ML18123A216
| ML18123A216 | |
| Person / Time | |
|---|---|
| Issue date: | 05/03/2018 |
| From: | Eric Michel NRC/OGC |
| To: | |
| References | |
| Download: ML18123A216 (42) | |
Text
710 5 CFR Ch. XVI (1-1-18 Edition)
§ 2640.304
§ 2640.304 Public availability of agency waivers.
(a) Availability. A copy of an agency waiver issued pursuant to 18 U.S.C. 208 (b)(1) or (b)(3) shall be made available upon request to the public by the issuing agency. Public release of waiv-ers shall be in accordance with the pro-cedures set forth in section 105 of the Ethics in Government Act of 1978, as amended. Those procedures are de-scribed in 5 CFR 2634.603.
(b) Limitations on availability. In mak-ing a waiver issued pursuant to 18 U.S.C. 208 (b)(1) or (b)(3) publicly avail-able, an agency:
(1) May withhold from public disclo-sure any information contained in the waiver that would be exempt from dis-closure pursuant to 5 U.S.C. 552; and (2) Shall withhold from public disclo-sure information in a waiver issued pursuant to 18 U.S.C. 208(b)(3) con-cerning an individuals financial interestwhich is more extensive than that required to be disclosed by the in-dividual in his financial disclosure re-port under the Ethics in Government Act of 1978, as amended, or which is otherwise subject to a prohibition on public disclosure under law.
PART 2641POST-EMPLOYMENT CONFLICT OF INTEREST RESTRIC-TIONS Subpart AGeneral Provisions Sec. 2641.101 Purpose.
2641.102 Applicability.
2641.103 Enforcement and penalties.
2641.104 Definitions.
2641.105 Advice.
2641.106 Applicability of certain provisions to Vice President.
Subpart BProhibitions 2641.201 Permanent restriction on any former employees representations to United States concerning particular mat-ter in which the employee participated personally and substantially.
2641.202 Two-year restriction on any former employees representations to United States concerning particular matter for which the employee had official responsi-bility.
2641.203 One-year restriction on any former employees representations, aid, or ad-vice concerning ongoing trade or treaty negotiation.
2641.204 One-year restriction on any former senior employees representations to former agency concerning any matter, regardless of prior involvement.
2641.205 Two-year restriction on any former very senior employees representations to former agency or certain officials con-cerning any matter, regardless of prior involvement.
2641.206 One-year restriction on any former senior or very senior employees rep-resentations on behalf of, or aid or advice to, foreign entity.
2641.207 One-year restriction on any former private sector assignee under the Infor-mation Technology Exchange Program representing, aiding, counseling or as-sisting in representing in connection with any contract with former agency.
Subpart CExceptions, Waivers and Separate Components 2641.301 Statutory exceptions and waivers.
2641.302 Separate agency components.
APPENDIX A TO PART 2641POSITIONS WAIVED FROM 18 U.S.C. 207(c) AND (f)
APPENDIX B TO PART 2641AGENCY COMPO-NENTS FOR PURPOSES OF 18 U.S.C. 207(C)
AUTHORITY: 5 U.S.C. App. (Ethics in Gov-ernment 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.
SOURCE: 73 FR 36186, June 25, 2008, unless otherwise noted.
Subpart AGeneral Provisions
§ 2641.101 Purpose.
18 U.S.C. 207 prohibits certain acts by former employees (including current employees who formerly served in senior or very senior employee po-sitions) which involve, or may appear to involve, the unfair use of prior Gov-ernment employment. None of the re-strictions of section 207 prohibits any former employee, regardless of Govern-ment rank or position, from accepting employment with any particular pri-vate or public employer. Rather, sec-tion 207 prohibits a former employee from providing certain services to or on behalf of non-Federal employers or other persons, whether or not done for compensation. These restrictions are personal to the employee and are not imputed to others. (See, however, the VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00722 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
711 Office of Government Ethics
§ 2641.103 note following § 2641.103 concerning 18 U.S.C. 2.)
(a) This part 2641 explains the scope and content of 18 U.S.C. 207 as it ap-plies to former employees of the execu-tive branch or of certain independent agencies (including current employees who formerly served in senior or very senior employee positions). Al-though 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 legisla-tive and judicial branches, this part is not intended to provide guidance to those individuals.
(b) Part 2641 does not address post-employment restrictions that may be contained in laws or authorities other than 18 U.S.C. 207. These restrictions include those in 18 U.S.C. 203 and 41 U.S.C. 423(d).
§ 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 sen-ior 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 po-sition) 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 en-acted by Act of May 4, 1990, Pub. L. 101-280, 104 Stat. 149) and by subsequent amendments. This part 2641 provides guidance concerning section 207 to these former employees.
(b) Employees terminating between July 1, 1979 and December 31, 1990. Former employees who terminated service be-tween 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 amend-ments enacted by Act of June 22, 1979, Pub. L. 96-28, 93 Stat. 76). Regulations providing guidance concerning 18 U.S.C. 207 to these employees were last published in the 2008 edition of title 5 of the Code of Federal Regulations, re-vised as of January 1, 2008.
(c) Employees terminating prior to July 1, 1979. Former employees who termi-nated 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 Oc-tober 23, 1962, Public Law 87-849, 76 Stat. 1123.
NOTE TO § 2641.102: The provisions of this part 2641 reflect amendments to 18 U.S.C. 207 enacted subsequent to the Ethics Reform Act of 1989 and before July 25, 2008. An employee who terminated Government service (or serv-ice in a senior or very senior employee position) between January 1, 1991, and July 25, 2008 may have become subject, upon ter-mination, to a version of the statute that ex-isted prior to the effective date of one or more of those amendments. Those amend-ments concerned: (1) changes, effective in 1990, 1996, and 2004 concerning the rate of basic pay triggering senior employee sta-tus for purposes of section 207(c); (2) the rein-statement 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 Dep-uty United States Trade Representative; (4) the addition of section 207(j)(7), an exception to section 207(c) and (d); (5) a change to sec-tion 207(j)(2)(B), an exception to section 207(c) and (d); (6) the addition of assignees under the Information Technology Exchange Program to the categories of senior em-ployee for purposes of section 207(c); (7) the addition of section 207(l), applicable to former private sector assignees under the In-formation Technology Exchange Program; (8) a change to the length of the restriction set forth in section 207(d); and (9) the addi-tion of a
cross-reference in section 207(j)(1)(B) to a revised exception in the In-dian Self-Determination and Education As-sistance Act.
§ 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 Gen-eral any information, complaints or al-legations of possible criminal conduct in violation of title 18 of the United States Code, including possible viola-tions of section 207 by former officers and employees. See 28 U.S.C. 535. When VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00723 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
712 5 CFR Ch. XVI (1-1-18 Edition)
§ 2641.104 a possible violation of section 207 is re-ferred to the Attorney General, the re-ferring agency shall concurrently no-tify the Director of the Office of Gov-ernment Ethics of the referral in ac-cordance 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 vio-lations 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) au-thorizes 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 Dis-trict Court to prohibit a person from engaging in conduct which violates sec-tion 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 reason-able value.
NOTE TO § 2641.103: A person or entity who aids, abets, counsels, commands, induces, or procures commission of a violation of sec-tion 207 is punishable as a principal under 18 U.S.C. 2.
§ 2641.104 Definitions.
For purposes of this part:
Agency means any department, inde-pendent establishment, commission, administration, authority, board or bu-reau of the United States or Govern-ment corporation. The term includes any independent agency not in the leg-islative or judicial branches.
Agency ethics official means the des-ignated 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 execu-tive 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 agencys ethics program.
Employee means, for purposes of de-termining the individuals subject to 18 U.S.C. 207, any officer or employee of the executive branch or any inde-pendent agency that is not a part of the legislative or judicial branches.
The term does not include the Presi-dent or the Vice President, an enlisted member of the Armed Forces, or an of-ficer or employee of the District of Co-lumbia. The term includes an indi-vidual appointed as an employee or de-tailed 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 sen-ior employees, very senior employees, special Government employees, and employees serving without compensa-tion. (This term is redefined elsewhere in this part, as necessary, when the term is used for other purposes.)
Executive branch includes an execu-tive department as defined in 5 U.S.C.
101, a Government corporation, an independent establishment (other than the Government Accountability Of-fice), the Postal Service, the Postal Regulatory Commission, and also in-cludes any other entity or administra-tive unit in the executive branch.
Former employee means an individual who has completed a period of service as an employee. Unless otherwise indi-cated, the term encompasses a former senior employee and a former very sen-ior employee. An individual becomes a former employee at the termination of Government service, whereas an indi-vidual becomes a former senior em-ployee or a former very senior em-ployee at the termination of service in a senior or very senior employee posi-tion.
Example 1 to the definition of former em-ployee: An individual served as an employee of the Agency for International Develop-
- ment, an agency within the executive VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00724 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
713 Office of Government Ethics
§ 2641.104 branch. Since he was, therefore, an em-ployee as that term is defined in this sec-tion by virtue of having served in the execu-tive branch, he became a former employee when he terminated Government service to pursue his hobbies.
Example 2 to the definition of former em-ployee: 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 em-ployee, therefore, when she terminated Government service to do some traveling.
Example 3 to the definition of former em-ployee: An individual terminated a GS-14 po-sition in the executive branch to accept a po-sition in the legislative branch. He did not become a former employee when he termi-nated 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 em-ployee: 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 Gov-ernment service at the end of each meeting of the committee and therefore does not at that time become a former employee. She becomes a former employee when her ap-pointment terminates, provided that she is not reappointed without break in service to the same or another Federal Government po-sition.
Example 5 to the definition of former em-ployee: An individual is a Major in the U.S.
Army Reserve. The Major earns points to-ward retirement by participating in weekend drills and performing active duty for train-ing 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 em-ployee when he terminates each period of active duty for training.
Example 6 to the definition of former em-ployee: A foreign service officer served as a senior employee of the Department of State. After retiring, and with no break in service, he accepted a civil service appoint-ment on a temporary basis, at the GS-15 level. Since he did not terminate Govern-ment service, he did not become a former employee when he retired from the foreign service. He did, however, become a former senior employee.
Former senior employee is an indi-vidual who terminates service in a sen-ior employee position (without succes-sive Government service in another senior position).
Former very senior employee is an indi-vidual who terminates service in a very senior employee position (without suc-cessive Government service in another very senior employee position).
Government corporation means, for purposes of determining the individ-uals subject to 18 U.S.C. 207, a corpora-tion that is owned or controlled by the Government of the United States. For purposes of identifying or determining individuals with whom post-employ-ment 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 influ-ence 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 distin-guished from a custodial or incidental interest as shown by the functions, fi-nancing, control, and management of the corporation.
Government service means a period of time during which an individual is em-ployed by the Federal Government without a break in service. As applied to a special Government employee (SGE), Government service refers to the period of time covered by the indi-viduals appointment or appointments (or other act evidencing employment with the Government), regardless of any interval or intervals between days actually served. See example 4 to the definition of former employee in this section. In the case of Reserve officers of the Armed Forces or officers of the National Guard of the United States who are not otherwise employees of the United
- States, Government service shall be considered to end upon the ter-mination 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 VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00725 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
714 5 CFR Ch. XVI (1-1-18 Edition)
§ 2641.104 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 Con-gress; it also means the Office of the Architect of the Capitol, the United States Botanic Garden, the Govern-ment Accountability Office, the Gov-ernment Printing Office, the Library of Congress, the Office of Technology As-sessment, the Congressional Budget Of-fice, the United States Capitol Police, and any other agency, entity, office, or commission established in the legisla-tive branch.
Person includes an individual, cor-poration, company, association, firm, partnership, society, joint stock com-pany, or any other organization, insti-tution, 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 or-ganizations as well as to foreign, State and local governments. The term in-cludes the United States as that term is defined in § 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 Ex-ecutive Schedule);
(2) Employed in a position for which the employee is paid at a rate of basic pay which is equal to or greater than 86.5 percent of the rate of basic pay for level II of the Executive Schedule; or, for a period of two years following No-vember 24, 2003, was employed on No-vember 23, 2003 in a position for which the rate of basic pay was equal to or greater than the rate of basic pay pay-able for level 5 of the Senior Executive Service; for purposes of this paragraph, rate of basic pay does not include lo-cality-based adjustments or additional pay such as bonuses, awards and var-ious allowances; (3) Appointed by the President to a position under 3 U.S.C. 105(a)(2)(B);
(4) Appointed by the Vice President to a position under 3 U.S.C. 106(a)(1)(B);
(5) An active duty commissioned offi-cer of the uniformed services serving in a position for which the pay grade (as specified in 37 U.S.C. 201) is pay grade O-7 or above; or (6) Assigned from a private sector or-ganization under chapter 37 of 5 U.S.C.
(Information Technology Exchange Program).
Example 1 to the definition of senior em-ployee: A former administrative law judge serves on a commission created within the executive branch to adjudicate certain claims arising from a recent military oper-ation. The position is uncompensated but the judge receives travel expenses. The judge is not employed in a position for which the rate of pay is specified in or fixed according to the Executive Schedule, is not serving in a 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 em-ployed in a position for which his rate of basic pay is equal to or greater than 86.5 per-cent of the rate of basic pay for level II of the Executive Schedule. He is not a senior employee.
Example 2 to the definition of senior em-ployee: A doctor is hired to fill a senior-level position and is initially compensated pursuant to 5 U.S.C. 5376 at a rate of basic pay slightly less than 86.5 percent of the rate of basic pay payable for level II of the Execu-tive Schedule. If both the annual pay adjust-ment provided for in 5 CFR 534.504 and the periodic pay adjustment authorized in 5 CFR 534.503 result in a rate of basic pay equal to or above 86.5 percent of the rate of basic pay payable for level II of the Executive Sched-ule, the doctor will become a senior em-ployee.
Example 3 to the definition of senior em-ployee: A criminal investigator in the Office of the Inspector General at the Department of Housing and Urban Development is a GS-15 employee but also receives Law Enforce-ment Availability Pay (LEAP), pursuant to 5 U.S.C. 5545a. Even if the sum of the employ-ees LEAP payment plus the employees basic pay for GS-15 equaled 86.5 percent of the rate of basic pay for level II of the Exec-utive Schedule, LEAP is not considered part of an employees rate of basic pay for pur-poses of section 207(c), and therefore the em-ployee would not be a senior employee.
Special Government employee means an officer or employee of the executive branch or an independent agency, as specified in 18 U.S.C. 202(a). A special VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00726 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
715 Office of Government Ethics
§ 2641.201 Government employee is retained, des-ignated, appointed, or employed to per-form 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 Puer-to Rico, and any territory or possession of the United States.
Very senior employee means an em-ployee who is:
(1) Employed in a position which is either listed in 5 U.S.C. 5312 or for which the rate of pay is equal to the rate of pay payable for level I of the Executive Schedule; (2) Employed in a position in the Ex-ecutive Office of the President which is either listed in 5 U.S.C. 5313 or for which the rate of pay is equal to the rate of pay payable for level II of the Executive Schedule; (3) Appointed by the President to a position under 3 U.S.C. 105(a)(2)(A); or (4) Appointed by the Vice President to a position under 3 U.S.C. 106(a)(1)(A).
§ 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 an-other agency ethics official. The agen-cy in which an individual formerly served has the primary responsibility to provide oral or written advice con-cerning a former employees post-em-ployment activities. An agency ethics official, in turn, may consult with other agencies, such as those before whom a post-employment communica-tion or appearance is contemplated, and with the Office of Government Eth-ics.
(b) Office of Government Ethics. The Office of Government Ethics (OGE) will provide advice to agency ethics offi-cials and others concerning 18 U.S.C.
207 and this part 2641. OGE may provide advice orally or through issuance of a written advisory opinion and shall, as appropriate, consult with the agency or agencies concerned and with the De-partment of Justice.
(c) Effect of advice. Reliance on the oral or written advice of an agency eth-ics 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 em-ployee of the United States for the pur-pose of seeking guidance concerning the applicability or meaning of section 207 as applied to his own activities.
(e) No personal attorney-client privi-lege. A current or former employee who discloses information to an agency eth-ics official, to a Government attorney, or to an employee of the Office of Gov-ernment Ethics does not personally enjoy an attorney-client privilege with respect to such communications.
§ 2641.106 Applicability of certain pro-visions to Vice President.
Subsections 207(d) (relating to re-strictions on very senior personnel) and 207(f) (restrictions with regard to foreign entities) of title 18, United States Code, apply to a Vice President, to the same extent as they apply to employees and former employees cov-ered by those provisions. See §§ 2641.205 and 2641.206. There are no other restric-tions in 18 U.S.C. 207 applicable to a Vice President.
Subpart BProhibitions
§ 2641.201 Permanent restriction on any former employees representa-tions to United States concerning particular matter in which the em-ployee participated personally and substantially.
(a) Basic prohibition of 18 U.S.C.
207(a)(1). No former employee shall VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00727 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
716 5 CFR Ch. XVI (1-1-18 Edition)
§ 2641.201 knowingly, with the intent to influ-ence, 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 per-sonally and substantially as an em-ployee, and in which the United States is a party or has a direct and substan-tial interest.
(b) Exceptions and waivers. The prohi-bition 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 § 2641.301(a).
(2) Acting as an elected State or local government official. See § 2641.301(b).
(3) Communicating scientific or tech-nological information pursuant to pro-cedures or certification.
See
§ 2641.301(e).
(4)
Testifying under oath.
See
§ 2641.301(f). (Note that this exception from § 2641.201 is generally not avail-able for expert testimony.
See
§ 2641.301(f)(2).)
(5) Acting on behalf of an inter-national organization pursuant to a waiver. See § 2641.301(h).
(6) Acting as an employee of a Gov-ernment-owned, contractor-operated entity pursuant to a
waiver.
See
§ 2641.301(i).
(c) Commencement and length of restric-tion. 18 U.S.C. 207(a)(1) is a permanent restriction that commences upon an employees termination from Govern-ment service. The restriction lasts for the life of the particular matter involv-ing specific parties in which the em-ployee participated personally and sub-stantially.
(d) Communication or appearance(1)
Communication.
A former employee makes a communication when he im-parts 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 in-cludes 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 phys-ically present before an employee of the United States, in either a formal or informal setting. Although an appear-ance also may be accompanied by cer-tain communications, an appearance need not involve any communication by the former employee.
(3) Behind-the-scenes assistance. Noth-ing in this section prohibits a former employee from providing assistance to another person, provided that the as-sistance does not involve a commu-nication to or an appearance before an employee of the United States.
Example 1 to paragraph (d): A former em-ployee of the Federal Bureau of Investiga-tion makes a brief telephone call to a col-league in her former office concerning an on-going investigation. She has made a commu-nication. If she personally attends an infor-mal meeting with agency personnel con-cerning the matter, she will have made an appearance.
Example 2 to paragraph (d): A former em-ployee of the National Endowment for the Humanities (NEH) accompanies other rep-resentatives of an NEH grantee to a meeting with the agency. Even if the former em-ployee 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 em-ployment, she is hired by Q Company. She works on the matter covered by the con-tract, but has no direct contact with the Government. At the request of a company vice president, she prepares a paper describ-ing 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 favor-ably a dispute over a contract clause. She may do so.
Example 4 to paragraph (d): A former em-ployee of the National Institutes of Health (NIH) prepares an application for an NIH re-search grant on behalf of her university em-ployer. The application is signed and sub-mitted by another university officer, but it lists the former employee as the principal in-vestigator who will be responsible for the substantive work under the grant. She has not made a communication. She also may sign an assurance to the agency that she will be personally responsible for the direction VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00728 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
717 Office of Government Ethics
§ 2641.201 and conduct of the research under the grant, pursuant to § 2641.201(e)(2)(iv). Moreover, she may personally communicate scientific or technological information to NIH concerning the application, provided that she does so under circumstances indicating no intent to influence the Government pursuant to
§ 2641.201(e)(2) or she makes the communica-tion in accordance with the exception for sci-entific or technological information in
§ 2641.301(e).
Example 5 to paragraph (d): A former em-ployee established a small government rela-tions 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 com-monly known throughout the industry and the agency that she is the author of the re-port. If the report were submitted to the agency, the former employee would be mak-ing a communication and not merely con-fining herself to behind-the-scenes assist-ance, because the circumstances indicate that she intended the information to be at-tributed to herself.
(e) With the intent to influence(1)
Basic concept. The prohibition applies only to communications or appear-ances 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 discre-tionary 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 em-ployee of the Administration on Children and Families (ACF) signs a grant application and submits it to ACF on behalf of a non-profit organization for which she now works.
She has made a communication with the in-tent 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 Gov-ernment 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 commu-nication 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. Cer-tain communications to and appear-ances before employees of the United States are not made with the intent to influence, within the meaning of para-graph (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 in-volving a potential controversy, such as a request for publicly available doc-uments 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 re-garding matters that are not poten-tially 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 investi-gator for the direction and conduct of research under a Federal grant (see ex-ample 4 to paragraph (d) of this sec-tion);
(v) Filing a Securities and Exchange Commission (SEC) Form 10-K or simi-lar disclosure forms required by the SEC; (vi) Making a communication, at the initiation of the Government, con-cerning work performed or to be per-formed under a Government contract or grant, during a routine Government site visit to premises owned or occu-pied 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 pro-posed contract or grant; or (vii) Purely social contacts (see ex-ample 4 to paragraph (f) of this sec-tion).
Example 1 to paragraph (e)(2): A former Gov-ernment employee calls an agency to ask for the date of a scheduled public hearing on her VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00729 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
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§ 2641.201 clients license application. This is a routine request not involving a potential con-troversy and is not made with the intent to influence.
Example 2 to paragraph (e)(2): In the pre-vious example, the agencys 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 cli-ent could be moved up on the schedule, so that her client can move forward with its business plans more quickly. This is a com-munication made with the intent to influ-ence.
Example 3 to paragraph (e)(2): A former em-ployee of the Department of Defense (DOD) now works for a firm that has a DOD con-tract to produce an operators 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 dis-cussion does not concern any matter that is known to involve a potential controversy be-tween the agency and the contractor. The former employee has not made a commu-nication with the intent to influence.
Example 4 to paragraph (e)(2): A former medical officer of the Food and Drug Admin-istration (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 ar-guably factual matters, such as synopses of data from clinical trials, the communica-tion is made for the purpose of obtaining a discretionary Government action,i.e., ap-proval of a new drug. Therefore, this is a communication made with the intent to in-fluence.
Example 5 to paragraph (e)(2): A former Gov-ernment employee now works for a manage-ment consulting firm, which has a Govern-ment contract to produce a study on the effi-ciency of certain agency operations. Among other things, the contract calls for the con-tractor to develop a range of alternative op-tions for potential restructuring of certain internal Government procedures. The former employee would like to meet with agency representatives to present a tentative list of options developed by the contractor. She may not do so. There is a potential for con-troversy between the Government and the contractor concerning the extent and ade-quacy of any options presented, and, more-over, the contractor may have its own inter-est in emphasizing certain options as op-posed to others because some options may be more difficult and expensive for the con-tractor to develop fully than others.
Example 6 to paragraph (e)(2): A former em-ployee of the Internal Revenue Service (IRS) prepares his clients tax return, signs it as preparer, and mails it to the IRS. He has not made a communication with the intent to in-fluence. In the event that any controversy should arise concerning the return, the former employee may not represent the cli-ent in the proceeding, although he may an-swer direct factual questions about the records he used to compile figures for the re-turn, 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 of-ficial visits the premises of a prospective contractor to evaluate the testing procedure being proposed by the contractor for a re-search contract on which it has bid. A former employee of the agency, now em-ployed by the contractor, is the person most familiar with the technical aspects of the proposed testing procedure. The agency offi-cial asks the former employee about certain technical features of the equipment used in connection with the testing procedure. The former employee may provide factual infor-mation that is responsive to the questions posed by the agency official, as such infor-mation is requested by the Government under circumstances for its convenience in reviewing the bid. However, the former em-ployee may not argue for the appropriate-ness 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 commu-nication or appearance otherwise per-missible under paragraph (e)(2) of this section, it becomes apparent that cir-cumstances have changed which would indicate that any further communica-tion or appearance would be made with the intent to influence, the former em-ployee must refrain from such further communication or appearance.
Example 1 to paragraph (e)(3): A former Gov-ernment employee accompanies another em-ployee of a contractor to a routine meeting with agency officials to deliver technical data called for under a Government contract.
During the course of the meeting, an unex-pected 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 appear-ance 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 employees mere physical pres-ence, without any communication by the employee concerning any material VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00730 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
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§ 2641.201 issue or otherwise, may constitute an appearance with the intent to influence an employee of the United States. Rel-evant considerations include such fac-tors 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 sub-stantive responsibility for the matter and does not simply perform ministe-rial functions, such as the acceptance of paperwork; (iii) The former employees 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 ref-erence 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 en-tered a formal appearance in connec-tion 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 em-ployee.
Example 1 to paragraph (e)(4): A former Re-gional 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 re-sponse to the OSHA investigation. She ac-companies company officers to an informal meeting with OSHA, which is held for the purpose of airing the companys explanation of certain findings in an adverse inspection report. The former employee is introduced at the meeting as the companys 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 em-ployee of an agency now works for a manu-facturer 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 manufac-turer will make an extended presentation of the data supporting the application for ap-proval, and a special table has been reserved for them in the meeting room for this pur-pose. The former employee does not partici-pate in the manufacturers presentation to the advisory committee and does not even sit in the section designated for the manu-facturer. Rather, he sits in the back of the room in a large area reserved for the public and the media. The manufacturers speakers make no reference to the involvement or views of the former employee with respect to the matter. Even though the former em-ployee 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 incon-spicuous 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 Presi-dent, and any current Federal em-ployee (including an individual ap-pointed 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 execu-tive, 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 com-munication to or appearance be-fore an employee of the United States is one:
(i) Directed to and received by an en-tity 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 em-ployee mails correspondence to an agency but not to any named em-ployee; or (ii) Directed to and received by an employee in his capacity as an em-ployee of an entity specified in para-graphs (f)(1)(i) through (f)(1)(iv) of this section, e.g., as when a former em-ployee directs remarks to an employee representing the United States as a VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00731 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
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§ 2641.201 party or intervenor in a Federal or non-Federal judicial proceeding.
A former employee does not direct his communication or appearance to a by-stander who merely happens to over-hear the communication or witness the appearance.
(3) Public commentary. (i) A former employee who addresses a public gath-ering or a conference, seminar, or simi-lar forum as a speaker or panel partici-pant will not be considered to be mak-ing a prohibited communication or ap-pearance 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 sec-tion; (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 ex-changes with any other speaker or with any member of the audience.
(iii) A former employee also may per-mit the broadcast or publication of a commentary provided that it is broad-cast or appears in a newspaper, peri-odical, or similar widely available pub-lication.
Example 1 to paragraph (f): A Federal Trade Commission (FTC) employee participated in the FTCs decision to initiate an enforce-ment proceeding against a particular com-pany. After terminating Government service, the former employee is hired by the company to lobby key Members of Congress con-cerning the necessity of the proceeding. He may contact Members of Congress or their staff since a communication to or appear-ance 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 agencys views. The former employee may not argue his new employers 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 employ-ees to serve in his official capacity on the Board of Directors of a private association.
The employee participates in a Board meet-ing 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 ad-dresses the Board to argue that the associa-tion should object to the award of the con-tract, she is directing her communication to a Department of State employee in his ca-pacity as an employee of the Department of State.
Example 4 to paragraph (f): A Federal Com-munications Commission (FCC) employee participated in a proceeding to review the re-newal 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 em-ployed 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. More-over, as the conversation concerns the li-cense renewal matter, it is not a purely so-cial contact and satisfies the element of the intent to influence the Government within the meaning of paragraph (e) of this section.
Example 5 to paragraph (f): A Federal Trade Commission economist participated in her agencys review of a proposed merger be-tween two companies. After terminating Government service, she goes to work for a trade association that is interested in the proposed merger. She would like to speak about the proposed merger at a conference sponsored by the trade association. The con-ference is attended by 100 individuals, 50 of whom are employees of entities specified in paragraphs (f)(1)(i) through (f)(1)(iv) of this section. The former employee may speak at the conference and may engage in a discus-sion of the merits of the proposed merger in response to a question posed by a Depart-ment of Justice employee in attendance.
Example 6 to paragraph (f): The former em-ployee in the previous example may, on be-half of her employer, write and permit publi-cation of an op-ed piece in a metropolitan newspaper in support of a particular resolu-tion of the merger proposal.
Example 7 to paragraph (f): ABC Company has a contract with the Department of En-ergy which requires that contractor per-sonnel work closely with agency employees in adjoining offices and work stations in the same building. After leaving the Depart-ment, 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 VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00732 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
721 Office of Government Ethics
§ 2641.201 meeting, he asks the ABC employees to men-tion the interest of his new employer to the project supervisor, who is an agency em-ployee. Moreover, he tells the ABC employ-ees 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 De-partment 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 cir-cumstances indicate such a close working re-lationship between contractor personnel and agency employees that it was likely that the information conveyed to contractor per-sonnel 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 persons 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 di-rection 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 con-sistent with the interests of the other person, is in support of the other per-son, or may cause the other person to derive a benefit as a consequence of the former employees activity.
(2) Any other person. The term per-son is defined in § 2641.104. For pur-poses of this paragraph, the term ex-cludes 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) par-ticipated 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 provi-sion of the lease. The former employee may contact a current BLM employee on her own behalf in order to argue that her interpreta-tion 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 em-ployee to engage in any activity that she be-lieves will advance the interests of the orga-nization. She makes a communication on be-half of the organization when, pursuant to this authority, she writes to BLM on the or-ganizations letterhead in order to present an additional argument concerning the in-terpretation of the lease provision. Although the organization did not direct her to send the specific communication to BLM, the cir-cumstances establish that she made the com-munication with the consent of the organiza-tion and subject to a degree of control or di-rection by the organization.
Example 3 to paragraph (g): An employee of the Administration for Children and Fami-lies wrote the statement of work for a coop-erative agreement to be issued to study al-ternative 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 con-cerning 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 con-sistent with the groups interests, the cir-cumstances establish that he did not make the communication subject to the control of the group.
Example 4 to paragraph (g): An Assistant Secretary of Defense participated in a meet-ing at which a defense contractor pressed De-partment of Defense (DOD) officials to con-tinue funding the contractors sole source contract to develop the prototype of a spe-cialized robot. After terminating Govern-ment 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 Secretarys 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 Sec-retary is not an employee of the contractor, the circumstances establish that she is act-ing subject to some degree of control or di-rection by the contractor.
(h) Particular matter involving a spe-cific party or parties(1) Basic concept.
The prohibition applies only to com-munications or appearances made in connection with a particular matter involving a specific party or parties.
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§ 2641.201 Although the statute defines par-ticular matter broadly to include any investigation, application, re-quest for a ruling or determination, rulemaking,
- contract, controversy, claim, charge, accusation, arrest, or ju-dicial or other proceeding, 18 U.S.C.
207(i)(3), only those particular matters that involve a specific party or parties fall within the prohibition of section 207(a)(1). Such a matter typically in-volves a specific proceeding affecting the legal rights of the parties or an iso-latable transaction or related set of transactions between identified par-ties, such as a specific contract, grant, license, product approval application, enforcement action, administrative ad-judication, or court case.
Example 1 to paragraph (h)(1): An employee of the Department of Housing and Urban De-velopment approved a specific citys applica-tion 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 par-ticipated personally and substantially as a Government employee.
Example 2 to paragraph (h)(1): An attorney in the Department of Justice drafted provi-sions of a civil complaint that is filed in Fed-eral court alleging violations of certain envi-ronmental laws by ABC Company. The attor-ney may not subsequently represent ABC be-fore the Government in connection with the lawsuit, which is a particular matter involv-ing specific parties.
(2) Matters of general applicability not covered. Legislation or rulemaking of general applicability and the formula-tion of general policies, standards or objectives, or other matters of general applicability are not particular mat-ters involving specific parties. Inter-national agreements, such as treaties and trade agreements, must be evalu-ated in light of all relevant cir-cumstances to determine whether they should be considered particular mat-ters involving specific parties; relevant considerations include such factors as whether the agreement focuses on a specific property or territory, a spe-cific claim, or addresses a large num-ber of diverse issues or economic inter-ests.
Example 1 to paragraph (h)(2): A former em-ployee of the Mine Safety and Health Admin-istration (MSHA) participated personally and substantially in the development of a regulation establishing certain new occupa-tional 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 mak-ing post-employment representations to the Government in connection with this regula-tion.
Example 2 to paragraph (h)(2): The former employee in the previous example also as-sisted MSHA in its defense of a lawsuit brought by a trade association challenging the same regulation. This lawsuit is a par-ticular matter involving specific parties, and the former MSHA employee would be prohib-ited 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 formu-lated policies for a grant program for organi-zations nationwide to produce science edu-cation programs targeting elementary school age children. She is not prohibited from later representing a specific organiza-tion 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 Depart-ment of Homeland Security (DHS) drafted official comments submitted to Congress with respect to a pending immigration re-form bill. After leaving the Government, he contacts DHS on behalf of a private organi-zation seeking to influence the Administra-tion to insist on certain amendments to the bill. This is not prohibited. Generally, legis-lation is not a particular matter involving specific parties. However, if the same em-ployee had participated as a DHS employee in formulating the agencys position on pro-posed private relief legislation granting citi-zenship to a specific individual, this matter would involve specific parties, and the em-ployee would be prohibited from later mak-ing 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 manu-facturers of a particular type of medical de-vice 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. How-ever, 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 pro-mulgation. Because the proposed rule would VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00734 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
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§ 2641.201 apply to an open-ended class of manufactur-ers, not just specifically identified compa-nies, it would not be a particular matter in-volving specific parties. After leaving Gov-ernment, the former FDA employee would not be prohibited from representing a manu-facturer 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 con-tracts. The adoption of a standard form and language for all contracts is a matter of gen-eral applicability, not a particular matter involving specific parties. Therefore, the at-torney would not be prohibited from rep-resenting another person in a dispute involv-ing the application of one of the standard terms or clauses in a specific contract in which he did not participate as a Govern-ment employee.
Example 7 to paragraph (h)(2): An employee of the Department of State participated in the development of the United States posi-tion with respect to a proposed treaty with a foreign government concerning transfer of ownership with respect to a parcel of real property and certain operations there. After terminating Government employment, this individual seeks to represent the foreign government before the Department with re-spect to certain issues arising in the final stage of the treaty negotiations. This bilat-eral treaty is a particular matter involving specific parties, and the former employee had participated personally and substan-tially in this matter. Note also that certain employees may be subject to additional re-strictions with respect to trade and treaty negotiations or representation of a foreign entity, pursuant to 18 U.S.C. 207(b) and (f).
Example 8 to paragraph (h)(2): The employee in the previous example participated for the Department in negotiations with respect to a multilateral trade agreement concerning tariffs and other trade practices in regard to various industries in 50 countries. The pro-posed agreement would provide various stages of implementation, with benchmarks for certain legislative enactments by signa-tory countries. These negotiations do not concern a particular matter involving spe-cific parties. Even though the former em-ployee would not be prohibited under section 207(a)(1) from representing another person in connection with this matter, she must com-ply with any applicable restrictions in 18 U.S.C. 207(b) and (f).
(3) Specific parties at all relevant times.
The particular matter must involve specific parties both at the time the in-dividual 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) per-formed certain feasibility studies and other basic conceptual work for a possible innova-tion to a missile system. At the time she was involved in the matter, DOD had not identi-fied 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 em-ployee in an agency inspector generals of-fice conducted the first investigation of its kind concerning a particular fraudulent ac-counting practice by a grantee. This inves-tigation 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 account-ing methods in the future. As a result of this case, the agency decided to issue a proposed rule expressly prohibiting the fraudulent ac-counting practice and requiring all grantees to use the same accounting methods that had been developed in connection with the settlement agreement. The former employee may represent a group of grantees submit-ting comments critical of the proposed regu-lation. 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 in-volving 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 par-ties to the matter actually have been identified.
With matters such as grants, contracts, and other agree-ments, ordinarily specific parties are first identified when initial proposals or indications of interest, such as re-sponses to requests for proposals (RFP)
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§ 2641.201 or earlier expressions of interest, are received by the Government; in un-usual circumstances, however, such as a sole source procurement or when there are sufficient indicia that the Government has explicitly identified a specific party in an otherwise ordinary prospective grant, contract, or agree-ment, specific parties may be identified even prior to the receipt of a proposal or expression of interest.
Example 1 to paragraph (h)(4): A Govern-ment employee participated in internal agency deliberations concerning the merits of taking enforcement action against a com-pany 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 spe-cial 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
rec-ommendation to the agency concerning the technical merits of a specific grant proposal submitted by a university. The committees recommendations are nonbinding and con-stitute only the first of several levels of re-view within the agency. Nevertheless, the SGE participated in a particular matter in-volving specific parties and may not rep-resent 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 regu-latory agency, a company sought guidance from the agency. The company provided spe-cific information concerning the product, in-cluding 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 ad-dress those issues that the agency still be-lieved were unresolved. Even though no for-mal application had been filed, this was a particular matter involving specific parties.
The agency guidance was sufficiently spe-cific, 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 ap-proval requirements. An agency employee who was substantially involved in developing this guidance could not leave the Govern-ment and represent the company when it submits its formal product approval applica-tion.
Example 4 to paragraph (h)(4): A Govern-ment scientist participated in preliminary, internal deliberations about her agencys need for additional laboratory facilities.
After she terminated Government service, the General Services Administration issued a request for proposals (RFP) seeking private architectural services to design the new lab-oratory space for the agency. The former em-ployee 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 ar-chitectural firms had been identified for the proposed work.
Example 5 to paragraph (h)(4): In the pre-vious example, the proposed laboratory was to be an extension of a recently completed laboratory designed by XYZ Architectural Associates, and the Government had deter-mined to pursue a sole source contract with that same firm for the new work. Even be-fore the firm was contacted or expressed any interest concerning the sole source contract, the former employee participated in meet-ings in which specifications for a potential sole source contract with the firm were dis-cussed. The former employee may not rep-resent XYZ before the Government in con-nection with this matter.
(5) Same particular matter(i) General.
The prohibition applies only to com-munications or appearances in connec-tion with the same particular matter involving specific parties in which the former employee participated as a Gov-ernment employee. The same par-ticular matter may continue in an-other form or in part. In determining whether two particular matters involv-ing specific parties are the same, all relevant factors should be considered, including the extent to which the mat-ters involve the same basic facts, the same or related parties, related issues, the same confidential information, and the amount of time elapsed.
(ii) Considerations in the case of con-tracts, grants, and other agreements.
With respect to matters such as con-tracts, grants or other agreements:
(A) A new matter typically does not arise simply because there are amend-ments, modifications, or extensions of a contract (or other agreement), unless there are fundamental changes in ob-jectives or the nature of the matter; (B) Generally, successive or other-wise separate contracts (or other agreements) will be viewed as different matters from each other, absent some indication that one contract (or other agreement) contemplated the other or VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00736 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
725 Office of Government Ethics
§ 2641.201 that both are in support of the same specific proceeding; (C) A contract is almost always a sin-gle particular matter involving specific parties. However, under compelling cir-cumstances, distinct aspects or phases of certain large umbrella-type con-tracts, involving separate task orders or delivery orders, may be considered separate individual particular matters involving specific parties, if an agency determines that articulated lines of di-vision exist. In making this determina-tion, an agency should consider the rel-evant factors as described above. No single factor should be determinative, and any divisions must be based on the contracts characteristics, which may include, among other things, perform-ance at different geographical loca-tions, separate and distinct subject matters, the separate negotiation or competition of individual task or deliv-ery orders, and the involvement of dif-ferent program offices or even different agencies.
Example 1 to paragraph (h)(5): An employee drafted one provision of an agency contract to procure new software. After she left Gov-ernment, a dispute arose under the same contract concerning a provision that she did not draft. She may not represent the con-tractor in this dispute. The contract as a whole is the particular matter involving spe-cific parties and may not be fractionalized into separate clauses for purposes of avoid-ing the prohibition of 18 U.S.C. 207(a)(1).
Example 2 to paragraph (h)(5): In the pre-vious example, a new software contract was awarded to the same contractor through a full and open competition, following the em-ployees departure from the agency. Al-though no major changes were made in the contract terms, the new contract is a dif-ferent particular matter involving specific parties.
Example 3 to paragraph (h)(5): A former spe-cial Government employee (SGE) rec-ommended 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 Alli-ance (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 partici-pated personally and substantially.
Example 4 to paragraph (h)(5): An employee of the Department of the Army negotiated and supervised a contract with Munitions, Inc. for four million mortar shells meeting certain specifications. After the employee left Government, the Army sought a con-tract modification to add another one mil-lion shells. All specifications and contrac-tual terms except price, quantity and deliv-ery dates were identical to those in the origi-nal contract. The former Army employee may not represent Munitions in connection with this modification, because it is part of the same particular matter involving spe-cific parties as the original contract.
Example 5 to paragraph (h)(5): In the pre-vious example, certain changes in tech-nology occurred since the date of the origi-nal contract, and the proposed contract modifications would require the additional shells to incorporate new design features.
Moreover, because of changes in the Armys internal system for storing and distributing shells to various locations, the modifications would require Munitions to deliver its prod-uct 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 funda-mental changes in the approach and objec-tives of the contract and may determine that these changes constitute a new particular matter.
Example 6 to paragraph (h)(5): A Govern-ment employee reviewed and approved cer-tain wiretap applications. The prosecution of a person overheard during the wiretap, al-though not originally targeted, must be re-garded as part of the same particular matter as the original wiretap application. The rea-son 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 in-volved.
Example 7 to paragraph (h)(5): The Navy awards an indefinite delivery contract for environmental remediation services in the northeastern U.S. A Navy engineer is as-signed as the Navys technical representative on a task order for remediation of an oil spill at a Navy activity in Maine. The Navy engi-neer is personally and substantially involved in the task order (e.g., he negotiates the scope of work, the labor hours required, and monitors the contractors performance). Fol-lowing successful completion of the remedi-ation of the oil spill in Maine, the Navy engi-neer leaves Government service and goes to work for the Navys remediation contractor.
In year two of the contract, the Navy issues a task order for the remediation of lead-based paint at a Navy housing complex in Connecticut. The contractor assigns the former Navy engineer to be its project man-ager for this task order, which will require him to negotiate with the Navy about the scope of work and the labor hours under the task order. Although the task order is placed under the same indefinite delivery contract VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00737 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
726 5 CFR Ch. XVI (1-1-18 Edition)
§ 2641.201 (the terms of which remain unchanged), the Navy would be justified in determining that the lead-based paint task order is a separate particular matter as it involves a different type of remediation, at a different location, and at a different time. Note, however, that the engineer in this example had not partici-pated personally and substantially in the overall contract. Any former employee who hadfor example, by participating person-ally and substantially in the initial award or subsequent oversight of the umbrella con-tractwill be deemed to have also partici-pated personally and substantially in any in-dividual particular matters resulting from the agencys determination that such con-tract is divisible.
Example 8 to paragraph (h)(5): An agency contracts with Company A to install a sat-ellite system connecting the headquarters office to each of its twenty field offices. Al-though the field offices are located at var-ious locations throughout the country, each installation is essentially identical, with the terms of each negotiated in the main con-tract. Therefore, this contract should not be divided into separate particular matters in-volving specific parties.
(i) Participated personally and substan-tially(1) Participate. To participate means to take an action as an em-ployee through decision, approval, dis-approval, recommendation, the ren-dering of advice, investigation, or other such action, or to purposefully forbear in order to affect the outcome of a matter. An employee can partici-pate in particular matters that are pending other than in his own agency.
An employee does not participate in a matter merely because he had knowl-edge of its existence or because it was pending under his official responsi-bility. An employee does not partici-pate in a matter within the meaning of this section unless he does so in his of-ficial capacity.
(2) Personally. To participate per-sonally means to participate:
(i) Directly, either individually or in combination with other persons; or (ii) Through direct and active super-vision of the participation of any per-son he supervises, including a subordi-nate.
(3) Substantially. To participate sub-stantially means that the employees involvement is of significance to the matter. Participation may be substan-tial even though it is not determina-tive of the outcome of a particular matter. However, it requires more than official responsibility, knowledge, per-functory 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 in-substantial, the single act of approving or participating in a critical step may be substantial. Provided that an em-ployee 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 mer-its of a matter (such as reviewing budg-etary procedures or scheduling meet-ings) is not substantial.
Example 1 to paragraph (i): A General Serv-ices Administration (GSA) attorney drafted a standard form contract and certain stand-ard terms and clauses for use in future con-tracts. 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 Rev-enue Service (IRS) attorney is neither in charge of nor does she have official responsi-bility 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 con-cerning strategy during the discovery stage of the litigation. The IRS attorney partici-pated personally in the litigation.
Example 3 to paragraph (i): The IRS attor-ney in the previous example had no further involvement in the litigation. She partici-pated substantially in the litigation not-withstanding 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 as-signed to evaluate all requests for certifi-cates of divestiture to check on the status of the attorneys work with respect to all pending requests.
The General Counsel makes no comment concerning the merits or relative importance of any particular re-quest. The General Counsel did not partici-pate substantially in any particular request when she checked on the status of all pend-ing requests.
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727 Office of Government Ethics
§ 2641.202 Example 5 to paragraph (i): The OGE attor-ney in the previous example completes his evaluation of a particular certificate of di-vestiture request and forwards his rec-ommendation to the General Counsel. The General Counsel forwards the package to the Director of OGE with a note indicating her concurrence with the attorneys rec-ommendation. The General Counsel partici-pated substantially in the request.
Example 6 to paragraph (i): An International Trade Commission (ITC) computer pro-grammer developed software designed to analyze data related to unfair trade practice complaints. At the request of an ITC em-ployee who is considering the merits of a particular complaint, the programmer enters all the data supplied to her, runs the com-puter program, and forwards the results to the employee who will make a recommenda-tion to an ITC Commissioner concerning the disposition of the complaint. The pro-grammer did not participate substantially in the complaint.
Example 7 to paragraph (i): The director of an agency office must concur in any decision to grant an application for technical assist-ance to certain nonprofit entities. When a particular application for assistance comes into her office and is presented to her for de-cision, she intentionally takes no action on it because she believes the application will raise difficult policy questions for her agen-cy at this time. As a consequence of her in-action, the resolution of the application is deferred indefinitely. She has participated personally and substantially in the matter.
(j) United States is a party or has a di-rect 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 inter-est. The United States may be a party to or have a direct and substantial in-terest 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 substan-tial interest in a particular matter, this determination shall be made in ac-cordance with the following procedure:
(i) Coordination by designated agency ethics official. The designated agency ethics official (DAEO) for the former employees agency shall have the pri-mary responsibility for coordinating this determination. When it appears likely that a component of the United States Government other than the former employees former agency may be a party to or have a direct and sub-stantial interest in the particular mat-ter, the DAEO shall coordinate with agency ethics officials serving in those components.
(ii) Agency determination. A compo-nent 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 in-ternal procedures. It shall consider all relevant factors, including whether:
(A) The component has a financial in-terest in the matter; (B) The matter is likely to have an effect on the policies, programs, or op-erations of the component; (C) The component is involved in any proceeding associated with the matter, e.g., as by having provided witnesses or documentary evidence; and (D) The component has more than an academic interest in the outcome of the matter.
Example 1 to paragraph (j): An attorney par-ticipated in preparing the Governments antitrust action against Z Company. After leaving the Government, she may not rep-resent Z Company in a private antitrust ac-tion brought against it by X Company on the same facts involved in the Government ac-tion. Nor may she represent X Company in that matter. The interest of the United States in preventing both inconsistent re-sults and the appearance of impropriety in the same factual matter involving the same party, Z Company, is direct and substantial.
However, if the Governments antitrust in-vestigation or case is closed, the United States no longer has a direct and substantial interest in the case.
§ 2641.202 Two-year restriction on any former employees representations to United States concerning par-ticular matter for which the em-ployee had official responsibility.
(a) Basic prohibition of 18 U.S.C.
207(a)(2). For two years after his Gov-ernment service terminates, no former VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00739 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
728 5 CFR Ch. XVI (1-1-18 Edition)
§ 2641.202 employee shall knowingly, with the in-tent to influence, make any commu-nication to or appearance before an employee of the United States on be-half 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 termi-nation of his Government service.
(b) Exceptions and waivers. The prohi-bition of 18 U.S.C. 207(a)(2) does not apply to a former employee who is:
(1) Acting on behalf of the United States. See § 2641.301(a).
(2) Acting as an elected State or local government official. See § 2641.301(b).
(3) Communicating scientific or tech-nological information pursuant to pro-cedures or certification.
See
§ 2641.301(e).
(4)
Testifying under oath.
See
§ 2641.301(f).
(5) Acting on behalf of an inter-national organization pursuant to a waiver. See § 2641.301(h).
(6) Acting as an employee of a Gov-ernment-owned, contractor-operated entity pursuant to a
waiver.
See
§ 2641.301(i).
(c) Commencement and length of restric-tion. 18 U.S.C. 207(a)(2) is a two-year re-striction that commences upon an em-ployees termination from Government service. See example 9 to paragraph (j) of this section.
(d) Communication or appearance. See
§ 2641.201(d).
(e) With the intent to influence. See
§ 2641.201(e).
(f) To or before an employee of the United States See § 2641.201(f).
(g) On behalf of any other person. See
§ 2641.201(g).
(h) Particular matter involving a spe-cific party or parties. See § 2641.201(h).
(i) United States is a party or has a di-rect and substantial interest.
See
§ 2641.201(j).
(j) Official responsibility(1) Defini-tion. 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, dis-approve, or otherwise direct Govern-ment action. Ordinarily, the scope of an employees 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 in-termediate 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 offi-cial duties. A nonsupervisory employee does not have official responsibility for his own assignments within the mean-ing of section 207(a)(2). Authority to di-rect Government action concerning only ancillary or nonsubstantive as-pects of a matter, such as budgeting, equal employment, scheduling, or for-mat requirements does not, ordinarily, constitute official responsibility for the matter as a whole.
(2) Actually pending. A matter is actu-ally pending under an employees offi-cial responsibility if it has been re-ferred to the employee for assignment or has been referred to or is under con-sideration by any person he supervises, including a subordinate. A matter re-mains pending even when it is not under active consideration. There is no requirement that the matter must have been pending under the employ-ees official responsibility for a certain length of time.
(3) Temporary duties. An employee or-dinarily 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 du-ties. Specifically, an employee per-forming such temporary duties will not thereby acquire official responsibility for matters within the scope of the po-sition where he functions only in a lim-ited caretaker capacity, as evi-denced by such factors as:
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729 Office of Government Ethics
§ 2641.202 (i) Whether the employee serves in the position for no more than 60 con-secutive calendar days; (ii) Whether there is actually another incumbent for the position, who is tem-porarily 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 cir-cumstances indicating that, given the temporary nature of the detail or act-ing status, there was no reasonable ex-pectation of the full authority of the position.
(4) Effect of leave status. The scope of an employees 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 elimi-nated through self-disqualification or avoidance of personal participation in a matter, as when an employee is dis-qualified from participating in a mat-ter in accordance with subparts D, E, or F of 5 CFR part 2635 or part 2640. Of-ficial responsibility for a matter can be terminated by a formal modification of an employees responsibilities, such as by a change in the employees position description.
(6) One-year period before termination.
18 U.S.C. 207(a)(2) applies only with re-spect to a particular matter that was actually pending under the former em-ployees official responsibility:
(i) At some time when the matter in-volved a specific party or parties; and (ii) Within his last year of Govern-ment service.
(7) Knowledge of official responsibility.
A communication or appearance is not prohibited unless, at the time of the proposed post-employment commu-nication or appearance, the former em-ployee knows or reasonably should know that the matter was actually pending under his official responsi-bility 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 mat-ter was actually pending under his offi-cial 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 eth-ics official or other Government official to clarify his role in the matter. See § 2641.105 concerning advice.
Example 1 to paragraph (j): The position de-scription of an Assistant Secretary of Hous-ing and Urban Development specifies that he is responsible for a certain class of grants.
These grants are handled by an office under his supervision. As a practical matter, how-ever, the Assistant Secretary has not become involved with any grants of this type. The Assistant Secretary has official responsi-bility for all such grants as specified in his position description.
Example 2 to paragraph (j): A budget officer at the National Oceanic and Atmospheric Administration (NOAA) is asked to review NOAAs 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 con-tract.
Example 3 to paragraph (j): An Internal Rev-enue Service (IRS) auditor worked in the of-fice 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 con-cerning a matter involving a certain non-profit organization, the auditor provides use-ful suggestions. The auditors supervisor in the public relations office does not have offi-cial responsibility for the nonprofit matter since it does not fall within the scope of the auditors 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 subordinates official responsibility since a non-supervisory employee does not have of-ficial 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
§ 2641.201(i).)
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730 5 CFR Ch. XVI (1-1-18 Edition)
§ 2641.203 Example 5 to paragraph (j): A regional em-ployee of the Federal Emergency Manage-ment 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 accommo-date the assignment, then retires from Gov-ernment two days later. Although the staff attorney did not retrieve the assignment from his in-box prior to the General Coun-sels departure, the Baker matter was actu-ally pending under the General Counsels of-ficial responsibility from the time the Gen-eral Counsel received the request for guid-ance.
Example 6 to paragraph (j): A staff attorney in the Federal Emergency Management Agencys Office of General Counsel is con-sulted by procurement officers concerning the correct resolution of a contractual mat-ter involving Able Company. The attorney renders an opinion resolving the question.
The same legal question arises later in sev-eral 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 responsi-bility for the determination of the Able Company matter, but the subsequent mat-ters 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 ordi-narily would have no involvement. However, in view of the brief time period and the fact that there remains an incumbent in the posi-tion of Division Director, the agency ethics official properly may determine that the act-ing official did not acquire official responsi-bility for all matters then pending in the Di-vision.
Example 8 to paragraph (j): A division direc-tor at the Food and Drug Administration disqualified himself from participating in the review of a drug for Alzheimers 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 directors deputy. The director continues to have official responsibility for review of the drug. The division director also would have retained official responsibility for the mat-ter had he either asked his supervisor or an-other division director to oversee the mat-ter.
Example 9 to paragraph (j): The Deputy Sec-retary of a department terminates Govern-ment service to stay home with her newborn daughter. Four months later, she returns to the department to serve on an advisory com-mittee 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 re-lations firm. The 18 U.S.C. 207(a)(2) bar com-mences when she resigns as Deputy Sec-retary and continues to run for two years.
(Any action taken in carrying out official duties as a member of the advisory com-mittee would be undertaken on behalf of the United States and would, therefore, not be restricted by 18 U.S.C.
207(a)(2).
See
§ 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.
§ 2641.203 One-year restriction on any former employees representations, aid, or advice concerning ongoing trade or treaty negotiation.
(a) Basic prohibition of 18 U.S.C. 207(b).
For one year after his Government service terminates, no former em-ployee shall, on the basis of covered information, knowingly represent, aid, or advise any other person con-cerning an ongoing trade or treaty ne-gotiation in which, during his last year of Government service, he participated personally and substantially as an em-ployee. Covered information refers to agency records which were acces-sible to the employee which he knew or should have known were designated as exempt from disclosure under the Free-dom of Information Act (5 U.S.C. 552).
(b) Exceptions and waivers. The prohi-bition 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 § 2641.301(a).
(2) Acting as an elected State or local government official. See § 2641.301(b).
(3)
Testifying under oath.
See
§ 2641.301(f).
(4) Acting on behalf of an inter-national organization pursuant to a waiver. See § 2641.301(h).
(5) Acting as an employee at a Gov-ernment-owned, contractor-operated entity pursuant to a
waiver.
See
§ 2641.301(i).
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731 Office of Government Ethics
§ 2641.204 for one year or until the termination of the negotiation, whichever occurs first.
(d) Represent, aid, or advise. [Re-served]
(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 substan-tially. [Reserved]
§ 2641.204 One-year restriction on any former senior employees represen-tations to former agency con-cerning any matter, regardless of prior involvement.
(a) Basic prohibition of 18 U.S.C. 207(c).
For one year after his service in a sen-ior position terminates, no former sen-ior employee may knowingly, with the intent to influence, make any commu-nication 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 commu-nication or appearance is made on be-half 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 in-dividual who served in a very senior employee position is subject to the broader two-year restriction set forth in 18 U.S.C. 207(d) in lieu of that set forth in section 207(c). See § 2641.205.
(b) Exceptions and waivers. The prohi-bition 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 § 2641.301(a).
(2) Acting as an elected State or local government official. See § 2641.301(b).
(3) Acting on behalf of specified enti-ties. See § 2641.301(c).
(4)
Making uncompensated state-ments based on special knowledge. See
§ 2641.301(d).
(5) Communicating scientific or tech-nological information pursuant to pro-cedures or certification.
See
§ 2641.301(e).
(6)
Testifying under oath.
See
§ 2641.301(f).
(7) Acting on behalf of a candidate or political party. See § 2641.301(g).
(8) Acting on behalf of an inter-national organization pursuant to a waiver. See § 2641.301(h).
(9) Acting as an employee of a Gov-ernment-owned, contractor-operated entity pursuant to a
waiver.
See
§ 2641.301(i).
(10) Subject to a waiver issued for certain positions. See § 2641.301(j).
(c) Applicability to special Government employees and Intergovernmental Per-sonnel 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 Govern-ment employee (SGE) who:
(A) Served in a senior employee posi-tion while serving as an SGE; and (B) Served 60 or more days as an SGE during the one-year period before ter-minating service as a senior employee.
(ii) Any day on which work is per-formed shall count toward the 60-day threshold without regard to the num-ber of hours worked that day or wheth-er the day falls on a weekend or holi-day.
For purposes of determining whether an SGEs rate of basic pay is equal to or greater than 86.5 percent of the rate of basic pay for level II of the Executive Schedule, within the mean-ing of the definition of senior employee in § 2641.104, the employees 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 Na-tional 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 ap-pointees or detailees. 18 U.S.C. 207(c) ap-plies to an individual serving as a sen-ior employee pursuant to an appoint-ment or detail under the Intergovern-mental Personnel Act, 5 U.S.C. 3371-3376. An individual is a senior employee if he received total pay from Federal or non-Federal sources equal to or greater than 86.5 percent of the rate of basic pay for level II of the Executive Sched-ule (exclusive of any reimbursement for a non-Federal employers share of benefits not paid to the employee as salary), and:
(i) The individual served in a Federal position ordinarily compensated at a VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00743 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
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§ 2641.204 rate equal to or greater than 86.5 per-cent of level II of the Executive Sched-ule, regardless of what portion of the pay is derived from Federal expendi-tures or expenditures by the individ-uals 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 individuals non-Federal em-ployer received Federal reimbursement equal to or greater than 86.5 percent of level II of the Executive Schedule.
Example 1 to paragraph (c): An employee of a private research institution serves on an advisory committee that convenes periodi-cally to discuss United States policy on for-eign arms sales. The expert is compensated at a daily rate which is the equivalent of 86.5 percent of the rate of basic pay for a full-time employee at level II of the Executive Schedule. The individual serves two hours per day for 65 days before resigning from the advisory committee nine months later. The individual becomes subject to 18 U.S.C. 207(c) when she resigns from the advisory com-mittee 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 de-partment under the Intergovernmental Per-sonnel Act to do work that had previously been performed by a GS-15 employee. While on detail, the individual continues to receive pay from the university in an amount $5,000 less than 86.5 percent of the rate of basic pay for level II of the Executive Schedule. In ad-dition, the department pays a $25,000 supple-ment directly to the individual, as author-ized by 5 U.S.C. 3374(c)(1). Since the employ-ees total pay is equal to or greater than 86.5 percent of the rate of basic pay for level II of the Executive Schedule, and a portion of that compensation is paid directly to the in-dividual by the department, he becomes sub-ject to 18 U.S.C. 207(c) when his detail ends.
(d) Commencement and length of re-striction. 18 U.S.C. 207(c) is a one-year restriction. The one-year period is measured from the date when the em-ployee ceases to serve in a senior em-ployee position, not from the termi-nation 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 Na-tional Guard who is a special Govern-ment employee serving in a senior em-ployee position, section 207(c) is meas-ured 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 Rela-tions Authority (FLRA) but terminates Gov-ernment 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 em-ployed by that agency would be undertaken on behalf of the United States and would, therefore, not be restricted by section 207(c).
See § 2641.301(a).)
Example 2 to paragraph (d): In the previous example, the DOL employee accepts a senior employee position at FLRA rather than a GS-15 position. The bar of section 207(c) com-mences when, six months later, he termi-nates service in the second senior employee position to accept a job with private indus-try. (The bar will apply with respect to both the DOL and FLRA. See paragraph (g) of
§ 2641.204 and examples 2 and 3 to that para-graph.)
(e) Communication or appearance. See
§ 2641.201(d).
(f) With the intent to influence. See
§ 2641.201(e).
(g) To or before employee of former agency(1) Employee. For purposes of this paragraph, a former senior em-ployee may not contact:
(i) Any current Federal employee of the former senior employees 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 employees former agency; (iii) An individual detailed to the former senior employees former agen-cy from another department, agency or other entity, including agencies and entities within the legislative or judi-cial branches; (iv) An individual serving with the former senior employees former agen-cy 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.
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733 Office of Government Ethics
§ 2641.204 207(c) from communicating to or ap-pearing before the Executive Office of the President, the President and Vice President.
(2) Former agency. The term agency is defined in § 2641.104. Unless eligible to benefit from the designation of dis-tinct and separate agency components as described in § 2641.302, a former sen-ior employees former agency will ordi-narily be considered to be the whole of any larger agency of which his former agency was a part on the date he ter-minated 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 em-ployee can simultaneously serve in more than one agency. A former senior employee will be considered to have served in his own employing entity and in any entity to which he was detailed for any length of time or with which he was required to serve as a collateral duty pursuant to statute or Executive order.
(iv) Effect of organizational changes. If a former senior employees former agency has been significantly altered by organizational changes after his ter-mination from senior service, it may be necessary to determine whether a suc-cessor entity is the same agency as the former senior employees former agen-cy. The appropriate designated agency ethics official, in consultation with the Office of Government Ethics, shall identify the entity that is the individ-uals former agency. Whether a suc-cessor 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 agencys functions, and other factors as may be appro-priate.
(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 commu-nications or appearances by the former senior employee to that successor enti-ty.
(B) Agency substantially the same. If a successor entity remains identifiable as substantially the same entity from which the former senior employee ter-minated, 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 sepa-rate from an agency of which it was a part, but it remains identifiable as sub-stantially 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 employees former agen-cy was a designated component within the meaning of § 2641.302 on the date of his termination as senior em-ployee, see § 2641.302(g).
(3) To or before. Except as provided in paragraph (g)(4) of this section, a com-munication to or appearance be-fore an employee of a former senior employees former agency is one:
(i) Directed to and received by the former senior employees former agen-cy, even though not addressed to a par-ticular employee; or (ii) Directed to and received by an employee of a former senior employees former agency in his official capacity, including in his capacity as an em-ployee 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 by-stander who merely happens to over-hear 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:
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734 5 CFR Ch. XVI (1-1-18 Edition)
§ 2641.204 (A) Is not sponsored or co-sponsored by the former senior employees 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 employees former agen-cy.
(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 publica-tion 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 posi-tion at the United States Department of Ag-riculture (USDA), the former senior em-ployee is asked to represent a poultry pro-ducer in a compliance matter involving the producers storage practices. The former sen-ior employee may not represent the poultry producer before a USDA employee in connec-tion 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 com-menced upon his termination as a senior em-ployee 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 ac-cepts a senior employee position at the Ex-port-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 com-mencing from her termination from the sen-ior 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 em-ployee 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 Corpora-tion (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
§ 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 aris-ing 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 dis-tributed among three other agencies within three departments, the Department of Hous-ing and Urban Development, the Department of the Interior, and the Department of Jus-tice. None of these successor entities is iden-tifiable as substantially the same entity as the Agency for Affordable Housing, and, ac-cordingly, the 18 U.S.C. 207(c) bar will not apply to the architect.
Example 5 to paragraph (g): A chemist serves in a senior employee position in the Agency for Clean Rivers. Subsequent to his termination from the position, the mission of the Agency for Clean Rivers is expanded and it is renamed the Agency for Clean Water. A number of employees from the Agency for Marine Life are transferred to the reorganized agency. If it is determined that the Agency for Clean Water is substan-tially the same entity from which the chem-ist terminated, the section 207(c) bar will apply with respect to the chemists contacts with all of the employees of the Agency for Clean Water, including those employees who recently transferred from the Agency for Ma-rine Life. He would not be barred from con-tacting an employee serving in one of the po-sitions that had been transferred from the Agency for Clean Rivers to the Agency for Clean Land.
(h) On behalf of any other person. See
§ 2641.201(g).
(i) Matter on which former senior em-ployee seeks official action(1) Seeks offi-cial action. A former senior employee seeks official action when the cir-cumstances establish that he is making his communication or appearance for the purpose of inducing a current em-ployee, 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:
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735 Office of Government Ethics
§ 2641.205 (i) Any particular matter involving a specific party or parties as defined in § 2641.201(h);
(ii) The consideration or adoption of broad policy options that are directed to the interests of a large and diverse group of persons; (iii) A new matter that was not pre-viously pending at or of interest to the former senior employees former agen-cy; and (iv) A matter pending at any other agency in the executive branch, an independent agency, the legislative branch, or the judicial branch.
Example 1 to paragraph (i): A former senior employee at the National Capital Planning Commission (NCPC) wishes to contact a friend who still works at the NCPC to solicit a donation for a local charitable organiza-tion. 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 at-tending a cocktail party. At the party, the former senior employee would introduce the Secretary to several of the former senior em-ployees 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 inter-ests of the business clients, and all expenses associated with the party will be paid by the former senior employees consulting firm.
The former senior employee should not con-tact the Secretary. The circumstances do not establish that the communication would be made other than for the purpose of induc-ing 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 Founda-tion (NSF) accepts a position as vice presi-dent of a company that was hurt by recent cuts in the defense budget. She contacts the NSFs Director of Legislative and Public Af-fairs 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 commu-nication for the purpose of inducing the NSF employee to make a decision in his official capacity about contacting the White House.
§ 2641.205 Two-year restriction on any former very senior employees rep-resentations to former agency or certain officials concerning any matter, regardless of prior involve-ment.
(a) Basic prohibition of 18 U.S.C. 207(d).
For two years after his service in a very senior employee position termi-nates, no former very senior employee shall knowingly, with the intent to in-fluence, make any communication to or appearance before any official ap-pointed to an Executive Schedule posi-tion listed in 5 U.S.C. 5312-5316 or be-fore any employee of an agency in which he served as a very senior em-ployee within the one-year period prior to his termination from a very senior employee position, if that communica-tion 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 prohi-bition 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 § 2641.301(a).
(2) Acting as an elected State or local government official. See § 2641.301(b).
(3) Acting on behalf of specified enti-ties. See § 2641.301(c).
(4)
Making uncompensated state-ments based on special knowledge. See
§ 2641.301(d).
(5) Communicating scientific or tech-nological information pursuant to pro-cedures or certification.
See
§ 2641.301(e).
(6)
Testifying under oath.
See
§ 2641.301(f).
(7) Acting on behalf of a candidate or political party. See § 2641.301(g).
(8) Acting on behalf of an inter-national organization pursuant to a waiver. See § 2641.301(h).
(9) Acting as an employee of a Gov-ernment-owned, contractor-operated entity pursuant to a
waiver.
See
§ 2641.301(i).
(c) Commencement and length of restric-tion. 18 U.S.C. 207(d) is a two-year re-striction. The two-year period is meas-ured from the date when the employee VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00747 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
736 5 CFR Ch. XVI (1-1-18 Edition)
§ 2641.206 ceases to serve in a very senior em-ployee position, not from the termi-nation of Government service, unless the two events occur simultaneously.
See examples 1 and 2 to paragraph (d) of
§ 2641.204.
(d)
Communication or appearance.
See§ 2641.201(d).
(e)
With the intent to influence.
See§ 2641.201(e).
(f) To or before employee of former agency. See § 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 ref-erenced in § 2641.204(g)(2).
(g) To or before an official appointed to an Executive Schedule position.
See
§ 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 be-fore any official currently appointed to a position that is listed in sections 5 U.S.C. 5312-5316.
NOTE TO PARAGRAPH (g): A communication made to an official described in 5 U.S.C. 5312-5316 can include a communication to a subor-dinate 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
§ 2641.201(g).
(i) Matter on which former very senior employee seeks official action.
See
§ 2641.204(i), except that this section only covers former very senior employ-ees.
Example 1 to § 2641.205: The former Attorney General may not contact the Assistant At-torney General of the Antitrust Division on behalf of a professional sports league in sup-port 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 § 2641.205: The former Director of the Office of Management and Budget (OMB) is now the Chief Executive Officer of a major computer firm and wishes to con-vince the new Administration to change its new policy concerning computer chips. The former OMB Director may contact an em-ployee 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 § 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 Serv-ices (HHS) but resigns seven months later.
Since the individual served as a very senior employee only at HHS, he is barred for two years by 18 U.S.C. 207(d) as to any employee of HHS and any official currently appointed to an Executive Schedule position listed in 5 U.S.C. 5312-5316, including any such official serving in the Department of Agriculture.
(In addition, a one-year section 207(c) bar commenced when he terminated service as a senior employee at the Department of Agri-culture.)
Example 4 to § 2641.205: The former Sec-retary 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 § 2641.205: In the previous ex-ample, the former very senior employee would like to meet instead with the special assistant to the Secretary of Transportation.
The former employee knows that the special assistant has a close working relationship with the Secretary. The former employee ex-pects that the special assistant would brief the Secretary about any discussions at the proposed meeting and refer specifically to the former employee. Because the cir-cumstances indicate that the former em-ployee intends that the information provided at the meeting would be conveyed by the as-sistant directly to the Secretary and attrib-uted to the former employee, he may not meet with the assistant.
§ 2641.206 One-year restriction on any former senior or very senior em-ployees representations on behalf of, or aid or advice to, a foreign en-tity.
(a) Basic prohibition of 18 U.S.C. 207(f).
For one year after service in a senior or very senior employee position ter-minates, no former senior employee or former very senior employee shall knowingly represent a foreign govern-ment or foreign political party before an officer or employee of an agency or department of the United States, or aid or advise such a foreign entity, with the intent to influence a decision of VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00748 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
737 Office of Government Ethics
§ 2641.301 such officer or employee. For purposes of describing persons who may not be contacted with the intent to influence, under 18 U.S.C. 207(f) and this section, the phrase officer or employee in-cludes the President, the Vice Presi-dent, and Members of Congress, and the term department includes the legis-lative branch of government.
(b) Exceptions and waivers. The prohi-bition of 18 U.S.C. 207(f) does not apply to a former senior or former very sen-ior employee who is:
(1) Acting on behalf of the United States. See § 2641.301(a). (Note, however, the limitation in § 2641.301(a)(2)(ii).)
(2) Acting as an elected State or local government official. See § 2641.301(b).
(3)
Testifying under oath.
See
§ 2641.301(f).
(4) Acting on behalf of an inter-national organization pursuant to a waiver. See § 2641.301(h).
(5) Acting as an employee of a Gov-ernment-owned, contractor-operated entity pursuant to a
waiver.
See
§ 2641.301(i).
(6) Subject to a waiver issued for cer-tain positions. See § 2641.301(j).
(c) Commencement and length of restric-tion(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 simulta-neously. See examples 1 and 2 to para-graph (d) of § 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. [Re-served]
(e) With the intent to influence. [Re-served]
(f) Decision of employee of an agency.
[Reserved]
(g) Foreign entity. [Reserved]
§ 2641.207 One-year restriction on any former private sector assignee under the Information Technology Exchange Program representing, aiding, counseling or assisting in representing in connection with any contract with former agency.
(a) Basic prohibition of 18 U.S.C. 207(l).
For one year after the termination of his assignment from a private sector organization to an agency under the Information Technology Exchange Pro-gram, 5 U.S.C. chapter 37, no former as-signee shall knowingly represent, or aid, counsel or assist in representing any other person in connection with any contract with that agency.
(b) Exceptions and waivers. The prohi-bition of 18 U.S.C. 207(l) does not apply to a former employee who is:
(1) Acting on behalf of the United States. See § 2641.301(a).
(2) Acting as an elected State or local government official. See § 2641.301(b).
(3)
Testifying under oath.
See
§ 2641.301(f).
(4) Acting on behalf of an inter-national organization pursuant to a waiver. See § 2641.301(h).
(5) Acting as an employee of a Gov-ernment-owned, contractor-operated entity pursuant to a
waiver.
See
§ 2641.301(i).
(c) Commencement and length of restric-tion.18 U.S.C. 207(l) is a one-year re-striction. The one-year period is meas-ured from the date when the individ-uals assignment under the Informa-tion Technology Exchange Program terminates.
(d) Represent, aid, counsel, or assist in representing. [Reserved]
(e) In connection with any contract with the former agency. [Reserved]
Subpart CExceptions, Waivers and Separate Components
§ 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 ac-tivity on behalf of the United States.
(1) United States. For purposes of this paragraph, the term United States means:
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738 5 CFR Ch. XVI (1-1-18 Edition)
§ 2641.301 (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 en-gage 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 agree-ment with the United States to provide representational services to the United States; or (2) As a witness called by the United States (including a Congressional com-mittee or subcommittee) to testify at a Congressional hearing (even if applica-ble 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 be-half of the United States merely be-cause he is performing work funded by the Government, because he is engag-ing in the activity in response to a con-tact initiated by the Government, be-cause the Government will derive some benefit from the activity, or because he or the person on whose behalf he is act-ing may share the same objective as the Government.
NOTE TO PARAGRAPH (a)(2)(ii): See also
§ 2641.301(f) concerning the permissibility of testimony under oath, including testimony as an expert witness, when a former em-ployee is called as a witness by the United States.
Example 1 to paragraph (a): An employee of the Department of Transportation (DOT) transfers to become an employee of the Pen-sion Benefit Guaranty Corporation (PBGC).
The PBGC, a wholly owned Government cor-poration, is a corporation in which the United States has a proprietary interest. The former DOT employee may press the PBGCs point of view in a meeting with DOT employ-ees concerning an airline bankruptcy case in which he was personally and substantially involved while at the DOT. His communica-tions to the DOT on behalf of the PBGC would be made on behalf of the United States.
Example 2 to paragraph (a): A Federal Tran-sit Administration (FTA) employee rec-ommended against the funding of a certain subway project. After terminating Govern-ment service, she is hired by a Congressman as a member of his staff to perform a variety of duties, including miscellaneous services for the Congressmans 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 rever-sal 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 Serv-ice 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 firms managing partner to represent the Postal Service pursuant to a contract requir-ing 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 employees sug-gestions to the Postal Service concerning strategy and his arguments to OPM con-cerning 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 per-forms representational services for the United States). A communication to the Postal Service concerning a disagreement about the law firms 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 Administra-tion (FDA), now an employee of a drug com-pany, 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 employees 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 Se-curity Agency (NSA) analyst drafted the specifications for a contract that was award-ed to the Secure Data Corporation to develop VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00750 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
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§ 2641.301 prototype software for the processing of for-eign intelligence information. After termi-nating Government service, the analyst is hired by the corporation. The former em-ployee may not attempt to persuade NSA of-ficials that the software is in accord with the specifications. Although the development of the software is expected to significantly en-hance the processing of foreign intelligence information and the former employees opin-ions might be useful to current NSA employ-ees, his communications would not be made on behalf of the United States.
Example 6 to paragraph (a): A senior em-ployee at the Department of the Air Force specialized in issues relating to the effective utilization of personnel. After terminating Government service, the former senior em-ployee is hired by a contractor operating a Federally Funded Research and Development Center (FFRDC). The FFRDC is not a Gov-ernment corporation as defined in § 2641.104.
The former senior employee may not at-tempt to convince the Air Force of the man-ner in which Air Force funding should be al-located among projects proposed to be under-taken by the FFRDC. Although the work performed by the FFRDC will be determined by the Air Force, may be accomplished at Government-owned facilities, and will ben-efit 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 cer-tain deficiencies in its operating procedures.
After terminating Government service, the attorney is hired by the company. When DOJ auditors schedule a meeting with the com-panys 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 employees insights might facilitate the audit, his communications would not be made on behalf of the United States even though the Governments auditors initiated the contact with the former employee.
NOTE TO PARAGRAPH (a): See also example 9 to paragraph (j) of § 2641.202 and example 1 to paragraph (d) of § 2641.204.
(b) Exception for acting on behalf of State or local government as elected offi-cial. A former employee is not prohib-ited 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 elect-ed official of a State or local govern-ment.
Example 1 to paragraph (b): A former em-ployee of the Department of Housing and Urban Development (HUD) participated per-sonally 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 Sec-retary at HUD to argue that additional funds are due the city under the terms of the grant.
Example 2 to paragraph (b): A former em-ployee of the Federal Highway Administra-tion (FHWA) participated personally and substantially in the decision to provide fund-ing for a bridge across the White River in Ar-kansas. After terminating Government serv-ice, she accepted the Governors offer to head the highway department in Arkansas. A communication to or appearance before the FHWA concerning the terms of the construc-tion grant would not be made as an elected official of a State or local government.
(c) Exception for acting on behalf of specified entities. A former senior or very senior employee is not prohibited by 18 U.S.C. 207(c) or (d), or §§ 2641.204 or 2641.205, from making a communica-tion or appearance on behalf of one or more entities specified in paragraph (c)(1) of this section, provided the com-munication or appearance is made in carrying out official duties as an em-ployee 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 orga-nization, if exempted from taxation under 26 U.S.C. 501(c)(3); or (iii) An accredited, degree-granting in-stitution 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 per-son who is employed to work part-time for a specified entity. The term ex-cludes an individual performing serv-ices for a specified entity as a consult-ant or independent contractor.
Example 1 to paragraph (c): A senior em-ployee leaves her position at the National In-stitutes of Health (NIH) and takes a full-VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00751 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
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§ 2641.301 time position at the Gene Research Founda-tion, 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 organi-zation, 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 Common-wealth of Virginia to represent it in discus-sions with the EPA about an environmental impact statement concerning the construc-tion of a highway interchange. The former senior employees arguments concerning the environmental impact statement would not be made as an employee of the Common-wealth of Virginia.
Example 3 to paragraph (c): A former senior employee becomes an employee of the ABC Association. The ABC Association is a non-profit organization whose membership con-sists of a broad representation of State health agencies and senior State health offi-cials, 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 As-sociation has not been delegated authority by any State government to perform any governmental functions, and it does not op-erate under the regulatory, financial, or management control of any State govern-ment. Therefore, the ABC Association is not an agency or instrumentality of a State gov-ernment, and the former senior employee may not represent the organization before his former agency within one year after ter-minating his senior employee position.
(d) Exception for uncompensated state-ments based on special knowledge. A former senior or very senior employee is not prohibited by 18 U.S.C. 207(c) or (d), or §§ 2641.204 or 2641.205, from mak-ing a statement based on his own spe-cial knowledge in the particular area that is the subject of the statement, provided that he receives no compensa-tion for making the statement.
(1) Special knowledge. A former em-ployee has special knowledge con-cerning a subject area if he is familiar with the subject area as a result of edu-cation, interaction with experts, or other unique or particularized experi-ence.
(2) Statement. A statement for pur-poses of this paragraph is a commu-nication of facts observed by the former employee.
(3) Compensation. Compensation in-cludes any form of remuneration or in-come 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 state-ment.
Example 1 to paragraph (d): A senior em-ployee of the Department of the Treasury was personally and substantially involved in discussions with other Department officials concerning the advisability of a three-phase reduction in the capital gains tax. After Gov-ernment service, the former senior employee affiliates with a nonprofit group that advo-cates a position on the three-phase capital gains issue that is similar to his own. The former senior employee, who receives no sal-ary from the nonprofit organization, may meet with current Department officials on the organizations behalf to state what steps had previously been taken by the Depart-ment to address the issue. The statement would be permissible even if the nonprofit organization reimbursed the former senior employee for his actual and necessary travel expenses incurred in connection with making the statement.
Example 2 to paragraph (d): A former senior employee becomes a government relations consultant, and he enters into a $5,000 per month retainer agreement with XYZ Cor-poration for government relations services.
He would like to meet with his former agen-cy to discuss a regulatory matter involving his client. Even though he would not be paid by XYZ specifically for this particular meet-ing, he nevertheless would receive compensa-tion for any statements at the meeting, be-cause of the monthly payments under his standing retainer agreement. Therefore he may not rely on the exception for uncompen-sated statements based on special knowl-edge.
(e) Exception for furnishing scientific or technological information. A former em-ployee is not prohibited by 18 U.S.C.
207(a), (c), or (d), or §§ 2641.201, 2641.202, 2641.204, or 2641.205, from making com-munications, including appearances, solely for the purpose of furnishing sci-entific or technological information, provided the communications are made either in accordance with procedures adopted by the agency or agencies to which the communications are directed or the head of such agency or agencies, in consultation with the Director of the Office of Government
- Ethics, makes a certification published in the FEDERAL REGISTER.
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§ 2641.301 (1) Purpose of information. A commu-nication 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 ac-tion; or (iii) Inherently influential in relation to the matter in dispute or the Govern-ment action sought.
(2) Scientific or technological informa-tion. The former employee must convey information of a scientific or techno-logical 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 employees com-munication primarily conveys informa-tion of a scientific or technological character, the entirety of the commu-nication will be deemed made solely for the purpose of furnishing such informa-tion notwithstanding an incidental ref-erence or remark:
(i) Unrelated to the matter to which the post-employment restriction ap-plies; (ii) Concerning feasibility, risk, cost, speed of implementation, or other con-siderations when necessary to appre-ciate the practical significance of the basic scientific or technological infor-mation provided; or (iii) Intended to facilitate the fur-nishing 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 termi-nating 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 sen-ior employee and another firm employee place a conference call to a current NSA em-ployee to follow up on an earlier discussion in which the firm had sought funding from the NSA to develop a certain proposed secu-rity system. After the other firm employee explains the scientific principles underlying the proposed system, the former employee may not state the systems expected cost.
Her communication would not primarily convey information of a scientific or techno-logical character.
Example 2 to paragraph (e)(3): If, in the pre-vious example, the former senior employee explained the scientific principles underlying the proposed system, she could also have stated its expected cost as an incidental ref-erence or remark.
(4) Communications made under proce-dures acceptable to the agency. (i) An agency may adopt such procedures as are acceptable to it, specifying condi-tions under which former Government employees may make communications solely for the purpose of furnishing sci-entific or technological information, in light of the agencys particular pro-grams and needs. In promulgating such procedures, an agency may consider, for example, one or more of the fol-lowing:
(A) Requiring that the former em-ployee specifically invoke the excep-tion 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 cer-tain formats which are least conducive to the use of personal influence; (D) Segregating, to the extent pos-sible, meetings and presentations in-volving technical substance from those involving other aspects of the matter; or (E) Employing more restrictive prac-tices in relation to communications concerning specified categories of mat-ters 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 Gov-ernment Ethics may review any agency implementation of this exception in connection with OGEs executive branch ethics program oversight re-sponsibilities. 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 VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00753 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
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§ 2641.301 the company that was awarded the contract to produce the rifle. Provided he acts in ac-cordance with agency procedures, he may ac-company 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 companys argument that it has complied with a par-ticular specification. He may do so even though the meeting was expected to be and is, in fact, a contentious one in which the companys testing methods are at issue. He may not, however, present the companys ar-gument that an advance payment is due the company under the terms of the contract since this would not be a mere incidental ref-erence or remark within the meaning of paragraph (e)(3) of this section.
(5) Certification for expertise in tech-nical discipline. A certification issued in accordance with this section shall be effective on the date it is executed (un-less a later date is specified), provided that it is transmitted to the FEDERAL REGISTER for publication.
(i) Criteria for issuance. A certifi-cation 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 out-standing qualifications in a scientific, technological, or other technical dis-cipline (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 employees par-ticipation.
(ii) Submission of requests. The indi-vidual wishing to make the commu-nication shall forward a written re-quest to the head of the agency to which the communications would be di-rected. 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 certifi-cation, which shall be published in the FEDERAL REGISTER. A copy of the cer-tification shall be forwarded to the af-fected individual. The head of the agen-cy shall, prior to execution of the cer-tification, furnish a draft copy of the certification to the Director of the Of-fice of Government Ethics and consider the Directors comments, if any, in re-lation to the draft. The certification shall specify:
(A) The name of the former em-ployee; (B) The Government position or posi-tions held by the former employee dur-ing his most recent period of Govern-ment service; (C) The identity of the employer or other person on behalf of which the former employee will be acting; (D) The restriction or restrictions to which the certification shall apply; (E) Any limitations imposed by the agency head with respect to the scope of the certification; and (F) The basis for finding that the cri-teria 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 Eth-ics. Once published, the agency shall provide the Director of the Office of Government Ethics with a copy of the certification as published in the FED-ERAL REGISTER.
(v) Revocation. The agency head may revoke a certification and shall for-ward 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 certifi-cation.
(f) Exception for giving testimony under oath or making statements required to be made under penalty of perjury. Subject to the limitation described in para-graph (f)(2) of this section concerning expert witness testimony, a former em-ployee is not prohibited by any of the prohibitions of 18 U.S.C. 207 from giv-ing 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, in-cluding deposition testimony and writ-ten affidavits, in connection with a ju-dicial, quasi-judicial, administrative, VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00754 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
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§ 2641.301 or other legally recognized proceeding in which applicable procedural rules re-quire a witness to declare by oath or affirmation that he will testify truth-fully.
(2) Limitation on exception for service as an expert witness. The exception de-scribed in paragraph (f)(1) of this sec-tion does not negate the bar of 18 U.S.C. 207(a)(1), or § 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 ex-cept:
(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 indi-vidual 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, ex-cept as provided in paragraph (f)(2) of this section.
NOTE TO PARAGRAPH (f): Whether com-pensation 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 agencys files or acquired in con-nection with the individuals employment with the Government; a former employees 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 em-ployee is subpoenaed to testify in a case pending in a United States district court concerning events at the agency she ob-served while she was performing her official duties with the Government. She is not pro-hibited 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 employees supervisor, who had assisted the agency in handling the issues associated with the re-moval, 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 discrimi-nated against because of his disabling alco-holism, 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 pro-viding expert testimony but opinions or in-ferences which are rationally based on his perception and helpful to a clear under-standing of his testimony or the determina-tion of a fact in issue. The former employee may provide the requested testimony with-out 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 con-cerning compliance with Clean Air Act re-quirements. Within one year after termi-nating 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 companys practices are in compliance with Clean Air Act require-ments. 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 mem-ber of the EPA investigatory team that com-piled a report concerning the utility com-panys practices during the discovery stage of the lawsuit. She later terminated Govern-ment 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 commu-nication 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 cir-cumstances 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 employees prior in-volvement in the matter would not cause her testimony to have an undue influence on proceedings. Without such extraordinary cir-cumstances, ordering such expert witness VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00755 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
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§ 2641.301 testimony would undermine the bar on such testimony.
(g) Exception for representing certain candidates or political organizations. Ex-cept 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 §§ 2641.204 or 2641.205, from making a communication or appearance on behalf of a candidate in his capacity as a candidate or an en-tity 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 oth-ers 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 au-thorized committee means any polit-ical 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 possi-bility of seeking the nomination or election of the candidate. The term does not include a committee that re-ceives contributions or makes expendi-tures to promote more than one can-didate; (iii) A national committee. A national committee means the organization which, under the bylaws of a political party, is responsible for the day-to-day operation of the political party at the national level; (iv) A national Federal campaign com-mittee. A national Federal campaign committee means an organization which, under the bylaws of a political party, is established primarily to pro-vide assistance at the national level to candidates nominated by the party for election to the office of Senator or Representative in, or Delegate or Resi-dent Commissioner to, the Congress; (v) A State committee. A State com-mittee means the organization which, under the bylaws of a political party, is responsible for the day-to-day oper-ation 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 can-didate for election to any Federal or State elected office whose name ap-pears on the election ballot as the can-didate 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 sen-ior or very senior employee is em-ployed 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 exclu-sively represents, aids, or advises per-sons or entities described in paragraph (g)(1) of this section; (ii) Is made other than solely on be-half 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 sen-ior or very senior employee of the Fed-eral Election Commission.
Example 1 to paragraph (g): The former Dep-uty Director of the Office of Management and Budget becomes the full-time head of the Presidents re-election committee. The former Deputy Director may, within two years of terminating his very senior em-ployee position, represent the re-election committee to the White House travel office in discussions regarding the appropriate amounts of reimbursements by the com-mittee of political travel costs of the Presi-dent.
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 Commis-sion (a position listed in 5 U.S.C. 5314) to seek the dismissal of a pending enforcement action involving the candidates family busi-ness. The former very senior employees communication to the Chairman would not be made on behalf of the candidate in his ca-pacity 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 Rev-enue (a position listed in 5 U.S.C. 5314) to urge the review of a tax ruling affecting Ala-bamas Republican Party since the commu-nication would be made on behalf of a State committee.
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§ 2641.301 Example 4 to paragraph (g): The former As-sistant Secretary for Legislative and Inter-governmental Affairs at the Department of Commerce is hired as a consultant by a com-pany that provides advisory services to polit-ical candidates and senior executives in pri-vate industry. Her only client is a candidate for the U.S. Senate. The former senior em-ployee may not contact the Deputy Sec-retary 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 inter-national organization. The Secretary of State may grant an individual waiver of one or more of the restrictions in 18 U.S.C. 207 where the former employee would appear or communicate on be-half of, or provide aid or advice to, an international organization in which the United States participates. The Secretary of State must certify in ad-vance that the proposed activity is in the interest of the United States.
NOTE TO PARAGRAPH (h): An employee who is detailed under 5 U.S.C. 3343 to an inter-national organization remains an employee of his agency. In contrast, an employee who transfers under 5 U.S.C. 3581-3584 to an inter-national organization is a former employee of his agency.
(i) Waiver for re-employment by Gov-ernment-owned, contractor-operated enti-ty. 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 indi-vidual are critically needed for the benefit of the Federal Government.
Upon the issuance of a waiver pursuant to this paragraph, the restriction or re-strictions waived will not apply to a former employee acting as an employee of the same Government-owned, con-tractor-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 Law-rence Livermore National Laboratory, the Los Alamos National Laboratory, or the Sandia National Laboratory im-mediately before the persons 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 employees Government service has terminated.
(1) Eligible employees. Any current ci-vilian employee of the executive branch, other than an employee serv-ing in the Executive Office of the President, who served as an officer or employee at a Government-owned, con-tractor-operated entity immediately before he became a Government em-ployee. A total of no more than 25 cur-rent 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 pro-vided to the Director of the Office of Government Ethics (OGE).
(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 semi-annual 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 em-ployees 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 de-scribe 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.
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§ 2641.301 (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 para-graph is ineligible for appointment in the civil service unless all reports required by that section have been filed.
(6) Revocation. A waiver shall be re-voked when the recipient of the waiver fails to file a report required by para-graph (i)(4) of this section, and the re-cipient of the waiver shall be notified of such revocation. The revocation shall take effect upon the persons re-ceipt of the notification and shall re-main 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 re-striction of section 18 U.S.C. 207(c) and
§ 2641.204, with respect to certain posi-tions 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 restric-tion of 18 U.S.C. 207(f) and § 2641.206 also will not be triggered upon an employ-ees termination from the position.
(1) Eligible senior employee positions. A position which could be occupied by a senior employee is eligible for a waiver of the 18 U.S.C. 207(c) restriction ex-cept:
(i) The following positions are ineli-gible:
(A) Positions for which the rate of pay is specified in or fixed according to 5 U.S.C. 5311-5318 (the Executive Sched-ule);
(B) Positions for which occupants are appointed by the President pursuant to 3 U.S.C. 105(a)(2)(B); or (C) Positions for which occupants are appointed by the Vice President pursu-ant to 3 U.S.C. 106(a)(1)(B).
(ii) Regardless of the position occu-pied, private sector assignees under the Information Technology Exchange Pro-gram, within the meaning of paragraph (6) of the definition of senior employee in section 2641.104, are not eligible to benefit from a waiver.
Example 1 to paragraph (j)(1): The head of a department has authority to fix the annual salary for a category of positions adminis-tratively 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 ac-cording to the Executive Schedule.
(2) Criteria for waiver. A waiver of re-strictions for a position or category of positions shall be based on findings that:
(i) The agency has experienced or is experiencing undue hardship in obtain-ing qualified personnel to fill such po-sition or positions as shown by rel-evant 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 author-ity; or (C) The requirement that the incum-bent of the position have outstanding qualifications in a scientific, techno-logical, technical, or other specialized discipline; (ii) Waiver of the restriction with re-spect to the position or positions is ex-pected to ameliorate the recruiting dif-ficulties; 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, in-cluding the potential for use of such in-fluence or advantage for the benefit of a foreign entity.
(3) Procedures. A waiver shall be granted in accordance with the fol-lowing procedures:
(i) Agency recommendation. An agen-cys 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 ad-dressing the criteria set forth in para-graph (j)(2) of this section. A DAEO may, at any time, request that a cur-rent waiver be revoked.
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§ 2641.301 (ii) Action by Office of Government Eth-ics. The Director of the Office of Gov-ernment 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 Direc-tor 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 re-sponse to the designated agency ethics official indicating that the request for waiver has been granted. A waiver shall inure to the benefit of the indi-vidual who holds the position when the waiver takes effect, as well as to his successors, but shall not benefit indi-viduals who terminated senior service prior to the effective date of the waiv-er. Revocation of a waiver shall be ef-fective 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 restric-tions 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 specifi-cally 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 em-ployees of the American Institute in Taiwan to represent the Institute not-withstanding 18 U.S.C. 207; (2) 22 U.S.C. 3613(d), permitting the individual who was Administrator of the Panama Canal Commission on the date of its termination to act in car-rying out official duties as Adminis-trator of the Panama Canal Authority notwithstanding 18 U.S.C. 207; (3) 22 U.S.C. 3622(e), permitting an in-dividual 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 Pan-ama Canal Authority; (4) 25 U.S.C. 450i(j), permitting a former employee who is carrying out official duties as an employee or elect-ed or appointed official of a tribal orga-nization or inter-tribal consortium to act on behalf of the organization or consortium in connection with any matter related to a tribal govern-mental activity or Federal Indian pro-gram or service, if the former employee submits notice of any personal and sub-stantial involvement in the matter during Government service; (5) 38 U.S.C. 5902(d), permitting a former employee who is a retired offi-cer, warrant officer, or enlisted mem-ber 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 ad-ministered by the Secretary of Vet-erans Affairs; (6) 50 U.S.C. 405(b), permitting a former part-time member of an advi-sory committee appointed by the Fed-eral Emergency Management Agency, the Director of National Intelligence, or the National Security Council to en-gage 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 inter-ested; (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 en-gage in conduct notwithstanding 18 U.S.C. 207; and (8) Public Law 97-241, title I, section 120, August 24, 1982 (18 U.S.C. 203 note),
providing that 18 U.S.C. 207 shall not apply under certain circumstances to private sector representatives on United States delegations to inter-national telecommunications meetings and conferences.
NOTE TO PARAGRAPH (k): Exceptions from 18 U.S.C. 207 may be included in legislation mandating privatization of Governmental entities. See, for example, 42 U.S.C. 2297h-3(c), concerning the privatization of the United States Enrichment Corporation.
(l) Guide to available exceptions and waivers to the prohibitions of 18 U.S.C.
207. This chart lists the exceptions and waivers set forth in 18 U.S.C. 207 and for each exception and waiver identi-fies the prohibitions of section 207 ex-cepted or subject to waiver. Detailed VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00759 Fmt 8010 Sfmt 8010 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
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§ 2641.302 guidance on the applicability of the ex-ceptions and waivers is contained in the cross-referenced paragraphs of this section.
Exception/waiver Section 207 Prohibitions affected (a)(1)
(a)(2)
(b)
(c)
(d)
(f)
(l)
(1) Acting for the United States, see § 2641.301(a)...........................
(2) Elected State or local government official, see § 2641.301(b).....
(3) Acting for specified entities, see § 2641.301(c)............................
(4) Special knowledge, see § 2641.301(d).........................................
(5) Scientific or technological information, see § 2641.301(e)...........
(6) Testimony, see § 2641.301(f)........................................................
(7) Acting for a candidate or political party, see § 2641.301(g).........
(8) Acting for an international organization, see § 2641.301(h).........
(9) Employee of a Government-owned, contractor-operated entity, see § 2641.301(i).............................................................................
(10) Waiver for certain positions, see § 2641.301(j)...........................
§ 2641.302 Separate agency compo-nents.
(a) Designation. For purposes of 18 U.S.C. 207(c) only, and § 2641.204, the Di-rector of the Office of Government Eth-ics may designate agency compo-nents 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 agen-cy in which the former senior employee served. An eligible former senior em-ployee who served in the parent agency is not barred by section 207(c) from making communications to or appear-ances before any employee of any des-ignated component of the parent, but is barred as to any employee of the par-ent 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 ap-pearance before any employee of that designated component, but is not barred as to any employee of the par-ent, 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 em-ployee was employed in a position for which the rate of basic pay exceeded 86.5 percent of that payable for level II of the Executive Schedule. He is prohibited from contacting the Secretary of Defense and DODs Inspec-tor 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 con-tacting the Secretary of the Army. (The De-partment of the Army is a designated compo-nent 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 compo-nents 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 prohib-ited by 18 U.S.C. 207(c) from contacting the Secretary of Defense, the Secretary of the Army, or DODs Inspector General. He is pro-hibited from contacting the Secretary of the Navy. (The Department of the Navy is a des-ignated component of the parent, DOD. The Office of the Secretary of Defense and the Of-fice 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 Ex-ecutive Schedule) (see example 1 to paragraph (j)(1) of § 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 Commis-sioner of the Internal Revenue Service is not eligible to benefit from the designation of components for the Department of the Treas-ury because the position of Deputy Commis-sioner is listed in 5 U.S.C. 5316, at a rate of pay payable for level V of the Executive Schedule.
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749 Office of Government Ethics
§ 2641.302 (c) Criteria for designation. A compo-nent 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 components creation by stat-ute or a statutory reference indicating that it exercises functions which are distinct and separate; (ii) The components exercise of dis-tinct and separate subject matter or geographical jurisdiction; (iii) The degree of supervision exer-cised by the parent over the compo-nent; (iv) Whether the component exercises responsibilities that cut across organi-zational lines within the parent; (v) The size of the component in ab-solute terms; and (vi) The size of the component in re-lation to other agencies or bureaus within the parent.
(2) There exists no potential for the use of undue influence or unfair advan-tage based on past Government service.
(d) Subdivision of components. The Di-rector 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 ac-cordance with the following procedure:
(1) Agency recommendation. A des-ignated agency ethics official may, at any time, recommend the designation of an additional component or the rev-ocation of a current designation by for-warding a written request to the Direc-tor 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 cur-rently designated should remain des-ignated 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 designa-tion after considering the rec-ommendation 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 des-ignation 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. Revoca-tion of a component designation shall be effective 90 days after the publica-tion 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 designa-tions 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 deter-mining how the 18 U.S.C. 207(c) bar ap-plies when an agency or a designated component has been significantly al-tered.
(2) Consultation with Office of Govern-ment Ethics. When counseling individ-uals concerning the applicability of 18 U.S.C. 207(c) subsequent to significant organizational
- changes, the appro-priate designated agency ethics official (DAEO) shall consult with the Office of Government Ethics. When it is deter-mined that appendix B to this part no longer reflects the current organiza-tion of a parent agency, the DAEO shall promptly forward recommenda-tions for designations or revocations in accordance with paragraph (e) of this section.
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Pt. 2641, App. A Safety, an agency within Department X pri-marily 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. Subse-quent 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 agen-cys few remaining programs are absorbed by the parent. As the designated component from which the former senior employee ter-minated is no longer identifiable as substan-tially 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 des-ignated as a distinct and separate component of Department X by the Director of the Of-fice of Government Ethics. Subsequent to her termination from the position, the mis-sion 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 trans-ferred to various other parts of the Depart-ment to continue their work on medical re-search unrelated to cancer. The Agency for Cancer Research is determined to be sub-stantially 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 scientists 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 De-partment.
(h)
Unauthorized designations.
No agency or bureau within the Executive Office of the President may be des-ignated as a separate agency compo-nent.
APPENDIX A TO PART 2641POSITIONS 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 provi-sions 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).
[73 FR 36186, June 25, 2008, as amended at 79 FR 2, Jan. 2, 2014]
APPENDIX B
TO PART 2641AGENCY 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 de-termined, 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. Ex-cept as otherwise indicated, all designations are effective as of January 1, 1991.
Parent: Department of Commerce Components:
Bureau of the Census.
Bureau of Industry and Security (formerly Bureau of Export Administration) (effec-tive January 28, 1992).
Economic Development Administration.
International Trade Administration.
Minority Business Development Agency (formerly listed as Minority Business De-velopment Administration).
National Institute of Standards and Tech-nology (effective March 6, 2008).
National Oceanic and Atmospheric Admin-istration.
National Technical Information Service (effective March 6, 2008).
National Telecommunications and Infor-mation Administration.
United States Patent and Trademark Of-fice (formerly Patent and Trademark Of-fice).
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 (effec-tive February 5, 1999).
National Geospatial-Intelligence Agency (formerly National Imagery and Mapping Agency) (effective May 16, 1997).
National Reconnaissance Office (effective January 30, 2003).
National Security Agency.
Parent: Department of Energy Component:
Federal Energy Regulatory Commission.
Parent: Department of Health and Human Serv-ices Components:
Administration for Children and Families (effective January 28, 1992).
Administration for Community Living (ef-fective December 4, 2014).
Agency for Healthcare Research and Qual-ity (formerly Agency for Health Care VerDate Sep<11>2014 14:50 Feb 22, 2018 Jkt 244010 PO 00000 Frm 00762 Fmt 8010 Sfmt 8002 Y:\\SGML\\244010.XXX 244010 nshattuck on DSK9F9SC42PROD with CFR
751 Office of Government Ethics Pt. 2641, App. B 1 All designated components under the ju-risdiction 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 As-sistant Secretary.
2 The Executive Office for United States Attorneys shall not be considered separate from any Office of the United States Attor-ney for a judicial district, but only from other designated components of the Depart-ment 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.
4 The Office on Violence Against Women shall not be considered separate from the Of-fice of Justice Programs, but only from other designated components of the Depart-ment of Justice.
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 Serv-ices (formerly Health Care Financing Ad-ministration).
Food and Drug Administration.
Health Resources and Services Administra-tion (effective May 16, 1997).
Indian Health Service (effective May 16, 1997).
National Institutes of Health (effective May 16, 1997).
Substance Abuse and Mental Health Serv-ices 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).
National Park Service (effective January 28, 1992).
Office of Surface Mining Reclamation and Enforcement (effective January 28, 1992).
U.S. Fish and Wildlife Service (effective January 28, 1992).
U.S. Geological Survey (effective January 28, 1992).
Parent: Department of Justice Components:
Antitrust Division.
Bureau of Alcohol, Tobacco, Firearms and Explosives (effective November 23, 2004).
Bureau of Prisons (including Federal Pris-on Industries, Inc.).
Civil Division.
Civil Rights Division.
Community Relations Service.
Criminal Division.
Drug Enforcement Administration.
Environment and Natural Resources Divi-sion.
Executive Office for United States Attor-neys 2 (effective January 28, 1992).
Executive Office for United States Trust-ees 3 (effective January 28, 1992).
Federal Bureau of Investigation.
Foreign Claims Settlement Commission.
Independent Counsel appointed by the At-torney General.
Office of Justice Programs.
Office of the Pardon Attorney (effective January 28, 1992).
Offices of the United States Attorney (each of 94 offices).
Offices of the United States Trustee (each of 21 offices).
Office on Violence Against Women 4 (effec-tive March 8, 2007).
Tax Division.
United States Marshals Service (effective May 16, 1997).
United States Parole Commission.
Parent: Department of Labor Components:
Bureau of Labor Statistics.
Employee Benefits Security Administration (formerly Pension and Welfare Benefits Administration) (effective May 16, 1997).
Employment and Training Administration.
Mine Safety and Health Administration.
Occupational Safety and Health Administra-tion.
Office of Disability Employment Policy (ef-fective January 30, 2003).
Office of Federal Contract Compliance Pro-grams (effective December 29, 2016).
Office of Labor Management Standards (ef-fective December 29, 2016).
Office of Workers Compensation Programs (effective December 29, 2016).
Pension Benefit Guaranty Corporation (ef-fective May 25, 2011).
Wage and Hour Division (effective December 29, 2016).
Parent: Department of State Component:
Foreign Service Grievance Board.
Parent: Department of Transportation Components:
Federal Aviation Administration.
Federal Highway Administration.
Federal Motor Carrier Safety Administra-tion (effective January 30, 2003).
Federal Railroad Administration.
Federal Transit Administration.
Maritime Administration.
National Highway Traffic Safety Adminis-tration.
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Pt. 2641, App. B Pipeline and Hazardous Materials Safety Ad-ministration (effctive December 29, 2016).
Saint Lawrence Seaway Development Cor-poration.
Parent: Department of the Treasury Components:
Alcohol and Tobacco Tax and Trade Bu-reau (effective November 23, 2004).
Bureau of Engraving and Printing.
Bureau of the Fiscal Service (effective De-cember 4, 2014).
Comptroller of the Currency.
Financial Crimes Enforcement Center (FinCEN) (effective January 30, 2003).
Internal Revenue Service.
United States Mint (formerly listed as Bu-reau of the Mint).
[73 FR 36186, June 25, 2008, as amended at 76 FR 30246, May 25, 2011; 79 FR 71957, Dec. 4, 2014; 80 FR 56894, Sept. 21, 2015; 81 FR 95854, Dec. 29, 2016]
PARTS 2642-2699 [RESERVED]
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