
information. A former employee is not prohibited by 18 U.S.C. 207(a),
(c), or (d), or Sec. Sec. 2641.201, 2641.202, 2641.204, or 2641.205,
from making communications, including appearances, solely for the
purpose of furnishing scientific or technological information, provided
the communications are made either in accordance with procedures
adopted by the agency or agencies to which the communications are
directed or the head of such agency or agencies, in consultation with
the Director of the Office of Government Ethics, makes a certification
published in the Federal Register.
(1) Purpose of information. A communication made solely for the
purpose of furnishing scientific or technological information may be:
(i) Made in connection with a matter that involves an appreciable
element of actual or potential dispute;
(ii) Made in connection with an effort to seek a discretionary
Government ruling, benefit, approval, or other action; or
(iii) Inherently influential in relation to the matter in dispute
or the Government action sought.
(2) Scientific or technological information. The former employee
must convey information of a scientific or technological character,
such as technical or engineering information relating to the natural
sciences. The exception does not extend to information associated with
a nontechnical discipline such as law, economics, or political science.
(3) Incidental references or remarks. Provided the former
employee's communication primarily conveys information of a scientific
or technological character, the entirety of the communication will be
deemed made solely for the purpose of furnishing such information
notwithstanding an incidental reference or remark:
(i) Unrelated to the matter to which the post-employment
restriction applies;
(ii) Concerning feasibility, risk, cost, speed of implementation,
or other considerations when necessary to appreciate the practical
significance of the basic scientific or technological information
provided; or
(iii) Intended to facilitate the furnishing of scientific or
technological information, such as those references or remarks
necessary to determine the kind and form of information required or the
adequacy of information already supplied.
Example 1 to paragraph (e)(3): After terminating Government
service, a former senior employee at the National Security Agency
(NSA) accepts a position as a senior manager at a firm specializing
in the development of advanced security systems. The former senior
employee and another firm employee place a conference call to a
current NSA employee to follow up on an earlier discussion in which
the firm had sought funding from the NSA to develop a certain
proposed security system. After the other firm employee explains the
scientific principles underlying the proposed system, the former
employee may not state the system's expected cost. Her communication
would not primarily convey information of a scientific or
technological character.
Example 2 to paragraph (e)(3): If, in the previous example, the
former senior employee explained the scientific principles
underlying the proposed system, she could also have stated its
expected cost as an incidental reference or remark.
(4) Communications made under procedures acceptable to the agency.
(i) An agency may adopt such procedures as are acceptable to it,
specifying conditions under which former Government employees may make
communications solely for the purpose of furnishing scientific or
technological information, in light of the agency's particular programs
and needs. In promulgating such procedures, an agency may consider, for
example, one or more of the following:
(A) Requiring that the former employee specifically invoke the
exception prior to making a communication (or series of
communications);
(B) Requiring that the designated agency ethics official for the
agency to which the communication is directed (or other agency
designee) be informed when the exception is used;
(C) Limiting communications to certain formats which are least
conducive to the use of personal influence;
(D) Segregating, to the extent possible, meetings and presentations
involving technical substance from those involving other aspects of the
matter; or
(E) Employing more restrictive practices in relation to
communications concerning specified categories of matters or specified
aspects of a matter, such as in relation to the pre-award as
distinguished from the post-award phase of a procurement.
(ii) The Director of the Office of Government Ethics may review any
agency implementation of this exception in connection with OGE's
executive branch ethics program oversight responsibilities. See 5 CFR
part 2638.
Example 1 to paragraph (e)(4): A Marine Corps engineer
participates personally and substantially in drafting the
specifications for a new assault rifle. After terminating Government
service, he accepts a job with the company that was awarded the
contract to produce the rifle. Provided he acts in accordance with
agency procedures, he may accompany the President of the company to
a meeting with Marine Corps employees and report the results of a
series of metallurgical tests. These results support the company's
argument that it has complied with a particular specification. He
may do so even though the meeting was expected to be and is, in
fact, a contentious one in which the company's testing methods are
at issue. He may not, however, present the company's argument that
an advance payment is due the company under the terms of the
contract since this would not be a mere incidental reference or
remark within the meaning of paragraph (e)(3) of this section.
(5) Certification for expertise in technical discipline. A
certification issued in accordance with this section shall be effective
on the date it is executed (unless a later date is specified), provided
that it is transmitted to the Federal Register for publication.
(i) Criteria for issuance. A certification issued in accordance
with this section may not broaden the scope of the exception and may be
issued only when:
(A) The former employee has outstanding qualifications in a
scientific, technological, or other technical discipline (involving
engineering or other natural sciences as distinguished from a
nontechnical discipline such as law, economics, or political science);
(B) The matter requires the use of such qualifications; and
(C) The national interest would be served by the former employee's
participation.
[[Page 36205]]
(ii) Submission of requests. The individual wishing to make the
communication shall forward a written request to the head of the agency
to which the communications would be directed. Any such request shall
address the criteria set forth in paragraph (e)(5)(i) of this section.
(iii) Issuance. The head of the agency to which the communications
would be directed may, upon finding that the criteria specified in
paragraph (e)(5)(i) of this section are satisfied, approve the request
by executing a certification, which shall be published in the Federal
Register. A copy of the certification shall be forwarded to the
affected individual. The head of the agency shall, prior to execution
of the certification, furnish a draft copy of the certification to the
Director of the Office of Government Ethics and consider the Director's
comments, if any, in relation to the draft. The certification shall
specify:
(A) The name of the former employee;
(B) The Government position or positions held by the former
employee during his most recent period of Government service;
(C) The identity of the employer or other person on behalf of which
the former employee will be acting;
(D) The restriction or restrictions to which the certification
shall apply;
(E) Any limitations imposed by the agency head with respect to the
scope of the certification; and
(F) The basis for finding that the criteria specified in paragraph
(e)(5)(i) of this section are satisfied, specifically including a
description of the matter and the communications that will be
permissible or, if relevant, a statement that such information is
protected from disclosure by statute.
(iv) Copy to Office of Government Ethics. Once published, the
agency shall provide the Director of the Office of Government Ethics
with a copy of the certification as published in the Federal Register.
(v) Revocation. The agency head may revoke a certification and
shall forward a written notice of the revocation to the former employee
and to the OGE Director. Revocation of a certification shall be
effective on the date specified in the notice revoking the
certification.
(f) Exception for giving testimony under oath or making statements
required to be made under penalty of perjury. Subject to the limitation
described in paragraph (f)(2) of this section concerning expert witness
testimony, a former employee is not prohibited by any of the
prohibitions of 18 U.S.C. 207 from giving testimony under oath or
making a statement required to be made under penalty of perjury.
(1) Testimony under oath. Testimony under oath is evidence
delivered by a witness either orally or in writing, including
deposition testimony and written affidavits, in connection with a
judicial, quasi-judicial, administrative, or other legally recognized
proceeding in which applicable procedural rules require a witness to
declare by oath or affirmation that he will testify truthfully.
(2) Limitation on exception for service as an expert witness. The
exception described in paragraph (f)(1) of this section does not negate
the bar of 18 U.S.C. 207(a)(1), or Sec. 2641.201, to a former employee
serving as an expert witness; where the bar of section 207(a)(1)
applies, a former employee may not serve as an expert witness except:
(i) If he is called as a witness by the United States; or
(ii) By court order. For this purpose, a subpoena is not a court
order, nor is an order merely qualifying an individual to testify as an
expert witness.
(3) Statements made under penalty of perjury. A former employee may
make any statement required to be made under penalty of perjury, except
that he may not:
(i) Submit a pleading, application, or other document as an
attorney or other representative; or
(ii) Serve as an expert witness where the bar of 18 U.S.C.
207(a)(1) applies, except as provided in paragraph (f)(2) of this
section.
Note to paragraph (f): Whether compensation of a witness is
appropriate is not addressed by 18 U.S.C. 207. However, 18 U.S.C.
201 may prohibit individuals from receiving compensation for
testifying under oath in certain forums except as authorized by 18
U.S.C. 201(d). Note also that there may be statutory or other bars
on the disclosure by a current or former employee of information
from the agency's files or acquired in connection with the
individual's employment with the Government; a former employee's
agency may have promulgated procedures to be followed with respect
to the production or disclosure of such information.
Example 1 to paragraph (f): A former employee is subpoenaed to
testify in a case pending in a United States district court
concerning events at the agency she observed while she was
performing her official duties with the Government. She is not
prohibited by 18 U.S.C. 207 from testifying as a fact witness in the
case.
Example 2 to paragraph (f): An employee was removed from service
by his agency in connection with a series of incidents where the
employee was absent without leave or was unable to perform his
duties because he appeared to be intoxicated. The employee's
supervisor, who had assisted the agency in handling the issues
associated with the removal, subsequently left Government. In the
ensuing case in Federal court between the employee who had been
removed and his agency over whether he had been discriminated
against because of his disabling alcoholism, his former supervisor
was asked whether on certain occasions the employee had been
intoxicated on the job and unable to perform his assigned duties.
Opposing counsel objected to the question on the basis that the
question required expert testimony and the witness had not been
qualified as an expert. The judge overruled the objection on the
basis that the witness would not be providing expert testimony but
opinions or inferences which are rationally based on his perception
and helpful to a clear understanding of his testimony or the
determination of a fact in issue. The former employee may provide
the requested testimony without violating 18 U.S.C. 207.
Example 3 to paragraph (f): A former senior employee of the
Environmental Protection Agency (EPA) is a recognized expert
concerning compliance with Clean Air Act requirements. Within one
year after terminating Government service, she is retained by a
utility company that is the defendant in a lawsuit filed against it
by the EPA. While the matter had been pending while she was with the
agency, she had not worked on the matter. After the court rules that
she is qualified to testify as an expert, the former senior employee
may offer her sworn opinion that the utility company's practices are
in compliance with Clean Air Act requirements. She may do so
although she would otherwise have been barred by 18 U.S.C. 207(c)
from making the communication to the EPA.
Example 4 to paragraph (f): In the previous example, an EPA
scientist served as a member of the EPA investigatory team that
compiled a report concerning the utility company's practices during
the discovery stage of the lawsuit. She later terminated Government
service to join a consulting firm and is hired by the utility
company to assist it in its defense. She may not, without a court
order, serve as an expert witness for the company in the matter
since she is barred by 18 U.S.C. 207(a)(1) from making the
communication to the EPA. On application by the utility company for
a court order permitting her service as an expert witness, the court
found that there were no extraordinary circumstances that would
justify overriding the specific statutory bar to such testimony.
Such extraordinary circumstances might be where no other equivalent
expert testimony can be obtained and an employee's prior involvement
in the matter would not cause her testimony to have an undue
influence on proceedings. Without such extraordinary circumstances,
ordering such expert witness testimony would undermine the bar on
such testimony.
(g) Exception for representing certain candidates or political
organizations. Except as provided in paragraph (g)(2) of this section,
a former senior or very senior employee is not prohibited by 18 U.S.C.
207(c) or (d), or Sec. Sec. 2641.204 or
[[Page 36206]]
2641.205, from making a communication or appearance on behalf of a
candidate in his capacity as a candidate or an entity specified in
paragraphs (g)(1)(ii) through (g)(1)(vi) of this section.
(1) Specified persons or entities. For purposes of this paragraph
(g), the specified persons or entities are:
(i) A candidate. A candidate means any person who seeks nomination
for election, or election to, Federal or State office or who has
authorized others to explore on his own behalf the possibility of
seeking nomination for election, or election to, Federal or State
office;
(ii) An authorized committee. An authorized committee means any
political committee designated in writing by a candidate as authorized
to receive contributions or make expenditures to promote the nomination
or election of the candidate or to explore the possibility of seeking
the nomination or election of the candidate. The term does not include
a committee that receives contributions or makes expenditures to
promote more than one candidate;
(iii) A national committee. A national committee means the
organization which, under the bylaws of a political party, is
responsible for the day-to-day operation of the political party at the
national level;
(iv) A national Federal campaign committee. A national Federal
campaign committee means an organization which, under the bylaws of a
political party, is established primarily to provide assistance at the
national level to candidates nominated by the party for election to the
office of Senator or Representative in, or Delegate or Resident
Commissioner to, the Congress;
(v) A State committee. A State committee means the organization
which, under the bylaws of a political party, is responsible for the
day-to-day operation of the political party at the State level; or
(vi) A political party. A political party means an association,
committee, or organization that nominates a candidate for election to
any Federal or State elected office whose name appears on the election
ballot as the candidate of the association, committee, or organization.
(2) Limitations. The exception in this paragraph (g) shall not
apply if the communication or appearance:
(i) Is made at a time the former senior or very senior employee is
employed by any person or entity other than:
(A) A person or entity specified in paragraph (g)(1) of this
section; or
(B) A person or entity who exclusively represents, aids, or advises
persons or entities described in paragraph (g)(1) of this section;
(ii) Is made other than solely on behalf of one or more persons or
entities specified in paragraph (g)(1) or (g)(2)(i)(B) of this section;
or
(iii) Is made to or before the Federal Election Commission by a
former senior or very senior employee of the Federal Election
Commission.
Example 1 to paragraph (g): The former Deputy Director of the
Office of Management and Budget becomes the full-time head of the
President's re-election committee. The former Deputy Director may,
within two years of terminating his very senior employee position,
represent the re-election committee to the White House travel office
in discussions regarding the appropriate amounts of reimbursements
by the committee of political travel costs of the President.
Example 2 to paragraph (g): The former U.S. Attorney General is
asked by a candidate running for Governor of Alabama to contact the
Chairman of the Federal Trade Commission (a position listed in 5
U.S.C. 5314) to seek the dismissal of a pending enforcement action
involving the candidate's family business. The former very senior
employee's communication to the Chairman would not be made on behalf
of the candidate in his capacity as a candidate and, thus, would be
barred by 18 U.S.C. 207(d).
Example 3 to paragraph (g): In the previous example, the former
Attorney General could contact the Commissioner of Internal Revenue
(a position listed in 5 U.S.C. 5314) to urge the review of a tax
ruling affecting Alabama's Republican Party since the communication
would be made on behalf of a State committee.
Example 4 to paragraph (g): The former Assistant Secretary for
Legislative and Intergovernmental Affairs at the Department of
Commerce is hired as a consultant by a company that provides
advisory services to political candidates and senior executives in
private industry. Her only client is a candidate for the U.S.
Senate. The former senior employee may not contact the Deputy
Secretary of Commerce within one year of her termination from the
Department to request that the Deputy Secretary give an official
speech in which he would express support for legislation proposed by
the candidate. The communication would be prohibited by 18 U.S.C.
207(c) because it would be made when the former senior employee was
employed by an entity that did not exclusively represent, aid, or
advise persons or entities specified in paragraph (g)(1) of this
section.
(h) Waiver for acting on behalf of international organization. The
Secretary of State may grant an individual waiver of one or more of the
restrictions in 18 U.S.C. 207 where the former employee would appear or
communicate on behalf of, or provide aid or advice to, an international
organization in which the United States participates. The Secretary of
State must certify in advance that the proposed activity is in the
interest of the United States.
Note to paragraph (h): An employee who is detailed under 5
U.S.C. 3343 to an international organization remains an employee of
his agency. In contrast, an employee who transfers under 5 U.S.C.
3581-3584 to an international organization is a former employee of
his agency.
(i) Waiver for re-employment by Government-owned, contractor-
operated entity. The President may grant a waiver of one or more of the
restrictions in 18 U.S.C. 207 to eligible employees upon the
determination and certification in writing that the waiver is in the
public interest and the services of the individual are critically
needed for the benefit of the Federal Government. Upon the issuance of
a waiver pursuant to this paragraph, the restriction or restrictions
waived will not apply to a former employee acting as an employee of the
same Government-owned, contractor-operated entity with which he was
employed immediately before the period of Government service during
which the waiver was granted. If the individual was employed by the
Lawrence Livermore National Laboratory, the Los Alamos National
Laboratory, or the Sandia National Laboratory immediately before the
person's Federal Government employment began, the restriction or
restrictions waived shall not apply to a former employee acting as an
employee of any one of those three national laboratories after the
former employee's Government service has terminated.
(1) Eligible employees. Any current civilian employee of the
executive branch, other than an employee serving in the Executive
Office of the President, who served as an officer or employee at a
Government-owned, contractor-operated entity immediately before he
became a Government employee. A total of no more than 25 current
employees shall hold waivers at any one time.
(2) Issuance. The President may not delegate the authority to issue
waivers under this paragraph. If the President issues a waiver, a
certification shall be published in the Federal Register and shall
identify:
(i) The employee covered by the waiver by name and position; and
(ii) The reasons for granting the waiver.
(3) Copy to Office of Government Ethics. A copy of the
certification shall be provided to the Director of the Office of
Government Ethics (OGE).
(4) Effective date. A waiver issued under this section shall be
effective on
[[Page 36207]]
the date the certification is published in the Federal Register.
(5) Reports. Each former employee holding a waiver must submit
semiannual reports, for a period of two years after terminating
Government service, to the President and the OGE Director.
(i) Submission. The reports shall be submitted:
(A) Not later than six months and 60 days after the date of the
former employee's termination from the period of Government service
during which the waiver was granted; and
(B) Not later than 60 days after the end of any successive six-
month period.
(ii) Content. Each report shall describe all activities undertaken
by the former employee during the six-month period that would have been
prohibited by 18 U.S.C. 207 but for the waiver.
(iii) Public availability. All reports filed with the OGE Director
under this paragraph shall be made available for public inspection and
copying.
Note to paragraph (i)(5): 18 U.S.C. 207(k)(5)(D) specifies that
an individual who is granted a waiver as described in this paragraph
is ineligible for appointment in the civil service unless all
reports required by that section have been filed.
(6) Revocation. A waiver shall be revoked when the recipient of the
waiver fails to file a report required by paragraph (i)(4) of this
section, and the recipient of the waiver shall be notified of such
revocation. The revocation shall take effect upon the person's receipt
of the notification and shall remain in effect until the report is
filed.
(j) Waiver of restrictions of 18 U.S.C. 207(c) and (f) for certain
positions. The Director of the Office of Government Ethics may waive
application of the restriction of section 18 U.S.C. 207(c) and Sec.
2641.204, with respect to certain positions or categories of positions.
When the restriction of 18 U.S.C. 207(c) has been waived by the
Director pursuant to this paragraph, the one-year restriction of 18
U.S.C. 207(f) and Sec. 2641.206 also will not be triggered upon an
employee's termination from the position.
(1) Eligible senior employee positions. A position which could be
occupied by a senior employee is eligible for a waiver of the 18 U.S.C.
207(c) restriction except:
(i) The following positions are ineligible:
(A) Positions for which the rate of pay is specified in or fixed
according to 5 U.S.C. 5311-5318 (the Executive Schedule);
(B) Positions for which occupants are appointed by the President
pursuant to 3 U.S.C. 105(a)(2)(B); or
(C) Positions for which occupants are appointed by the Vice
President pursuant to 3 U.S.C. 106(a)(1)(B).
(ii) Regardless of the position occupied, private sector assignees
under the Information Technology Exchange Program, within the meaning
of paragraph (6) of the definition of senior employee in section
2641.104, are not eligible to benefit from a waiver.
Example 1 to paragraph (j)(1): The head of a department has
authority to fix the annual salary for a category of positions
administratively at a rate of compensation not in excess of the rate
of compensation provided for level IV of the Executive Schedule (5
U.S.C. 5315). He sets a salary level that does not reference any
Executive Schedule salary. The level of compensation is not
``specified in'' or ``fixed according to'' the Executive Schedule.
If the authority pursuant to which compensation for a position is
set instead stated that the position is to be paid at the rate of
level IV of the Executive Schedule, the salary for the position
would be fixed according to the Executive Schedule.
(2) Criteria for waiver. A waiver of restrictions for a position or
category of positions shall be based on findings that:
(i) The agency has experienced or is experiencing undue hardship in
obtaining qualified personnel to fill such position or positions as
shown by relevant factors which may include, but are not limited to:
(A) Vacancy rates;
(B) The payment of a special rate of pay to the incumbent of the
position pursuant to specific statutory authority; or
(C) The requirement that the incumbent of the position have
outstanding qualifications in a scientific, technological, technical,
or other specialized discipline;
(ii) Waiver of the restriction with respect to the position or
positions is expected to ameliorate the recruiting difficulties; and
(iii) The granting of the waiver would not create the potential for
the use of undue influence or unfair advantage based on past Government
service, including the potential for use of such influence or advantage
for the benefit of a foreign entity.
(3) Procedures. A waiver shall be granted in accordance with the
following procedures:
(i) Agency recommendation. An agency's designated agency ethics
official (DAEO) may, at any time, recommend the waiver of the 18 U.S.C.
207(c) (and section 207(f)) restriction for a position or category of
positions by forwarding a written request to the Director addressing
the criteria set forth in paragraph (j)(2) of this section. A DAEO may,
at any time, request that a current waiver be revoked.
(ii) Action by Office of Government Ethics. The Director of the
Office of Government Ethics shall promptly provide to the designated
agency ethics official a written response to each request for waiver or
revocation. The Director shall maintain a listing of positions or
categories of positions in appendix A to this part for which the 18
U.S.C. 207(c) restriction has been waived. The Director shall publish
notice in the Federal Register when revoking a waiver.
(4) Effective dates. A waiver shall be effective on the date of the
written response to the designated agency ethics official indicating
that the request for waiver has been granted. A waiver shall inure to
the benefit of the individual who holds the position when the waiver
takes effect, as well as to his successors, but shall not benefit
individuals who terminated senior service prior to the effective date
of the waiver. Revocation of a waiver shall be effective 90 days after
the date that the OGE Director publishes notice of the revocation in
the Federal Register. Individuals who formerly served in a position for
which a waiver of restrictions was applicable will not become subject
to 18 U.S.C. 207(c) (or section 207(f)) if the waiver is revoked after
their termination from the position.
(k) Miscellaneous statutory exceptions. Several statutory
authorities specifically modify the scope of 18 U.S.C. 207 as it would
otherwise apply to a former employee or class of former employees.
These authorities include:
(1) 22 U.S.C. 3310(c), permitting employees of the American
Institute in Taiwan to represent the Institute notwithstanding 18
U.S.C. 207;
(2) 22 U.S.C. 3613(d), permitting the individual who was
Administrator of the Panama Canal Commission on the date of its
termination to act in carrying out official duties as Administrator of
the Panama Canal Authority notwithstanding 18 U.S.C. 207;
(3) 22 U.S.C. 3622(e), permitting an individual who was an employee
of the Panama Canal Commission on the date of its termination to act in
carrying out official duties on behalf of the Panama Canal Authority;
(4) 25 U.S.C. 450i(j), permitting a former employee who is carrying
out official duties as an employee or elected or appointed official of
a tribal organization or inter-tribal consortium to act on behalf of
the organization or consortium in connection with any matter related to
a tribal governmental activity or Federal Indian program or service, if
the former employee submits
[[Page 36208]]
notice of any personal and substantial involvement in the matter during
Government service;
(5) 38 U.S.C. 5902(d), permitting a former employee who is a
retired officer, warrant officer, or enlisted member of the Armed
Forces, while not on active duty, to act on behalf of certain claimants
notwithstanding 18 U.S.C. 207 if the claim arises under laws
administered by the Secretary of Veterans Affairs;
(6) 50 U.S.C. 405(b), permitting a former part-time member of an
advisory committee appointed by the Federal Emergency Management
Agency, the Director of National Intelligence, or the National Security
Council to engage in conduct notwithstanding 18 U.S.C. 207 except with
respect to any particular matter directly involving an agency the
former member advised or in which such agency is directly interested;
(7) 50 U.S.C. app. 463, permitting former employees appointed to
certain positions under 50 U.S.C. app. 451 et seq. (Military Selective
Service Act) to engage in conduct notwithstanding 18 U.S.C. 207; and
(8) Public Law 97-241, title I, section 120, August 24, 1982 (18
U.S.C. 203 note), providing that 18 U.S.C. 207 shall not apply under
certain circumstances to private sector representatives on United
States delegations to international telecommunications meetings and
conferences.
Note to paragraph (k): Exceptions from 18 U.S.C. 207 may be
included in legislation mandating privatization of Governmental
entities. See, for example, 42 U.S.C. 2297h-3(c), concerning the
privatization of the United States Enrichment Corporation.
(l) Guide to available exceptions and waivers to the prohibitions
of 18 U.S.C. 207. This chart lists the exceptions and waivers set forth
in 18 U.S.C. 207 and for each exception and waiver identifies the
prohibitions of section 207 excepted or subject to waiver. Detailed
guidance on the applicability of the exceptions and waivers is
contained in the cross-referenced paragraphs of this section.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 207 Prohibitions affected
Exception/waiver -------------------------------------------------------------------------------------------------
(a)(1) (a)(2) (b) (c) (d) (f) (l)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Acting for the United States, see Sec.
2641.301(a)..........................................
(2) Elected State or local government official, see
Sec. 2641.301(b)...................................
(3) Acting for specified entities, see Sec. ............ ............ ............ ............ ............
2641.301(c)..........................................
(4) Special knowledge, see Sec. 2641.301(d)......... ............ ............ ............ ............ ............
(5) Scientific or technological information, see Sec. ............ ............ ............
2641.301(e).........................................
(6) Testimony, see Sec. 2641.301(f).................
(7) Acting for a candidate or political party, see ............ ............ ............ ............ ............
Sec. 2641.301(g)...................................
(8) Acting for an international organization, see Sec.
2641.301(h)........................................
(9) Employee of a Government-owned, contractor-
operated entity, see Sec. 2641.301(i)..............
(10) Waiver for certain positions, see Sec. ............ ............ ............ ............ ............
2641.301(j)..........................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 2641.302 Separate agency components.
(a) Designation. For purposes of 18 U.S.C. 207(c) only, and Sec.
2641.204, the Director of the Office of Government Ethics may designate
agency ``components'' that are distinct and separate from the
``parent'' agency and from each other. Absent such designation, the
representational bar of section 207(c) extends to the whole of the
agency in which the former senior employee served. An eligible former
senior employee who served in the parent agency is not barred by
section 207(c) from making communications to or appearances before any
employee of any designated component of the parent, but is barred as to
any employee of the parent or of any agency or bureau of the parent
that has not been designated. An eligible former senior employee who
served in a designated component of the parent agency is barred from
communicating to or making an appearance before any employee of that
designated component, but is not barred as to any employee of the
parent, of another designated component, or of any other agency or
bureau of the parent that has not been designated.
Example 1 to paragraph (a): While employed in the Office of the
Secretary of Defense, a former career Senior Executive Service
employee was employed in a position for which the rate of basic pay
exceeded 86.5 percent of that payable for level II of the Executive
Schedule. He is prohibited from contacting the Secretary of Defense
and DOD's Inspector General. However, because eligible under
paragraph (b) of this section to benefit from component designation
procedures, he is not prohibited by 18 U.S.C. 207(c) from contacting
the Secretary of the Army. (The Department of the Army is a
designated component of the parent, DOD. The Office of the Secretary
of Defense and the Office of the DOD Inspector General are both part
of the parent, DOD. See the listing of DOD components in appendix B
to this part.)
Example 2 to paragraph (a): Because eligible under paragraph (b)
of this section to benefit from component designation procedures, a
former Navy Admiral who last served as the Vice Chief of Naval
Operations is not prohibited by 18 U.S.C. 207(c) from contacting the
Secretary of Defense, the Secretary of the Army, or DOD's Inspector
General. He is prohibited from contacting the Secretary of the Navy.
(The Department of the Navy is a designated component of the parent,
DOD. The Office of the Secretary of Defense and the Office of the
DOD Inspector General are both part of the parent. See the listing
of DOD components in appendix B to this part.)
(b) Eligible former senior employees. All former senior employees
are eligible to benefit from this procedure except those who were
senior employees by virtue of having been:
(1) Employed in a position for which the rate of pay is specified
in or fixed according to 5 U.S.C. 5311-5318 (the Executive Schedule)
(see example 1 to paragraph (j)(1) of Sec. 2641.301);
[[Page 36209]]
(2) Appointed by the President to a position under 3 U.S.C.
105(a)(2)(B); or
(3) Appointed by the Vice President to a position under 3 U.S.C.
106(a)(1)(B).
Example 1 to paragraph (b): A former senior employee who had
served as Deputy Commissioner of the Internal Revenue Service is not
eligible to benefit from the designation of components for the
Department of the Treasury because the position of Deputy
Commissioner is listed in 5 U.S.C. 5316, at a rate of pay payable
for level V of the Executive Schedule.
(c) Criteria for designation. A component designation must be based
on findings that:
(1) The component is an agency or bureau, within a parent agency,
that exercises functions which are distinct and separate from the
functions of the parent agency and from the functions of other
components of that parent as shown by relevant factors which may
include, but are not limited to:
(i) The component's creation by statute or a statutory reference
indicating that it exercises functions which are distinct and separate;
(ii) The component's exercise of distinct and separate subject
matter or geographical jurisdiction;
(iii) The degree of supervision exercised by the parent over the
component;
(iv) Whether the component exercises responsibilities that cut
across organizational lines within the parent;
(v) The size of the component in absolute terms; and
(vi) The size of the component in relation to other agencies or
bureaus within the parent.
(2) There exists no potential for the use of undue influence or
unfair advantage based on past Government service.
(d) Subdivision of components. The Director will not ordinarily
designate agencies that are encompassed by or otherwise supervised by
an existing designated component.
(e) Procedures. Distinct and separate components shall be
designated in accordance with the following procedure:
(1) Agency recommendation. A designated agency ethics official may,
at any time, recommend the designation of an additional component or
the revocation of a current designation by forwarding a written request
to the Director of the Office of Government Ethics addressing the
criteria set forth in paragraph (c) of this section.
(2) Agency update. Designated agency ethics officials shall, by
July 1 of each year, forward to the OGE Director a letter stating
whether components currently designated should remain designated in
light of the criteria set forth in paragraph (c) of this section.
(3) Action by the Office of Government Ethics. The Director of the
Office of Government Ethics shall, by rule, make or revoke a component
designation after considering the recommendation of the designated
agency ethics official. The Director shall maintain a listing of all
designated agency components in appendix B to this part.
(f) Effective dates. A component designation shall be effective on
the date the rule creating the designation is published in the Federal
Register and shall be effective as to individuals who terminated senior
service either before, on or after that date. Revocation of a component
designation shall be effective 90 days after the publication in the
Federal Register of the rule that revokes the designation, but shall
not be effective as to individuals who terminated senior service prior
to the expiration of such 90-day period.
(g) Effect of organizational changes. (1) If a former senior
employee served in an agency with component designations and the agency
or a designated component that employed the former senior employee has
been significantly altered by organizational changes, the appropriate
designated agency ethics official shall determine whether any successor
entity is substantially the same as the agency or a designated
component that employed the former senior employee. Section
2641.204(g)(2)(iv)(A) through (g)(2)(iv)(C) should be used for guidance
in determining how the 18 U.S.C. 207(c) bar applies when an agency or a
designated component has been significantly altered.
(2) Consultation with Office of Government Ethics. When counseling
individuals concerning the applicability of 18 U.S.C. 207(c) subsequent
to significant organizational changes, the appropriate designated
agency ethics official (DAEO) shall consult with the Office of
Government Ethics. When it is determined that appendix B to this part
no longer reflects the current organization of a parent agency, the
DAEO shall promptly forward recommendations for designations or
revocations in accordance with paragraph (e) of this section.
Example 1 to paragraph (g): An eligible former senior employee
had served as an engineer in the Agency for Transportation Safety,
an agency within Department X primarily focusing on safety issues
relating to all forms of transportation. The agency had been
designated as a distinct and separate component of Department X by
the Director of the Office of Government Ethics. Subsequent to his
termination from the position, the functions of the agency are
distributed among three other designated components with
responsibilities relating to air, sea, and land transportation,
respectively. The agency's few remaining programs are absorbed by
the parent. As the designated component from which the former senior
employee terminated is no longer identifiable as substantially the
same entity, the 18 U.S.C. 207(c) bar will not affect him.
Example 2 to paragraph (g): A scientist served in a senior
employee position in the Agency for Medical Research, an agency
within Department X primarily focusing on cancer research. The
agency had been designated as a distinct and separate component of
Department X by the Director of the Office of Government Ethics.
Subsequent to her termination from the position, the mission of the
Agency for Medical Research is narrowed and it is renamed the Agency
for Cancer Research. Approximately 20% of the employees of the
former agency are transferred to various other parts of the
Department to continue their work on medical research unrelated to
cancer. The Agency for Cancer Research is determined to be
substantially the same entity as the designated component in which
she formerly served, and the 18 U.S.C. 207(c) bar applies with
respect to the scientist's contacts with employees of the Agency for
Cancer Research. She would not be barred from contacting an employee
who was among the 20% of employees who were transferred to other
parts of the Department.
(h) Unauthorized designations. No agency or bureau within the
Executive Office of the President may be designated as a separate
agency component.
Appendix A to Part 2641--Positions Waived From 18 U.S.C. 207(c) and (f)
Pursuant to the provisions of 18 U.S.C. 207(c)(2)(C) and 5 CFR
2641.301(j), each of the following positions is waived from the
provisions of 18 U.S.C. 207(c) and 5 CFR 2641.204, as well as the
provisions of 18 U.S.C. 207(f) and 5 CFR 2641.206. All waivers are
effective as of the date indicated.
Agency: Department of Justice
Positions:
United States Trustee (21) (effective June 2, 1994).
Agency: Securities and Exchange Commission
Positions:
Solicitor, Office of General Counsel (effective October 29,
1991).
Chief Litigation Counsel, Division of Enforcement (effective
October 29, 1991).
Deputy Chief Litigation Counsel, Division of Enforcement
(effective November 10, 2003).
SK-17 positions (effective November 10, 2003).
SK-16 and lower-graded SK positions supervised by employees in
SK-17 positions (effective November 10, 2003).
SK-16 and lower-graded SK positions not supervised by employees
in SK-17 positions (effective December 4, 2003).
[[Page 36210]]
Appendix B to Part 2641--Agency Components for Purposes of 18 U.S.C.
207(c)
Pursuant to the provisions of 18 U.S.C. 207(h), each of the
following agencies is determined, for purposes of 18 U.S.C. 207(c),
and 5 CFR 2641.204, to have within it distinct and separate
components as set forth below. Except as otherwise indicated, all
designations are effective as of January 1, 1991.
Parent: Department of Commerce
Components:
Bureau of the Census.
Bureau of Industry and Security (formerly Bureau of Export
Administration) (effective January 28, 1992).
Economic Development Administration.
International Trade Administration.
Minority Business Development Agency (formerly listed as
Minority Business Development Administration).
National Institute of Standards and Technology (effective March
6, 2008).
National Oceanic and Atmospheric Administration.
National Technical Information Service (effective March 6,
2008).
National Telecommunications and Information Administration.
United States Patent and Trademark Office (formerly Patent and
Trademark Office).
Parent: Department of Defense
Components:
Department of the Air Force.
Department of the Army.
Department of the Navy.
Defense Information Systems Agency.
Defense Intelligence Agency.
Defense Logistics Agency.
Defense Threat Reduction Agency (effective February 5, 1999).
National Geospatial-Intelligence Agency (formerly National
Imagery and Mapping Agency) (effective May 16, 1997).
National Reconnaissance Office (effective January 30, 2003).
National Security Agency.
Parent: Department of Energy
Component:
Federal Energy Regulatory Commission.
Parent: Department of Health and Human Services
Components:
Administration on Aging (effective May 16, 1997).
Administration for Children and Families (effective January 28,
1992).
Agency for Healthcare Research and Quality (formerly Agency for
Health Care Policy and Research) (effective May 16, 1997).
Agency for Toxic Substances and Disease Registry (effective May
16, 1997).
Centers for Disease Control and Prevention (effective May 16,
1997).
Centers for Medicare and Medicaid Services (formerly Health Care
Financing Administration).
Food and Drug Administration.
Health Resources and Services Administration (effective May 16,
1997).
Indian Health Service (effective May 16, 1997).
National Institutes of Health (effective May 16, 1997).
Substance Abuse and Mental Health Services Administration
(effective May 16, 1997).
Parent: Department of the Interior
Components:\1\
---------------------------------------------------------------------------
\1\ All designated components under the jurisdiction of a
particular Assistant Secretary shall be considered a single
component for purposes of determining the scope of 18 U.S.C. 207(c)
as applied to senior employees serving on the immediate staff of
that Assistant Secretary.
---------------------------------------------------------------------------
Bureau of Indian Affairs (effective January 28, 1992).
Bureau of Land Management (effective January 28, 1992).
Bureau of Reclamation (effective January 28, 1992).
Minerals Management Service (effective January 28, 1992).
National Park Service (effective January 28, 1992).
Office of Surface Mining Reclamation and Enforcement (effective
January 28, 1992).
U.S. Fish and Wildlife Service (effective January 28, 1992).
U.S. Geological Survey (effective January 28, 1992).
Parent: Department of Justice
Components:
Antitrust Division.
Bureau of Alcohol, Tobacco, Firearms and Explosives (effective
November 23, 2004).
Bureau of Prisons (including Federal Prison Industries, Inc.)
Civil Division.
Civil Rights Division.
Community Relations Service.
Criminal Division.
Drug Enforcement Administration.
Environment and Natural Resources Division.
Executive Office for United States Attorneys\2\ (effective
January 28, 1992).
---------------------------------------------------------------------------
\2\ The Executive Office for United States Attorneys shall not
be considered separate from any Office of the United States Attorney
for a judicial district, but only from other designated components
of the Department of Justice.
---------------------------------------------------------------------------
Executive Office for United States Trustees\3\ (effective
January 28, 1992).
---------------------------------------------------------------------------
\3\ The Executive Office for United States Trustees shall not be
considered separate from any Office of the United States Trustee for
a region, but only from other designated components of the
Department of Justice.
---------------------------------------------------------------------------
Federal Bureau of Investigation.
Foreign Claims Settlement Commission.
Independent Counsel appointed by the Attorney General.
Office of Justice Programs.
Office of the Pardon Attorney (effective January 28, 1992).
Offices of the United States Attorney (each of 94 offices).
Offices of the United States Trustee (each of 21 offices).
Office on Violence Against Women \4\ (effective March 8, 2007).
---------------------------------------------------------------------------
\4\ The Office on Violence Against Women shall not be considered
separate from the Office of Justice Programs, but only from other
designated components of the Department of Justice.
---------------------------------------------------------------------------
Tax Division.
United States Marshals Service (effective May 16, 1997).
United States Parole Commission.
Parent: Department of Labor
Components:
Bureau of Labor Statistics.
Employee Benefits Security Administration (formerly Pension and
Welfare Benefits Administration) (effective May 16, 1997).
Employment and Training Administration.
Employment Standards Administration.
Mine Safety and Health Administration.
Occupational Safety and Health Administration.
Office of Disability Employment Policy (effective January 30,
2003).
Parent: Department of State
Component:
Foreign Service Grievance Board.
Parent: Department of Transportation
Components:
Federal Aviation Administration.
Federal Highway Administration.
Federal Motor Carrier Safety Administration (effective January
30, 2003).
Federal Railroad Administration.
Federal Transit Administration.
Maritime Administration.
National Highway Traffic Safety Administration.
Saint Lawrence Seaway Development Corporation.
Surface Transportation Board (effective May 16, 1997).
Parent: Department of the Treasury
Components:
Alcohol and Tobacco Tax and Trade Bureau (effective November 23,
2004).
Bureau of Engraving and Printing.
Bureau of the Mint.
Bureau of the Public Debt.
Comptroller of the Currency.
Financial Crimes Enforcement Center (FinCEN) (effective January
30, 2003).
Financial Management Service.
Internal Revenue Service.
Office of Thrift Supervision.
[FR Doc. E8-13394 Filed 6-24-08; 8:45 am]
BILLING CODE 6345-02-P