[Federal Register: February 18, 2003 (Volume 68, Number 32)]
[Proposed Rules]
[Page 7843-7892]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18fe03-18]
[[Page 7843]]
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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; Proposed Rule
[[Page 7844]]
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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: Proposed rule.
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SUMMARY: Since 1980, 5 CFR part 2637 (formerly 5 CFR part 737) has
provided guidance concerning the post-employment conflict of interest
restrictions of 18 U.S.C. 207. As a result of amendments to section 207
that became effective January 1, 1991, 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 part 2641 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
proposed rule would expand the guidance previously published in part
2641 as interim or interim final rules and make minor modifications to
those earlier rulemakings. It would also remove part 2637 from 5 CFR.
DATES: Comments are invited and must be received on or before May 19,
2003.
ADDRESSES: Send comments to the Office of Government Ethics, Suite 500,
1201 New York Avenue, NW., Washington, DC 20005-3917, Attention:
Richard M. Thomas. Comments may also be sent electronically to OGE's
Internet E-mail address at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov. The subject line of E-
mail messages should include the following reference: ``Comments on
proposed post-employment conflict of interest rule.''
FOR FURTHER INFORMATION CONTACT: Richard M. Thomas, Associate General
Counsel, Office of Government Ethics; Telephone: 202-208-8000: TDD:
202-208-8025; FAX: 202-208-8037.
SUPPLEMENTARY INFORMATION:
A. Substantive Discussion of Post-Employment Regulatory Guidance
I. Rulemaking History
Since its enactment in 1962, 18 U.S.C. 207 has remained the primary
source of post-employment restrictions applicable to former officers
and employees of the executive branch and of independent agencies. In
1979 (interim rule) and 1980 (final rule), the Office of Government
Ethics (OGE) published regulatory guidance concerning section 207 as
codified at 5 CFR part 737 (now 5 CFR part 2637). See OGE's regulations
issued at 44 FR 19974-19988 (April 3, 1979), 45 FR 7402-7431 (February
1, 1980), 54 FR 50229-50231 (December 5, 1989), and 56 FR 3961-3965
(February 1, 1991), as amended, redesignated and corrected over the
years.
Section 207 was substantially revised by the Ethics Reform Act of
1989, Pub. L. 101-194, 103 Stat. 1716, with technical amendments
enacted by Pub. L. 101-280, 104 Stat. 149 (1990). As a result of these
and subsequent amendments, employees terminating Government service (or
service in certain high-level Government positions) on or after January
1, 1991, are subject to revised substantive prohibitions.
Pursuant to authority set forth in the Ethics in Government Act of
1978, as amended, and Executive Order 12674, as modified by Executive
Order 12731 (hereinafter referred to as Executive Order 12674), OGE
published executive branch guidance concerning certain aspects of the
new version of 18 U.S.C. 207 on February 1, 1991 (56 FR 3961-3965), now
codified at 5 CFR part 2641.\1\ For purposes of section 207(c), the
1991 interim rule (1) Established procedures for exempting senior
employee positions; (2) designated separate departmental and agency
components; and (3) established procedures for future designations and
modification of designations of departmental or agency components. The
appendices to part 2641 reserved for listings of exemptions and
designations were subsequently amended by final rules published at 57
FR 3115-3117 (January 28, 1992), 57 FR 11673 (April 7, 1992), 58 FR
33755-33756 (June 21, 1993), 62 FR 26915-26918 (May 16, 1997), 64 FR
5709-5710 (February 5, 1999), and, most recently, 68 FR 4681-4684
(January 30, 2003).
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\1\ OGE also issued, by Memoranda to Designated Agency Ethics
Officials, General Counsels and Inspectors General, summaries of the
restrictions of 18 U.S.C. 207, as amended, on October 26, 1990,
November 5, 1992, and February 17, 2000. The current version of the
summary may be found on OGE's Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov under
``DAEOgrams'' for the year 2000.
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As described below in the discussions of Sec. Sec. 2641.204,
2641.301(j) and 2641.302 as proposed, this proposed rule would make
further minor modifications to existing part 2641. In addition, it
would expand part 2641 to provide comprehensive guidance concerning 18
U.S.C. 207 as applicable to individuals terminating service on or after
January 1, 1991 (or service in certain high-level Government
positions), incorporating amendments to section 207 enacted subsequent
to the Ethics Reform Act.\2\ As discussed more fully below, a future
rulemaking would supplement the preliminary guidance at proposed
Sec. Sec. 2641.203 and 2641.206 concerning 18 U.S.C. 207(b) and (f).
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\2\ The statute has been amended several times since the Ethics
Reform Act. Section 101(b)(8)(A) of Pub. L. 101-509, 104 Stat. 1389,
amended 18 U.S.C. 207(c)(2)(A)(ii) to change the pay-based threshold
for purposes of determining the applicability of section 207(c) from
the rate for GS-17 to the rate for level V of the Executive
Schedule. Section 705(a) of Pub. L. 102-25, 105 Stat. 75 reinstated
section 207(k) authorizing Presidential waivers of section 207 in
narrow circumstances, a provision that was later amended by Pub. L.
102-190. Section 609 of Pub. L. 102-395, 106 Stat. 1828, amended
section 207(f) to extend that one-year restriction to three years in
the case of any individual assuming the office of U.S. Trade
Representative after October 6, 1992, the effective date of the law.
Subsequently, section 21(a) of Pub. L. 104-65, 109 Stat. 691,
amended section 207(f)(2) to permanently bar both the U.S. Trade
Representative and the Deputy U.S. Trade Representative from
engaging in the activities prohibited by section 207(f). Sections 5
and 6 of Pub. L. 104-179, 110 Stat. 1566, changed the rate of basic
pay triggering ``senior employee'' status and added a new exception
permitting former high-level officials to represent certain
candidates and political organizations notwithstanding section
207(c) or (d). Finally, section 102(a) of Pub. L. 105-244, 112 Stat.
1585, made a conforming change to the exception at section
207(j)(2)(B) when it amended the definition of ``institution of
higher learning'' in title 20 of the United States Code. (Pub. L.
103-322, 108 Stat. 1796 made only two very minor grammatical changes
to section 207(c).)
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This proposed rule does not address very limited amendments enacted
on December 17, 2002, in section 209(d) of the E-Government Act of
2002, Pub. L. 107-347. These amendments, which pertain only to
assignees from private sector organizations under the newly authorized
Information Technology Exchange Program, had not been enacted when the
proposed rule was developed and will not be effective until April 16,
2003, subsequent to the issuance of the proposed rule. See section
402(a)(1), Pub. L. 107-347. OGE invites comments concerning
interpretation of these amendments--which add a new category of senior
employee under section 207(c)(2)(A)(v) and a new restriction on
contract advice in section 207(l)--which will be addressed in the final
rule, as appropriate.
OGE is proposing to discontinue publication of 5 CFR part 2637. Due
to the passage of time, employees who terminated service prior to
January 1, 1991, could no longer be subject to any of the substantive
restrictions of the previous version of 18 U.S.C. 207 other than the
permanent bar for particular matters involving specific parties. Former
employees, agency ethics officials and other interested parties can
continue to consult the last edition of
[[Page 7845]]
the CFR in which part 2637 was published, for interpretive guidance
concerning the permanent bar and relevant exceptions as applicable to
employees who terminated service before January 1, 1991. OGE will
maintain a copy of part 2637 and suggests that all designated agency
ethics officials keep a copy in their files.
As required by section 201(c) of Executive Order 12674, OGE is
publishing this proposed rule after obtaining the concurrence of the
Department of Justice. We also consulted with the Office of Personnel
Management pursuant to title IV of the Ethics in Government Act of
1978, as amended. Section 402 of that Act provides, among other things,
that the Director of OGE shall provide, in consultation with the Office
of Personnel Management (OPM), overall direction of executive branch
policies relating to preventing conflicts of interest, and develop, in
consultation with the Justice Department and OPM, rules and regulations
pertaining to the identification and resolution of conflicts of
interest.
Subpart A--General Provisions
Proposed Sec. 2641.101--Purpose
Proposed Sec. 2641.101(a) explains that 18 U.S.C. 207 does not bar
employment with any particular employer. Rather, it prohibits certain
acts which involve, or may appear to involve, the unfair use of prior
Government employment. The section would stress that the proscribed
activities are prohibited even if they are undertaken for no
compensation. The section would also note that the restrictions are
personal to the employee and that they are not imputed to others, such
as a law partner of a former employee. On the other hand, we have
inserted a parenthetical cross-reference to the note following proposed
Sec. 2641.103 concerning the punishment under 18 U.S.C. 2 of a person
or entity who ``aids, abets, counsels, commands, induces, or procures
commission'' of a violation of 18 U.S.C. 207.
Proposed Sec. 2641.101(b) makes two important points. First, it
would emphasize that part 2641 provides interpretive guidance
concerning the application of 18 U.S.C. 207 to former employees of the
executive branch or of certain independent agencies of the Federal
Government of the United States, including current employees who
formerly served in ``senior'' or ``very senior'' employee positions.
Second, although certain of the statute's provisions also apply to
former employees of the District of Columbia, Members and elected
officials of Congress and legislative staff, and employees of
independent agencies in the legislative and judicial branches, the
proposed paragraph specifically states that part 2641 is not intended
to provide guidance to those individuals.
The note following proposed Sec. 2641.101(b) warns that part 2641
does not purport to interpret post-employment restrictions that may be
contained in laws or authorities other than section 207. Thus, for
example, a former employee must comply with 18 U.S.C. 203 which
restricts the acceptance of compensation in connection with certain
representational activities undertaken by the employee or others at a
time when the former employee was still serving with the Government.
Under 41 U.S.C. 423(d), a former agency official may not accept
compensation from a contractor for one year as an employee, officer,
director, or consultant if the former official: (1) Served in certain
procurement positions at the time the contractor was selected for or
awarded a contract in excess of $10,000,000; (2) served in certain
positions relating to the administration of a contract with the
contractor in excess of $10,000,000; or (3) personally made certain
decisions valued in excess of $10,000,000 in relation to a contract
with the contractor. See 48 CFR part 3. The proposed note does not
refer to restrictions contained in any professional codes of conduct,
as these are outside the jurisdiction of OGE.
The proposed note does not purport to set forth an exhaustive list
of all post-employment restrictions, including agency-specific or
position-specific restrictions. We were concerned that the burden
associated with compiling and maintaining an exhaustive (and accurate)
list would outweigh the benefit of such a listing in a regulation
intended to provide guidance relating to 18 U.S.C. 207. If history is
any indicator, post-employment restrictions are frequently amended,
suspended or abolished, then amended again or reinstated (see, e.g.,
the legislative history of 41 U.S.C. 423(d)). We also foresaw
difficulties in defining the standards for inclusion in such a listing.
Proposed Sec. 2641.102--Applicability
Section 207 has been amended several times over the years. Proposed
Sec. 2641.102 traces the most significant of these amendments and
explains that, as a consequence of these changes, former employees are
subject to varying post-employment restrictions depending upon the date
of their termination from Government service (or from a ``senior'' or
``very senior'' employee position). Section 2641.102 as proposed
indicates whether an employee should consult 5 CFR part 2637 or part
2641 for regulatory guidance.
A note following Sec. 2641.102 as proposed would warn that the
guidance in part 2641 incorporates all amendments to 18 U.S.C. 207
enacted after the Ethics Reform Act of 1989 (and the related technical
amendments to that Act), except as superseded. Significantly, as would
be explained in the note, an individual who terminated Government
service (or a ``senior'' or ``very senior'' employee position) before
one or more of these amendments became effective would have become
subject to a version of section 207 other than that reflected in part
2641 as proposed.
The substantive post-Ethics Reform Act amendments have concerned
the applicability of sections 207(c), (d), or (f), the waiver authority
in section 207(k), and the definition of ``institution of higher
learning'' in section 207(j)(2)(B). The one-year restriction of section
207(c) has expired as to any former senior employee covered by a
version of that restriction other than that described in part 2641.
Moreover, the prior versions of section 207(f) are of relevance only in
relation to the length of the restriction as it applied to a former
United States Trade Representative or former Deputy United States Trade
Representative who terminated service in the early 1990s. And, since
the waiver authority in section 207(k) has not yet been utilized, a
section 207(k) waiver would, in the future, be granted in accordance
with part 2641, once it is finally adopted.
As discussed earlier, OGE is proposing to discontinue publication
of 5 CFR part 2637. Since proposed Sec. 2641.102(b) indicates that
part 2637 should be consulted in relation to employees who terminated
service prior to 1991, that section would also note the edition of the
CFR in which part 2637 was last published.
Proposed Sec. 2641.103--Enforcement and Penalties
It is the role of ethics officials, both at OGE and elsewhere, to
give advice concerning the meaning of 18 U.S.C. 207. Section
2641.103(a) of the proposed rule notes that agencies are required by 28
U.S.C. 535 to report to the Attorney General any information,
allegations, or complaints of possible violations of the laws in title
18 of the United States Code involving Government officers and
employees, including violations of 18 U.S.C. 207 by former officers and
employees.
When a matter involving a Federal conflict of interest law is
referred to the
[[Page 7846]]
Department of Justice by an agency, 5 CFR 2638.603 requires that an
agency concurrently notify the Director of OGE of the referral unless
otherwise prohibited by law. The Office of Government Ethics has
developed an optional ``Notification of Conflict of Interest Referral''
reporting form (OGE Form 202) that agencies can use for this purpose.
After the final disposition of a referral, including any disciplinary
or corrective action taken by the agency, agencies are required further
to notify the Director of such disposition.
Proposed Sec. 2641.103(b) cross-references the penalties and
injunctions authorized to be imposed for violations of 18 U.S.C. 207.
The section refers to 18 U.S.C. 216(a), (b) and (c) which,
respectively, set forth the imprisonment terms and criminal fines for
felony and misdemeanor violations of section 207, authorize the
Attorney General to take actions to impose civil penalties for
violations of section 207, set forth fine amounts, and authorize the
Attorney General to seek injunctive relief to prohibit conduct that
violates section 207.
The note proposed to follow Sec. 2641.103 warns that a person or
entity who ``aids, abets, counsels, commands, induces, or procures'' a
violation of 18 U.S.C. 207 is punishable as a principal under 18 U.S.C.
2.
Notably, the new version of 18 U.S.C. 207 no longer provides for
the administrative sanctions that were formerly authorized by the pre-
Ethics Reform Act version of section 207(j). These procedures remain
available, however, in the case of employees who terminated Government
service prior to January 1, 1991. A number of agencies continue to
publish procedures implementing former section 207(j). Given the
passage of time, however, agencies may wish to weigh the likelihood
that these procedures would be utilized against other factors,
including the expense of continued publication and the availability of
civil remedies.
Proposed Sec. 2641.104--Definitions
Proposed Sec. 2641.104 defines a number of terms that are used
throughout the regulation. Although the terms are listed in proposed
Sec. 2641.104 in alphabetical order, they are discussed here out of
order to facilitate our discussion. Other terms or phrases are defined
in subsequent sections of the proposed regulation and are discussed
further below.
The proposed definitions in Sec. 2641.104 generally are intended
to be consistent with definitions of the same terms previously
published in 5 CFR part 2637. In some cases, we have altered the
wording in order to clarify the definition, ensure consistency with
other OGE regulations, or add additional information to reflect an OGE,
Department of Justice, or judicial interpretation that was not
incorporated into part 2637. Several of the definitions were included
in the interim rule published in 1991 at part 2641 to permit the
immediate exercise of the OGE Director's authority to designate
departmental and agency components for purposes of 18 U.S.C. 207(c) and
to waive certain positions from sections 207(c) and (f). The proposed
rule also would make several modifications to the definitions in
existing part 2641 in order to clarify the meaning or update the
definitions consistent with current interpretations.
The term ``employee'' is used in 18 U.S.C. 207 in a number of
contexts. Primarily, the term ``employee'' is used in section 207 to
describe the individuals subject to section 207 and to identify the
current Government officials with whom post-employment contact is
restricted and the decisions of whom a former senior or very senior
employee cannot seek to influence on behalf of a foreign entity. The
term is, however, used for other purposes in section 207 and in
proposed part 2641. Thus, for example, the exception in section
207(j)(2)(A) benefits an individual who becomes an ``employee'' of
certain specified entities, such as a State or local government. See
proposed Sec. 2641.301(c). Moreover, in the proposed regulation, we
use the term ``employee'' to refer to an individual's employment
relationship with a non-Federal entity. As proposed, Sec. 2641.104
defines the term for the purpose of identifying the individuals subject
to section 207. (The definition would exclude certain individuals who
are subject to section 207 but for whom part 2641 was not intended to
provide guidance, such as employees of independent agencies in the
legislative or judicial branches.) Proposed Sec. 2641.104 emphasizes
that the definition is modified elsewhere in the regulation, as
necessary, when the term ``employee'' is used for other purposes.
Consistent with 18 U.S.C. 202(a) and (c), the term ``employee'' is
defined in proposed Sec. 2641.104 to exclude enlisted members of the
Armed Forces, the President, and the Vice President (except, with
respect to the Vice President, as otherwise provided). Relevant
provisions of part 2641 as proposed would specifically indicate that
the Vice President is subject to 18 U.S.C. 207(d) and (f) and that, in
certain circumstances, communications to or appearances before the
President and Vice President are prohibited. For purposes of clarity,
the proposed definition of ``former employee'' emphasizes that the Vice
President is a ``former employee'' only for purposes of sections 207(d)
and (f).
The proposed definition of ``employee'' includes an individual
appointed or detailed under the Intergovernmental Personnel Act (IPA),
5 U.S.C. 3371-3376. The IPA authorizes the assignment of employees of
State or local governments (and certain other entities) to Federal
agencies. Under 5 U.S.C. 3374(a), an individual who is assigned to a
Federal agency may be ``appointed'' in the agency or may be deemed ``on
detail'' to the agency. The IPA specifically provides that an
individual, whether appointed or on detail to a Federal agency, is
deemed an ``employee'' for purposes of 18 U.S.C. 207. 5 U.S.C.
3374(c)(2). The regulation would also acknowledge that an individual
may be subject to section 207 under the terms of a statute other than
the IPA.
The proposed definition of ``employee'' also excludes officers or
employees of the District of Columbia. Although former employees of the
District of Columbia must comply with 18 U.S.C. 207(a)(1) and (a)(2),
proposed Sec. 2641.101(b) emphasizes that part 2641 ``is not intended
to provide guidance to those individuals.'' Moreover, we were also
persuaded to exclude District of Columbia officials from the definition
of ``employee'' since section 207(a)(3) indicates that post-employment
contacts with District of Columbia officials are not with ``any officer
or employee of any department, agency, court, or court-martial of the
United States'' within the meaning of sections 207(a)(1) and (a)(2).
``State'' is defined in proposed Sec. 2641.104 to include the
District of Columbia. The definition of ``State'' in 18 U.S.C.
207(j)(7) specifically defines the term as including the District of
Columbia. We also propose to define the District of Columbia as a State
in view of the exceptions at sections 207(j)(1) and (j)(2) which permit
a former employee to engage in otherwise prohibited representational
activity on behalf of certain governments. We defined the District of
Columbia as a State notwithstanding language in the exception at
section 207(j)(1) which, since it refers to the District of Columbia
separately, distinguishes the District of Columbia government from
State and local governments. In this regard, we noted that the wording
of section 207(j)(1) also distinguishes the District of Columbia
government from the United States Government. We decided
[[Page 7847]]
that the District of Columbia must have been listed separately in
section 207(j)(1) for purposes of indicating the exception's
applicability to former District of Columbia employees who act on
behalf of that government.
As defined in proposed Sec. 2641.104, ``Government service'' means
``a period of time during which an individual is employed by the
Federal Government.'' The proposed definition provides some guidance
concerning when service ends in the case of ``special Government
employees,'' including some advisory committee members and Reserve
officers of the Armed Forces and officers of the National Guard of the
United States. As defined in 18 U.S.C. 202(a), a special Government
employee (SGE) is an officer or employee of the executive branch or any
independent agency ``who is retained, designated, appointed, or
employed to perform, with or without compensation, for not to exceed
one hundred and thirty days during any period of three hundred and
sixty-five consecutive days, temporary duties either on a full-time or
intermittent basis * * *.'' Many of these individuals serve the
Government only a few days per year, often returning to private sector
employment during interim periods.
In the case of civilians who serve the executive branch or
independent agencies as SGEs, the definition of ``Government service''
proposed in Sec. 2641.104 indicates that Government service refers to
``the period of time covered by the individual's appointment (or other
act evidencing employment with the Government), regardless of any
interval or intervals between days actually served.'' Thus, sections
207(a)(1), (a)(2), and (b) are not triggered each time there is an
interval between the days on which a civilian SGE actually performs
work. Example 4 following the definition of ``former employee'' in
proposed Sec. 2641.104 is illustrative.
In the case of a Reserve or National Guard officer, status as an
SGE is related to the performance of active duty or active duty for
training. More specifically, unless otherwise an employee, a Reserve or
National Guard officer is classified as an SGE only while on active
duty involuntarily, while on active duty for training for any length of
time, or while serving voluntarily on extended active duty for 130 days
or less. See 18 U.S.C. 202(a). The definition of ``Government service''
in proposed Sec. 2641.104 indicates that, in the case of Reserve or
National Guard officers, the end of a period of active duty or active
duty for training as an SGE is considered the end of Government service
for purposes of triggering the application of sections 207(a)(1),
(a)(2), and (b). See example 5 following the proposed definition of
``former employee'' in Sec. 2641.104. During periods when not serving
on active duty, officers maintain their Reserve or National Guard
status--categorized as either ``active'' or ``inactive''--but they are
not considered SGEs. Like civilians, Reserve and National Guard
officers are, while special Government employees, subject to 18 U.S.C.
203 and 205. Similar to section 207, these statutes restrict an
individual's ability to represent others before Federal departments,
agencies, or courts.
The definition of the term ``executive branch'' derives from 18
U.S.C. 202(e)(1). According to 18 U.S.C. 202(e)(1), the executive
branch includes ``each executive agency as defined in title 5, and any
other entity or administrative unit in the executive branch.'' The term
``executive agency'' is defined in 5 U.S.C. 105 to mean ``an Executive
department, a Government corporation, and an independent
establishment.'' The ``Executive departments'' are enumerated in 5
U.S.C. 101. Accordingly, proposed Sec. 2641.104 states that the term
``executive branch'' includes ``an Executive department as defined in 5
U.S.C. 101, a Government corporation, and an independent establishment
(other than the General Accounting Office) * * * and also includes any
other entity or administrative unit in the executive branch.'' The
definitions of the ``judicial'' and ``legislative'' branches are from
corresponding definitions in 18 U.S.C. 202(e)(2) and (3). Following 18
U.S.C. 202(e)(3)(B), we include the General Accounting Office (GAO) in
our proposed definition of ``legislative branch'' and specifically
exclude GAO from our proposed definition of ``executive branch.''
We determined that it would be appropriate to define the term
``Government corporation'' by reference to two separate statutory
provisions, one in title 5 and one in title 18 of the United States
Code. For purposes of determining the employees subject to 18 U.S.C.
207, we propose to use the definition of ``Government corporation'' in
5 U.S.C. 103. As defined in that section for purposes of Government
personnel rules, a Government corporation means a corporation owned or
controlled by the Government of the United States. In contrast, we
propose to rely on the definition in 18 U.S.C. 6 when necessary to
identify the employees with whom post-employment contact is restricted,
to describe matters to which the United States is a party or has a
direct and substantial interest, to specify the decisions of whom a
former senior or very senior employee cannot seek to influence on
behalf of a foreign entity, and to explain when an activity will be
deemed undertaken on behalf of the United States. A corporation is an
``agency'' as defined in 18 U.S.C. 6 if it is a corporation ``in which
the United States has a proprietary interest.'' The Department of
Justice's Office of Legal Counsel has distinguished a proprietary
interest from one that is merely ``custodial or incidental'' as
determined by reference to the corporation's ``functions, financing,
control, and management.'' 12 Op. Off. Legal Counsel 84 (1988). The
proposed definition incorporates this Office of Legal Counsel guidance.
As defined in proposed Sec. 2641.104, an individual becomes a
``former employee'' at the termination of Government service. Examples
following the proposed definition of former employee illustrate the
combined effect of this definition and those of ``employee,''
``executive branch,'' and ``Government service.'' Notably, proposed
example 3 emphasizes that former employee status is triggered when an
employee terminates Federal service. Thus, the example points out that
an individual who served in a GS-14 position did not become a former
employee when he terminated service in the executive branch to accept a
position in the legislative branch. This result is dictated by language
in 18 U.S.C. 207(a)(1), (a)(2) and (b) indicating that those
restrictions commence when ``service or employment with the United
States'' terminates. In contrast, we indicate that status as a ``former
senior employee'' or ``very senior employee'' is triggered (for
purposes of sections 207(c), (d), and (f)) at the termination of
service in a senior or very senior position. This distinction appears
both in the proposed definition of ``former employee'' and in proposed
definitions of ``former senior employee'' and ``former very senior
employee.''
The proposed revised definition of ``senior employee'' at Sec.
2641.104 reflects the post-Ethics Reform Act of 1989 amendment of 18
U.S.C. 207(c) by the Office of Government Ethics Authorization Act of
1996, Pub. L. 104-179. Prior to the amendment of section
207(c)(2)(A)(ii) by that Act, section 207(c) applied, inter alia, to
employees occupying positions for which the rate of basic pay was equal
to or greater than that payable for level V of the Executive Schedule
(EL-V). The amendment replaced the EL-V threshold with the
[[Page 7848]]
rate of basic pay payable for level 5 of the Senior Executive Service
(ES-5).
Proposed example 2 following Sec. 2641.104 reflects our conclusion
in OGE Informal Advisory Letter 92 x 20 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. In
a subsequent advisory letter, we observed that this interpretation is
not limited to the SL (senior level) or ST (scientific or professional)
positions that were the subject of OGE Informal Advisory Letter 92 x
20. In the subsequent advisory letter, we stated that ``[i]n general,
for purposes of 18 U.S.C. 207(c)(2)(A)(ii), the ``rate of basic pay''
for any pay system refers to the base amount of actual pay for each
individual employee, not the minimum rate of pay for a position's
authorized pay range (footnote omitted).'' OGE Informal Advisory Letter
98 x 2. Both OGE advisory letters, along with the others cited in this
rulemaking document, are included in The Informal Advisory Letters and
Memoranda and Formal Opinions of the United States Office of Government
Ethics, as published by the U.S Government Printing Office, and are
also available on OGE's Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov.
Admirals and Generals in the uniformed services (``flag'' officers)
are senior employees because, as specified in 18 U.S.C.
207(c)(2)(A)(iv), they are ``employed in a position which is held by an
active duty commissioned officer of the uniformed services who is
serving in a grade or rank for which the pay grade is * * * pay grade
O-7 or above.'' A flag officer becomes a senior employee once
``frocked.'' When frocked, an officer is authorized to wear the stars
of the higher rank and to serve in a specified flag officer billet. He
does not, however, receive the pay and allowances authorized by law for
pay grade O-7 until he is actually promoted to that pay grade. We
invite comment from the military departments concerning our
interpretation of section 207(c) as it applies to flag officers.
As first published in part 2641 in early 1991, the term ``senior
employee'' was defined to include individuals detailed to a position
otherwise considered to be a senior employee position. We have
revisited our earlier interpretation and propose to delete the
reference to details. Our earlier interpretation was largely based upon
a reading of 18 U.S.C. 207(g). Since that section indicates that an
individual's former agency would include one to which the individual
had been detailed, we stated in the regulation that a detail to a
senior employee position would trigger senior employee status for
purposes of determining the applicability of section 207(c). Upon
further review of this issue, we now deem it more significant that the
statute generally defines senior employee positions by reference to
rate of pay (except in the case of Presidential or Vice Presidential
appointments under title 3 of the United States Code). In the case of
Senior Executive Service employees who are detailed, an employee
continues to be the incumbent of the position from which detailed for
purposes of pay and benefits. 5 CFR 317.903(a). Accordingly, we are
proposing to delete the reference to details in existing Sec. 2641.101
from our revised definition of senior employee in proposed Sec.
2641.104. Compare OGE Informal Advisory Letter 98 x 4 in which we
determined that an employee was a ``senior employee'' under 18 U.S.C.
207(c)(2)(A)(i) because she was, despite her election to continue to
receive the SES pay of her previous position, employed in an Executive
Schedule position.
For the reasons discussed above in connection with the definition
of ``senior employee,'' the proposed definition in Sec. 2641.104 of
``very senior employee'' differs from that previously published in part
2641 in relation to details. Separately, it should be noted that since
the definition of ``very senior employee'' encompasses any employee who
satisfies any of the criteria enumerated in proposed subparagraphs (1)-
(4) of the definition, the definition may encompass an SGE. However,
there is no provision exempting any former very senior employee from 18
U.S.C. 207(d) based upon length of service. Compare proposed definition
of ``senior employee'' in Sec. 2641.104.
Section 207(d) applies to, among others, any person who ``is
employed in a position * * * at a rate of pay payable for level I of
the Executive Schedule'' (emphasis added). Therefore, the current
definition of ``very senior employee,'' found in existing section
2641.104, would be modified slightly in the proposed rule to reflect
the apparent intent of Congress that the restriction apply to any
individual employed in a level I position, or in a position in a pay
system other than the Executive Schedule for which the rate of pay is
exactly equal to--but not greater than--the level I rate. See
Memorandum for Kenneth R. Schmalzbach, Assistant General Counsel,
Department of the Treasury, from Daniel Koffsky, Acting, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Application of
18 U.S.C. Sec. 207(d) to Certain Employees of the Treasury Department
(November 3, 2000), available under ``Other Ethics Guidance, Conflict
of Interest Prosecution Surveys and OLC Opinions'' on OGE's Web site,
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov.
Proposed Sec. 2641.104 reflects a similar
Congressional judgment in relation to the application of section 207(d)
to individuals serving in the Executive Office of the President.
The terms ``agency'' and ``department'' are used throughout 18
U.S.C. 207. The definitions of both terms in proposed Sec. 2641.104,
respectively, are from 18 U.S.C. 6. These terms appear in sections
207(a)(1) and 207(a)(2), for example, in connection with identifying
those employees to and before whom communications and appearances may
not be made. See proposed Sec. 2641.201(f). They similarly identify
the scope of the representational bars set forth in sections 207(c) and
207(d). See proposed Sec. 2641.204(g). They are also used in 18 U.S.C.
207(f) for purposes of identifying the decisions of whom a former
senior or very senior employee cannot seek to influence on behalf of a
foreign entity. Significantly, these terms were not defined for
purposes of identifying those former employees to whom the various
restrictions of section 207 apply. We are proposing to include any
``independent agency'' not in the legislative or judicial branches
within the scope of our definition of ``agency.''
Even the ``United States'' is a ``person'' as that term is defined
in proposed Sec. 2641.104; sections 207(a)(1), (a)(2), (b), (c), and
(d), prohibit post-employment activity that is undertaken on behalf of
(or to assist) ``any other person (except the United States).'' In some
places in the proposed regulatory text, we use the terms ``person'' and
``entity'' together even though the first term encompasses the latter.
The terms ``agency ethics official'' and ``designated agency ethics
official'' are defined due to their use in a number of places in the
regulatory text, including in proposed Sec. 2641.105 concerning
advice, in proposed Sec. 2641.301 concerning exceptions and waivers,
and in proposed Sec. 2641.302 concerning separate departmental or
agency component designations for purposes of 18 U.S.C. 207(c).
Finally, as this regulation is intended to be gender-neutral,
proposed Sec. 2641.104 indicates that the terms ``he,'' ``his,'' and
``him'' include ``she,'' ``hers,'' and ``her,'' and vice versa.
Proposed Sec. 2641.105--Advice
Proposed Sec. 2641.105(a) indicates that current or former
employees and others should seek advice concerning 18 U.S.C.
[[Page 7849]]
207 and part 2641 from an ``agency ethics official.'' The latter term
is defined in proposed Sec. 2641.104 as encompassing the designated
agency ethics official (DAEO), the alternate DAEO, and any deputy
ethics official as described in subpart B of 5 CFR part 2638. Proposed
Sec. 2641.105(a) notes that the agency in which the employee formerly
served has the primary responsibility for providing such advice and
that the agency may seek assistance from OGE. Proposed Sec.
2641.105(a) does not require that agency advice be reduced to writing,
although that format can provide the most protection to the employee.
We expect that the decision whether to provide oral or written advice
will be dictated by the circumstances.
An individual's former agency remains the primary source of advice.
Agency officials are more familiar with agency programs and policies
than are OGE personnel, and questions arising under section 207 often
require a detailed understanding of the facts surrounding agency
operations. However, OGE personnel also will provide advice to current
or former employees, including their representatives or non-Federal
employers, as outlined in proposed Sec. 2641.105(b). Based on its
statutory responsibilities for the executive branch ethics program, OGE
may provide advice in a matter where an agency has already provided a
former employee with advice.
While OGE strongly encourages agencies to establish mechanisms to
ensure that departing employees will receive advice concerning
pertinent post-employment restrictions (see, e.g., 5 CFR 2638.203(b)(6)
and (7)), this regulation as proposed would not require the agency to
set up any particular system in order to achieve this goal. The Office
of Government Ethics is aware that some agencies require that employees
meet with an agency ethics official as one step in the exit process.
Others have developed systems that identify terminating employees who
can then be provided with written materials concerning the post-
employment laws.
Although reliance on the oral or written advice of an agency ethics
official or OGE is a factor that will be taken into consideration by
the Department of Justice when selecting cases for prosecution,
proposed Sec. 2641.105(c) warns that there may be circumstances that
would cause the Department to initiate a prosecution notwithstanding
the former employee's reliance on such advice. The regulation would
distinguish any case in which OGE issues a ``formal'' opinion. See 5
CFR 2638.309. Proposed Sec. 2641.105(e) would advise that there is no
attorney-client relationship formed when a current or former employee
seeks advice from an agency attorney concerning post-employment
restrictions. Thus, an agency or OGE attorney is obligated to report
violations of law to appropriate authority. See, e.g., 5 CFR
2635.101(b)(11).
Section 2641.105(d) of the proposed rule emphasizes that a former
employee does not risk a violation of 18 U.S.C. 207 when he contacts an
agency ethics official, attorney, or other Government employee for the
purpose of seeking prospective advice concerning the potential
applicability of the statute to his own post-employment activities.
Subpart B--Prohibitions
Proposed part 2641 draws heavily from the language and explanations
in 5 CFR part 2637 concerning provisions of 18 U.S.C. 207 that were not
amended by the Ethics Reform Act of 1989 (or thereafter). However, we
have incorporated a number of improvements designed to facilitate
understanding of this very complex statute. We have organized part 2641
as proposed in a manner that we feel more clearly highlights the
applicability, duration, and elements of each of the substantive
provisions of section 207 that apply to former employees of the
executive branch and independent agencies. In addition, more guidance
is included concerning the scope of the statutory exceptions.
We have also included new and more numerous examples. However, the
examples are illustrative, not comprehensive. Each agency may provide
additional illustration and guidance to its own employees, consistent
with this part, in order to address specific problems arising in the
context of a particular agency's operations. It is important to
emphasize that the examples in part 2641 were drafted to illustrate the
scope and meaning of 18 U.S.C. 207 only. Activity that is represented
as permissible under section 207 may be prohibited by another post-
employment law.
Proposed Sec. 2641.201--18 U.S.C. 207(a)(1)
Section 207(a)(1) of title 18, United States Code, sets forth the
permanent bar that was designated as section 207(a) in the pre-Ethics
Reform Act of 1989 version of section 207. The target of this
restriction is the former employee who participates personally and
substantially in a particular matter involving a specific party or
parties while employed by the Government and who later ``switches
sides'' by representing another person on the same matter, with the
intent to influence, before a Federal department, agency, or court.
Proposed Sec. 2641.201(b) provides cross-references to the
appropriate paragraphs of proposed Sec. 2641.301 for each of the
exceptions and waivers that in certain circumstances negate the
prohibition contained in 18 U.S.C. 207(a)(1).
Proposed Sec. 2641.201(d)--Communication or Appearance
Section 207(a) bars certain communications to or appearances before
the United States. Proposed Sec. 2641.201(d) describes the statutory
communication or appearance element. Although section 207(a) has been
amended several times since 1962--and the operative language describing
the offense in section 207(a)(1) has varied--OGE and the Department of
Justice have long held that it covers only those actions involving some
representational contact by the former employee with the Government.
E.g., 2 Op. O.L.C. 313 (1978); OGE Informal Advisory Letter 82 x 13.
The current statutory language reinforces the longstanding view that
some communication or appearance by the former employee is required for
a violation of the statute.
The definition of ``communication'' at proposed Sec.
2641.201(d)(1) is intended to be all-inclusive with respect to types of
communication, content of communication, or means of communication.
This intentionally broad definition covers all formal or informal
communications of any sort; to the extent that a given communication
might be thought trivial or insignificant, such issues may be dealt
with in connection with other statutory elements, especially the
requirement that the communication be made with the intent to influence
the Government. See proposed Sec. 2641.201(e).
The definition of ``appearance'' at proposed Sec. 2641.201(d)(2)
largely follows the language of 5 CFR 2637.201(b)(3). However, the
proposed regulation focuses solely on physical presence and omits the
reference, found in Sec. 2637.201(b)(3), to ``convey[ing] material to
the United States in connection with a formal proceeding or
application.'' The latter phrase is unnecessary, since the conveying of
material, such as pleadings and other documents, typically would
constitute a ``communication'' anyway. See 5 CFR 2637.201(b)(3)
(example 1) (under old rule, appearance included submitting brief in
agency proceeding). Under the
[[Page 7850]]
statute as it existed prior to the 1989 amendments, it was more
important to distinguish appearances from mere communications, as the
two types of contacts were treated differently for certain purposes
that are no longer relevant under the current statutory scheme. See 44
Federal Register 19974, 19975 (April 3, 1979) (preamble to 5 CFR part
737, now 5 CFR part 2637); OGE Informal Advisory Letter 81 x 35.
Proposed Sec. 2641.201(d)(3) emphasizes that section 207(a) does
not prohibit ``behind-the-scenes assistance'' that involves no contact
by the former employee with the Government. See, e.g., Beverly
Enterprises, Inc. v. Trump, 182 F.3d 183, 191 (3d Cir. 1999), cert.
denied, 120 S.Ct. 795 (2000). Proposed example 5 is derived from a
recent opinion of the Office of Legal Counsel, and it illustrates the
principle that a former employee does not confine herself to
permissible behind-the-scenes activity when she conveys information to
the Government through an intermediary and does so with the intent that
the information be attributed to her. See 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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov. In this connection, see also
proposed example 7 following proposed Sec. 2641.201(f), which would
illustrate the related point that a communication will be deemed to be
made ``to'' an employee of the United States if it is conveyed to an
employee through a third party with the intent that the information be
attributed to the former employee.
Proposed Sec. 2641.201(e)--With the Intent to Influence
Section 207(a) prohibits only those communications or appearances
that are made with the intent to influence the United States. Proposed
Sec. 2641.201(e) describes this statutory element of intent to
influence.
Prior to the 1989 amendments, the phrase ``with the intent to
influence'' modified only ``communication,'' not ``appearance.'' See S.
Rep. No. 170, 95th Cong., 1st Sess. 152-53 (1977); OGE Informal
Advisory Letter 81 x 35.\3\ After the 1989 Act, it became clear that
both appearances and communications must be made with the intent to
influence in order for a violation of section 207(a) to occur: ``Any
person who * * * knowingly makes, with the intent to influence, any
communication to or appearance before * * * .'' 18 U.S.C. 207(a)(1).
(Identical language also appears in sections 207(a)(2), 207(c)(1), and
207(d)(1).) It is unclear, however, to what extent this 1989 change
really altered the executive branch's understanding of section 207(a):
``appearance'' had been used in conjunction with the statutory phrase
``acts as agent or attorney for, or otherwise represents,'' and OGE had
already determined that this meant an appearance was prohibited only
``if there were an actual or potential dispute.'' OGE Informal Advisory
Letter 81 x 35. See also 5 CFR 2637.204(e), 2637.201(b)(5); 2 Op. Off.
Legal Counsel 313, at 316. As discussed more fully below, the existence
of an actual or potential dispute is one of the recognized factors for
determining intent to influence. Compare 5 CFR 2637.204(e) (under old
rule, same standard for ``acting as representative'' and ``attempting
to influence'').
---------------------------------------------------------------------------
\3\ The Senate Report discussion and OGE Informal Advisory
Letter 81 x 35 specifically pertained to section 207(c), but they
were relevant also to section 207(a), because ``[p]rior to the
effective date of the amendments enacted by the Ethics Reform Act of
1989, both sections 207(a) and 207(c) contained identical language
describing the nature of the representational activity prohibited.''
OGE Informal Advisory Letter 96 x 14, n. 25.
---------------------------------------------------------------------------
Proposed Sec. 2641.201(e) uses basically the same test for the
intent to influence as the prior section 207 regulations. See 5 CFR
2637.204(e). As articulated in the proposed regulation, the intent to
influence may be found if the communication or appearance is made for
either of the following purposes: ``(i) [s]eeking a Government ruling,
benefit, approval, or other discretionary Government action; or (ii)
[a]ffecting Government action in connection with an issue or aspect of
a matter which involves an appreciable element of actual or potential
dispute.'' Proposed Sec. 2641.201(e)(1)(i) and (ii). In some respects,
paragraph (1)(i) might be viewed as a subset of subparagraph (1)(ii),
in the sense that any time a communication or appearance is made to
seek ``discretionary'' Government action, there is at least the
potential for a conflict of positions or other dispute between the
Government and the private party being represented. Nevertheless,
consistent with the prior section 207 regulations, OGE believes that it
is appropriate to emphasize that any representational contact made for
the purpose of seeking discretionary Government action would meet the
element of the intent to influence.
The proposed regulation draws on various provisions in the prior
regulations, as well as more recent administrative and judicial
precedents, to provide guidance on when the intent to influence is
present. Proposed Sec. 2641.204(e)(2) sets out situations that
generally have been recognized as involving no intent to influence.
Several of the paragraphs in proposed Sec. 2641.201(e)(2) repeat
provisions or examples found in the prior section 207 regulations and
other OGE precedents. For example, proposed Sec. 2641.201(e)(2)(iii)--
signing a tax return prepared for another person--and Sec.
2641.201(e)(2)(v)--submitting an SEC Form 10-K--basically reiterate
examples found in 5 CFR 2737.204(e). Some provisions in the proposed
regulation make certain clarifications to the language used in the
prior section 207 regulations and other OGE precedents. For example,
proposed Sec. 2641.201(e)(2)(iv), read in conjunction with proposed
Sec. 2641.201(d) (example 4), substantially preserves 5 CFR
2637.204(g) (example 1), pertaining to various aspects of the Federal
grant application process and service by former employees as principal
investigators, but clarifies the rationale. The proposed rule
intentionally does not carry forward the provision on project responses
in 5 CFR 2637.201(b)(7) because this provision was thought by OGE to be
susceptible to misinterpretation. In OGE's experience, the project
response provision and the accompanying example sometimes have been
construed as allowing former employees inappropriate latitude in
communicating with the Government where there may be a potential for
controversy in the course of performing Government contracts or
submitting proposals or reports to the Government. In its place, OGE
has provided example 5, following proposed Sec. 2641.201(e)(2), in
order to emphasize the limits on communications during the performance
of contracts, particularly in the difficult area of contracts to
perform professional or managerial studies or similar services for the
Government. Proposed examples 3 and 7 also provide additional guidance
concerning the scope of permissible contacts in connection with
Government contracts.
Some of the situations addressed in proposed Sec. 2641.201(e)(2)
pertain to communications and appearances that involve certain types of
factual statements or questions, e.g., proposed Sec.
2641.201(e)(2)(ii). OGE has long recognized that certain statements of
fact, in appropriate circumstances, do not necessarily involve an
intent to influence the United States. See, e.g., OGE Informal Advisory
Letter 80 x 9. Factual statements, however, are not per se excluded
from section 207(a). Factual disputes often are the heart of a given
controversy, and a former employee's
[[Page 7851]]
characterization of the material facts can be a form of advocacy. See,
e.g., proposed Sec. 2641.201(e)(2) (example 4) (dealing with efforts
to persuade Government of safety and efficacy of new drug based on
presentation of testing data). Congress recognized this by providing
exceptions to section 207, such as the exceptions for scientific or
technological information and testimony under oath, which permit
certain factual statements, but only under specified safeguards. See
proposed Sec. 2641.301(e) and (f). It is clear that factual statements
may be made with the intent to influence the Government, if they are
made for the purpose of seeking discretionary Government action or
affecting Government action in connection with an issue or aspect of a
matter involving an appreciable element of dispute. Therefore, OGE was
careful, in various proposed textual provisions and examples pertaining
to factual statements (or appearances in connection with factual
matters), to include circumstances that specifically would indicate
that there is no intent to influence.
A word of caution is in order with respect to the application of
proposed Sec. 2641.201(e)(1) and (2). The presence or absence of the
intent to influence typically will be based on a consideration of all
the relevant circumstances in a given case. The facts of each case
should be examined carefully, therefore, before any conclusion is
reached that a particular activity would fall within any of the
provisions of proposed Sec. 2641.201(e)(2) indicating no intent to
influence, or would more correctly be viewed as meeting the test for
the intent to influence in proposed Sec. 2641.201(e)(1).
Proposed Sec. 2641.201(e)(3) makes explicit a principle that was
already implicit in the prior section 207 regulations. See Sec.
2637.201(b)(5) (example 1). This provision recognizes that certain
communications or appearances may commence without any intent to
influence the Government, but may take on a different character if
unforeseen disputes or other changed circumstances arise. In these
cases, the former employee must refrain from any further communication
or appearance if it becomes apparent that such further contact would be
made with the intent to influence.
Proposed Sec. 2641.201(e)(4) emphasizes that a mere appearance,
even without any accompanying communication by the former employee, may
be prohibited by section 207(a). As one court put it, applying the pre-
1989 language, a representational appearance by a former employee may
be covered ``with or without speaking for the client.'' United States
v. Coleman, 805 F.2d 474, 480 (3d Cir. 1986).\4\ Phrased another way,
silent appearances can be made with the intent to influence. This
conclusion is compelled by the language and history of the statute. The
language of section 207(a)(1) explicitly covers former employees who
make, ``with the intent to influence, any communication to or
appearance before'' the Government (emphasis added). Historically, as
discussed above, representational appearances actually were covered per
se, even without any explicit requirement of ``intent to influence,''
although it was recognized even prior to the 1989 amendments that the
appearance must have been made under circumstances involving ``at least
inchoate adversariness.'' 2 Op. Off. Legal Counsel at 316. There is
nothing in the legislative history of the 1989 Act to indicate that the
addition of an explicit ``intent to influence'' element in connection
with appearances was intended to relax the restriction on
representational appearances as it had been understood previously.
---------------------------------------------------------------------------
\4\ Coleman involved the application of former 18 U.S.C.
207(b)(1), but that statute contained the same language concerning
the representational conduct prohibited as section 207(a), prior to
the 1989 amendments.
---------------------------------------------------------------------------
The question becomes, then, what circumstances would indicate that
physical presence alone, without any substantive communication, is
intended to influence the Government? The second sentence of proposed
Sec. 2641.201(e)(4) provides a nonexhaustive list of factors that can
be relevant to such determinations. Many of these factors are derived
from judicial and administrative precedents. See, e.g., Coleman, supra;
United States v. Schaltenbrand, 930 F.2d 1554 (11th Cir. 1991); OGE
Informal Advisory Letter 82 x 7. Although no one factor is necessarily
determinative, these and any other relevant factors should be
considered in light of the totality of the circumstances in a given
case.
Proposed Sec. 2641.201(f)--To or Before an Employee of the United
States
The post-Ethics Reform Act of 1989 version of 18 U.S.C. 207(a)(1)
prohibits communications to or appearances before any ``officer or
employee'' of any ``department, agency, court, or court-martial of the
United States or the District of Columbia * * *.'' The prior version of
the permanent bar had also prohibited communications to and appearances
before ``any civil, military, or naval commission of the United States
or the District of Columbia, or any officer or employee thereof.'' We
believe the current version of the permanent bar no longer lists
``civil, military, or naval commission'' because these commissions are
encompassed within the remaining terms. For purposes of summarizing the
section 207(a)(1) restriction as briefly as possible at proposed Sec.
2641.201(a), we refer to an employee ``of the United States'' rather
than repeating the words ``department, agency, court, or court-
martial.'' Proposed Sec. 2641.201(f) is titled accordingly. Although a
court-martial is held under the auspices of a department, we chose to
specifically list this forum in order to avoid possible confusion.
Moreover, proposed Sec. 2641.201(f) does not distinguish between
``department'' and ``agency,'' because the definition of ``agency''
includes ``department.'' See proposed Sec. 2641.104.
The term ``employee of the United States'' is defined at proposed
Sec. 2641.201(f)(1) for purposes of identifying those individuals with
whom post-employment contact is restricted. The proposed definition
specifically includes an individual who, under 5 U.S.C. 3374(a), is
considered an employee because appointed or detailed under the IPA.
Pursuant to 18 U.S.C. 207(i)(1)(A), it also encompasses the President
and the Vice President. Section 207(i)(1)(A) specifically states that
``the term ``officer or employee,'' when used to describe the person to
whom a communication is made or before whom an appearance is made * * *
shall include in subsections (a), (c), and (d), the President and the
Vice President.''
More generally, the proposed definition of ``employee of the United
States'' at Sec. 2641.201(f)(1) includes any ``Federal employee'' who
is ``employed by'' an agency, court, or court-martial. Our choice of
words was guided by a number of factors. First, 18 U.S.C. 207(a)(1)
states that a communication or appearance is barred only if directed to
an ``employee'' of a department, agency, court, or court-martial. We
specifically intend that the words ``employed by'' would exclude from
the scope of section 207(a) those communications directed to a non-
Federal employee who happens to be serving in a department, agency,
court, or court-martial. However, as illustrated in proposed example 7
following Sec. 2641.201(f), we recognize that there may be
circumstances in which a communication to a non-Federal employee is
actually directed to a Federal employee.
Proposed Sec. 2641.201(f)(1)(i) specifies that an agency
encompasses a Government corporation. While the
[[Page 7852]]
term agency encompasses any independent agency, proposed Sec.
2641.201(f)(1)(ii) emphasizes that the representational bar extends to
contacts with employees of an independent agency in any of the three
branches of the Federal Government. Notably, proposed example 1
following Sec. 2641.201(f) as proposed would highlight the fact that
Members of Congress and their staffs are not employees of an
independent agency in the legislative branch. Proposed Sec.
2641.201(f)(1)(iii) modifies the term ``court'' with the adjective
``Federal'' in order to distinguish State or other non-Federal courts.
Of course, as has been described in several OGE Informal Advisory
Letters, a communication made in a court has ``the additional
unavoidable intent of attempting to influence and to persuade'' a
Federal party in the lawsuit, regardless of the forum. OGE Informal
Advisory Letter 80 x 6. Moreover, a former employee may be prohibited
from contacting Federal employees for use as witnesses or otherwise in
connection with a lawsuit in State court. OGE Informal Advisory Letter
82 x 13.
Proposed Sec. 2641.201(f)(1) omits the District of Columbia from
the list of entities to or before which communications and appearances
may not be made. As clarified in 18 U.S.C. 207(a)(3), the District of
Columbia is listed in section 207(a)(1) merely as a consequence of the
permanent bar's applicability to former District of Columbia employees.
Thus, a former employee of the District of Columbia is covered by
section 207(a)(1) in relation to contacts back to the government of the
District of Columbia, but former employees of the executive branch (and
of independent agencies) are not restricted by section 207(a)(1) from
contacting employees of the District of Columbia.
Our definition of ``to or before'' in proposed Sec.
2641.201(f)(2)(i) indicates that a communication or appearance will be
considered directed to an employee of an agency, court, or court-
martial even though not addressed to any particular employee of the
entity. We believe it would be inconsistent with the purpose of 18
U.S.C. 207 to permit communications to a Federal entity merely because
they are not addressed to a named individual.
In proposed Sec. 2641.201(f)(2)(ii), we specify that a
communication or appearance must be directed to an employee ``in his
capacity as an employee of'' an agency, court, or court-martial.
Proposed examples 2, 3, and 4 following proposed Sec. 2641.201(f) are
illustrative. While a former employee is not prohibited from lobbying a
legislative branch employee at a meeting, example 2 emphasizes that a
former employee may not try to influence an employee of an independent
agency who is participating in the same meeting. Example 3 indicates
that the permanent bar would extend to communications directed to an
executive branch employee who is assigned by his agency to carry out
official Government duties as a member of the Board of Directors of a
non-Federal entity. The employee would be acting in his capacity as an
executive branch employee even when, as in the proposed example, he is
considering a specific issue of most interest to the private sector
entity. (Separately, of course, the issue must be of direct and
substantial interest to the current employee's agency, as described in
proposed Sec. 2641.201(j).) The proposed wording of Sec.
2641.201(f)(2)(ii) is also intended to address the situation in which a
former employee directs a communication to a former employee in a
social setting. Although the current Federal Communications Commission
(FCC) employee in proposed example 4 is ``off-duty'' at the cocktail
party, the former employee nevertheless directs his communication to
the FCC employee in his capacity as an employee of that agency.
As proposed, Sec. 2641.201(f)(2)(ii) indicates that a former
employee does not ``direct'' his communication to a mere bystander.
Beyond this, we considered whether 18 U.S.C. 207(a)(1) should be
interpreted as also not extending to a variety of situations in which a
former employee directs a communication to a current employee who has
no official role in a forum, yet who is participating in the forum as
more than a mere bystander. We considered, for example, a number of
situations in which a communication is directed to an assembled group.
As we observed in OGE Informal Advisory Letter 81 x 5(1) in relation to
the scope of section 207(c), the concern is the extent to which section
207 ``might require [a former employee] to survey who his audience was
before he argued a certain position to any group of individuals.''
Proposed Sec. 2641.201(f)(3) permits a former employee to serve as
a speaker if the forum ``[i]s not sponsored or co-sponsored by an
entity specified in paragraphs 2641.201(f)(1)(i)-(iv) of this section,
[i]s attended by a large number of people, and [a] significant
proportion of those attending are not employees of the United States.''
See OGE Informal Advisory Letters 81 x 5(1), 81 x 5(2), It is our
intention that former employees not be prohibited from addressing what
are essentially public forums. The regulation may depart somewhat from
past guidance in that it states that employees otherwise permitted to
address such fora may engage in debate with any other panel
participants or with members of the audience who happen to be current
employees without fear of being found to have made a prohibited
communication. In a public setting outside the context of official
decision-making, such incidental exchanges between participants are
still primarily directed towards the audience.
Under proposed Sec. 2641.201(f)(3), private sector sponsorship of
a forum, standing alone, does not free a speaker or panel participant
from his post-employment restrictions. The forum must be in the nature
of a conference, seminar, or similar forum; the audience must be large;
and a significant proportion of attendees must be persons other than
Federal employees. We considered whether to specify a minimum number of
attendees and/or a maximum percentage of Federal employee attendees. In
some settings, a communication is directed to so wide an audience that
it cannot be said to be made ``to'' Federal employees in the audience.
And while some audiences will plainly fall on one side or the other of
a line drawn for this purpose, a precise line as to the size and
composition of such an audience cannot be drawn. Former employees
should appreciate the risks of violating section 207 before agreeing to
address a forum when it is unclear whether proposed Sec.
2641.201(f)(3) applies. In this regard, former employees may be guided
by the size of the conference and the proportion of non-employee
attendees in proposed example 5.
The regulation would deal with published writings in a similar
fashion. A former employee 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.''
As proposed example 7 would indicate, a communication can be made
``to'' an employee of the United States if it is conveyed through an
intermediary with the intent that the information be attributed to the
former employee. A similar point is discussed above in connection with
proposed example 5 following Sec. 2641.201(d) as proposed, which would
illustrate the distinction between permissible behind-the-scenes
activity and communications directed to the Government.
[[Page 7853]]
Proposed Sec. 2641.201(g)--On Behalf of Any Other Person
Proposed Sec. 2641.201(g) defines the phrase ``on behalf of'' for
purposes of 18 U.S.C. 207(a)(1), (a)(2), (c) and (d). As enacted in
1962, the lifetime restriction originally barred a former employee from
acting as ``agent or attorney'' for anyone. Similarly, the predecessor
of current section 207(a)(2), concerning matters under an employee's
official responsibility, originally barred a former employee from
appearing personally as ``agent or attorney.'' These restrictions were
amended by the Ethics in Government Act of 1978 to extend to the former
employee who acts ``as agent or attorney for, or otherwise represents,
any other person * * * in any formal or informal appearance * * * or *
* * makes any oral or written communication on behalf of any other
person.'' Congress used this same language in 1978 when it enacted
section 207(c), the one-year ``cooling-off'' restriction applicable to
former senior employees. Since the Ethics Reform Act of 1989, these
three restrictions have barred a former employee from making any
``communication to or appearance before'' an employee of the United
States ``on behalf of'' any other person. The same language appears in
section 207(d), the one-year cooling-off restriction applicable to
former very senior employees.
We determined that a communication or appearance that is in the
interest of another person is not sufficient to be considered ``on
behalf of'' that person. Accordingly, the proposed definition at Sec.
2641.201(g)(1) states that ``[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.'' While we recognize
that the terms ``agent'' and ``attorney'' no longer appear in the
current version of the permanent, two-year, or one-year cooling-off
restrictions, proposed Sec. 2641.201(g)(1) indicates that when a
former employee acts as another's ``agent'' or ``attorney,'' he
necessarily acts on behalf of the principal. Even when a former
employee is not acting as an agent or attorney, however, proposed Sec.
2641.201(g)(1) recognizes that a former employee may nevertheless act
on behalf of another provided the criteria at proposed Sec.
2641.201(g)(1)(i) and (ii) are satisfied. As specified in proposed
Sec. 2641.201(g)(1)(i), the former employee must be acting with the
consent, express or implied, of the other person. And, as specified in
proposed Sec. 2641.201(g)(1)(ii), the former employee must be subject
to some degree of control or direction by the other person in relation
to the communication or appearance.
The former employee in example 2 following proposed Sec.
2641.201(g) has broad authority to further the interest of the
organization with which she is serving as a volunteer. For purposes of
the consent requirement in proposed Sec. 2641.201(g)(1)(i), the
organization is deemed to have consented to her dispatch of the letter
to the Government. In contrast, the circumstances in proposed example 3
would indicate that the former employee is not acting on behalf of the
nonprofit group with which he is serving as an employee.
OGE has fielded many questions from agencies that wish to contact
former employees who have gone to work for private sector employers. We
have generally been counseling that all relevant factors must be
considered, including the relationship between the communication or
appearance and any related interest of the former employee's new
employer or other organization with which he is affiliated. See, e.g.,
OGE Informal Advisory Letter 97 x 9. We believe that the focus on the
two factors at proposed Sec. 2641.201(g)(1) would make certain
contacts between an agency and its former employee less problematic and
would allow OGE and agency ethics officials to advise accordingly.
An appearance or communication is barred by 18 U.S.C. 207(a)(1),
(a)(2), (c), or (d) only if made on behalf of ``any other person.''
Proposed Sec. 2641.201(g)(2) cross-references the definition of
``person'' in proposed Sec. 2641.104, but specifically states that
self-representation is not prohibited. Proposed example 1 following
proposed Sec. 2641.201(g) is illustrative. Proposed Sec.
2641.201(g)(2) also includes a reference to sole proprietorships that
is intended to distinguish that form of business enterprise from
partnerships and corporations for purposes of the ``exception'' for
self-representation. The proposed rule reflects that a corporation is a
person separate from its owner or owners. As a result, if a former
employee chooses to incorporate his consulting business, he must ensure
that his communications with the Government do not run afoul of the
post-employment statute's requirements since he will be representing
another ``person.'' On the other hand, if the same former employee had
chosen not to incorporate his business, he would be free to interact
with current Government employees without fear of violating section
207(a)(1) since he would be representing only himself.
Proposed Sec. 2641.201(h)--Particular Matter Involving Specific
Parties
Proposed Sec. 2641.201(h) explains a concept that has been central
to the understanding of 18 U.S.C. 207 since its original enactment in
1962. The phrase ``particular matter'' is broadly defined in section
207(i)(3) to include ``any investigation, application, request for a
ruling or determination, rulemaking, contract, controversy, claim,
charge, accusation, arrest, or judicial or other proceeding.'' In
section 207(a)(1) and (2), however, particular matter is modified by
the additional phrase ``which involved a specific party or specific
parties.'' See B. Manning, Federal Conflict of Interest Law 204 (1964)
(explaining significance of the phrase); 2 Op. O.L.C. 151 (1978)
(same). Proposed Sec. 2641.201(h) is intended to explain the nature
and scope of this statutory element.
The proposed regulation uses basically the same test for particular
matters involving specific parties that is used in 5 CFR 2637.201(c).
Proposed Sec. 2641.201(h)(1) states: ``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.'' One minor change worth
noting is that the proposed regulation speaks of ``identified''
parties, whereas section 2637.201(c)(1) used the term ``identifiable''
parties (following identical language originally found in B. Manning,
supra, at 204). This change is consistent with the more recent
definition of particular matter involving specific parties in 5 CFR
2640.102(l). See 60 FR 47207, 47211 n.1 (September 11, 1995). The use
of ``identified,'' rather than ``identifiable,'' is intended to
distinguish more clearly between particular matters involving specific
parties and mere ``particular matters,'' which are described elsewhere
as including matters of general applicability that focus ``on the
interests of a discrete and identifiable class of persons'' but do not
involve specific parties. 5 CFR 2640.102(m) (emphasis added). See also
5 CFR 2640.103(a)(1); 5 CFR 2635.402(b)(3). The use of the term
``identified,'' however, does not mean that a matter will lack specific
parties just because the name of a party is not disclosed to the
Government, as
[[Page 7854]]
where an agent represents an unnamed principal.
Consistent with this basic test and with Sec. 2637.201(c)(1),
proposed Sec. 2641.201(h)(2) confirms that matters of general
applicability are not particular matters involving specific parties.
See also Shakeproof Indus. Prod. Div. of Ill. Tool Works, Inc. v.
Department of Commerce, 104 F.3d 1309, 1313-14 (Fed. Cir. 1997). As
illustrated by the examples following this provision, section 207(a)
ordinarily does not prohibit former employees from making
representations in connection with general rulemaking, policy and
legislative matters, notwithstanding any personal and substantial
participation or official responsibility they may have had with respect
to such matters as a Federal employee.
Proposed Sec. 2641.201(h)(3) indicates that specific parties must
be involved, under section 207(a), both at the time the former employee
was involved in the matter and at the time of the post-employment
representation. This reflects a longstanding interpretation of section
207(a), which was codified in 5 CFR 2637.201(c)(4). Nevertheless, the
Ethics Reform Act of 1989 made certain adjustments to the grammatical
structure of section 207(a) that may require some explanation. Prior to
the 1989 Act, section 207(a) read, in pertinent part: ``Whoever * * *
knowingly acts as agent or attorney for, or otherwise represents, any
other person * * * in connection with any * * * particular matter
involving specific parties * * * in which he participated personally
and substantially as an officer or employee * * *.'' In 1989, the
language pertaining to specific parties was broken out and moved to its
own lettered subparagraph, which now reads: ``(C) which involved a
specific party or specific parties at the time of such participation.''
18 U.S.C. 207(a)(1)(c) (emphasis added).\5\ Based on the legislative
history, it appears that the amendment was intended simply to resolve
any doubt that specific parties must have been involved at the time
that the former employee participated in the matter, not to cast doubt
on the well-understood requirement that specific parties must be
involved at the time of the representation.\6\
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\5\ Similar language was enacted in 1989 in section
207(a)(2)(C), which pertains to particular matters pending under an
employee's official responsibility: ``(C) which involved a specific
party or specific parties at the time it was so pending (emphasis
added).''
\6\ The leading Senate proponent of the 1989 amendments stated
that many of the changes to section 207 ``simply reflect an effort
to make the statute more readable.'' 135 Cong. Rec. S15954 (November
17, 1989) (remarks of Sen. Levin). Senator Levin also entered into
the record a section-by-section analysis stating that section
207(a)(1) is ``similar to current law'' and describing it as a
prohibition against ``lobbying * * * on a particular matter
involving specific parties,'' id., which suggests this was not a
novel effort to cover matters that do not involve specific parties
at the time of the lobbying. Furthermore, the Department of Justice
testified at a 1989 hearing with respect to H.R. 9, which contained
the same language as the enacted amendments concerning the timing of
the specific parties requirement. The Justice Department commented
on this aspect of the proposal and specifically noted its
consistency with the OGE regulation discussed above: ``The
requirement that a specific party must have been involved at the
time of the employee's government service clarifies present law in a
way that is consistent with current regulations. It means, for
example, that a Government employee who helped develop a set of
regulations or policies is not precluded from becoming involved in a
particular case or matter involving the application of the
regulation or policy. See 5 CFR 737.5 (c)[now 5 CFR 2637.201(c)].''
Hearings Before the Subcommittee on Administrative Law and
Governmental Relations of the Committee on the Judiciary, House of
Representatives, on H.R. 2267 and Related Bills: Post-Employment
Restrictions Act of 1989, 101st Cong., 1st Sess. 151 (April 27,
1989)(statement of John C. Keeney, Deputy Assistant Attorney
General, Criminal Division).
---------------------------------------------------------------------------
Proposed Sec. 2641.201(h)(4) pertains to the related issue of when
specific parties can be said to be involved in a particular matter.
Section 207(a) can apply to participation in preliminary or informal
stages of a particular matter. See, e.g., 2 Op. O.L.C. 313 (1978).
Consequently it becomes important to determine, in light of the facts
surrounding a given matter, at what point specific parties are first
identified. Proposed Sec. 2641.201(h)(4) and the examples that follow
are intended to provide guidance in making such determinations. In
addition to general guidance applicable to all types of matters, the
proposed regulation also provides more specific guidance with respect
to contracts, grants, and other agreements, which historically have
posed some of the most difficult and recurring questions. See OGE
Informal Advisory Letter 96 x 21.
Another set of difficult and recurring questions is addressed by
proposed Sec. 2641.201(h)(5), which explains the requirement that the
same particular matter must be involved both at the time of the former
employee's Government service and at the time of post-employment
representation. The proposed regulation uses substantially the same
test as 5 CFR 2637.201(c)(4), including a similar list of factors that
should be taken into consideration, where relevant, in determinations
as to whether two matters constitute the same particular matter
involving specific parties. The proposed examples following proposed
Sec. 2641.201(h)(5) would illustrate the application of some of these
factors and draw on various administrative and judicial precedents.
E.g., United States v. Medico Indus., Inc., 784 F.2d 840 (7th Cir.
1986); CACI, Inc.-Federal v. United States, 719 F.2d 1567 (Fed. Cir.
1983); OGE Informal Advisory Letter 93 x 32. For purposes of clarity,
one factor was not carried over from the previous list in Sec.
2637.201(c)(4), namely, ``the continuing existence of an important
Federal interest''; this factor was thought to add little to the
analysis of section 207, since the statute already applies only to
matters in which the United States is a party or at least has a
``direct and substantial interest.'' 18 U.S.C. 207(a)(1), (a)(2).
The principle reflected in proposed Sec. 2641.105--that the
primary responsibility for rendering post-employment advice resides in
the ethics official at the agency where the former employee served--is
particularly important in connection with these ``same particular
matter'' determinations. These questions frequently require an
understanding of the specific operations, programs, and missions of the
agencies involved. Moreover, there is judicial recognition that agency
determinations with respect to the ``same particular matter'' element
are ``entitled to weight.'' CACI, 719 F.2d at 1576; see also
Shakeproof, 104 F.3d at 1314. This is not to suggest, of course, that
deference to the agency is absolute. See, e.g., United States v.
Gonzalez-Florido, 986 F.Supp. 687 (D.P.R. 1997).
Proposed Sec. 2641.201(i)--Participated Personally and Substantially
Proposed Sec. 2641.201(i) defines the terms ``participate,''
``personally,'' and ``substantially.'' The first regulatory definition
of these terms for purposes of 18 U.S.C. 207 was published in 1980 at 5
CFR 2637.201(d). When Congress amended section 207 in 1989, it added a
statutory definition of ``participated'' at section 207(i)(2). In the
1990s, OGE published regulatory guidance concerning the meaning of
these terms in connection with its implementation of 18 U.S.C. 208 at 5
CFR part 2635 and 5 CFR part 2640. The current definitions of
``personal and substantial'' at 5 CFR 2635.401(b)(4) and ``personal and
substantial participation'' at 5 CFR 2640.103(a)(2) were patterned
closely after definitions in 5 CFR part 2637. The language of proposed
Sec. 2641.201(i) deviates somewhat from the language of these existing
OGE regulations for several reasons. First, we are proposing to more
clearly separate the definitions of the terms ``participate,''
``personally,'' and ``substantially.'' We would also exactly track the
language of the
[[Page 7855]]
statutory definition of ``participated.'' More significantly, however,
we are proposing to include some additional guidance that reflects our
experience with several questions arising since publication of the
earlier regulations.
The first sentence of the definition of ``participate'' at proposed
Sec. 2641.201(i)(1) is from 18 U.S.C. 207(i)(2). Consistent with
existing guidance at 5 CFR 2637.201(d)(3), the definition then
indicates that to participate can also mean to ``purposefully forbear
in order to affect the outcome of a matter.'' The proposed definition
also distinguishes participation from mere knowledge of a matter and
from the definition of ``official responsibility'' as set forth in
proposed Sec. 2641.202(j). Additionally, the proposed definition
points out that an employee can participate in a particular matter even
though it is not pending at his own agency. Finally, it would state
that an employee does not participate in a particular matter within the
meaning of section 207(a)(1) unless he does so in his official
capacity.
Under the proposed definition at Sec. 2641.201(i)(2), to
participate ``personally'' includes the direct and active supervision
of others. The existing regulations refer to active supervision of a
``subordinate.'' As proposed, Sec. 2641.201(i)(2) indicates that the
person supervised need not technically be a subordinate. An employee
may participate in a matter, for example, by means of direct and active
supervision of an employee who is merely on loan from another office.
Separately, we are also proposing to make the fairly obvious point that
an employee participates in a matter whether he does so ``individually
or in combination with other persons.''
The definition of ``substantially'' at proposed Sec.
2641.201(i)(3) closely tracks the definitions of that term in 5 CFR
part 2635 and 5 CFR part 2640. However, we are proposing to insert an
additional sentence in response to two recent scenarios. The first
concerned a former employee's involvement as a Government employee in a
meeting with a private sector company. The meeting was preliminary to
the company's submission of an application to the Government. The
former employee was willing to concede that the meeting and the
application were the same ``particular matter.'' He argued, however,
that the meeting constituted an aspect of the matter that was
insignificant in relation to the application process as a whole and
that the former employee's participation was, therefore, insubstantial.
In another case, a former employee argued that his participation in a
multi-million dollar project had not been substantial since the dollar
value of the aspect of the project in which he was involved was
insignificant in relation to the dollar value of the project as a
whole. The Office of Government Ethics rejected both arguments, noting
that in both cases the former employee had made a substantive
contribution to the matter. As we propose to explain in Sec.
2641.201(i), ``[p]rovided 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.''
We have included an additional sentence in the definition at
proposed Sec. 2641.201(i)(3) emphasizing that participation in
``peripheral'' aspects of a matter or in aspects not directly involving
the substantive merits of a matter is not substantial. We would note,
however, that such an aspect might itself constitute a particular
matter with respect to which the permanent bar might apply. This is set
forth in 5 CFR 2637.201(d)(2) and example 1 following 5 CFR
2637.201(d)(1).
Although reworded, proposed examples 1 and 2 following proposed
Sec. 2641.201(i) are from existing 5 CFR 2637.201(c) and 2637.201(d).
Proposed example 3 would make the point that an employee's
participation may be substantial even though her role in the matter may
be minor in relation to the matter as a whole.
Proposed Sec. 2641.201(j)--United States is a Party or Has a Direct
and Substantial Interest
Finally, proposed Sec. 2641.201(j) focuses on how to determine
whether the United States is a party or has a direct and substantial
interest in a particular matter at the time of a former employee's
post-employment representational activity.
The definition of ``United States'' at proposed Sec.
2641.201(j)(1) is intended to encompass the entire Federal Government.
As explained earlier in connection with the definitions in proposed
Sec. 2641.104, we cited the definition of ``Government corporation''
in 18 U.S.C. 6 for purposes of defining ``United States'' in proposed
Sec. 2641.201(j)(1). Also, as explained below in connection with
proposed Sec. 2641.301(a), the Government of the District of Columbia
is not encompassed by the term United States. Separately, we note that
the proposed definition of United States at Sec. 2641.201(j)(1)
encompasses the entire judicial branch. Compare proposed Sec.
2641.201(f) which provides that a representation is not made ``to'' an
employee of the United States unless made, inter alia, to an employee
of a Federal court. The narrower interpretation in proposed Sec.
2641.201(f) reflects the statutory language ``department, agency,
court, or court-martial of the United States'' in 18 U.S.C. 207(a).
Proposed Sec. 2641.201(j)(2) specifically states that ``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.'' See, e.g., 14 Op. Off. Legal Counsel O.L.C. 139 (June 7,
1990) (predecessors to 18 U.S.C. 207(a)(1) and (a)(2) determined not to
bar former employees from serving as trustees in bankruptcy cases
unless the United States is a party or has a direct and substantial
interest in the bankruptcy proceeding, e.g., if the United States is a
creditor of the estate.) Of course, when a former employee wishes to
participate in a judicial proceeding concerning the same particular
matter with which he was involved while a Government employee, it is
likely that his former agency will be a party to or have a direct and
substantial interest in the subject of the proceeding or that the
agency will itself be serving as the forum.
As OGE has noted in relation to 18 U.S.C. 205, determining whether
or not the United States has a direct and substantial interest in a
particular matter ``may not be easy.'' OGE Informal Advisory Letter 94
x 7. Proposed Sec. 2641.201(j)(2)(i) assigns the primary
responsibility for coordinating this determination to the designated
agency ethics official at the former employee's agency. This assignment
is consistent with the DAEO's responsibility, as specified in proposed
Sec. 2641.105(a), to provide advice to a former employee of his agency
or to the individual's representative. If any agency has a continuing
direct and substantial interest in a matter, we suggest that it will
most likely be the agency in which the matter was pending when the
former employee worked on it as a Government employee. If the
circumstances suggest that another agency may have a direct and
substantial interest in the matter, the DAEO should contact an agency
ethics official at the other agency. Moreover, we anticipate that an
agency's ethics staff will need only pursue resolution of a direct and
substantial interest issue when all other elements of 18 U.S.C.
207(a)(1) or 207(a)(2) appear satisfied.
[[Page 7856]]
As proposed, the regulation does not establish any procedures for
the internal coordination of an agency's direct and substantial
interest determination. Under proposed Sec. 2641.201(j)(2)(i), it is
within an agency's discretion to determine who must be consulted within
the agency (or any department of which the agency is a part) in order
to determine whether the agency will assert a direct and substantial
interest in a particular matter. A DAEO may accept the assurance of
another agency's DAEO (or equivalent official in the legislative or
judicial branch) that he has been authorized by competent agency
authority to convey the agency's direct and substantial interest
determination.
In making this determination, proposed Sec. 2641.201(j)(2)(ii)
provides that appropriate officials shall consider ``all relevant
factors.'' Thus, the proposed factors listed in Sec.
2641.201(j)(2)(ii)(A)-(D) are not all-inclusive. We specifically seek
public comment concerning useful revisions or additions to our proposed
list.
Proposed Sec. 2641.202--18 U.S.C. 207(a)(2)
All relevant statutory changes that were made to 18 U.S.C.
207(a)(1) by the Ethics Reform Act of 1989 were also made to section
207(a)(2), formerly section 207(b)(i), a two-year bar which similarly
applies to all ``former employees.'' Proposed Sec. 2641.202(b)
provides cross-references to the appropriate paragraphs of proposed
Sec. 2641.301 for each of the exceptions and waivers that in certain
circumstances negate the prohibition contained in section 207(a)(2). As
sections 207(a)(1) and (a)(2) are identical except for their duration
and the degree of involvement in a particular matter during Government
service necessary to trigger the restriction, proposed Sec.
2641.202(d)-(i) cross-reference relevant portions of proposed Sec.
2641.201 relating to the permanent bar.
Proposed Sec. 2641.201(j)--Official Responsibility
The first sentence of the definition of ``official responsibility''
in proposed Sec. 2641.202(j)(1) quotes the statutory definition of the
term in 18 U.S.C. 202(b). In addition, consistent with existing
guidance at 5 CFR 2637.202, proposed Sec. 2641.202(j)(1) explains that
the scope of an employee's official responsibility is ordinarily
determined by statute, regulation, Executive order, job description, or
delegation of authority. Example 1 following proposed Sec. 2641.202(j)
emphasizes that subject matter jurisdiction assigned by position
description is not removed from the scope of an employee's official
responsibilities merely because the employee does not actually exercise
his authority to direct Government action in that subject area.
Proposed Sec. 2641.202(j)(1), drawing from existing 5 CFR
2637.202(b)(2), emphasizes the potential breadth of the term ``official
responsibility,'' noting that ``[a]ll 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 duties'' (emphasis added). The highlighted
language is new. It is intended to make clear that a supervisor can
have official responsibility for a pending matter even though his
subordinate has not yet retrieved the assigned matter from his in-box
or, although having retrieved it, has not yet worked on it ``personally
and substantially.'' This language would also make it clear that a
supervisor need not have personally assigned the matter to the
subordinate, provided the matter is pending with the subordinate and it
falls within the scope of the subordinate's official duties. Proposed
example 3 would emphasize the requirement that the assigned matter fall
within the scope of the supervised employee's official duties. On the
other hand, the proposed language is intended to indicate that an
employee can have official responsibility for a matter even though he
exercises only nominal supervision over the person actually doing the
work; the supervised employee need not be a true subordinate. Thus, for
example, OGE has advised that a former employee had official
responsibility for a matter even though all work on a project was being
accomplished by employees ``on loan'' from another office.
As drafted, proposed Sec. 2641.202(j) indicates that a
nonsupervisory subordinate is not deemed to have official
responsibility for a matter to which he has been assigned, whether or
not he has begun to work on it. But see United States v. Coleman, 805
F.2d 474 (3d Cir. 1986) (affirming conviction of nonsupervisory
employee for violation of 18 U.S.C. 207(b)(i), the predecessor to
section 207(a)(2).) Proposed example 4 following proposed Sec.
2641.202(j) emphasizes, however, that the nature of a nonsupervisory
employee's participation in a particular matter could potentially make
her subject to the permanent section 207(a)(1) bar as to that matter.
Existing 5 CFR 2637.202(b)(3) provides that authority for an
``ancillary'' consideration does not constitute responsibility for the
particular matter as a whole. As proposed, Sec. 2641.202(j)(1)
continues to make the point that responsibility for ancillary matters,
such as budgeting, or equal employment considerations, does not
constitute official responsibility for the whole of a matter. Proposed
example 2 following Sec. 2641.202(j) illustrates this point. The
proposed guidance makes the additional point that responsibility for
nonsubstantive aspects of a matter similarly does not cause an
employee's official responsibility to extend to the whole of a
substantive matter.
Guidance in proposed Sec. 2641.202(j)(2) concerning the meaning of
``actually pending'' also derives from existing guidance in 5 CFR
2637.202. New language clarifies that a supervisory employee acquires
official responsibility for a matter as soon as it is referred to him
for assignment, regardless of whether he subsequently assigns the
matter to another employee or retains it for his own action. Thus,
proposed Sec. 2641.202(j)(2) provides that a supervisory employee
acquires official responsibility for any matter referred to the
employee ``for assignment.'' In proposed example 5, the General Counsel
is said to have acquired official responsibility for a certain matter
as soon as it was referred to him as an issue requiring action by the
legal department. In addition, as already noted, the proposed guidance
notes that there is no requirement that a matter have been pending
under an individual's official responsibility for any particular length
of time. See, e.g., OGE Informal Advisory Letter 94 x 13. In proposed
example 5, therefore, it would be enough that the particular matter had
been pending under the General Counsel's official responsibility for 2
days. Proposed Sec. 2641.202(j)(2) also indicates that a matter
remains pending when it is not under ``active'' consideration, as
discussed in OGE Informal Advisory Letter 85 x 6. Proposed example 6 is
a reworded version of the current example following 5 CFR 2637.202(c).
Proposed Sec. 2641.202(j)(3) addresses the applicability of
section 207(a)(2) with respect to particular matters that fell within
an employee's official responsibility only by virtue of a temporary
assignment to a position. We recognize that while on detail or serving
in an acting capacity, a temporary supervisor can potentially establish
[[Page 7857]]
policies, gain information, decide issues, and make contacts that may
serve him well in his post-Government life. On the other hand, in
proposing this regulatory provision, we sought to balance the concerns
underlying section 207(a)(2) against the likelihood that a temporary
assignment would permit an employee to acquire the knowledge and
experience necessary to make those concerns legitimate. Such
assignments occur frequently throughout the executive branch, sometimes
lasting only a few days or otherwise involving circumstances indicating
that the employee had no reasonable expectation of being able to
exercise the full authority of the position. In many cases, where the
employee functions only in a limited ``caretaker'' role, it seems
remote that the policy concerns underlying section 207(a)(2) would be
implicated. Although we were unable to establish a bright line test for
determining when temporary duties implicate section 207(a)(2), we are
proposing a nonexclusive list of factors that agencies can utilize in
making such determinations, as set out in proposed Sec.
2641.202(j)(3)(i)-(iv).
Proposed Sec. 2641.202(j)(4) indicates that ``[t]he 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.'' Related Sec. 2641.202(j)(5) as
proposed would state that ``[o]fficial responsibility for a matter is
not eliminated through self-disqualification or avoidance of personal
participation in a matter * * *.'' Thus, a matter is not removed from
an employee's official responsibility when he recuses himself from
participation in the matter due to a conflicting financial or personal
interest or during a job search as required by subparts D, E, and F of
5 CFR part 2635 and 5 CFR part 2640. Example 8 following proposed Sec.
2641.202(j) is illustrative. This interpretation is consistent with
United States v. Dorfman 542 F. Supp. 402 (N.D. Ill. 1982), in which
the court advised that a U.S. Attorney's recusal coupled with
assignment of a particular matter to a ``first assistant'' would not
remove the case from the U.S. Attorney's official responsibility. The
court cited 5 CFR 737.7 (now 5 CFR 2637.202(b)(5)), a provision which
was also the subject of OGE Informal Advisory Letter 86 x 2. As
interpreted by OGE in that advisory letter, a contract could be removed
from an employee's official responsibility if he had ``not only the
contract but also the actual function dealing with the contract removed
from his duties under his position description.'' Proposed Sec.
2641.202(j)(5)) recognizes that the scope of an employee's official
responsibility may be changed by an amendment of a position
description.
Proposed Sec. 2641.202(j)(6) does not explicitly address the scope
of the term ``official responsibility'' in the case of an employee
whose Government service lasted less than one year and was preceded by
a break in Government service. However, proposed example 9 does provide
our interpretation of the application of section 207(a)(2) where there
has been a break in service in the last year of the former employee's
Government service. By way of background, this issue was brought to our
attention when a former high-ranking employee, after a break in service
lasting a few months, agreed to serve as an SGE for a short period of
time. When he left Government the second time, less than one year had
passed since serving in his previous Government job. We noted that an
initial section 207(a)(2) bar would have commenced at the end of his
first period of Government service. The issue was whether the section
207(a)(2) bar triggered by his second departure from Government should
apply to particular matters for which he had responsibility during his
first period of service (provided they were actually pending within the
one-year period prior to his termination from his second Government
job.) We determined that the second section 207(a)(2) restriction
applied only to those particular matters that were actually pending
under his official responsibility during his most recent period of
Government service. (Of course, any section 207(a)(2) restriction
remaining from the employee's termination from Government service
immediately preceding the break in service would still be in effect.)
Section 207(a)(2) also requires that the particular matter be one
that the former employee ``knows or reasonably should know'' was
pending under his official responsibility during his last year of
Government service. As described in existing part 2637, section
207(a)(2) had been interpreted to mean that the restriction would not
apply to a former employee ``unless at the time of the proposed
representation of another, he or she knows or learns that the matter
had been under his or her responsibility.'' The proposed new guidance
similarly provides that it is the former employee's knowledge at the
time of the post-employment representation that is critical. Thus, the
last sentence of proposed Sec. 2641.202(j)(7) notes that ``[i]t is not
necessary that a former employee have known during his Government
service that the matter was actually pending under his official
responsibility.''
Proposed Sec. 2641.202(j)(7) makes it clear that it is enough that
the former employee ``reasonably should know'' at the time of his post-
employment representation that the matter was actually pending under
his official responsibility within his last year of Government service.
We are proposing to include a note following Sec. 2641.202(j) of the
new regulation that would warn an employee that prudence dictates that
he make inquiry ``when the facts suggest that a particular matter
involving specific parties could have been actually pending under his
official responsibility'' (emphasis added). The proposed note cross-
references the provision in proposed Sec. 2641.105(d) stating that an
employee will not be deemed to violate section 207 when he contacts an
employee of the United States for purposes of determining the
applicability or meaning of section 207 as applied to his own
activities.
Proposed Sec. 2641.203--18 U.S.C. 207(b)
Pursuant to 18 U.S.C. 207(b), a former employee may not utilize
specified nonpublic information to assist another person in relation to
certain ongoing trade or treaty negotiations in which the former
employee participated personally and substantially during his last year
of Government service. The prohibition lasts for one year or until the
termination of the negotiation, whichever occurs first. Enacted by the
Ethics Reform Act of 1989 to protect sensitive Government information
relating to certain trade or treaty negotiations, section 207(b)
represents a significant departure from the earlier post-employment
restrictions of section 207 since, like section 207(f) discussed below,
it extends to ``behind-the-scenes'' assistance.
While OGE intends to publish comprehensive regulatory guidance
concerning 18 U.S.C. 207(b), Sec. 2641.203 of this proposed rule
includes only a brief introductory summary of the restriction and
paragraphs concerning applicable exceptions and waivers, and the
commencement and duration of the restriction. We have reserved Sec.
2641.203(d)-(i) for additional guidance.
To date, OGE's written guidance relating to 18 U.S.C. 207(b)
remains the interpretation of the restriction that was distributed by
means of a memorandum dated October 26, 1990, which was published as
OGE Informal Advisory Letter 90 x 17. OGE reissued updated
[[Page 7858]]
versions of the memorandum on November 5, 1992 and again on February
17, 2000, by a Memorandum to Designated Agency Ethics Officials,
General Counsels, and Inspectors General. Although the 1992 and 2000
memoranda incorporate a few substantive changes, none affects our
original 1990 summary of section 207(b). The February 2000 updated
summary is available on our Web site under ``DAEOgrams,'' at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov
.
Proposed Sec. 2641.204--18 U.S.C. 207(c)
Section 207(c) of title 18, United States Code, is the one-year
``cooling-off'' restriction that prohibits a former ``senior employee''
from communicating to or appearing before his former agency, on behalf
of another person, with the intent to influence official action. The
statutory language of section 207(c) was substantially revised by the
Ethics Reform Act of 1989. As noted earlier, OGE published interim
regulatory guidance in February 1991 at part 2641 concerning section
207(c) as amended by the Ethics Reform Act of 1989. That rule set forth
several definitions in connection with the establishment of interim
procedures for the granting of exemptions and designation of components
for purposes of section 207(c). As discussed above, in connection with
proposed section 2641.104, we are proposing to make certain changes to
the interim definitions in existing part 2641. (Our proposed changes to
the existing exemption and component designation procedures at 5 CFR
2641.201(d) and (e) are discussed further below in connection with
renumbered proposed Sec. Sec. 2641.301(j) and 2641.302.)
Proposed Sec. 2641.204(a) confirms that an executive branch
employee can be subject to either 18 U.S.C. 207(c) or 207(d) but not
both. Like section 207(d), section 207(c) states that the restriction
applies ``[i]n addition to the restrictions set forth in subsections
(a) and (b).'' Moreover, section 207(c)(2)(A) states that the section
207(c) bar ``shall apply to a person (other than a person subject to
the restrictions of subsection (d)) * * *.'' Accordingly, Sec.
2641.204(a) as proposed would specifically provide that a former ``very
senior employee'' is subject to the one-year cooling-off restriction
set forth in section 207(d) in lieu of that set forth in section
207(c).
Proposed Sec. 2641.204(b) provides cross-references to the
appropriate paragraphs of proposed Sec. 2641.301 for the exemption,
exceptions, and waivers that in certain circumstances would negate the
prohibition contained in 18 U.S.C. 207(c).
Proposed Sec. 2641.204(c)(1) concerns the application of 18 U.S.C.
207(c) to special Government employees (SGEs). Since its enactment in
1978, section 207(c) has not applied to an SGE who served the
Government fewer than 60 days during a statutorily specified time
frame. As revised by the Ethics Reform Act of 1989, the current
language of the statute provides that the one-year cooling-off period
``shall not apply to a special Government employee who serves less than
60 days in the 1-year period before his or her service or employment as
such employee terminates.'' Proposed renumbered Sec. 2641.204(c)(1)
confirms that the ``60 days'' refers to the number of days in which an
employee served as an SGE and not to the number of days in which he
served as a senior employee.
We are proposing to include a sentence in Sec. 2641.204(c)(1)
which addresses the manner in which the 60-day period should be
computed for purposes of determining the applicability of section
207(c) to a former senior SGE. Guidance concerning the counting of days
in connection with the service of SGEs was contained in the former
Federal Personnel Manual and has been endorsed in OGE informal advisory
letters and OLC opinions. Consistent with that guidance, Sec.
2641.204(c)(1) as proposed would state that ``[a]ny day on which work
is performed shall count toward the 60-day threshold without regard to
the number of hours worked on that day or whether the day falls on a
weekend or holiday.'' See e.g., OGE Informal Advisory Letter 84 x 4 and
7 Op. Off. Legal Counsel 123 (1983). The first example following
proposed Sec. 2641.204(c) illustrates the proper method of counting
the 60 days in the case of an SGE. It should be noted, however, that
certain de minimis activities performed by an SGE on a given day might
not be sufficient to count that day, under limited circumstances. See
Manning, supra, at 28. The Office of Government Ethics has acknowledged
a narrow de minimis standard where the activity is insignificant, both
in terms of substance and in terms of the amount of time expended, and
the SGE is not compensated by the Government specifically for that
particular effort. An example would be a day on which the SGE did
nothing more for the Government than make a brief telephone call to
confirm the date of an official meeting. Proposed Sec. 2641.204(c)(1)
would also specify the manner in which an SGE's rate of basic pay
should be calculated for purposes of determining whether the rate of
basic pay that he receives for his part-time or intermittent work is
equal to or greater than the rate of basic pay payable for ES-5 within
the meaning of section 207(c)(2)(A)(ii).
Proposed 2641.204(c)(2) concerns the application of 18 U.S.C.
207(c) to certain appointees or detailees. Specifically, this provision
sets out those circumstances in which it has been determined that an
individual appointed or detailed to an agency pursuant to the
Intergovernmental Personnel Act (IPA), 5 U.S.C. 3371-3376, is subject
to the restrictions of section 207(c). See ``Applicability of the Post-
Employment Restrictions of 18 U.S.C. Sec. 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.
Proposed Sec. 2641.204(d) emphasizes that 18 U.S.C. 207(c) is
triggered upon termination from a senior employee position, not from
termination of Government service, unless the two events occur
simultaneously. (This interpretation applies equally with respect to
sections 207(d) and 207(f) as specified in proposed Sec. Sec.
2641.205(c) and 2641.206(c), respectively.) The two examples following
proposed Sec. 2641.204(d) illustrate the timing of the section 207(c)
restriction in the case of a senior employee who moves from one agency
to another. Since the restriction can run while an individual continues
to serve as a Government employee, the first example cross-references
proposed Sec. 2641.301(a) which states that communications and
appearances are permissible if made during the course of performing
official duties as an employee of the United States. In the second
example, the individual does not cease to be a senior employee until he
terminates his senior position at the second agency.
As 18 U.S.C 207(c) and the permanent bar share several elements in
common, proposed Sec. 2641.201 is cross-referenced several times in
proposed Sec. 2641.204. For example, both section 207(a)(1) and 207(c)
require that there be a communication or appearance made with the
intent to influence, although in the case of section 207(c), the
representation is prohibited only if made to the former senior
employee's former agency. Section 2641.201 is also cross-referenced for
its proposed definition of ``on behalf of any other person.''
[[Page 7859]]
Section 2641.204(g)--To or Before Employee of Former Agency
Proposed Sec. 2641.204(g)(1) defines ``to or before employee of
former agency.'' This provision is different from proposed Sec.
2641.201(f) because that section focuses on employees ``of the United
States'' rather than employees at the senior employee's ``former
agency.''
The term ``employee'' is defined in proposed Sec. 2641.204(g)(1)
for purposes of identifying the individuals to whom a former senior
employee may not direct a communication or appearance. Proposed Sec.
2641.204(g)(1)(ii) reflects the fact that an individual serving in an
agency pursuant to the IPA is deemed an ``employee'' of that agency
and, hence, is an individual to whom a former senior employee of that
agency may not direct a communication or appearance. Notably, the
definition of employee at proposed Sec. 2641.204(g)(1) also includes
an individual detailed to a former senior employee's former agency.
Section 207(g) of the statute provides 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 * * *.'' As
reflected in proposed Sec. 2641.204(g)(2)(iii), we interpreted this
statutory provision to mean that an employee is barred from contacting
any agency to which he was detailed during his last year of senior
service, regardless of the duration of the detail. We also decided,
however, that section 207(g) is relevant when identifying those
employees serving in a former senior employee's former agency to whom a
communication or appearance cannot be directed. Accordingly, proposed
Sec. 2641.204(g)(1)(iii) specifies that the term employee encompasses
an individual detailed from an agency to the former senior employee's
former agency.
As noted earlier, 18 U.S.C. 207(i)(1)(A) states that ``the term
`officer or employee', when used to describe the person to whom a
communication is made or before whom an appearance is made * * * shall
include in subsections (a), (c), and (d), the President and the Vice
President * * *.'' Under the proposed rule, a former senior employee of
the Executive Office of the President is barred from contacting not
only employees of that Office, but also the President and Vice
President. On the other hand, former senior or very senior employees
who formerly served in entities other than the Executive Office of the
President would not be barred by section 207(c) or (d) from contacting
the President or Vice President. This reasoning is reflected in
proposed Sec. 2641.204(g)(1)(v); proposed Sec. 2641.204(g) is cross-
referenced in Sec. 2641.205(f) as proposed for purposes of the section
207(d) restrictions.
The definitions of ``department'' and ``agency'' in proposed Sec.
2641.104, combined with the proposed guidance in Sec. 2641.204(g)(2),
are key to understanding the scope of 18 U.S.C. 207(c). As we noted
earlier in connection with the definition of ``agency'' in proposed
Sec. 2641.104, we specifically included independent agencies (not in
the legislative or judicial branches) within that definition.
As already mentioned, and as explained further below in connection
with proposed Sec. 2641.302, the Director of OGE is authorized to
designate distinct and separate agency components for purposes of
section 207(c). The designation of such components within an agency has
the effect of narrowing the scope of the restriction as applied to
former senior employees eligible to benefit from such designations.
Proposed Sec. 2641.204(g)(2)(i) emphasizes that the 18 U.S.C.
207(c) bar applies only with respect to an agency in which the former
employee served within his last year of service as a senior employee.
Example 3 following proposed Sec. 2641.204(g) illustrates the
application of section 207(c) when a former senior employee's period of
Government service was preceded by a break in Government service.
Consistent with past interpretation, 18 U.S.C. 207(c) is described
in proposed Sec. 2641.204(g)(2)(ii) as extending to any agency in
which a former senior employee served in any capacity prior to his
termination from a senior position, ``regardless of his position, rate
of basic pay, or pay grade.'' See, e.g., OGE Memorandum to Designated
Agency Ethics Officials, General Counsels, and Inspectors General
(February 17, 2000), available under ``DAEOgrams'' on OGE's Web site,
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov.
Thus, the former employee in proposed example 2
following Sec. 2641.204(g) is barred as to both the Commodity Futures
Trading Commission (CFTC) and the Export-Import Bank of the United
States even though she served in only a GS-15 position at the CFTC.
Proposed Sec. 2641.204(g)(2)(iii) explains that, in addition to a
detail, an employee may otherwise be deemed to be serving two entities
simultaneously. The regulation would recognize that many employees are
required to serve on committees or similar entities as a collateral
duty. The regulation would specify that an employee will be deemed an
employee of such an entity if required to serve pursuant to statute or
Executive order.
Defining the boundaries of an employee's former agency is key to
the proper interpretation of 18 U.S.C. 207(c). Proposed Sec.
2641.204(g)(2)(iv) addresses situations where organizational changes
affecting an agency could make it difficult to determine if a successor
agency is substantially the same as a former senior employee's former
employing entity. For example, subsequent to an employee's termination
from a senior employee position, his former employing entity could be
made larger or smaller, merged in whole or in part with another agency,
or even abolished.
Significantly, proposed Sec. 2641.204(g)(2)(iv) need not be
consulted unless the agency to which 18 U.S.C 207(c) applies ``has been
significantly altered by organizational changes after [a senior
employee's] termination from senior service * * *.'' Thus, it is not
necessary to consult Sec. 2641.204(g)(2)(iv) as proposed merely
because the name of a former senior employee's former agency has
changed or because some personnel have retired or transferred. If,
however, an organizational change is such that the former senior
employee's former employing entity ``is not identifiable as
substantially the same agency from which the former senior employee
terminated * * *'', then the guidance in proposed Sec.
2641.204(g)(2)(iv)(A) applies and the section 207(c) bar will not apply
with respect to that entity. See OGE Informal Advisory Letter 85 x 5
and example 4 following proposed Sec. 2641.204(g).
Under proposed Sec. 2641.204(g)(2)(iv)(B), a former senior
employee's 18 U.S.C. 207(c) bar will extend to the whole of an
employing entity that has been affected by organizational changes if it
``remains identifiable as substantially the same entity'' from which he
terminated. Proposed example 5 emphasizes that a former employee would
be barred from contacting current employees who had joined the new
employing entity, but would not be barred from contacting an employee
who had been transferred elsewhere. Under proposed Sec.
2641.204(g)(2)(iv)(C), if a former employing entity is made separate
but otherwise remains ``substantially the same,'' the section 207(c)
bar would apply with respect to the separate entity. Proposed Sec.
2641.204(g)(2)(iv) would require designated agency ethics officials to
provide counseling in consultation with OGE when the scope
[[Page 7860]]
of section 207(c) is at issue as a result of an agency reorganization.
The guidance concerning the meaning of ``to or before'' in proposed
Sec. 2641.204(g)(3) closely tracks the corollary guidance in proposed
Sec. 2641.201 as does the guidance at proposed Sec. 2641.204(g)(4)
concerning public commentary. The guidance is repeated in Sec.
2641.204 as proposed only because it has been tailored to the one-year
restriction which is aimed only at communications to or appearances
before an individual's former agency. Proposed Sec. 2641.204(h),
concerning the phrase ``on behalf of any other person'', similarly
cites the corollary discussion in proposed Sec. 2641.201(g).
As amended by the Ethics Reform Act of 1989, 18 U.S.C. 207(c)
prohibits a former senior employee from making certain communications
or appearances on behalf of ``any other person'' in connection with
``any matter on which such person seeks official action'' (emphasis
added). The guidance at proposed Sec. 2641.204(i)(1) reflects that the
reference to ``such person'' refers to the former senior employee.
Proposed Sec. 2641.204(i)--Matter in Which Former Employee Seeks
Official Action
Proposed Sec. 2641.204(i)(2) emphasizes that a communication or
appearance can be prohibited even if not in connection with a
``particular'' matter or a ``particular matter involving a specific
party or parties.'' The adjective ``particular'' does not appear in the
section 207(c). See 17 OP. Off. Legal Counsel. 37, 41-42 (1993)
(describing effect of 1989 amendments to statute). Thus, proscribed
contacts include those made in connection with ``[b]road policy options
that are directed to a large and diverse group of persons.'' Compare 5
CFR 2637.204(d). See also 5 CFR 2640.103(a)(1) and 2635.402(b)(3).
Consistent with existing part 2637, proposed Sec.
2641.204(i)(2)(iii) emphasizes that a communication or appearance may
be barred even though made in connection with a new matter not pending
at nor of interest to the agency prior to the post-employment contact.
The Ethics Reform Act of 1989 deleted the requirement in 18 U.S.C.
207(c) that the subject of a communication or appearance be ``pending
before'' the former senior employee's former agency or of ``direct and
substantial interest'' to it. In commenting upon H.R. 3660 prior to its
passage, Senator Levin noted that ``the offense is committed if the
former employee seeks official action by an agency or department
employee.'' 135 Cong. Rec. S15954 (1989) (statement of Sen. Levin).
The language ``seeks official action'' distinguishes between
official and unofficial acts. As implemented in proposed Sec.
2641.204(i)(1), ``[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 * * * to make
a decision or to otherwise act in his official capacity'' (emphasis
added).
The proposed examples following Sec. 2641.204(i) as proposed
illustrate the concept of ``official capacity.'' In proposed example 1,
the former senior employee can solicit a personal charitable
contribution from a current employee of his former department since he
is not requesting that the current employee act in his official
capacity. In example 2 as proposed, a former senior employee wishes to
invite the Secretary of his former department to a cocktail party where
he would introduce the agency head to several of his private clients.
The former senior employee and the Secretary do not have a history of
socializing outside the office, the clients could be affected by the
Secretary's official duties, and the expenses of the party are being
charged to the former senior employee's consulting firm. The example
advises that the former senior employee should not contact the
Secretary since ``[t]he circumstances do not establish that the
communication would be made other than for the purpose of inducing the
Secretary to make a decision in his official capacity about the
invitation.''
Proposed Sec. 2641.205--18 U.S.C. 207(d)
The one-year ``cooling-off'' restriction of 18 U.S.C. 207(d) was
enacted by the Ethics Reform Act of 1989. Section 207(d) differs from
section 207(c) in that, in addition to being barred from contacting
employees of his former department or agency, a former very senior
employee is barred from representing another person before any
individual currently appointed to an Executive Level position listed in
5 U.S.C. 5312-5316.
Proposed Sec. 2641.205(b) provides cross-references to the
appropriate paragraphs of Sec. 2641.301 as proposed for the exceptions
and waivers that in certain circumstances would negate the prohibition
contained in 18 U.S.C. 207(d).
Paragraphs (d)-(i) of proposed Sec. 2641.205 cross-reference the
elements described in proposed Sec. Sec. 2641.201 and 2641.204 where
relevant. Where cross-references to the Sec. 2641.204 elements are
made, proposed Sec. 2641.205 highlights the differences between the
senior employee and very senior employee restrictions. Proposed Sec.
2641.205(f) points out that, unlike section 207(c), section 207(d) does
not provide for the designation of departmental or agency components as
a means of narrowing its impact. Proposed Sec. 2641.205(f) also
indicates that section 207(d) applies to communications to or
appearances before any agency in which an individual served as a very
senior employee during his last year of very senior service. By
comparison, as interpreted in proposed Sec. 2641.204(g)(2)(ii),
section 207(c) applies to contacts with an employee of any agency in
which the individual served ``in any capacity'' during the year prior
to his termination from a senior position. Also, and more
significantly, section 207(d) bars contacts not only with the
individual's former agency but, as noted in proposed Sec. 2641.205(a)
and (g), also with any official currently appointed to an Executive
Schedule position. As emphasized in Example 2 following Sec. 2641.205,
however, we have interpreted the bar to apply only with respect to
Executive Level officials who are actually listed in sections 5312-5316
of title 5 of the United States Code. This interpretation accords with
the plain language of the provision (``any person appointed to a
position in the executive branch which is listed in'' those sections).
The note following proposed Sec. 2641.205(g) indicates that a
communication to an Executive Level official may include a
communication made through a subordinate of such official. A former
very senior employee cannot evade the prohibition of 18 U.S.C. 207(d)
simply by making a communication to a subordinate official, as long as
such communication is still made with the intent that the information
be conveyed to an Executive Level official and attributed to the former
very senior employee, Cf. 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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov.
This point is illustrated in proposed example 5.
Proposed Sec. 2641.206--18 U.S.C. 207(f)
Section 207(f) of 18 U.S.C. was enacted by the Ethics Reform Act of
1989. It prohibits both former senior and former very senior employees
from representing, aiding, or advising a foreign government or foreign
political
[[Page 7861]]
party with the intent to influence a decision of an employee of a
Federal department or agency. Like sections 207(c) and 207(d), the
restriction is measured from the date when an employee ceases to be a
senior or very senior employee and not necessarily from his termination
from Government service. Like section 207(b), section 207(f) differs
from the other section 207 restrictions in that it prohibits certain
``behind-the-scenes'' aid or advice in addition to prohibiting certain
contacts with Government officials.
We have reserved Sec. 2641.206(d)-(g) to indicate that OGE will
revise Sec. 2641.206 in the future additional guidance concerning
section 207(f). For now, proposed Sec. 2641.206 includes only a
summary of the restriction and paragraphs concerning the restriction's
applicability, commencement, and duration. Proposed Sec. 2641.206(c)
indicates that section 207(f) is a one-year restriction except as
applied to a former U.S. Trade Representative or former Deputy U.S.
Trade Representative. Originally a one-year restriction as applied to
individuals terminating from these positions, section 609 of Pub. L.
102-395, 106 Stat. 691, amended section 207(f) to extend the one-year
restriction to three years in the case of any individual becoming the
U.S. Trade Representative after the 1992 effective date of that law.
Subsequently, section 21(a) of Pub. L. 104-65, 109 Stat. 691, amended
section 207(f)(2) to permanently bar either a former U.S. Trade
Representative or former Deputy U.S. Trade Representative from engaging
in the activities prohibited by section 207(f).
Subpart C--Exceptions, Waivers and Separate Components
Proposed Sec. 2641.301(a)-(j) address the parenthetical ``except
the United States'' provision contained in 18 U.S.C. 207(a)(1), (a)(2),
(b), (c), and (d); the general exceptions and waivers described in
section 207(j); the waiver authority in section 207(k); and section
207(c)(2)(C)'s provision for the exclusion of certain positions from
the coverage of sections 207(c) and (f). Proposed Sec. 2641.302
concerns the designation of separate and departmental components to
narrow the scope of the section 207(c) bar.
Proposed Sec. 2641.301(a)--Acting on Behalf of the United States
As indicated by the parenthetical ``except the United States''
which appears in each of the substantive restrictions of 18 U.S.C. 207
except section 207(f), otherwise prohibited activity is permissible if
engaged in on behalf of the United States. In addition to this
parenthetical, however, section 207(j)(1) of the current version of the
statute provides that ``[t]he restrictions contained in this section
shall not apply to acts done in carrying out official duties on behalf
of the United States * * *'' Proposed Sec. 2641.301(a) implements the
parenthetical language and section 207(j)(1).
The definition of ``United States'' at proposed Sec.
2641.301(a)(1) encompasses the entire Federal Government. The District
of Columbia is not part of the United States for purposes of the
exception. While former employees of the government of the District of
Columbia are covered by 18 U.S.C. 207(a)(1) and (a)(2), section
207(a)(3) makes it clear that the United States and the District of
Columbia are separate entities for purposes of those restrictions.
Thus, former employees of the United States may represent others before
employees of the government of the District of Columbia and vice versa.
Similarly, while section 207(j)(1) states that the restrictions of
section 207 ``shall not apply to acts done in carrying out official
duties on behalf of the United States or the District of Columbia * *
*'' (emphasis added), we have interpreted this language merely to
indicate that former employees of the District of Columbia may
represent the government of the District of Columbia notwithstanding
section 207(a)(1) or (a)(2). As we indicated earlier in connection with
proposed Sec. 2641.104, however, we have defined the District of
Columbia as a State for purposes of the section 207(j) exceptions
implemented in Sec. 2641.301(b) and (c).
Proposed Sec. 2641.301(a)(2) addresses the often repeated argument
that an activity is undertaken on behalf of the United States if it
benefits the United States. We have consistently rejected this
expansive reading of the exception. See, e.g., OGE Memorandum to
Designated Agency Ethics Officials, General Counsels, and Inspectors
General (February 17, 2000), available under ``DAEOgrams'' on OGE's Web
site, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov.
As proposed, the regulation indicates that
the exception does not apply merely because a former employee ``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.'' Proposed examples 1, 2, and 3 are
illustrative. To the extent that OGE Informal Advisory Letter 81 x 9
can be read as indicating that responses to Government-initiated
exchanges are always permissible regardless of the circumstances, we
expressly reject that reading here.
Proposed Sec. 2641.301(a)(2)(i) states that activities are
undertaken on behalf of the United States when undertaken in carrying
out official duties as a current employee of the United States. Thus,
as illustrated in examples 1 and 2 following proposed Sec.
2641.301(a), a person who is reemployed by the United States may
perform his official Government duties unfettered by the post-
employment restrictions in 18 U.S.C. 207. Notably, proposed example 2
indicates that a former employee may carry out official duties as an
employee of the legislative branch without violating the section 207
restrictions when she undertakes an activity for a constituent.
Departing from guidance in OGE Informal Advisory Letter 81 x 4, we are
not proposing to distinguish service performed for a Congressman's
constituent from actions taken in furtherance of a Congressman's
``legislative function.''
The note following the proposed Sec. 2641.301(a) examples cross-
references two additional examples, found elsewhere in the regulation,
which also concern the operation of this exception in the case of
current employees. The second of these, example 1 following proposed
Sec. 2641.204(d), shows how the exception applies in the case of a
current employee who, although having never left Government service, is
a former employee by virtue of having terminated a senior employee
position. But for the exception, the former senior employee might have
been hindered in the performance of his official duties by 18 U.S.C.
207(c).
As described in proposed Sec. 2641.301(a), the exception for acts
undertaken on behalf of the United States is not limited to acts
carried out as an employee of the United States. This subject was
addressed in OGE Informal Advisory Letter 82 x 16, which dealt with a
former employee whose law firm was hired by his former agency to
represent it in a case in which the employee had been personally and
substantially involved while in Government. After advising that the
former employee could not negotiate the terms of the legal services
contract on behalf of his firm, OGE concluded that the former employee
could perform the contract by representing the agency in court, because
such representations would be on behalf of the United States. OGE also
stated that the former employee could ``contact [the agency] for the
files, discuss briefs previously
[[Page 7862]]
filed by [the agency], and discuss future strategy,'' because
communications and appearances made for these purposes were
characterized as lacking the necessary ``intent to influence'' element.
In drafting proposed Sec. 2641.301(a)(2)(ii)(A), we followed the
result reached in 82 x 16, although we departed, in part, from the
analysis in that opinion. We have concluded that a former employee acts
on behalf of the United States when he serves ``[a]s 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.'' Consequently, the ``on behalf of the United
States'' provision would permit not only representational contacts made
by the former employee to a court (or another agency) but also any
contacts with the agency with which there is an agreement to provide
representational services, if those contacts are necessary for the
former employee to carry out his representational duties under the
agreement. Contrary to the analysis in 82 x 16, however, we decline to
base the latter conclusion on the absence of intent to influence with
respect to such contacts, because we do not believe that it is always
the case that communications required during the course of performing a
contract with an agency are necessarily made without the intent to
influence the agency. This subject is discussed in more detail above in
connection with the ``intent to influence'' element.
We specify in proposed Sec. 2641.301(a)(2)(ii)(A) that the
representational services must involve a ``fiduciary duty to the United
States.'' This serves to emphasize that the former employee must have
an independent obligation to act primarily for the benefit of the
Government. See Restatement of the Law (2d) Agency Sec. 13 (1958)
(agreement to act on behalf of another person makes one a fiduciary
with duty to act primarily for benefit of other person). It is
important, therefore, to remember that a former employee will not be
deemed to act on behalf of the United States merely because he is
performing some kind of contract with the United States. See
Restatement Sec. 14N, comments a & b (distinguishing between
contractor who agrees to act on behalf of principal and thereby becomes
fiduciary, and non-agent contractor who is not fiduciary). OGE Informal
Advisory Letter 81 x 35 focused on the restrictions applicable to a
former employee who went to work for a corporation that had a contract
to provide certain services to the Government. The opinion is
noteworthy for its conclusion that ``[t]he fact that the contract
between [the Department] and [the Corporation] requires communication
between them on many questions arising under [the Project] does not
authorize [the former employee's] participation in such
communications.''
Communications to and appearances before the legislative branch are
not prohibited by sections 207(a)(1), (a)(2), (c), or (d). On the other
hand, communications or appearances before the legislative branch can
be barred by section 207(b) or (f). In addition, a section 207 issue
can arise when an employee of the executive branch is present at a
forum held under the auspices of the legislative branch, as discussed
in connection with the ``to or before'' element in proposed Sec.
2641.201(f)(2). Under proposed Sec. 2641.301(a)(2)(ii)(B), however, a
communication or appearance made by a former employee at the request of
the Congress, in the context of a Congressional hearing, will be deemed
made on behalf of the United States. This interpretation makes
effective the permission, under the statute, for communications to
Congress and its members. The provision is limited to hearings,
however, in order not to permit a former employee to use the good
offices of a Congressman to facilitate otherwise prohibited contacts
with executive branch personnel.
Proposed Sec. 2641.301(b)--Acting as an Elected State or Local
Government Official
In addition to excepting communications or appearances made in
carrying out official duties on behalf of the United States, 18 U.S.C.
207(j)(1) authorizes a former employee to carry out official duties as
an elected official of a State or local government notwithstanding
sections 207(a)(1), (a)(2), (b), (c), (d), or (f). As we noted in OGE
Informal Advisory Letter 87 x 1, this exception ``is grounded in
considerations of federalism'' in that ``statutory restrictions should
not unduly impede the ability of the elected representative of the
people to perform the duties of his position.'' The two examples
following proposed Sec. 2641.301(b) highlight the requirement that the
former employee be acting as an ``elected official'' of the State or
local government. The term ``State'' is defined in proposed Sec.
2641.104 to include the District of Columbia, the Commonwealth of
Puerto Rico, and United States territories or possessions.
Proposed Sec. 2641.301(c)--Acting on Behalf of Specified Entities
Proposed Sec. 2641.301(c) describes a second exception permitting
representational activity on behalf of a State or local government. The
exception in 18 U.S.C. 207(j)(2) would permit communications and
appearances in carrying out official duties as an employee of ``an
agency or instrumentality of a State or local government''
notwithstanding sections 207(c) or (d). It also would except from those
prohibitions communications and appearances made as an employee of
certain institutions of higher education, hospitals, or medical
research organizations. The wording of proposed Sec. 2641.301(c)
indicates that the exception also applies when the former employee is
employed by more than one of the entities specified in Sec.
2641.301(c)(1), such as by an interstate compact organization composed
of several States. See OGE Informal Advisory Letter 87 x 1. However, as
proposed example 3 illustrates, the exemption does not apply to an
association of States or State officials that is not an entity carrying
out governmental functions. See Memorandum for An Agency General
Counsel, from Beth Nolan, Deputy Assistant Attorney General, Office of
Legal Counsel, Re: Applicability of the Exemption Provisions of 18
U.S.C. Sec. 207(j)(2) to the Employment of a Former Federal Official
by [an] Association (July 2, 1999) (OGE Informal Advisory Letter 87 x 1
distinguished).
In order to qualify for the exception, the former employee must be
an ``employee'' of the State or local government or other specified
entity and not merely a consultant or independent contractor. This
interpretation had been adopted in OGE Informal Advisory Letter 87 x 1
concerning the same exception in the previous version of 18 U.S.C. 207.
That letter, citing legislative history relating to the Ethics in
Government Act of 1978, had determined that the exception does not
apply in the case of so-called ``hired guns.'' Use of the term
``employee'' in the new version of the statute is consistent with that
legislative history. See 125 Cong. Rec. H3696, H3697 (daily ed. May 24,
1979). Accordingly, proposed Sec. 2641.301(c)(2) incorporates the
distinction, providing that the term ``employee'' means a person who
has an employee-employer relationship with a specified entity and
excludes individuals serving a specified entity as a consultant or
independent contractor. Example 2 following
[[Page 7863]]
proposed Sec. 2641.301(c) concerns an attorney who does not qualify
for the exception because of this distinction.
Proposed Sec. 2641.301(d)--Communicating Information Based on Special
Knowledge
Proposed Sec. 2641.301(d) implements 18 U.S.C. 207(j)(4), an
exception to sections 207(c) and (d) permitting a former senior or very
senior employee to make an uncompensated ``statement'' if ``based on
[his] own special knowledge in the particular area that is the subject
of the statement * * *.''
When originally enacted by Congress in 1978, 18 U.S.C. 207(c)
prohibited a former senior employee from representing ``anyone'' before
his former agency. Because section 207(c) barred self-representation
(as well as the representation of others), the statute specifically
permitted communications or appearances ``concerning matters of a
personal and individual nature, such as personal income taxes or
pension benefits.'' The statute also stated that the one-year cooling-
off provision did not prevent a former senior employee from ``making or
providing a statement, which is based on the former officer's or
employee's own special knowledge in the particular area that is the
subject of the statement, provided that no compensation is thereby
received, other than that regularly provided for by law or regulation
for witnesses.''
The current version of 18 U.S.C. 207(c) no longer prohibits self-
representation, and, therefore, the statute no longer includes an
exception for communications of a personal and individual nature. On
the other hand, the ``special knowledge'' exception survives. Of
course, since self-representation is no longer barred, a former senior
or very senior employee need not rely on this or any other exception to
section 207(c) or (d) when he makes a communication solely on his own
behalf.
For purposes of implementing the section 207(j)(4) exception, we
propose guidance as to what the terms ``special knowledge,''
``statement'' and ``compensation'' mean in section 207(j)(4). We
indicate in proposed Sec. 2641.301(d)(1) that a former employee will
be deemed to have ``special knowledge'' with respect to the subject
area ``if he is familiar with the subject area as a result of
education, interaction with experts, or other unique or particularized
experience.'' While this standard does not require the ``outstanding
qualifications'' in a field that are the prerequisite for a section
207(j)(5) certification, discussed below, a former employee must have
become knowledgeable with the subject prior to making contact with the
Government. Proposed Sec. 2641.301(d)(2) defines the term
``statement'' as ``a communication of facts directly observed by the
former employee.''
The proposed definition of compensation at Sec. 2641.301(d)(3) is
broad. Reflecting the exception's amendment by the Ethics Reform Act of
1989, the proposed definition does not exclude compensation provided
for by law or regulation for witnesses. However, the proposed
definition of compensation does exclude the payment of actual and
necessary expenses incurred in connection with making the statement.
Cf. Memorandum of Dawn Johnson, Acting Assistant Attorney General,
Office of Legal Counsel, for the Counsel to the President, January 28,
1998 (``compensation,'' within the meaning of 18 U.S.C. 203, does not
include reimbursement of expenses in connection with representation),
available on the DOJ Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usdoj.gov/olc/1998opinions.htm
.
Proposed Sec. 2641.301(e)--Communicating Scientific or Technological
Information
Section 207(j)(5) of 18 U.S.C. permits a former employee to make
communications ``solely for the purpose of furnishing scientific or
technological information'' notwithstanding sections 207(a)(1), (a)(2),
(c), or (d), provided that (1) the communications are made ``under
procedures'' acceptable to the agency or agencies to which the
communication is directed or (2) the head of such agency or agencies
``makes a certification'' that meets certain requirements. A former
employee cannot use this exception to avoid the restrictions in
sections 207(b) or 207(f). Thus, a former employee cannot escape the
reach of either of these latter two restrictions by merely limiting his
use of covered trade or treaty information to that which is of a
scientific or technological character or by assisting a foreign entity
only by means of furnishing scientific or technological information.
Proposed Sec. 2641.301(e) incorporates both the procedures and
certification aspects of the section 207(j)(5) exception for
communication of scientific and technological information and, in
effect, constitutes, two exceptions. Proposed Sec. 2641.301(e) states
the exception in general terms, and proposed Sec. 2641.301(e)(1)-
(e)(3) provides information common to both the procedures exception and
the certification exception. Guidance on the promulgation and
implementation of procedures is contained in proposed paragraph (e)(4).
Guidance on the certification process is contained in proposed
paragraph (e)(5).
As originally enacted in 1962, section 207 had provided an
exception from its substantive restrictions for former employees
certified as possessing ``outstanding scientific or technological
qualifications'' and only when in the ``national interest.'' This
certification exception, since modified, survives as part of current
section 207(j)(5). Prior to the amendments to section 207 in the Ethics
Reform Act of 1989, the certification mechanism freed the former
employee from any post-employment restrictions attendant to such
matter, not just communications solely for the purpose of furnishing
scientific and technological information. See OGE Informal Advisory
Letter 80 x 9. The 1989 amendments changed the wording of the
certification exception, limiting recipients of a section 207(j)(5)
certification to making contacts ``solely for the purpose of furnishing
scientific or technological information.'' This change imposes a
significant limitation on the scope of activities permitted by a
certification, because the recipient of the certification is prohibited
from making communications that are not ``solely for the purpose of
furnishing scientific or technological information.''
The part of the exception involving procedures was added by the
Ethics in Government Act of 1978. See 124 Cong. Rec. 31,983 (1978)
(statement of Rep. Stratton) (explaining need for alternative in
addition to existing certification mechanism). Since its original
enactment, the procedures provision has always been limited to
communications solely for the purpose of furnishing scientific or
technological information.
The exception in 18 U.S.C. 207(j)(5) permits otherwise prohibited
``communications,'' but is silent as to ``appearances.'' We have worded
proposed Sec. 2641.301(e) so that procedures and certifications under
section 207(j)(5) permit both communications and appearances. It would
defeat the purpose of the exception if it permitted a former employee
to make communications but not to appear before the Government to make
such communications.
When drafting proposed Sec. 2641.301(e)(1), we were aware that
certain legislative history in connection with the 1978 amendments
indicated that the exception applies only to communications that are
made ``solely for the purpose of furnishing scientific or technological
information and
[[Page 7864]]
without the intent to influence.'' See 124 Cong. Rec. H35,671 (1978)
(emphasis added). However, as discussed earlier in connection with the
``intent to influence'' element in proposed Sec. 2641.201(e), the
post-1989 version of section 207 prohibits no communications or
appearances that are not made with the intent to influence the
Government. The exception in section 207(j)(5) would be surplusage if
it only applied to communications and appearances that are not
prohibited in the first place, i.e., those made without any intent to
influence. Even communications made solely for the purpose of conveying
scientific or technological information may be deemed to be made with
the intent to influence, if made for the purpose of affecting
Government action in a matter that involves an appreciable element of
dispute or discretionary Government action. Therefore, proposed Sec.
2641.301(e)(1) reflects that a communication for the purpose of
furnishing scientific or technological information may be permitted by
the exception even when made in contexts involving intent to influence.
The former Marine Corps employee in proposed example 1 following
Sec. 2641.301(e)(4) as proposed, for example, may report the results
of a series of scientific tests even though the methodology of those
tests is expected to be and is, in fact, the subject of debate at the
meeting. Moreover, he could report the results even though they tend to
support the company's argument that it has complied with a certain
contract specification. As emphasized in proposed Sec.
2641.301(e)(1)(iii), the exception permits the communication of
scientific or technological information in adversarial or other
contexts even if the information is ``inherently influential.'' On the
other hand, proposed example 1 emphasizes that the former Marine Corps
employee could not present the company's argument that it has complied
with a contract term regarding advance payments.
Proposed Sec. 2641.301(e)(2) offers guidance concerning the
meaning of the adjectives ``scientific'' and ``technological.'' It
would provide that scientific or technological information refers, for
example, to ``technical or engineering information relating to the
natural sciences'' as distinguished from information ``associated with
a nontechnical discipline such as law, economics, or political
science.'' This distinction is consistent with the legislative history
concerning the certification authority in section 207(j)(5). The
Conference Report issued in connection with the Ethics in Government
Act of 1978 reflected the intent of the Committee that the phrase
``scientific, technological, or other technical discipline'' excludes
the social sciences. S. Conf. Rep. No. 95-127 at 77 (1978). We expect
that an agency will be in the best position to interpret these
adjectives in the context of its own programs and consistent with the
guidance in proposed Sec. 2641.301(e)(2).
While proposed Sec. 2641.301(e)(2) requires that a communication
convey scientific or technological information to be permissible under
the exception, proposed Sec. 2641.301(e)(3) recognizes that a
communication may be made for the purpose of furnishing scientific or
technological information notwithstanding an ``incidental reference or
remark'' of a nontechnical character. Thus, like existing 5 CFR
2637.206(b), proposed Sec. 2641.301(e)(3)(ii) recognizes the
permissibility of nontechnical communications ``when necessary to
appreciate the practical significance of the basic scientific or
technological information provided.'' Moreover, like 5 CFR 2637.206(a),
Sec. 2641.301(e)(3)(iii) as proposed would permit incidental
communications ``[i]ntended to facilitate the furnishing of scientific
or technological information * * *.'' Significantly, however, proposed
Sec. 2641.301(e)(3) emphasizes that, taken as a whole, a communication
(or series of related communications) must ``primarily'' convey
information of a scientific or technological character.
Proposed examples 1 and 2 following Sec. 2641.301(e)(3) are
illustrative. Example 1 emphasizes that it is the former employee's own
communications that must primarily convey scientific or technological
information. Thus, the former employee in that example is not deemed to
make a permissible ``incidental'' reference to a product's expected
cost when the scientific information, although communicated on the same
occasion, is communicated by another individual. On the other hand, as
indicated in proposed example 2, the former employee could state the
product's expected cost if the whole of her communication otherwise
focused primarily on relevant scientific principles.
As specified in proposed Sec. 2641.301(e)(4), the exception is
available to a former employee where the communication is made in
accordance with procedures adopted by the agency to which the
communication is directed. The prerequisite that the agency to which
the communication is directed is the agency whose procedures must be
complied with is consistent with existing regulatory guidance at 5 CFR
2637.206(e) and with past OGE advice. See, e.g., OGE Informal Advisory
Letter 96 x 21.
The regulation as proposed does not specify any particular
procedure or procedures that must be adopted by an agency. The language
of the statute affords each agency the discretion to develop procedures
it deems ``acceptable.'' Proposed Sec. 2641.301(e)(4)(i) suggests some
possible mechanisms that could be employed by an agency to ensure the
proper use of the exception. Many of these are taken from existing
guidance at 5 CFR 2637.206(e).
The certification provision in section 207(j)(5) would be
implemented by proposed Sec. 2641.301(e)(5). As specified in proposed
Sec. 2641.301(e)(5)(iii), these certifications must be issued by the
head of the agency with which the former employee would have contact.
We have interpreted section 207(j)(5) as permitting agency heads
the discretion to limit their certification to only certain of the
statute's substantive restrictions. For example, in OGE Informal
Advisory Letter 97 x 14, we advised a designated agency ethics official
that an agency head could waive section 207(c) only. Similarly, we have
included a provision at proposed Sec. 2641.301(e)(5)(iii)(E) that
confirms our view that the granting authority has discretion to impose
other limitations on the scope of a section 207(j)(5) certification. As
we said in OGE Informal Advisory Letter 80 x 9, a certification for
technical expertise ``may be limited in nature at the discretion of the
head of the agency or Department * * *.''
While the authority to grant the certification ultimately rests
with the appropriate agency head, proposed Sec. 2641.301(e)(5)
incorporates the statutory requirement for advance consultation with
OGE prior to issuance. We believe that the statutory ``national
interest'' standard contemplates that this authority will be used
infrequently. Moreover, legislative history surrounding the amendment
of this provision in 1978 supports the view that certifications should
be granted only in ``exceptional'' cases. S. Rep. No. 170, 95th Cong.,
1st Sess. 155 (1977).
Proposed Sec. 2641.301(e)(5) provides that a section 207(j)(5)
certification may be granted to a ``former employee.'' We believe that
an agency head may entertain a request for a certification from a
current employee who has firm post-employment plans, provided that the
effective date of the certification occurs after the employee
terminates Government service.
[[Page 7865]]
Paragraphs (A), (B), and (C) of proposed Sec. 2641.301(e)(5)(i)
describe the three statutory criteria that must be satisfied in order
for a certification to be issued. Proposed Sec. 2641.301(e)(5)(i)(B)
requires that the former employee will actually utilize his scientific,
technological, or technical expertise in connection with the matter for
which the waiver is granted. We believe this criterion follows from the
statutory requirement that the former employee not only possess
outstanding qualifications, but that he will be ``acting with respect
to a particular matter which requires such qualifications.'' OGE will
carefully examine the facts surrounding a waiver proposed for an
individual who will occupy a management position to ensure this
criterion is satisfied.
We used the term ``matter'' in proposed Sec. 2641.301(e)(5)(i)(B).
Section 207(j)(5) provides that a certification will apply with respect
to a ``particular matter'' which requires outstanding qualifications in
certain disciplines. Since sections 207(c) and (d) apply to any
``matter'' rather than to any ``particular matter,'' we reasoned that
the policy underlying the certification authority would be ill-served
by a distinction permitting experts to contact the Government
concerning action focused on a ``discrete and identifiable class of
persons,'' but not on broad policy issues or conceptual work. See the
definition of ``particular matter'' at proposed Sec. 2641.201(h)(1).
See also 5 CFR 2640.103(a)(1).
As part of the consultation process, OGE will carefully review an
agency's draft certification to ensure that it specifies all of the
information required by proposed Sec. 2641.301(e)(5)(iii). Proposed
Sec. 2641.301(e)(5)(iii)(C) requires that a certification specify the
name of the person on whose behalf the former employee will be acting.
We do not read section 207(j)(5) as requiring that a certification
recipient act only on behalf of a person specified in the
certification. Rather, as already mentioned, we believe that the
certification is specific to the matter that will be the subject of the
recipient's post-employment contacts. Accordingly, under proposed Sec.
2641.301(e)(5)(iii)(F), a certification must include 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.''
We did not include in this proposed regulation the provision that
has appeared at 5 CFR 2637.207(d) providing for pre-qualification of
experts through creation of an ``agency registry.'' We are not aware
that any agency has set up such a registry. Moreover, we are not
convinced that such a registry would have anything but an insignificant
impact on certification processing times. Indeed, we suspect that the
administrative burden associated with a registry would outweigh any
benefit.
Proposed Sec. 2641.301(f)--Testifying under Oath
The amendment of 18 U.S.C. 207 by the Ethics Reform Act of 1989
prompted our proposed major revision of regulatory guidance concerning
the permissibility of testimony under oath. In the prior version of the
statute, section 207(h) had stated that nothing in section 207
prevented a former employee ``from giving testimony under oath * * *.''
The Ethics Reform Act of 1989 version of the statute also uses this
language, in renumbered section 207(j)(6), but adds that a former
employee ``who is subject to the restrictions contained in subsection
(a)(1) with respect to a particular matter may not, except pursuant to
court order, serve as an expert witness for any other person (except
the United States) in that matter.''
The proposed definition of ``testimony under oath'' is drawn from
language in Rule 603 of the Federal Rules of Evidence. Proposed Sec.
2641.301(f)(1) requires that the former employee's oral or written
testimony be given in a proceeding ``in which applicable procedural
rules require a witness to declare by oath or affirmation that he will
testify truthfully.'' In addition, the exception does not apply unless
the testimony is given in connection with a ``judicial, quasi-judicial,
administrative or other legally recognized proceeding.'' Taken
together, these two requirements emphasize that a former employee
cannot escape the restrictions of 18 U.S.C. 207 by merely raising his
right hand and assuring those present at any gathering that he is
telling the truth. On the other hand, provided the requirements as
proposed are met, these provisions would confirm that the exception
permits a witness to give testimony, except as limited by proposed
Sec. 2641.301(f)(2) concerning service as an expert witness.
As already noted, while the testimony-under-oath exception
generally permits testimony offered as an expert witness, the exception
is subject to a significant statutory limitation in this regard. As
specified in section 207(j)(6)(A), a former employee ``who is subject
to the restrictions contained in subsection (a)(1) with respect to a
particular matter'' may not ``serve as an expert witness'' except for
the United States or pursuant to court order.
Proposed Sec. 2641.301(f)(2)(ii) implements the court order
provision. We specifically distinguished a subpoena as not falling
within this definition. The practical nature of a subpoena is such that
in many contexts it may be issued under the court's authority by
counsel's filling out a form, without reasoned consideration by a court
unless and until the subpoena is challenged. See, e.g., Doe v.
DiGenova, 779 F.2d 74 (D.C. Cir. 1985) (subpoenas--grand jury or
otherwise--do not qualify as ``order[s] of a court of competent
jurisdiction'' under the Privacy Act.) Thus, the mere fact that an
expert witness appears in court in response to a subpoena does not mean
that he is testifying pursuant to court order within the meaning of
section 207(j)(6)(A). Also, a court order merely qualifying a witness
to testify as an expert is not a court order that directs the witness
to testify in such a way as to overcome the expert witness bar. Because
the United States will be represented in most proceedings in which it
has a ``direct and substantial interest'' pursuant to 18 U.S.C.
207(a)(1), the United States should make the court aware of the
statutory bar where appropriate.
The proposed regulation could not, and does not attempt to,
instruct a judge as to the proper standard to apply in determining
whether a court order is appropriate. Proposed example 4 suggests our
view of an appropriate circumstance for a court to order expert
testimony. We would expect that a court would order an expert witness
otherwise barred by section 207(a)(1) to testify only where there are
extraordinary circumstances present, such as where there is no other
equivalent expert testimony available and the employee's prior
involvement in the matter will not cause him to have an undue influence
on proceedings.
Of course, fact witness testimony is always allowable under the
testimony-under-oath exception. However, some ``experts'' who could be
fact witnesses because of having worked on matters while at their
former agencies (thereby triggering the section 207(a)(1) bar) would
prefer to serve as expert witnesses. An expert witness can be paid for
his service as an expert while a payment for fact testimony may be
prohibited by the bribery statute. See 18 U.S.C. 201. When Congress
provided for the court order exception to the expert testimony bar in
section 207, it did not intend to provide a mechanism for former
employees who worked on
[[Page 7866]]
matters to receive compensation for testimony because of their personal
knowledge of the facts.
Proposed Sec. 2641.301(f)(3) implements section 207(j)(6) as it
pertains to the permissibility of statements made under penalty of
perjury. Proposed Sec. 2641.301(f)(3) emphasizes that this exception
does not authorize an employee to ``submit a pleading, application, or
other document as an attorney or other representative.'' See also 5 CFR
2637.208(c). We also emphasize in Sec. 2641.301(f)(3) as proposed that
when the permanent bar is applicable, a former employee is subject to
the limitation concerning expert witness testimony even though his
testimony could also be characterized as a statement made under penalty
of perjury.
The proposed note following Sec. 2641.301(f)(3) as proposed would
emphasize that, for purposes of the exception, it is irrelevant that a
witness may be compensated for his testimony. On the other hand, the
note alerts former employees and others to the criminal provisions in
18 U.S.C. 201(c)(3) and (d) which may prohibit fact witnesses from
receiving compensation for testifying in certain forums other than as
``provided by law'' or to cover ``the reasonable cost of travel and
subsistence incurred and the reasonable value of time lost in
attendance'' at a proceeding. Separately, the note also alerts the
reader to the possible existence of agency procedures relating to the
production or disclosure of Government information by current or former
employees. See, e.g., Department of Justice regulations at 28 CFR part
16, subpart B.
Proposed Sec. 2641.301(g)--Acting on Behalf of a Candidate or
Political Party
The Office of Government Ethics Authorization Act of 1996, Pub. L.
104-179, 110 Stat. 1566, amended 18 U.S.C. 207(j) to add a new
exception to sections 207(c) and (d). Under new section 207(j)(7), a
former senior or very senior employee may represent a ``candidate'' for
Federal or State office or ``an authorized committee, a national
committee, a national Federal campaign committee, a State committee, or
a political party.'' The proposed regulatory definitions of these terms
at Sec. 2641.301(g)(1) closely track the statutory definitions in
section 207(j)(7). As noted earlier in connection with proposed Sec.
2641.301(b) and (c), the term ``State'' is defined in Sec. 2641.104 as
proposed.
Proposed Sec. 2641.301(g)(2)(ii) reflects that a communication or
appearance must be made on behalf of ``one or more'' of the candidates
or political organizations specified in Sec. 2641.301(g)(1) (i)-(vi).
This language reflects our interpretation that the exception is
available to a former senior or very senior employee who is
simultaneously acting on behalf of more than one of the specified
candidates or political organizations.
If the former senior or very senior employee is representing a
candidate, section 207(j)(7) applies only if the employee makes the
communication or appearance on behalf of the candidate ``in his or her
capacity as a candidate.'' Accordingly, the former Attorney General in
proposed examples 2 and 3 following proposed Sec. 2641.301(g) could
seek official action from a Government official about a tax matter of
interest to a State committee, but could not make a communication on
behalf of a candidate seeking the dismissal of an enforcement action
involving the candidate's family business.
The exception is available to a former senior or very senior
employee who is retained either directly by a candidate or specified
political organization or who is hired by a third person who provides
services exclusively to candidates or the specified political
organizations. Significantly, the exception is not available if the
former employee is ``employed by'' any other person or entity at the
time he makes the communication or appearance. This limitation,
described at proposed Sec. 2641.301(g)(2)(i), is illustrated in
example 4. The former senior employee in that example cannot avoid the
section 207(c) bar by using the exception because he is employed by a
firm that does not exclusively ``represent, aid, or advise'' the
specified persons or entities.
Section 207(j)(7) applies only when the communication or appearance
is made ``solely on behalf of'' a specified candidate or political
organization. We would highlight this restriction by denoting it as one
of the ``limitations'' at Sec. 2641.301(g)(2) as proposed.
Finally, proposed Sec. 2641.301(g) recognizes that even a
communication or appearance purportedly made solely on behalf of a
specified person or entity may unavoidably also involve a
representation of the former senior or very senior employee's employer.
Since the exception contemplates that former employees may become
``employed by'' third persons or entities who provide services
exclusively to candidates or political organizations, we did not
believe that such an affiliation should preclude use of the exception.
Accordingly, we indicate that a former employee may make a
communication or appearance on behalf of such a third person or entity,
described in proposed Sec. 2641.301(g)(2)(i)(B), provided the
communication or appearance otherwise meets the requirements for the
Sec. 2641.301(g) exception as proposed.
Proposed Sec. 2641.301(h)--Acting on Behalf of an International
Organization Pursuant to a Waiver
Section 207(j)(3) was added by the Ethics Reform Act of 1989
version of section 207. This exception provides that the restrictions
of the statute shall not apply to ``an appearance or communication on
behalf of, or aid or advice to, an international organization in which
the United States participates, if the Secretary of State certifies in
advance that such activity is in the interests of the United States.''
The Secretary of State has issued several section 207(j)(3) waivers.
Proposed Sec. 2641.301(h) provides that a section 207(j)(3) waiver
may be granted to any ``former employee.'' We believe that the
Secretary of State may entertain a request for a waiver from a current
employee who has firm post-employment plans, provided that the
effective date of the waiver occurs after the employee becomes a former
employee.
Section 2641.301(i)--Acting as an Employee of a Government-Owned,
Contractor Operated Entity Pursuant to a Waiver
Section 207(k) of 18 U.S.C. authorizes the President to waive some
or all of the substantive restrictions of section 207 for up to 25
current employees of the executive branch (excluding any former
employees who may be continuing to benefit from previously issued
waivers). Subject to a slightly more flexible provision relating to
prior employment at certain laboratories, a waiver under this section
applies to an individual who returns to the same Government-owned,
contractor operated entity by which he was employed just prior to
entering Government service. Proposed Sec. 2641.301(i) re-states the
statutory criteria and procedures applicable to such waivers.
Proposed Sec. 2641.301(j)--Waiver for Certain Positions From the
Prohibitions of 18 U.S.C. 207 (c) and (f)
Apart from the general exceptions and waivers described in section
207(j) and the waiver authority set forth in section 207(k), section
207(c) is not applicable to any former senior employee whose Government
position has been waived from the prohibition by the Director of OGE.
See section 207(c)(2)(C).
On February 1, 1991 OGE published an interim rule (with request for
[[Page 7867]]
comments), which established procedures to waive positions pursuant to
section 207(c)(2)(C). OGE has published waived positions as appendix A
to 5 CFR part 2641.
OGE received three written comments in response to the 1991
rulemaking. One comment was generally supportive of the interim rule. A
second comment raised, in part, the issue of the applicability of
section 207(c) to employees detailed to senior employee positions. That
issue has already been discussed as part of the discussion of the
definition of ``senior employee'' in proposed Sec. 2641.104. The third
comment requested ``clarification on the standards which will be used
in determining whether to grant a waiver.'' More specifically, the
comment stated that the rule ``could be improved by adding a list of
factors to consider for determining whether there would be a potential
for the use of undue influence or unfair advantage.''
The statute lists two criteria that must be satisfied in order for
the Director to waive a position from section 207(c). First, the
Director must determine that the imposition of section 207(c) ``would
create an undue hardship on the department or agency in obtaining
qualified personnel to fill such position or positions,'' under section
207(c)(2)(C)(i). Second, the Director must determine that ``granting
the waiver would not create the potential for use of undue influence or
unfair advantage,'' under section 207(c)(2)(C)(ii). Our interim rule
listed some factors that could be relevant to such determinations, and
the proposed rule would add additional guidance. It is impossible,
however, to develop an exhaustive list of factors that could be
considered. The waiver procedure envisions a case-by-case evaluation of
the facts related to the hardship on the agency and the potential for
undue influence and unfair advantage. It is up to the agency to bring
any relevant factors to our attention in order to permit the Director
to make the determinations required under the statute.
In addition to modifying certain definitions, as already discussed,
we are proposing to make several other changes to the existing
provisions of part 2641 relating to waivers. First, as the underlying
statute states that OGE may waive the restrictions of section 207(c),
we have used the term ``waiver'' throughout the new, renumbered Sec.
2641.301(j) as proposed, rather than the term ``exemption'' which
appears in existing Sec. 2641.201(d). We would also renumber the
existing paragraphs concerning waivers so that the paragraph describing
the statutory criteria would appear in proposed Sec. 2641.301(j)(2) as
proposed. In addition, we would reorder the statutory criteria in
renumbered Sec. 2641.301(j)(2) as proposed to track the order in which
they are set forth in the statute.
We propose to modify renumbered Sec. 2641.301(j) to emphasize that
a waiver of section 207(c) will operate to waive the restriction of
section 207(f). This result follows from the fact that the one-year ban
on providing certain assistance to foreign governments or foreign
political parties set forth in section 207(f) applies, inter alia, to
``[a]ny person who is subject to the restrictions contained in
subsection (c) * * *'' of section 207. Thus, if a former senior
employee is not subject to section 207(c) because that restriction has
been waived by the Director of OGE, then he will similarly not be
subject to section 207(f). We are proposing to insert necessary
references to section 207(f) in renumbered Sec. 2641.301(j). Along the
same lines, we propose that the Director consider, in relation to the
statutory criterion for waiver at renumbered Sec. 2641.301(j)(2)(iii),
the consequences of a position's waiver from the restrictions
pertaining to foreign entities.
We are proposing to amend renumbered Sec. 2641.301(j)(1) to
indicate that OGE may consider waiving restrictions for a position if
it ``could be occupied by a senior employee.'' We chose this wording
mainly because individuals serving in Senior Executive Service
positions are paid basic rates of pay which range from ES-1 to ES-6
depending upon their individual qualifications. As long as a position
could be occupied by a senior employee, OGE will not decline to
consider a waiver merely because the current incumbent's pay rate is
less than the ES-5 rate of basic pay triggering senior employee status.
We are proposing to add an example to follow proposed renumbered
Sec. 2641.301(j)(1), concerning eligible senior positions. As
specified in 18 U.S.C. 207(c)(2)(C) and as would be reflected in
renumbered Sec. 2641.301(j)(1), positions for which the rate of basic
pay is ``specified in'' or ``fixed according to'' the Executive
Schedule are ineligible for waiver. Proposed example 1 illustrates the
application of this limitation.
Waivers may not be issued to prevent or remedy individual
hardships, but rather to address programmatic concerns. In the past,
some waivers have been sought to ameliorate the effects of the one-year
cooling-off provision as it would apply to a particular individual,
rather than to prevent expected recruitment problems. The Office of
Government Ethics has not granted such waivers. See, e.g., OGE Informal
Advisory Letter 94 x 12. See also OGE Informal Advisory Letter 96 x 15,
in which the Director of OGE declined to grant a waiver to remedy the
consequences of an agency's misinterpretation of a personnel law which
resulted in the retroactive reinstatement of an individual to her
former senior position and the renewal of her one-year cooling-off
period.
We are proposing to modify renumbered Sec. 2641.301(j)(3)(i) by
inserting the word ``recommend'' to emphasize the role of the
designated agency ethics official. OGE expects that a request will not
be forwarded for consideration by the Director unless the ethics
official believes that waiver is warranted.
We are proposing to reword the description of the ``hardship''
criterion, at renumbered Sec. 2641.301(j)(2)(i) and (ii), to emphasize
what must be central to an agency's recommendation concerning this
element. An agency must show that it ``has experienced or is
experiencing undue hardship in obtaining qualified personnel'' and that
``[w]aiver of the restriction with respect to the position or positions
is expected to ameliorate the recruiting difficulties.'' See OGE
Informal Advisory Letter 97 x 16.
We are proposing to add an additional factor that would support an
agency's claim of recruitment difficulties. Proposed Sec.
2641.301(j)(2)(i)(A) confirms the relevance of position vacancy rates.
Moreover, we are proposing to modify the factor at existing Sec.
2641.201(d)(5)(ii), which currently provides that the Director of OGE
will consider, inter alia, that the incumbent of a position proposed
for waiver possess ``outstanding qualifications in a scientific,
technological, or other technical discipline.'' We would revise this
factor, at renumbered Sec. 2641.301(j)(2)(i)(C), to include
outstanding qualifications in any other ``specialized discipline.''
We are proposing to add a new sentence, at renumbered Sec.
2641.301(j)(3)(i), indicating that a designated agency ethics official
``may, at any time, request that a current waiver be revoked.'' In
addition, we are proposing to delete the requirement that letters must
be submitted annually to OGE concerning the continued waiver of the
restriction. Finally, because OGE need publish a rule only when a
revision to appendix A is warranted as a result of the granting of a
new waiver or the revocation of an existing waiver, we propose to drop
the requirement in existing Sec. 2641.201(d)(3) that OGE
[[Page 7868]]
annually publish an updated compilation. As proposed, renumbered Sec.
2641.301(j)(3)(ii) would merely require that the Director of OGE
``maintain a listing'' of waived positions in appendix A to 5 CFR part
2641.
Section 2641.301(k)--Miscellaneous Statutory Exceptions
Proposed Sec. 2641.301(k) lists statutory provisions, other than
those in 18 U.S.C. 207 itself, which modify the scope of the post-
employment statute as it would otherwise apply to specified former
employees or classes of former employees. We invite reviewers of this
proposed rule to review our list and suggest modifications or
additions.
Section 2641.302--Component Designations
The scope of 18 U.S.C. 207(c) can be narrowed through designation,
by the Director, of separate departmental or agency components.
Authority for the designation of separate components is set forth in
section 207(h). On February 1, 1991, OGE published an interim rule
establishing procedures, currently codified at 5 CFR 2641.201(e), to
designate separate agency components. OGE has published agency
component designations as appendix B to 5 CFR part 2641.
We are proposing to make several changes to existing Sec.
2641.201(e), which would be renumbered as Sec. 2641.302. We have
reorganized the paragraphs in existing Sec. 2641.201(e) concerning
component designations so that the paragraph describing the statutory
criteria would appear before the paragraph relating to procedures. In
addition, we have reordered the two statutory criteria in renumbered
Sec. 2641.302(c). We have also changed the due date for the written
updates, required by existing Sec. 2641.201(e)(3)(ii), to July 1 and
have dropped the requirement, at existing Sec. 2641.201(e)(3)(iii),
that the Director of OGE publish an annual compilation of designated
components. OGE would ``maintain a listing'' of designations in
appendix B and would publish amendatory rules only when necessary.
For clarity, we would avoid use of the term ``component'' in
renumbered Sec. 2641.302(a) when referring to an undesignated agency
or bureau within a parent agency. We are also proposing to add two
examples to follow that section. The first illustrates the effect of a
component designation in the case of a former senior employee of a
parent agency. The second example concerns a former senior employee of
a designated component. Both proposed examples would also show that an
agency office that some might characterize as a ``component'' will, if
not designated by the Director of OGE, nevertheless be considered part
of the parent for purposes of determining the scope of the section
207(c) bar.
We propose to list four additional factors that the Director of OGE
will consider in connection with the ``distinct and separate'' finding
required by the statute. The first of these additional factors, at
renumbered Sec. 2641.302(c)(1)(iii), would indicate that the Director
will consider ``[t]he degree of supervision exercised by the parent
over the component.'' In view of this addition, we are proposing to
delete much of existing Sec. 2641.201(e)(7). That section had made
clear that the Director may designate subordinate agencies or bureaus
as distinct and separate from a parent notwithstanding that the parent
may exercise some degree of general supervision over the subordinate
entity. We would, however, retain the last sentence of existing Sec.
2641.201(e)(7). As reworded and retitled, renumbered Sec. 2641.302(d)
would continue to indicate that the Director will not ordinarily
designate agencies or other administrative units that are encompassed
by or otherwise supervised by an existing designated component.
The other three new factors proposed at renumbered Sec.
2641.302(c)(1) derive from OGE's experience in deciding several
designation requests over the past few years. New Sec.
2641.302(c)(1)(iv) would indicate that the Director will consider
``[w]hether the component exercises responsibilities that cut across
organizational lines within the parent.'' We have declined to designate
an office that had been created administratively to provide personnel,
payroll, and similar services to the parent and to its designated
components. We also declined to designate an Inspector General's office
as a component distinct and separate from the parent and other
designated components. The two other new factors will confirm the
relevance of the size of the component, both in absolute and relative
terms. In one instance, for example, we declined to designate an office
of fewer than 25 people that also would have been very small in
relation to other designated components of the parent.
In view of the passage of time since the original publication of
part 2641, we are also proposing to delete existing Sec.
2641.201(e)(3)(i) concerning the effective date of the Director's
initial post-Ethics Reform Act designations. The introductory paragraph
in Appendix B would continue to provide that ``[e]xcept as otherwise
indicated, all designations are effective as of January 1, 1991.'' We
also would reorganize existing Sec. 2641.201(e)(3)(ii) by creating
separate paragraphs, proposed Sec. 2641.302(e)(1) and (e)(2),
respectively titled ``Agency recommendation'' and ``Agency update.''
Existing Sec. 2641.201(e)(4) currently provides that a new
designation ``shall be effective as of the effective date of the rule
that creates the designation * * *.'' Since a designation can
substantially affect the scope of 18 U.S.C. 207(c) as applied to
particular individuals, it is important that the designation become
effective as soon as possible. We are proposing to modify existing
Sec. 2641.201(e)(4) to establish the date of publication as the
effective date for all future designations. However, since a revocation
has the effect of expanding the section 207(c) bar, we propose to
retain the 90-day delayed effective date with respect to revocations,
now at renumbered Sec. 2641.302(f). As before, a revocation would not
apply to any individual who terminated senior service prior to the
expiration of the 90-day period.
We also propose to revise existing Sec. 2641.201(e)(4) so that a
new component designation ``shall be effective as to individuals who
terminated senior service either before, on or after that date.'' This
proposed change, at renumbered Sec. 2641.302(f), would serve to
mitigate the consequences of administrative delays in connection with
the publication of a rule designating a new component.
As stated earlier in relation to Sec. 2641.204(g), it is necessary
to identify a former senior employee's ``former agency'' in order to
determine the scope of 18 U.S.C. 207(c). If a designated component is
determined to be no longer identifiable as substantially the same
entity, the section 207(c) bar will not apply to a former senior
employee of that component. Example 1 following Sec. 2641.302(g) as
proposed illustrates this concept. In the case of a designated
component that remains identifiable as substantially the same entity,
the bar will apply to a former senior employee as if the whole of the
reorganized entity had been designated as a distinct and separate
component by the Director. Proposed example 2 as proposed illustrates
this idea. The example also points out that a former employee would not
be barred from contacting a current employee who had been transferred
outside the boundaries of the designated component, as reorganized.
Although OGE has assigned the ``appropriate'' designated agency
ethics official the primary responsibility for applying the standards
of proposed
[[Page 7869]]
Sec. 2641.204(g) in the context of agency components, we emphasize
that proposed Sec. 2641.302(g) would not constitute a delegation of
the Director's authority to make or revoke component designations.
Rather, it would reflect the practical necessity of determining if,
subsequent to a reorganization, there is an identifiable successor to a
component that had been previously designated as distinct and separate
by OGE.
Agency ethics officials would need turn to Sec. 2641.302(g) as
proposed only when a designated component has been ``significantly
altered by organizational changes.'' Proposed Sec. 2641.302(g)
requires that the determination required by Sec. 2641.302(g) be made
in consultation with OGE. While agency officials will be most familiar
with the details of a significant reorganization, OGE personnel can
assist in determining whether a designated component remains
``identifiable as substantially the same entity.'' Moreover, such
consultation should ensure that advice rendered to a particular
individual will be consistent with any subsequent revision of appendix
B by the OGE Director.
Appendixes
Finally, we are proposing to delete existing footnotes 4 and 5 from
the appendix B listing for the Department of Justice. The information
in those footnotes would, henceforth, be contained in parentheses
following the appropriate component.
B. Matters of Regulatory Procedure
Administrative Procedure Act
Interested persons are invited to submit written comments on this
proposed regulation, to be received by May 19, 2003. The comments will
be carefully considered and any appropriate changes will be made to the
regulation before a final rule is adopted and published in the Federal
Register by OGE.
Executive Order 12866
In promulgating this proposed 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 proposed rule has also been reviewed by the Office of
Management and Budget under that Executive order.
Executive Order 12988
As Director of the Office of Government Ethics, I have reviewed
this final amendatory regulation in light of section 3 of Executive
Order 12988, Civil Justice Reform, and certify that it meets the
applicable standards provided therein.
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 proposed
rulemaking involves a nonmajor rule under the Congressional Review Act
(5 U.S.C. chapter 8) and will, before the future final rule takes
effect, submit a report thereon to the U.S. Senate, House of
Representatives and General Accounting Office in accordance with that
law.
List of Subjects in 5 CFR Parts 2637 and 2641
Conflict of interests, Government employees.
Approved: January 31, 2003.
Amy L. Comstock,
Director, Office of Government Ethics.
Accordingly, for the reasons set forth in the preamble, the Office
of Government Ethics proposes to amend 5 CFR Chapter XVI as follows:
Under the authority of 5 U.S.C. App (Ethics in Government Act of
1978):
1. Part 2637 is removed.
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.
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 [18
U.S.C. 207(a)(1)].
2641.202 Two-year restriction on any former employee's
representations to United States concerning particular matter for
which the employee had official responsibility [18 U.S.C.
207(a)(2)].
2641.203 One-year restriction on any former employee's
representations, aid, or advice concerning ongoing trade or treaty
negotiation [18 U.S.C. 207(b)].
2641.204 One-year restriction on any former senior employee's
representations to former agency concerning any matter, regardless
of prior involvement [18 U.S.C. 207(c)].
2641.205 One-year restriction on any former very senior employee's
representations to former agency or certain officials concerning any
matter, regardless of prior involvement [18 U.S.C. 207(d)].
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 [18 U.S.C. 207(f)].
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.
(a) Purpose of 18 U.S.C. 207. 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 prohibit 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
[[Page 7870]]
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.)
(b) Purpose of part 2641. This part 2641 provides interpretive
guidance explaining 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.
Note to Sec. 2641.101: 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, 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,
Public Law 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,
Public Law No. 96-28, 93 Stat. 76). Regulations providing guidance
concerning 18 U.S.C. 207 to these employees were last published in the
2003 edition of Title 5 of the Code of Federal Regulations, revised as
of January 1, 2003.
(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 [the effective date of the final rule]. An
employee who terminated Government service (or service in a
``senior'' or ``very senior'' employee position) between January 1,
1991, and [the effective date of the final rule] 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 and 1996,
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); and (5) a
change to section 207(j)(2)(B), an exception to section 207(c) and
(d).
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 (except, with respect to the Vice President, as otherwise
provided), 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, and special
Government employees. (This term is redefined elsewhere in this part,
as necessary, when the term is used for other purposes.)
[[Page 7871]]
Executive branch includes an executive department as defined in 5
U.S.C. 101, a Government corporation, an independent establishment
(other than the General Accounting Office), the Postal Service, the
Postal Rate 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. Consistent with 18 U.S.C.
202(c) and the definition of ``employee'' in this section, the Vice
President is a former employee only for purposes of 18 U.S.C. 207(d)
and (f) [Sec. Sec. 2641.205 and 2641.206] and any applicable
exceptions to those restrictions; there are no other section 207 or
part 2641 restrictions applicable to the Vice President.
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.''
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.
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. As applied to a
special Government employee (SGE), Government service refers to the
period of time covered by the individual's appointment (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
General Accounting 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 rate of basic pay,
exclusive of any locality-based pay adjustment or additional pay such
as bonuses, awards, and various allowances, is equal to or greater than
the rate of basic pay payable for level 5 of the Senior Executive
Service;
(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); or
(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.
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
[[Page 7872]]
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 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 the basic rate of pay (exclusive of locality and additional
pay) is equal to or greater than the rate of basic pay payable for
level 5 of the Senior Executive Service. 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 that payable for level 5 of the Senior Executive
Service. 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 the rate of basic
pay payable for level 5 of the Senior Executive Service, the doctor
will become 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) Serving in the position of Vice President of the United States;
(2) 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;
(3) 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;
(4) Appointed by the President to a position under 3 U.S.C.
105(a)(2)(A); or
(5) 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. The 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 attorney-client privilege. Disclosures made by a current or
former employee to an agency ethics official, to any Government
attorney, or to an employee of the Office of Government Ethics are not
protected by an attorney-client privilege.
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 [18 U.S.C.
207(a)(1)].
(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 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
[[Page 7873]]
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. He has not
made a communication. He also may sign an assurance to the agency
that he will be personally responsible for the direction and conduct
of the research under the grant, pursuant to Sec.
2641.201(e)(2)(iv). Moreover, he may personally communicate
scientific or technological information to NIH concerning the
application, provided that he does so under circumstances indicating
no intent to influence the Government pursuant to Sec.
2641.201(e)(2) or he makes the communication in accordance with the
exception for scientific or technological information in Sec.
2641.207(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 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
[[Page 7874]]
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 the vice president of a company to a meeting with agency
officials to convey test results 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 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;
[[Page 7875]]
(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 Department of Commerce employee
participated in the negotiation of a proposed treaty with another
country. After terminating Government service, she goes to work for
a company that would be affected by the treaty. She is invited to
speak about the pending negotiation at a conference sponsored by a
trade association. The conference is attended by 100 individuals, 50
of whom are employees of entities specified in paragraphs (f)(1)(i)-
(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
treaty in response to a question posed by a Department of
Agriculture employee in attendance.
Example 6 to paragraph (f): An employee of the Defense Base
Closure and Realignment Commission participated in recommending that
a particular military base be closed. After terminating Government
service, the former employee may, on behalf of an organization with
which he is affiliated, write and permit publication of an op-ed
piece in a metropolitan newspaper in support of the recommendation
to close that base.
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 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
pursuant to mutual consent.
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
[[Page 7876]]
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 ``particular matter'' is defined
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), such particular matters also must involve a specific
party or parties in order to fall within the prohibition. 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.
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.
Example 3 to paragraph (h)(1): A former Government employee
seeks to represent a foreign government before an agency in
connection with certain issues arising under a bilateral treaty that
he helped to negotiate as a Government employee. He may not do so,
if it is determined that the matter with respect to which he seeks
to represent the foreign government is the same matter in which he
previously participated as a Government employee. Although bilateral
treaties may involve the adoption of broad national policies that do
not focus specifically on the rights of any one person or company
within the United States, such matters do involve specific parties,
namely the United States and the foreign country, which are parties
to a contract-like agreement. 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).
(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.
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 Immigration and Naturalization Service (INS)
drafted official comments submitted to Congress with respect to a
pending immigration reform bill. After leaving the Government, he
contacts the White House 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 an INS 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.
(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
[[Page 7877]]
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, a
prospective grant, contract, or agreement may involve specific parties
even prior to the receipt of a proposal or expression of interest, if
there are sufficient indicia that the Government has specifically
identified a party.
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 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
(GSA) 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. From the very
beginning of deliberations, both the agency and GSA were aware that
the proposed laboratory extension posed unique architectural issues,
intimately related to certain technical features of the original
laboratory design, that might best be addressed by XYZ, which had
specific experience and certain efficiencies resulting from its
prior work. Before leaving the Government, the former employee
participated in meetings in which these design issues and the ways
in which XYZ might resolve them were discussed internally. Although
XYZ was not contacted at this stage, and the ultimate procurement
process would be open to all bidders, the agency had already
identified XYZ as a likely qualified bidder based on the
circumstances surrounding XYZ's recent involvement in a related
matter. The former employee may not represent XYZ or any other
competing contractor before the Government in connection with this
matter.
(5) Same particular matter. 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. With matters such as grants, contracts or other
agreements, a new matter typically does not arise simply because there
are amendments, modifications, or extensions, unless there are
fundamental changes in objectives or the nature of the matter.
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): 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 3 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 the 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 4 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 5 to paragraph (h)(5): A Government employee reviewed
and approved certain wiretap applications. The
[[Page 7878]]
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.
(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 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 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.
(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.
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 [18 U.S.C. 207(a)(2)].
(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:
[[Page 7879]]
(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 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. Section 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 the definition of agency ethics official in Sec.
2641.105.
Example 1 to paragraph (j): An Assistant Secretary of State's
position description specifies that he is responsible for a certain
class of treaty negotiations. These negotiations are handled by an
office under his supervision. As a practical matter, however, the
Assistant Secretary has not become involved with any treaty
negotiation of this type. The Assistant Secretary has official
responsibility for all such treaty negotiations 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
[[Page 7880]]
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 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 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 [18 U.S.C. 207(b)].
(a) Basic prohibition of 18 U.S.C. 207(b). For one year after his
Government service terminates, no former employee shall knowingly
represent, aid, or advise on the basis of ``covered information,'' 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 [18 U.S.C. 207(c)].
(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 one-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).
[[Page 7881]]
(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 the rate of basic pay payable for level 5 of the Senior Executive
Service, 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 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 the rate of basic pay payable for level 5 of the Senior
Executive Service (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 level 5 of the Senior
Executive Service, 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 the amount of basic pay payable
for level 5 of the Senior Executive Service.
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
the rate of basic pay payable to a full-time employee for level 5 of
the Senior Executive Service. 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 the rate of
basic pay payable for level 5 of the Senior Executive Service (SES).
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 the rate of basic
pay payable for level 5 of the SES, 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 18 U.S.C. 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 agency;
(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
[[Page 7882]]
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 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 in his capacity as an
employee of a former senior employee's former agency 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.
(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 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
[[Page 7883]]
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 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 One-year restriction on any former very senior
employee's representations to former agency or certain officials
concerning any matter, regardless of prior involvement [18 U.S.C.
207(d)].
(a) Basic prohibition of 18 U.S.C. 207(d). For one year 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
one-year restriction. The one-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.
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 White House Chief of
Staff 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 Chief of Staff 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 one year 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, and he expects that the special assistant will
brief the Secretary about any discussions at the proposed meeting.
The former very senior employee 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 [18 U.S.C. 207(f)].
(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,
with the intent to influence a decision of an employee of an agency of
the United States, represent, aid, or
[[Page 7884]]
advise a foreign government or foreign political party.
(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).)
(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 Governmentowned, 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 example 1 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]
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
involving a fiduciary duty 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
Labor (DOL) transfers to become an employee of the Pension Benefit
Guaranty Corporation (PBGC). The PBGC, a whollyowned Government
corporation, is a corporation in which the United States has a
proprietary interest. The former DOL employee may press the PBGC's
point of view in a meeting with DOL employees concerning an airline
bankruptcy case in which he was personally and substantially
involved while at the DOL. His communications to the DOL 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 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 NSC 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 NSC 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
[[Page 7885]]
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 Governmentowned 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) 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 directly 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): The Chairman of the Council of
Economic Advisors was personally and substantially involved in
discussions with other White House officials concerning the
advisability of a three-phase reduction in the capital gains tax.
After Government service, the former Chairman affiliates with a
nonprofit group that advocates a position on the three-phase capital
gains issue that is similar to his own. The former Chairman, who
receives no salary from the nonprofit organization, may meet with
the current Chairman on the organization's behalf to state what
steps had previously been taken by the Council to address the issue.
The statement would be permissible even if the nonprofit
organization reimbursed the former Chairman 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 exemption 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
[[Page 7886]]
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.
(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;
[[Page 7887]]
(D) The restriction or restrictions to which the certification
shall apply;
(E) Any limitations imposed by the agency head (or deputy or acting
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 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
[[Page 7888]]
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 Counsel to the President becomes the full-time head
of the President's re-election committee. The former Counsel may,
within one year 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. (1)
The Secretary of State may grant a former employee an individual waiver
of one or more of the restrictions in 18 U.S.C. 207 where the employee
would act on behalf of an international organization in which the
United States participates. The Secretary of State must certify in
advance that the proposed activity is in the interests of the United
States.
(2) 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.
(4) Effective date. A waiver issued under this section shall be
effective on 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
[[Page 7889]]
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. Any position which could be
occupied by a senior employee is eligible for a waiver of the 18 U.S.C.
207(c) restriction except the following:
(i) Positions for which the rate of pay is specified in or fixed
according to 5 U.S.C. 5311-5318 (the Executive Schedule);
(ii) Positions for which occupants are appointed by the President
pursuant to 3 U.S.C. 105(a)(2)(B); or
(iii) Positions for which occupants are appointed by the Vice
President pursuant to 3 U.S.C. 106(a)(1)(B).
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 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 employed
by an Indian tribe to act on behalf of the tribe notwithstanding 18
U.S.C. 207 if the former employee submits 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 Central Intelligence Agency, 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;
and
(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.
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.
(1) 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.
[[Page 7890]]
Section 207 Prohibitions Affected
--------------------------------------------------------------------------------------------------------------------------------------------------------
Exception/Waiver (a)(1) (a)(2) (b) (c) (d) (f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Acting for the United States, see Sec. [sbull] [sbull] [sbull] [sbull] [sbull] [sbull]
2641.301(a)......................................
(2) Elected State or local government official, [sbull] [sbull] [sbull] [sbull] [sbull] [sbull]
see Sec. 2641.301(b)...........................
(3) Acting for specified entities, see Sec. ............... ............... ............... [sbull] [sbull] ...............
2641.301(c)......................................
(4) Special knowledge, see Sec. 2641.301(d)..... ............... ............... ............... [sbull] [sbull] ...............
(5) Scientific or technological information, see [sbull] [sbull] ............... [sbull] [sbull] ...............
Sec. 2641.301(e)...............................
(6) Testimony, see Sec. 2641.301(f)............. [sbull] [sbull] [sbull] [sbull] [sbull] [sbull]
(7) Acting for a candidate or political party, see ............... ............... ............... [sbull] [sbull] ...............
Sec. 2641.301(g)...............................
(8) Acting for an international organization, see [sbull] [sbull] [sbull] [sbull] [sbull] [sbull]
Sec. 2641.301(h)...............................
(9) Employee of a Government-owned, contractor [sbull] [sbull] [sbull] [sbull] [sbull] [sbull]
operated entity, see Sec. 2641.301(i)..........
(10) Waiver for certain positions, see Sec. ............... ............... ............... [sbull] ............... [sbull]
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 that payable for level 5 of the Senior Executive Service.
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);
(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
[[Page 7891]]
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).
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 Export Administration
(effective January 28, 1992), Economic Development Administration,
International Trade Administration, Minority Business Development
Administration, National Oceanic and Atmospheric Administration,
National Telecommunications and Information Administration, Patent and
Trademark Office, Technology Administration (effective January 28,
1992),
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 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,
[[Page 7892]]
1997), Substance Abuse and Mental Health Services Administration
(effective May 16, 1997).
Parent: Department of the Interior
Components \1\: 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).
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\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.
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Parent: Department of Justice
Components: Antitrust Division, 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), Executive Office for United States Trustees \3\ (effective
January 28, 1992), Federal Bureau of Investigation, Foreign Claims
Settlement Commission, Immigration and Naturalization Service,
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), Tax
Division, United States Marshals Service (effective May 16, 1997),
United States Parole Commission.
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\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.
\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.
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Parent: Department of Labor
Components: Bureau of Labor Statistics, 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),
Pension and Welfare Benefits Administration (effective May 16, 1997).
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), Transportation
Security Administration (effective January 30, 2003), United States
Coast Guard.
Parent: Department of the Treasury
Components: Bureau of Alcohol, Tobacco and Firearms, Bureau of
Engraving and Printing, Bureau of the Mint, Bureau of the Public Debt,
Comptroller of the Currency, Federal Law Enforcement Training Center,
Financial Crimes Enforcement Center (FinCEN) (effective January 30,
2003), Financial Management Service, Internal Revenue Service, Office
of Thrift Supervision, United States Customs Service, United States
Secret Service.
[FR Doc. 03-3043 Filed 2-14-03; 8:45 am]
BILLING CODE 6345-02-P