[Federal Register Volume 68, Number 32 (Tuesday, February 18, 2003)]
[Proposed Rules]
[Pages 7844-7892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3043]



[[Page 7843]]

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Part II





Office of Government Ethics





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5 CFR Parts 2637 and 2641



Post-Employment Conflict of Interest Restrictions; Proposed Rule

  Federal Register / Vol. 68, No. 32 / Tuesday, February 18, 2003 / 
Proposed Rules  

[[Page 7844]]


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OFFICE OF GOVERNMENT ETHICS

5 CFR Parts 2637 and 2641

RIN 3209-AA14


Post-Employment Conflict of Interest Restrictions

AGENCY: Office of Government Ethics (OGE).

ACTION: Proposed rule.

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SUMMARY: Since 1980, 5 CFR part 2637 (formerly 5 CFR part 737) has 
provided guidance concerning the post-employment conflict of interest 
restrictions of 18 U.S.C. 207. As a result of amendments to section 207 
that became effective January 1, 1991, employees terminating service in 
the executive branch or in an independent agency (or terminating 
service from certain high-level Government positions) since that date 
are subject to substantially revised post-employment restrictions. The 
purpose of part 2641 is to provide regulatory guidance explaining the 
scope and content of the statutory restrictions as they apply to 
employees terminating service on or after January 1, 1991. This 
proposed rule would expand the guidance previously published in part 
2641 as interim or interim final rules and make minor modifications to 
those earlier rulemakings. It would also remove part 2637 from 5 CFR.

DATES: Comments are invited and must be received on or before May 19, 
2003.

ADDRESSES: Send comments to the Office of Government Ethics, Suite 500, 
1201 New York Avenue, NW., Washington, DC 20005-3917, Attention: 
Richard M. Thomas. Comments may also be sent electronically to OGE's 
Internet E-mail address at http://www.usoge.gov. The subject line of E-
mail messages should include the following reference: ``Comments on 
proposed post-employment conflict of interest rule.''

FOR FURTHER INFORMATION CONTACT: Richard M. Thomas, Associate General 
Counsel, Office of Government Ethics; Telephone: 202-208-8000: TDD: 
202-208-8025; FAX: 202-208-8037.

SUPPLEMENTARY INFORMATION: 

A. Substantive Discussion of Post-Employment Regulatory Guidance

I. Rulemaking History

    Since its enactment in 1962, 18 U.S.C. 207 has remained the primary 
source of post-employment restrictions applicable to former officers 
and employees of the executive branch and of independent agencies. In 
1979 (interim rule) and 1980 (final rule), the Office of Government 
Ethics (OGE) published regulatory guidance concerning section 207 as 
codified at 5 CFR part 737 (now 5 CFR part 2637). See OGE's regulations 
issued at 44 FR 19974-19988 (April 3, 1979), 45 FR 7402-7431 (February 
1, 1980), 54 FR 50229-50231 (December 5, 1989), and 56 FR 3961-3965 
(February 1, 1991), as amended, redesignated and corrected over the 
years.
    Section 207 was substantially revised by the Ethics Reform Act of 
1989, Pub. L. 101-194, 103 Stat. 1716, with technical amendments 
enacted by Pub. L. 101-280, 104 Stat. 149 (1990). As a result of these 
and subsequent amendments, employees terminating Government service (or 
service in certain high-level Government positions) on or after January 
1, 1991, are subject to revised substantive prohibitions.
    Pursuant to authority set forth in the Ethics in Government Act of 
1978, as amended, and Executive Order 12674, as modified by Executive 
Order 12731 (hereinafter referred to as Executive Order 12674), OGE 
published executive branch guidance concerning certain aspects of the 
new version of 18 U.S.C. 207 on February 1, 1991 (56 FR 3961-3965), now 
codified at 5 CFR part 2641.\1\ For purposes of section 207(c), the 
1991 interim rule (1) Established procedures for exempting senior 
employee positions; (2) designated separate departmental and agency 
components; and (3) established procedures for future designations and 
modification of designations of departmental or agency components. The 
appendices to part 2641 reserved for listings of exemptions and 
designations were subsequently amended by final rules published at 57 
FR 3115-3117 (January 28, 1992), 57 FR 11673 (April 7, 1992), 58 FR 
33755-33756 (June 21, 1993), 62 FR 26915-26918 (May 16, 1997), 64 FR 
5709-5710 (February 5, 1999), and, most recently, 68 FR 4681-4684 
(January 30, 2003).
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    \1\ OGE also issued, by Memoranda to Designated Agency Ethics 
Officials, General Counsels and Inspectors General, summaries of the 
restrictions of 18 U.S.C. 207, as amended, on October 26, 1990, 
November 5, 1992, and February 17, 2000. The current version of the 
summary may be found on OGE's Web site at http://www.usoge.gov under 
``DAEOgrams'' for the year 2000.
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    As described below in the discussions of Sec. Sec.  2641.204, 
2641.301(j) and 2641.302 as proposed, this proposed rule would make 
further minor modifications to existing part 2641. In addition, it 
would expand part 2641 to provide comprehensive guidance concerning 18 
U.S.C. 207 as applicable to individuals terminating service on or after 
January 1, 1991 (or service in certain high-level Government 
positions), incorporating amendments to section 207 enacted subsequent 
to the Ethics Reform Act.\2\ As discussed more fully below, a future 
rulemaking would supplement the preliminary guidance at proposed 
Sec. Sec.  2641.203 and 2641.206 concerning 18 U.S.C. 207(b) and (f).
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    \2\ The statute has been amended several times since the Ethics 
Reform Act. Section 101(b)(8)(A) of Pub. L. 101-509, 104 Stat. 1389, 
amended 18 U.S.C. 207(c)(2)(A)(ii) to change the pay-based threshold 
for purposes of determining the applicability of section 207(c) from 
the rate for GS-17 to the rate for level V of the Executive 
Schedule. Section 705(a) of Pub. L. 102-25, 105 Stat. 75 reinstated 
section 207(k) authorizing Presidential waivers of section 207 in 
narrow circumstances, a provision that was later amended by Pub. L. 
102-190. Section 609 of Pub. L. 102-395, 106 Stat. 1828, amended 
section 207(f) to extend that one-year restriction to three years in 
the case of any individual assuming the office of U.S. Trade 
Representative after October 6, 1992, the effective date of the law. 
Subsequently, section 21(a) of Pub. L. 104-65, 109 Stat. 691, 
amended section 207(f)(2) to permanently bar both the U.S. Trade 
Representative and the Deputy U.S. Trade Representative from 
engaging in the activities prohibited by section 207(f). Sections 5 
and 6 of Pub. L. 104-179, 110 Stat. 1566, changed the rate of basic 
pay triggering ``senior employee'' status and added a new exception 
permitting former high-level officials to represent certain 
candidates and political organizations notwithstanding section 
207(c) or (d). Finally, section 102(a) of Pub. L. 105-244, 112 Stat. 
1585, made a conforming change to the exception at section 
207(j)(2)(B) when it amended the definition of ``institution of 
higher learning'' in title 20 of the United States Code. (Pub. L. 
103-322, 108 Stat. 1796 made only two very minor grammatical changes 
to section 207(c).)
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    This proposed rule does not address very limited amendments enacted 
on December 17, 2002, in section 209(d) of the E-Government Act of 
2002, Pub. L. 107-347. These amendments, which pertain only to 
assignees from private sector organizations under the newly authorized 
Information Technology Exchange Program, had not been enacted when the 
proposed rule was developed and will not be effective until April 16, 
2003, subsequent to the issuance of the proposed rule. See section 
402(a)(1), Pub. L. 107-347. OGE invites comments concerning 
interpretation of these amendments--which add a new category of senior 
employee under section 207(c)(2)(A)(v) and a new restriction on 
contract advice in section 207(l)--which will be addressed in the final 
rule, as appropriate.
    OGE is proposing to discontinue publication of 5 CFR part 2637. Due 
to the passage of time, employees who terminated service prior to 
January 1, 1991, could no longer be subject to any of the substantive 
restrictions of the previous version of 18 U.S.C. 207 other than the 
permanent bar for particular matters involving specific parties. Former 
employees, agency ethics officials and other interested parties can 
continue to consult the last edition of

[[Page 7845]]

the CFR in which part 2637 was published, for interpretive guidance 
concerning the permanent bar and relevant exceptions as applicable to 
employees who terminated service before January 1, 1991. OGE will 
maintain a copy of part 2637 and suggests that all designated agency 
ethics officials keep a copy in their files.
    As required by section 201(c) of Executive Order 12674, OGE is 
publishing this proposed rule after obtaining the concurrence of the 
Department of Justice. We also consulted with the Office of Personnel 
Management pursuant to title IV of the Ethics in Government Act of 
1978, as amended. Section 402 of that Act provides, among other things, 
that the Director of OGE shall provide, in consultation with the Office 
of Personnel Management (OPM), overall direction of executive branch 
policies relating to preventing conflicts of interest, and develop, in 
consultation with the Justice Department and OPM, rules and regulations 
pertaining to the identification and resolution of conflicts of 
interest.

Subpart A--General Provisions

Proposed Sec.  2641.101--Purpose

    Proposed Sec.  2641.101(a) explains that 18 U.S.C. 207 does not bar 
employment with any particular employer. Rather, it prohibits certain 
acts which involve, or may appear to involve, the unfair use of prior 
Government employment. The section would stress that the proscribed 
activities are prohibited even if they are undertaken for no 
compensation. The section would also note that the restrictions are 
personal to the employee and that they are not imputed to others, such 
as a law partner of a former employee. On the other hand, we have 
inserted a parenthetical cross-reference to the note following proposed 
Sec.  2641.103 concerning the punishment under 18 U.S.C. 2 of a person 
or entity who ``aids, abets, counsels, commands, induces, or procures 
commission'' of a violation of 18 U.S.C. 207.
    Proposed Sec.  2641.101(b) makes two important points. First, it 
would emphasize that part 2641 provides interpretive guidance 
concerning the application of 18 U.S.C. 207 to former employees of the 
executive branch or of certain independent agencies of the Federal 
Government of the United States, including current employees who 
formerly served in ``senior'' or ``very senior'' employee positions. 
Second, although certain of the statute's provisions also apply to 
former employees of the District of Columbia, Members and elected 
officials of Congress and legislative staff, and employees of 
independent agencies in the legislative and judicial branches, the 
proposed paragraph specifically states that part 2641 is not intended 
to provide guidance to those individuals.
    The note following proposed Sec.  2641.101(b) warns that part 2641 
does not purport to interpret post-employment restrictions that may be 
contained in laws or authorities other than section 207. Thus, for 
example, a former employee must comply with 18 U.S.C. 203 which 
restricts the acceptance of compensation in connection with certain 
representational activities undertaken by the employee or others at a 
time when the former employee was still serving with the Government. 
Under 41 U.S.C. 423(d), a former agency official may not accept 
compensation from a contractor for one year as an employee, officer, 
director, or consultant if the former official: (1) Served in certain 
procurement positions at the time the contractor was selected for or 
awarded a contract in excess of $10,000,000; (2) served in certain 
positions relating to the administration of a contract with the 
contractor in excess of $10,000,000; or (3) personally made certain 
decisions valued in excess of $10,000,000 in relation to a contract 
with the contractor. See 48 CFR part 3. The proposed note does not 
refer to restrictions contained in any professional codes of conduct, 
as these are outside the jurisdiction of OGE.
    The proposed note does not purport to set forth an exhaustive list 
of all post-employment restrictions, including agency-specific or 
position-specific restrictions. We were concerned that the burden 
associated with compiling and maintaining an exhaustive (and accurate) 
list would outweigh the benefit of such a listing in a regulation 
intended to provide guidance relating to 18 U.S.C. 207. If history is 
any indicator, post-employment restrictions are frequently amended, 
suspended or abolished, then amended again or reinstated (see, e.g., 
the legislative history of 41 U.S.C. 423(d)). We also foresaw 
difficulties in defining the standards for inclusion in such a listing.

Proposed Sec.  2641.102--Applicability

    Section 207 has been amended several times over the years. Proposed 
Sec.  2641.102 traces the most significant of these amendments and 
explains that, as a consequence of these changes, former employees are 
subject to varying post-employment restrictions depending upon the date 
of their termination from Government service (or from a ``senior'' or 
``very senior'' employee position). Section 2641.102 as proposed 
indicates whether an employee should consult 5 CFR part 2637 or part 
2641 for regulatory guidance.
    A note following Sec.  2641.102 as proposed would warn that the 
guidance in part 2641 incorporates all amendments to 18 U.S.C. 207 
enacted after the Ethics Reform Act of 1989 (and the related technical 
amendments to that Act), except as superseded. Significantly, as would 
be explained in the note, an individual who terminated Government 
service (or a ``senior'' or ``very senior'' employee position) before 
one or more of these amendments became effective would have become 
subject to a version of section 207 other than that reflected in part 
2641 as proposed.
    The substantive post-Ethics Reform Act amendments have concerned 
the applicability of sections 207(c), (d), or (f), the waiver authority 
in section 207(k), and the definition of ``institution of higher 
learning'' in section 207(j)(2)(B). The one-year restriction of section 
207(c) has expired as to any former senior employee covered by a 
version of that restriction other than that described in part 2641. 
Moreover, the prior versions of section 207(f) are of relevance only in 
relation to the length of the restriction as it applied to a former 
United States Trade Representative or former Deputy United States Trade 
Representative who terminated service in the early 1990s. And, since 
the waiver authority in section 207(k) has not yet been utilized, a 
section 207(k) waiver would, in the future, be granted in accordance 
with part 2641, once it is finally adopted.
    As discussed earlier, OGE is proposing to discontinue publication 
of 5 CFR part 2637. Since proposed Sec.  2641.102(b) indicates that 
part 2637 should be consulted in relation to employees who terminated 
service prior to 1991, that section would also note the edition of the 
CFR in which part 2637 was last published.

Proposed Sec.  2641.103--Enforcement and Penalties

    It is the role of ethics officials, both at OGE and elsewhere, to 
give advice concerning the meaning of 18 U.S.C. 207. Section 
2641.103(a) of the proposed rule notes that agencies are required by 28 
U.S.C. 535 to report to the Attorney General any information, 
allegations, or complaints of possible violations of the laws in title 
18 of the United States Code involving Government officers and 
employees, including violations of 18 U.S.C. 207 by former officers and 
employees.
    When a matter involving a Federal conflict of interest law is 
referred to the

[[Page 7846]]

Department of Justice by an agency, 5 CFR 2638.603 requires that an 
agency concurrently notify the Director of OGE of the referral unless 
otherwise prohibited by law. The Office of Government Ethics has 
developed an optional ``Notification of Conflict of Interest Referral'' 
reporting form (OGE Form 202) that agencies can use for this purpose. 
After the final disposition of a referral, including any disciplinary 
or corrective action taken by the agency, agencies are required further 
to notify the Director of such disposition.
    Proposed Sec.  2641.103(b) cross-references the penalties and 
injunctions authorized to be imposed for violations of 18 U.S.C. 207. 
The section refers to 18 U.S.C. 216(a), (b) and (c) which, 
respectively, set forth the imprisonment terms and criminal fines for 
felony and misdemeanor violations of section 207, authorize the 
Attorney General to take actions to impose civil penalties for 
violations of section 207, set forth fine amounts, and authorize the 
Attorney General to seek injunctive relief to prohibit conduct that 
violates section 207.
    The note proposed to follow Sec.  2641.103 warns that a person or 
entity who ``aids, abets, counsels, commands, induces, or procures'' a 
violation of 18 U.S.C. 207 is punishable as a principal under 18 U.S.C. 
2.
    Notably, the new version of 18 U.S.C. 207 no longer provides for 
the administrative sanctions that were formerly authorized by the pre-
Ethics Reform Act version of section 207(j). These procedures remain 
available, however, in the case of employees who terminated Government 
service prior to January 1, 1991. A number of agencies continue to 
publish procedures implementing former section 207(j). Given the 
passage of time, however, agencies may wish to weigh the likelihood 
that these procedures would be utilized against other factors, 
including the expense of continued publication and the availability of 
civil remedies.

Proposed Sec.  2641.104--Definitions

    Proposed Sec.  2641.104 defines a number of terms that are used 
throughout the regulation. Although the terms are listed in proposed 
Sec.  2641.104 in alphabetical order, they are discussed here out of 
order to facilitate our discussion. Other terms or phrases are defined 
in subsequent sections of the proposed regulation and are discussed 
further below.
    The proposed definitions in Sec.  2641.104 generally are intended 
to be consistent with definitions of the same terms previously 
published in 5 CFR part 2637. In some cases, we have altered the 
wording in order to clarify the definition, ensure consistency with 
other OGE regulations, or add additional information to reflect an OGE, 
Department of Justice, or judicial interpretation that was not 
incorporated into part 2637. Several of the definitions were included 
in the interim rule published in 1991 at part 2641 to permit the 
immediate exercise of the OGE Director's authority to designate 
departmental and agency components for purposes of 18 U.S.C. 207(c) and 
to waive certain positions from sections 207(c) and (f). The proposed 
rule also would make several modifications to the definitions in 
existing part 2641 in order to clarify the meaning or update the 
definitions consistent with current interpretations.
    The term ``employee'' is used in 18 U.S.C. 207 in a number of 
contexts. Primarily, the term ``employee'' is used in section 207 to 
describe the individuals subject to section 207 and to identify the 
current Government officials with whom post-employment contact is 
restricted and the decisions of whom a former senior or very senior 
employee cannot seek to influence on behalf of a foreign entity. The 
term is, however, used for other purposes in section 207 and in 
proposed part 2641. Thus, for example, the exception in section 
207(j)(2)(A) benefits an individual who becomes an ``employee'' of 
certain specified entities, such as a State or local government. See 
proposed Sec.  2641.301(c). Moreover, in the proposed regulation, we 
use the term ``employee'' to refer to an individual's employment 
relationship with a non-Federal entity. As proposed, Sec.  2641.104 
defines the term for the purpose of identifying the individuals subject 
to section 207. (The definition would exclude certain individuals who 
are subject to section 207 but for whom part 2641 was not intended to 
provide guidance, such as employees of independent agencies in the 
legislative or judicial branches.) Proposed Sec.  2641.104 emphasizes 
that the definition is modified elsewhere in the regulation, as 
necessary, when the term ``employee'' is used for other purposes.
    Consistent with 18 U.S.C. 202(a) and (c), the term ``employee'' is 
defined in proposed Sec.  2641.104 to exclude enlisted members of the 
Armed Forces, the President, and the Vice President (except, with 
respect to the Vice President, as otherwise provided). Relevant 
provisions of part 2641 as proposed would specifically indicate that 
the Vice President is subject to 18 U.S.C. 207(d) and (f) and that, in 
certain circumstances, communications to or appearances before the 
President and Vice President are prohibited. For purposes of clarity, 
the proposed definition of ``former employee'' emphasizes that the Vice 
President is a ``former employee'' only for purposes of sections 207(d) 
and (f).
    The proposed definition of ``employee'' includes an individual 
appointed or detailed under the Intergovernmental Personnel Act (IPA), 
5 U.S.C. 3371-3376. The IPA authorizes the assignment of employees of 
State or local governments (and certain other entities) to Federal 
agencies. Under 5 U.S.C. 3374(a), an individual who is assigned to a 
Federal agency may be ``appointed'' in the agency or may be deemed ``on 
detail'' to the agency. The IPA specifically provides that an 
individual, whether appointed or on detail to a Federal agency, is 
deemed an ``employee'' for purposes of 18 U.S.C. 207. 5 U.S.C. 
3374(c)(2). The regulation would also acknowledge that an individual 
may be subject to section 207 under the terms of a statute other than 
the IPA.
    The proposed definition of ``employee'' also excludes officers or 
employees of the District of Columbia. Although former employees of the 
District of Columbia must comply with 18 U.S.C. 207(a)(1) and (a)(2), 
proposed Sec.  2641.101(b) emphasizes that part 2641 ``is not intended 
to provide guidance to those individuals.'' Moreover, we were also 
persuaded to exclude District of Columbia officials from the definition 
of ``employee'' since section 207(a)(3) indicates that post-employment 
contacts with District of Columbia officials are not with ``any officer 
or employee of any department, agency, court, or court-martial of the 
United States'' within the meaning of sections 207(a)(1) and (a)(2).
    ``State'' is defined in proposed Sec.  2641.104 to include the 
District of Columbia. The definition of ``State'' in 18 U.S.C. 
207(j)(7) specifically defines the term as including the District of 
Columbia. We also propose to define the District of Columbia as a State 
in view of the exceptions at sections 207(j)(1) and (j)(2) which permit 
a former employee to engage in otherwise prohibited representational 
activity on behalf of certain governments. We defined the District of 
Columbia as a State notwithstanding language in the exception at 
section 207(j)(1) which, since it refers to the District of Columbia 
separately, distinguishes the District of Columbia government from 
State and local governments. In this regard, we noted that the wording 
of section 207(j)(1) also distinguishes the District of Columbia 
government from the United States Government. We decided

[[Page 7847]]

that the District of Columbia must have been listed separately in 
section 207(j)(1) for purposes of indicating the exception's 
applicability to former District of Columbia employees who act on 
behalf of that government.
    As defined in proposed Sec.  2641.104, ``Government service'' means 
``a period of time during which an individual is employed by the 
Federal Government.'' The proposed definition provides some guidance 
concerning when service ends in the case of ``special Government 
employees,'' including some advisory committee members and Reserve 
officers of the Armed Forces and officers of the National Guard of the 
United States. As defined in 18 U.S.C. 202(a), a special Government 
employee (SGE) is an officer or employee of the executive branch or any 
independent agency ``who is retained, designated, appointed, or 
employed to perform, with or without compensation, for not to exceed 
one hundred and thirty days during any period of three hundred and 
sixty-five consecutive days, temporary duties either on a full-time or 
intermittent basis * * *.'' Many of these individuals serve the 
Government only a few days per year, often returning to private sector 
employment during interim periods.
    In the case of civilians who serve the executive branch or 
independent agencies as SGEs, the definition of ``Government service'' 
proposed in Sec.  2641.104 indicates that Government service refers to 
``the period of time covered by the individual's appointment (or other 
act evidencing employment with the Government), regardless of any 
interval or intervals between days actually served.'' Thus, sections 
207(a)(1), (a)(2), and (b) are not triggered each time there is an 
interval between the days on which a civilian SGE actually performs 
work. Example 4 following the definition of ``former employee'' in 
proposed Sec.  2641.104 is illustrative.
    In the case of a Reserve or National Guard officer, status as an 
SGE is related to the performance of active duty or active duty for 
training. More specifically, unless otherwise an employee, a Reserve or 
National Guard officer is classified as an SGE only while on active 
duty involuntarily, while on active duty for training for any length of 
time, or while serving voluntarily on extended active duty for 130 days 
or less. See 18 U.S.C. 202(a). The definition of ``Government service'' 
in proposed Sec.  2641.104 indicates that, in the case of Reserve or 
National Guard officers, the end of a period of active duty or active 
duty for training as an SGE is considered the end of Government service 
for purposes of triggering the application of sections 207(a)(1), 
(a)(2), and (b). See example 5 following the proposed definition of 
``former employee'' in Sec.  2641.104. During periods when not serving 
on active duty, officers maintain their Reserve or National Guard 
status--categorized as either ``active'' or ``inactive''--but they are 
not considered SGEs. Like civilians, Reserve and National Guard 
officers are, while special Government employees, subject to 18 U.S.C. 
203 and 205. Similar to section 207, these statutes restrict an 
individual's ability to represent others before Federal departments, 
agencies, or courts.
    The definition of the term ``executive branch'' derives from 18 
U.S.C. 202(e)(1). According to 18 U.S.C. 202(e)(1), the executive 
branch includes ``each executive agency as defined in title 5, and any 
other entity or administrative unit in the executive branch.'' The term 
``executive agency'' is defined in 5 U.S.C. 105 to mean ``an Executive 
department, a Government corporation, and an independent 
establishment.'' The ``Executive departments'' are enumerated in 5 
U.S.C. 101. Accordingly, proposed Sec.  2641.104 states that the term 
``executive branch'' includes ``an Executive department as defined in 5 
U.S.C. 101, a Government corporation, and an independent establishment 
(other than the General Accounting Office) * * * and also includes any 
other entity or administrative unit in the executive branch.'' The 
definitions of the ``judicial'' and ``legislative'' branches are from 
corresponding definitions in 18 U.S.C. 202(e)(2) and (3). Following 18 
U.S.C. 202(e)(3)(B), we include the General Accounting Office (GAO) in 
our proposed definition of ``legislative branch'' and specifically 
exclude GAO from our proposed definition of ``executive branch.''
    We determined that it would be appropriate to define the term 
``Government corporation'' by reference to two separate statutory 
provisions, one in title 5 and one in title 18 of the United States 
Code. For purposes of determining the employees subject to 18 U.S.C. 
207, we propose to use the definition of ``Government corporation'' in 
5 U.S.C. 103. As defined in that section for purposes of Government 
personnel rules, a Government corporation means a corporation owned or 
controlled by the Government of the United States. In contrast, we 
propose to rely on the definition in 18 U.S.C. 6 when necessary to 
identify the employees with whom post-employment contact is restricted, 
to describe matters to which the United States is a party or has a 
direct and substantial interest, to specify the decisions of whom a 
former senior or very senior employee cannot seek to influence on 
behalf of a foreign entity, and to explain when an activity will be 
deemed undertaken on behalf of the United States. A corporation is an 
``agency'' as defined in 18 U.S.C. 6 if it is a corporation ``in which 
the United States has a proprietary interest.'' The Department of 
Justice's Office of Legal Counsel has distinguished a proprietary 
interest from one that is merely ``custodial or incidental'' as 
determined by reference to the corporation's ``functions, financing, 
control, and management.'' 12 Op. Off. Legal Counsel 84 (1988). The 
proposed definition incorporates this Office of Legal Counsel guidance.
    As defined in proposed Sec.  2641.104, an individual becomes a 
``former employee'' at the termination of Government service. Examples 
following the proposed definition of former employee illustrate the 
combined effect of this definition and those of ``employee,'' 
``executive branch,'' and ``Government service.'' Notably, proposed 
example 3 emphasizes that former employee status is triggered when an 
employee terminates Federal service. Thus, the example points out that 
an individual who served in a GS-14 position did not become a former 
employee when he terminated service in the executive branch to accept a 
position in the legislative branch. This result is dictated by language 
in 18 U.S.C. 207(a)(1), (a)(2) and (b) indicating that those 
restrictions commence when ``service or employment with the United 
States'' terminates. In contrast, we indicate that status as a ``former 
senior employee'' or ``very senior employee'' is triggered (for 
purposes of sections 207(c), (d), and (f)) at the termination of 
service in a senior or very senior position. This distinction appears 
both in the proposed definition of ``former employee'' and in proposed 
definitions of ``former senior employee'' and ``former very senior 
employee.''
    The proposed revised definition of ``senior employee'' at Sec.  
2641.104 reflects the post-Ethics Reform Act of 1989 amendment of 18 
U.S.C. 207(c) by the Office of Government Ethics Authorization Act of 
1996, Pub. L. 104-179. Prior to the amendment of section 
207(c)(2)(A)(ii) by that Act, section 207(c) applied, inter alia, to 
employees occupying positions for which the rate of basic pay was equal 
to or greater than that payable for level V of the Executive Schedule 
(EL-V). The amendment replaced the EL-V threshold with the

[[Page 7848]]

rate of basic pay payable for level 5 of the Senior Executive Service 
(ES-5).
    Proposed example 2 following Sec.  2641.104 reflects our conclusion 
in OGE Informal Advisory Letter 92 x 20 that step increases, or their 
equivalent, must be considered in determining whether an employee's 
basic rate of pay equals or exceeds the threshold rate of basic pay. In 
a subsequent advisory letter, we observed that this interpretation is 
not limited to the SL (senior level) or ST (scientific or professional) 
positions that were the subject of OGE Informal Advisory Letter 92 x 
20. In the subsequent advisory letter, we stated that ``[i]n general, 
for purposes of 18 U.S.C. 207(c)(2)(A)(ii), the ``rate of basic pay'' 
for any pay system refers to the base amount of actual pay for each 
individual employee, not the minimum rate of pay for a position's 
authorized pay range (footnote omitted).'' OGE Informal Advisory Letter 
98 x 2. Both OGE advisory letters, along with the others cited in this 
rulemaking document, are included in The Informal Advisory Letters and 
Memoranda and Formal Opinions of the United States Office of Government 
Ethics, as published by the U.S Government Printing Office, and are 
also available on OGE's Web site at http://www.usoge.gov.
    Admirals and Generals in the uniformed services (``flag'' officers) 
are senior employees because, as specified in 18 U.S.C. 
207(c)(2)(A)(iv), they are ``employed in a position which is held by an 
active duty commissioned officer of the uniformed services who is 
serving in a grade or rank for which the pay grade is * * * pay grade 
O-7 or above.'' A flag officer becomes a senior employee once 
``frocked.'' When frocked, an officer is authorized to wear the stars 
of the higher rank and to serve in a specified flag officer billet. He 
does not, however, receive the pay and allowances authorized by law for 
pay grade O-7 until he is actually promoted to that pay grade. We 
invite comment from the military departments concerning our 
interpretation of section 207(c) as it applies to flag officers.
    As first published in part 2641 in early 1991, the term ``senior 
employee'' was defined to include individuals detailed to a position 
otherwise considered to be a senior employee position. We have 
revisited our earlier interpretation and propose to delete the 
reference to details. Our earlier interpretation was largely based upon 
a reading of 18 U.S.C. 207(g). Since that section indicates that an 
individual's former agency would include one to which the individual 
had been detailed, we stated in the regulation that a detail to a 
senior employee position would trigger senior employee status for 
purposes of determining the applicability of section 207(c). Upon 
further review of this issue, we now deem it more significant that the 
statute generally defines senior employee positions by reference to 
rate of pay (except in the case of Presidential or Vice Presidential 
appointments under title 3 of the United States Code). In the case of 
Senior Executive Service employees who are detailed, an employee 
continues to be the incumbent of the position from which detailed for 
purposes of pay and benefits. 5 CFR 317.903(a). Accordingly, we are 
proposing to delete the reference to details in existing Sec.  2641.101 
from our revised definition of senior employee in proposed Sec.  
2641.104. Compare OGE Informal Advisory Letter 98 x 4 in which we 
determined that an employee was a ``senior employee'' under 18 U.S.C. 
207(c)(2)(A)(i) because she was, despite her election to continue to 
receive the SES pay of her previous position, employed in an Executive 
Schedule position.
    For the reasons discussed above in connection with the definition 
of ``senior employee,'' the proposed definition in Sec.  2641.104 of 
``very senior employee'' differs from that previously published in part 
2641 in relation to details. Separately, it should be noted that since 
the definition of ``very senior employee'' encompasses any employee who 
satisfies any of the criteria enumerated in proposed subparagraphs (1)-
(4) of the definition, the definition may encompass an SGE. However, 
there is no provision exempting any former very senior employee from 18 
U.S.C. 207(d) based upon length of service. Compare proposed definition 
of ``senior employee'' in Sec.  2641.104.
    Section 207(d) applies to, among others, any person who ``is 
employed in a position * * * at a rate of pay payable for level I of 
the Executive Schedule'' (emphasis added). Therefore, the current 
definition of ``very senior employee,'' found in existing section 
2641.104, would be modified slightly in the proposed rule to reflect 
the apparent intent of Congress that the restriction apply to any 
individual employed in a level I position, or in a position in a pay 
system other than the Executive Schedule for which the rate of pay is 
exactly equal to--but not greater than--the level I rate. See 
Memorandum for Kenneth R. Schmalzbach, Assistant General Counsel, 
Department of the Treasury, from Daniel Koffsky, Acting, Deputy 
Assistant Attorney General, Office of Legal Counsel, Re: Application of 
18 U.S.C. Sec.  207(d) to Certain Employees of the Treasury Department 
(November 3, 2000), available under ``Other Ethics Guidance, Conflict 
of Interest Prosecution Surveys and OLC Opinions'' on OGE's Web site, 
http://www.usoge.gov. Proposed Sec.  2641.104 reflects a similar 
Congressional judgment in relation to the application of section 207(d) 
to individuals serving in the Executive Office of the President.
    The terms ``agency'' and ``department'' are used throughout 18 
U.S.C. 207. The definitions of both terms in proposed Sec.  2641.104, 
respectively, are from 18 U.S.C. 6. These terms appear in sections 
207(a)(1) and 207(a)(2), for example, in connection with identifying 
those employees to and before whom communications and appearances may 
not be made. See proposed Sec.  2641.201(f). They similarly identify 
the scope of the representational bars set forth in sections 207(c) and 
207(d). See proposed Sec.  2641.204(g). They are also used in 18 U.S.C. 
207(f) for purposes of identifying the decisions of whom a former 
senior or very senior employee cannot seek to influence on behalf of a 
foreign entity. Significantly, these terms were not defined for 
purposes of identifying those former employees to whom the various 
restrictions of section 207 apply. We are proposing to include any 
``independent agency'' not in the legislative or judicial branches 
within the scope of our definition of ``agency.''
    Even the ``United States'' is a ``person'' as that term is defined 
in proposed Sec.  2641.104; sections 207(a)(1), (a)(2), (b), (c), and 
(d), prohibit post-employment activity that is undertaken on behalf of 
(or to assist) ``any other person (except the United States).'' In some 
places in the proposed regulatory text, we use the terms ``person'' and 
``entity'' together even though the first term encompasses the latter.
    The terms ``agency ethics official'' and ``designated agency ethics 
official'' are defined due to their use in a number of places in the 
regulatory text, including in proposed Sec.  2641.105 concerning 
advice, in proposed Sec.  2641.301 concerning exceptions and waivers, 
and in proposed Sec.  2641.302 concerning separate departmental or 
agency component designations for purposes of 18 U.S.C. 207(c).
    Finally, as this regulation is intended to be gender-neutral, 
proposed Sec.  2641.104 indicates that the terms ``he,'' ``his,'' and 
``him'' include ``she,'' ``hers,'' and ``her,'' and vice versa.

Proposed Sec.  2641.105--Advice

    Proposed Sec.  2641.105(a) indicates that current or former 
employees and others should seek advice concerning 18 U.S.C.

[[Page 7849]]

207 and part 2641 from an ``agency ethics official.'' The latter term 
is defined in proposed Sec.  2641.104 as encompassing the designated 
agency ethics official (DAEO), the alternate DAEO, and any deputy 
ethics official as described in subpart B of 5 CFR part 2638. Proposed 
Sec.  2641.105(a) notes that the agency in which the employee formerly 
served has the primary responsibility for providing such advice and 
that the agency may seek assistance from OGE. Proposed Sec.  
2641.105(a) does not require that agency advice be reduced to writing, 
although that format can provide the most protection to the employee. 
We expect that the decision whether to provide oral or written advice 
will be dictated by the circumstances.
    An individual's former agency remains the primary source of advice. 
Agency officials are more familiar with agency programs and policies 
than are OGE personnel, and questions arising under section 207 often 
require a detailed understanding of the facts surrounding agency 
operations. However, OGE personnel also will provide advice to current 
or former employees, including their representatives or non-Federal 
employers, as outlined in proposed Sec.  2641.105(b). Based on its 
statutory responsibilities for the executive branch ethics program, OGE 
may provide advice in a matter where an agency has already provided a 
former employee with advice.
    While OGE strongly encourages agencies to establish mechanisms to 
ensure that departing employees will receive advice concerning 
pertinent post-employment restrictions (see, e.g., 5 CFR 2638.203(b)(6) 
and (7)), this regulation as proposed would not require the agency to 
set up any particular system in order to achieve this goal. The Office 
of Government Ethics is aware that some agencies require that employees 
meet with an agency ethics official as one step in the exit process. 
Others have developed systems that identify terminating employees who 
can then be provided with written materials concerning the post-
employment laws.
    Although reliance on the oral or written advice of an agency ethics 
official or OGE is a factor that will be taken into consideration by 
the Department of Justice when selecting cases for prosecution, 
proposed Sec.  2641.105(c) warns that there may be circumstances that 
would cause the Department to initiate a prosecution notwithstanding 
the former employee's reliance on such advice. The regulation would 
distinguish any case in which OGE issues a ``formal'' opinion. See 5 
CFR 2638.309. Proposed Sec.  2641.105(e) would advise that there is no 
attorney-client relationship formed when a current or former employee 
seeks advice from an agency attorney concerning post-employment 
restrictions. Thus, an agency or OGE attorney is obligated to report 
violations of law to appropriate authority. See, e.g., 5 CFR 
2635.101(b)(11).
    Section 2641.105(d) of the proposed rule emphasizes that a former 
employee does not risk a violation of 18 U.S.C. 207 when he contacts an 
agency ethics official, attorney, or other Government employee for the 
purpose of seeking prospective advice concerning the potential 
applicability of the statute to his own post-employment activities.

Subpart B--Prohibitions

    Proposed part 2641 draws heavily from the language and explanations 
in 5 CFR part 2637 concerning provisions of 18 U.S.C. 207 that were not 
amended by the Ethics Reform Act of 1989 (or thereafter). However, we 
have incorporated a number of improvements designed to facilitate 
understanding of this very complex statute. We have organized part 2641 
as proposed in a manner that we feel more clearly highlights the 
applicability, duration, and elements of each of the substantive 
provisions of section 207 that apply to former employees of the 
executive branch and independent agencies. In addition, more guidance 
is included concerning the scope of the statutory exceptions.
    We have also included new and more numerous examples. However, the 
examples are illustrative, not comprehensive. Each agency may provide 
additional illustration and guidance to its own employees, consistent 
with this part, in order to address specific problems arising in the 
context of a particular agency's operations. It is important to 
emphasize that the examples in part 2641 were drafted to illustrate the 
scope and meaning of 18 U.S.C. 207 only. Activity that is represented 
as permissible under section 207 may be prohibited by another post-
employment law.

Proposed Sec.  2641.201--18 U.S.C. 207(a)(1)

    Section 207(a)(1) of title 18, United States Code, sets forth the 
permanent bar that was designated as section 207(a) in the pre-Ethics 
Reform Act of 1989 version of section 207. The target of this 
restriction is the former employee who participates personally and 
substantially in a particular matter involving a specific party or 
parties while employed by the Government and who later ``switches 
sides'' by representing another person on the same matter, with the 
intent to influence, before a Federal department, agency, or court.
    Proposed Sec.  2641.201(b) provides cross-references to the 
appropriate paragraphs of proposed Sec.  2641.301 for each of the 
exceptions and waivers that in certain circumstances negate the 
prohibition contained in 18 U.S.C. 207(a)(1).

Proposed Sec.  2641.201(d)--Communication or Appearance

    Section 207(a) bars certain communications to or appearances before 
the United States. Proposed Sec.  2641.201(d) describes the statutory 
communication or appearance element. Although section 207(a) has been 
amended several times since 1962--and the operative language describing 
the offense in section 207(a)(1) has varied--OGE and the Department of 
Justice have long held that it covers only those actions involving some 
representational contact by the former employee with the Government. 
E.g., 2 Op. O.L.C. 313 (1978); OGE Informal Advisory Letter 82 x 13. 
The current statutory language reinforces the longstanding view that 
some communication or appearance by the former employee is required for 
a violation of the statute.
    The definition of ``communication'' at proposed Sec.  
2641.201(d)(1) is intended to be all-inclusive with respect to types of 
communication, content of communication, or means of communication. 
This intentionally broad definition covers all formal or informal 
communications of any sort; to the extent that a given communication 
might be thought trivial or insignificant, such issues may be dealt 
with in connection with other statutory elements, especially the 
requirement that the communication be made with the intent to influence 
the Government. See proposed Sec.  2641.201(e).
    The definition of ``appearance'' at proposed Sec.  2641.201(d)(2) 
largely follows the language of 5 CFR 2637.201(b)(3). However, the 
proposed regulation focuses solely on physical presence and omits the 
reference, found in Sec.  2637.201(b)(3), to ``convey[ing] material to 
the United States in connection with a formal proceeding or 
application.'' The latter phrase is unnecessary, since the conveying of 
material, such as pleadings and other documents, typically would 
constitute a ``communication'' anyway. See 5 CFR 2637.201(b)(3) 
(example 1) (under old rule, appearance included submitting brief in 
agency proceeding). Under the

[[Page 7850]]

statute as it existed prior to the 1989 amendments, it was more 
important to distinguish appearances from mere communications, as the 
two types of contacts were treated differently for certain purposes 
that are no longer relevant under the current statutory scheme. See 44 
Federal Register 19974, 19975 (April 3, 1979) (preamble to 5 CFR part 
737, now 5 CFR part 2637); OGE Informal Advisory Letter 81 x 35.
    Proposed Sec.  2641.201(d)(3) emphasizes that section 207(a) does 
not prohibit ``behind-the-scenes assistance'' that involves no contact 
by the former employee with the Government. See, e.g., Beverly 
Enterprises, Inc. v. Trump, 182 F.3d 183, 191 (3d Cir. 1999), cert. 
denied, 120 S.Ct. 795 (2000). Proposed example 5 is derived from a 
recent opinion of the Office of Legal Counsel, and it illustrates the 
principle that a former employee does not confine herself to 
permissible behind-the-scenes activity when she conveys information to 
the Government through an intermediary and does so with the intent that 
the information be attributed to her. See Memorandum for Amy L. 
Comstock, Director, OGE, from Joseph R. Guerra, Deputy Assistant 
Attorney General, OLC, January 19, 2001, available under ``Other Ethics 
Guidance, Conflict of Interest Prosecution Surveys and OLC Opinions'' 
on OGE's Web site, http://www.usoge.gov. In this connection, see also 
proposed example 7 following proposed Sec.  2641.201(f), which would 
illustrate the related point that a communication will be deemed to be 
made ``to'' an employee of the United States if it is conveyed to an 
employee through a third party with the intent that the information be 
attributed to the former employee.

Proposed Sec.  2641.201(e)--With the Intent to Influence

    Section 207(a) prohibits only those communications or appearances 
that are made with the intent to influence the United States. Proposed 
Sec.  2641.201(e) describes this statutory element of intent to 
influence.
    Prior to the 1989 amendments, the phrase ``with the intent to 
influence'' modified only ``communication,'' not ``appearance.'' See S. 
Rep. No. 170, 95th Cong., 1st Sess. 152-53 (1977); OGE Informal 
Advisory Letter 81 x 35.\3\ After the 1989 Act, it became clear that 
both appearances and communications must be made with the intent to 
influence in order for a violation of section 207(a) to occur: ``Any 
person who * * * knowingly makes, with the intent to influence, any 
communication to or appearance before * * * .'' 18 U.S.C. 207(a)(1). 
(Identical language also appears in sections 207(a)(2), 207(c)(1), and 
207(d)(1).) It is unclear, however, to what extent this 1989 change 
really altered the executive branch's understanding of section 207(a): 
``appearance'' had been used in conjunction with the statutory phrase 
``acts as agent or attorney for, or otherwise represents,'' and OGE had 
already determined that this meant an appearance was prohibited only 
``if there were an actual or potential dispute.'' OGE Informal Advisory 
Letter 81 x 35. See also 5 CFR 2637.204(e), 2637.201(b)(5); 2 Op. Off. 
Legal Counsel 313, at 316. As discussed more fully below, the existence 
of an actual or potential dispute is one of the recognized factors for 
determining intent to influence. Compare 5 CFR 2637.204(e) (under old 
rule, same standard for ``acting as representative'' and ``attempting 
to influence'').
---------------------------------------------------------------------------

    \3\ The Senate Report discussion and OGE Informal Advisory 
Letter 81 x 35 specifically pertained to section 207(c), but they 
were relevant also to section 207(a), because ``[p]rior to the 
effective date of the amendments enacted by the Ethics Reform Act of 
1989, both sections 207(a) and 207(c) contained identical language 
describing the nature of the representational activity prohibited.'' 
OGE Informal Advisory Letter 96 x 14, n. 25.
---------------------------------------------------------------------------

    Proposed Sec.  2641.201(e) uses basically the same test for the 
intent to influence as the prior section 207 regulations. See 5 CFR 
2637.204(e). As articulated in the proposed regulation, the intent to 
influence may be found if the communication or appearance is made for 
either of the following purposes: ``(i) [s]eeking a Government ruling, 
benefit, approval, or other discretionary Government action; or (ii) 
[a]ffecting Government action in connection with an issue or aspect of 
a matter which involves an appreciable element of actual or potential 
dispute.'' Proposed Sec.  2641.201(e)(1)(i) and (ii). In some respects, 
paragraph (1)(i) might be viewed as a subset of subparagraph (1)(ii), 
in the sense that any time a communication or appearance is made to 
seek ``discretionary'' Government action, there is at least the 
potential for a conflict of positions or other dispute between the 
Government and the private party being represented. Nevertheless, 
consistent with the prior section 207 regulations, OGE believes that it 
is appropriate to emphasize that any representational contact made for 
the purpose of seeking discretionary Government action would meet the 
element of the intent to influence.
    The proposed regulation draws on various provisions in the prior 
regulations, as well as more recent administrative and judicial 
precedents, to provide guidance on when the intent to influence is 
present. Proposed Sec.  2641.204(e)(2) sets out situations that 
generally have been recognized as involving no intent to influence. 
Several of the paragraphs in proposed Sec.  2641.201(e)(2) repeat 
provisions or examples found in the prior section 207 regulations and 
other OGE precedents. For example, proposed Sec.  2641.201(e)(2)(iii)--
signing a tax return prepared for another person--and Sec.  
2641.201(e)(2)(v)--submitting an SEC Form 10-K--basically reiterate 
examples found in 5 CFR 2737.204(e). Some provisions in the proposed 
regulation make certain clarifications to the language used in the 
prior section 207 regulations and other OGE precedents. For example, 
proposed Sec.  2641.201(e)(2)(iv), read in conjunction with proposed 
Sec.  2641.201(d) (example 4), substantially preserves 5 CFR 
2637.204(g) (example 1), pertaining to various aspects of the Federal 
grant application process and service by former employees as principal 
investigators, but clarifies the rationale. The proposed rule 
intentionally does not carry forward the provision on project responses 
in 5 CFR 2637.201(b)(7) because this provision was thought by OGE to be 
susceptible to misinterpretation. In OGE's experience, the project 
response provision and the accompanying example sometimes have been 
construed as allowing former employees inappropriate latitude in 
communicating with the Government where there may be a potential for 
controversy in the course of performing Government contracts or 
submitting proposals or reports to the Government. In its place, OGE 
has provided example 5, following proposed Sec.  2641.201(e)(2), in 
order to emphasize the limits on communications during the performance 
of contracts, particularly in the difficult area of contracts to 
perform professional or managerial studies or similar services for the 
Government. Proposed examples 3 and 7 also provide additional guidance 
concerning the scope of permissible contacts in connection with 
Government contracts.
    Some of the situations addressed in proposed Sec.  2641.201(e)(2) 
pertain to communications and appearances that involve certain types of 
factual statements or questions, e.g., proposed Sec.  
2641.201(e)(2)(ii). OGE has long recognized that certain statements of 
fact, in appropriate circumstances, do not necessarily involve an 
intent to influence the United States. See, e.g., OGE Informal Advisory 
Letter 80 x 9. Factual statements, however, are not per se excluded 
from section 207(a). Factual disputes often are the heart of a given 
controversy, and a former employee's

[[Page 7851]]

characterization of the material facts can be a form of advocacy. See, 
e.g., proposed Sec.  2641.201(e)(2) (example 4) (dealing with efforts 
to persuade Government of safety and efficacy of new drug based on 
presentation of testing data). Congress recognized this by providing 
exceptions to section 207, such as the exceptions for scientific or 
technological information and testimony under oath, which permit 
certain factual statements, but only under specified safeguards. See 
proposed Sec.  2641.301(e) and (f). It is clear that factual statements 
may be made with the intent to influence the Government, if they are 
made for the purpose of seeking discretionary Government action or 
affecting Government action in connection with an issue or aspect of a 
matter involving an appreciable element of dispute. Therefore, OGE was 
careful, in various proposed textual provisions and examples pertaining 
to factual statements (or appearances in connection with factual 
matters), to include circumstances that specifically would indicate 
that there is no intent to influence.
    A word of caution is in order with respect to the application of 
proposed Sec.  2641.201(e)(1) and (2). The presence or absence of the 
intent to influence typically will be based on a consideration of all 
the relevant circumstances in a given case. The facts of each case 
should be examined carefully, therefore, before any conclusion is 
reached that a particular activity would fall within any of the 
provisions of proposed Sec.  2641.201(e)(2) indicating no intent to 
influence, or would more correctly be viewed as meeting the test for 
the intent to influence in proposed Sec.  2641.201(e)(1).
    Proposed Sec.  2641.201(e)(3) makes explicit a principle that was 
already implicit in the prior section 207 regulations. See Sec.  
2637.201(b)(5) (example 1). This provision recognizes that certain 
communications or appearances may commence without any intent to 
influence the Government, but may take on a different character if 
unforeseen disputes or other changed circumstances arise. In these 
cases, the former employee must refrain from any further communication 
or appearance if it becomes apparent that such further contact would be 
made with the intent to influence.
    Proposed Sec.  2641.201(e)(4) emphasizes that a mere appearance, 
even without any accompanying communication by the former employee, may 
be prohibited by section 207(a). As one court put it, applying the pre-
1989 language, a representational appearance by a former employee may 
be covered ``with or without speaking for the client.'' United States 
v. Coleman, 805 F.2d 474, 480 (3d Cir. 1986).\4\ Phrased another way, 
silent appearances can be made with the intent to influence. This 
conclusion is compelled by the language and history of the statute. The 
language of section 207(a)(1) explicitly covers former employees who 
make, ``with the intent to influence, any communication to or 
appearance before'' the Government (emphasis added). Historically, as 
discussed above, representational appearances actually were covered per 
se, even without any explicit requirement of ``intent to influence,'' 
although it was recognized even prior to the 1989 amendments that the 
appearance must have been made under circumstances involving ``at least 
inchoate adversariness.'' 2 Op. Off. Legal Counsel at 316. There is 
nothing in the legislative history of the 1989 Act to indicate that the 
addition of an explicit ``intent to influence'' element in connection 
with appearances was intended to relax the restriction on 
representational appearances as it had been understood previously.
---------------------------------------------------------------------------

    \4\ Coleman involved the application of former 18 U.S.C. 
207(b)(1), but that statute contained the same language concerning 
the representational conduct prohibited as section 207(a), prior to 
the 1989 amendments.
---------------------------------------------------------------------------

    The question becomes, then, what circumstances would indicate that 
physical presence alone, without any substantive communication, is 
intended to influence the Government? The second sentence of proposed 
Sec.  2641.201(e)(4) provides a nonexhaustive list of factors that can 
be relevant to such determinations. Many of these factors are derived 
from judicial and administrative precedents. See, e.g., Coleman, supra; 
United States v. Schaltenbrand, 930 F.2d 1554 (11th Cir. 1991); OGE 
Informal Advisory Letter 82 x 7. Although no one factor is necessarily 
determinative, these and any other relevant factors should be 
considered in light of the totality of the circumstances in a given 
case.

Proposed Sec.  2641.201(f)--To or Before an Employee of the United 
States

    The post-Ethics Reform Act of 1989 version of 18 U.S.C. 207(a)(1) 
prohibits communications to or appearances before any ``officer or 
employee'' of any ``department, agency, court, or court-martial of the 
United States or the District of Columbia * * *.'' The prior version of 
the permanent bar had also prohibited communications to and appearances 
before ``any civil, military, or naval commission of the United States 
or the District of Columbia, or any officer or employee thereof.'' We 
believe the current version of the permanent bar no longer lists 
``civil, military, or naval commission'' because these commissions are 
encompassed within the remaining terms. For purposes of summarizing the 
section 207(a)(1) restriction as briefly as possible at proposed Sec.  
2641.201(a), we refer to an employee ``of the United States'' rather 
than repeating the words ``department, agency, court, or court-
martial.'' Proposed Sec.  2641.201(f) is titled accordingly. Although a 
court-martial is held under the auspices of a department, we chose to 
specifically list this forum in order to avoid possible confusion. 
Moreover, proposed Sec.  2641.201(f) does not distinguish between 
``department'' and ``agency,'' because the definition of ``agency'' 
includes ``department.'' See proposed Sec.  2641.104.
    The term ``employee of the United States'' is defined at proposed 
Sec.  2641.201(f)(1) for purposes of identifying those individuals with 
whom post-employment contact is restricted. The proposed definition 
specifically includes an individual who, under 5 U.S.C. 3374(a), is 
considered an employee because appointed or detailed under the IPA. 
Pursuant to 18 U.S.C. 207(i)(1)(A), it also encompasses the President 
and the Vice President. Section 207(i)(1)(A) specifically states that 
``the term ``officer or employee,'' when used to describe the person to 
whom a communication is made or before whom an appearance is made * * * 
shall include in subsections (a), (c), and (d), the President and the 
Vice President.''
    More generally, the proposed definition of ``employee of the United 
States'' at Sec.  2641.201(f)(1) includes any ``Federal employee'' who 
is ``employed by'' an agency, court, or court-martial. Our choice of 
words was guided by a number of factors. First, 18 U.S.C. 207(a)(1) 
states that a communication or appearance is barred only if directed to 
an ``employee'' of a department, agency, court, or court-martial. We 
specifically intend that the words ``employed by'' would exclude from 
the scope of section 207(a) those communications directed to a non-
Federal employee who happens to be serving in a department, agency, 
court, or court-martial. However, as illustrated in proposed example 7 
following Sec.  2641.201(f), we recognize that there may be 
circumstances in which a communication to a non-Federal employee is 
actually directed to a Federal employee.
    Proposed Sec.  2641.201(f)(1)(i) specifies that an agency 
encompasses a Government corporation. While the

[[Page 7852]]

term agency encompasses any independent agency, proposed Sec.  
2641.201(f)(1)(ii) emphasizes that the representational bar extends to 
contacts with employees of an independent agency in any of the three 
branches of the Federal Government. Notably, proposed example 1 
following Sec.  2641.201(f) as proposed would highlight the fact that 
Members of Congress and their staffs are not employees of an 
independent agency in the legislative branch. Proposed Sec.  
2641.201(f)(1)(iii) modifies the term ``court'' with the adjective 
``Federal'' in order to distinguish State or other non-Federal courts. 
Of course, as has been described in several OGE Informal Advisory 
Letters, a communication made in a court has ``the additional 
unavoidable intent of attempting to influence and to persuade'' a 
Federal party in the lawsuit, regardless of the forum. OGE Informal 
Advisory Letter 80 x 6. Moreover, a former employee may be prohibited 
from contacting Federal employees for use as witnesses or otherwise in 
connection with a lawsuit in State court. OGE Informal Advisory Letter 
82 x 13.
    Proposed Sec.  2641.201(f)(1) omits the District of Columbia from 
the list of entities to or before which communications and appearances 
may not be made. As clarified in 18 U.S.C. 207(a)(3), the District of 
Columbia is listed in section 207(a)(1) merely as a consequence of the 
permanent bar's applicability to former District of Columbia employees. 
Thus, a former employee of the District of Columbia is covered by 
section 207(a)(1) in relation to contacts back to the government of the 
District of Columbia, but former employees of the executive branch (and 
of independent agencies) are not restricted by section 207(a)(1) from 
contacting employees of the District of Columbia.
    Our definition of ``to or before'' in proposed Sec.  
2641.201(f)(2)(i) indicates that a communication or appearance will be 
considered directed to an employee of an agency, court, or court-
martial even though not addressed to any particular employee of the 
entity. We believe it would be inconsistent with the purpose of 18 
U.S.C. 207 to permit communications to a Federal entity merely because 
they are not addressed to a named individual.
    In proposed Sec.  2641.201(f)(2)(ii), we specify that a 
communication or appearance must be directed to an employee ``in his 
capacity as an employee of'' an agency, court, or court-martial. 
Proposed examples 2, 3, and 4 following proposed Sec.  2641.201(f) are 
illustrative. While a former employee is not prohibited from lobbying a 
legislative branch employee at a meeting, example 2 emphasizes that a 
former employee may not try to influence an employee of an independent 
agency who is participating in the same meeting. Example 3 indicates 
that the permanent bar would extend to communications directed to an 
executive branch employee who is assigned by his agency to carry out 
official Government duties as a member of the Board of Directors of a 
non-Federal entity. The employee would be acting in his capacity as an 
executive branch employee even when, as in the proposed example, he is 
considering a specific issue of most interest to the private sector 
entity. (Separately, of course, the issue must be of direct and 
substantial interest to the current employee's agency, as described in 
proposed Sec.  2641.201(j).) The proposed wording of Sec.  
2641.201(f)(2)(ii) is also intended to address the situation in which a 
former employee directs a communication to a former employee in a 
social setting. Although the current Federal Communications Commission 
(FCC) employee in proposed example 4 is ``off-duty'' at the cocktail 
party, the former employee nevertheless directs his communication to 
the FCC employee in his capacity as an employee of that agency.
    As proposed, Sec.  2641.201(f)(2)(ii) indicates that a former 
employee does not ``direct'' his communication to a mere bystander. 
Beyond this, we considered whether 18 U.S.C. 207(a)(1) should be 
interpreted as also not extending to a variety of situations in which a 
former employee directs a communication to a current employee who has 
no official role in a forum, yet who is participating in the forum as 
more than a mere bystander. We considered, for example, a number of 
situations in which a communication is directed to an assembled group. 
As we observed in OGE Informal Advisory Letter 81 x 5(1) in relation to 
the scope of section 207(c), the concern is the extent to which section 
207 ``might require [a former employee] to survey who his audience was 
before he argued a certain position to any group of individuals.''
    Proposed Sec.  2641.201(f)(3) permits a former employee to serve as 
a speaker if the forum ``[i]s not sponsored or co-sponsored by an 
entity specified in paragraphs 2641.201(f)(1)(i)-(iv) of this section, 
[i]s attended by a large number of people, and [a] significant 
proportion of those attending are not employees of the United States.'' 
See OGE Informal Advisory Letters 81 x 5(1), 81 x 5(2), It is our 
intention that former employees not be prohibited from addressing what 
are essentially public forums. The regulation may depart somewhat from 
past guidance in that it states that employees otherwise permitted to 
address such fora may engage in debate with any other panel 
participants or with members of the audience who happen to be current 
employees without fear of being found to have made a prohibited 
communication. In a public setting outside the context of official 
decision-making, such incidental exchanges between participants are 
still primarily directed towards the audience.
    Under proposed Sec.  2641.201(f)(3), private sector sponsorship of 
a forum, standing alone, does not free a speaker or panel participant 
from his post-employment restrictions. The forum must be in the nature 
of a conference, seminar, or similar forum; the audience must be large; 
and a significant proportion of attendees must be persons other than 
Federal employees. We considered whether to specify a minimum number of 
attendees and/or a maximum percentage of Federal employee attendees. In 
some settings, a communication is directed to so wide an audience that 
it cannot be said to be made ``to'' Federal employees in the audience. 
And while some audiences will plainly fall on one side or the other of 
a line drawn for this purpose, a precise line as to the size and 
composition of such an audience cannot be drawn. Former employees 
should appreciate the risks of violating section 207 before agreeing to 
address a forum when it is unclear whether proposed Sec.  
2641.201(f)(3) applies. In this regard, former employees may be guided 
by the size of the conference and the proportion of non-employee 
attendees in proposed example 5.
    The regulation would deal with published writings in a similar 
fashion. A former employee may ``permit the broadcast or publication of 
a commentary provided that it is broadcast or appears in a newspaper, 
periodical, or similar widely-available publication.''
    As proposed example 7 would indicate, a communication can be made 
``to'' an employee of the United States if it is conveyed through an 
intermediary with the intent that the information be attributed to the 
former employee. A similar point is discussed above in connection with 
proposed example 5 following Sec.  2641.201(d) as proposed, which would 
illustrate the distinction between permissible behind-the-scenes 
activity and communications directed to the Government.

[[Page 7853]]

Proposed Sec.  2641.201(g)--On Behalf of Any Other Person

    Proposed Sec.  2641.201(g) defines the phrase ``on behalf of'' for 
purposes of 18 U.S.C. 207(a)(1), (a)(2), (c) and (d). As enacted in 
1962, the lifetime restriction originally barred a former employee from 
acting as ``agent or attorney'' for anyone. Similarly, the predecessor 
of current section 207(a)(2), concerning matters under an employee's 
official responsibility, originally barred a former employee from 
appearing personally as ``agent or attorney.'' These restrictions were 
amended by the Ethics in Government Act of 1978 to extend to the former 
employee who acts ``as agent or attorney for, or otherwise represents, 
any other person * * * in any formal or informal appearance * * * or * 
* * makes any oral or written communication on behalf of any other 
person.'' Congress used this same language in 1978 when it enacted 
section 207(c), the one-year ``cooling-off'' restriction applicable to 
former senior employees. Since the Ethics Reform Act of 1989, these 
three restrictions have barred a former employee from making any 
``communication to or appearance before'' an employee of the United 
States ``on behalf of'' any other person. The same language appears in 
section 207(d), the one-year cooling-off restriction applicable to 
former very senior employees.
    We determined that a communication or appearance that is in the 
interest of another person is not sufficient to be considered ``on 
behalf of'' that person. Accordingly, the proposed definition at Sec.  
2641.201(g)(1) states that ``[a] former employee does not act on behalf 
of another merely because his communication or appearance is consistent 
with the interests of the other person, is in support of the other 
person, or may cause the other person to derive a benefit as a 
consequence of the former employee's activity.'' While we recognize 
that the terms ``agent'' and ``attorney'' no longer appear in the 
current version of the permanent, two-year, or one-year cooling-off 
restrictions, proposed Sec.  2641.201(g)(1) indicates that when a 
former employee acts as another's ``agent'' or ``attorney,'' he 
necessarily acts on behalf of the principal. Even when a former 
employee is not acting as an agent or attorney, however, proposed Sec.  
2641.201(g)(1) recognizes that a former employee may nevertheless act 
on behalf of another provided the criteria at proposed Sec.  
2641.201(g)(1)(i) and (ii) are satisfied. As specified in proposed 
Sec.  2641.201(g)(1)(i), the former employee must be acting with the 
consent, express or implied, of the other person. And, as specified in 
proposed Sec.  2641.201(g)(1)(ii), the former employee must be subject 
to some degree of control or direction by the other person in relation 
to the communication or appearance.
    The former employee in example 2 following proposed Sec.  
2641.201(g) has broad authority to further the interest of the 
organization with which she is serving as a volunteer. For purposes of 
the consent requirement in proposed Sec.  2641.201(g)(1)(i), the 
organization is deemed to have consented to her dispatch of the letter 
to the Government. In contrast, the circumstances in proposed example 3 
would indicate that the former employee is not acting on behalf of the 
nonprofit group with which he is serving as an employee.
    OGE has fielded many questions from agencies that wish to contact 
former employees who have gone to work for private sector employers. We 
have generally been counseling that all relevant factors must be 
considered, including the relationship between the communication or 
appearance and any related interest of the former employee's new 
employer or other organization with which he is affiliated. See, e.g., 
OGE Informal Advisory Letter 97 x 9. We believe that the focus on the 
two factors at proposed Sec.  2641.201(g)(1) would make certain 
contacts between an agency and its former employee less problematic and 
would allow OGE and agency ethics officials to advise accordingly.
    An appearance or communication is barred by 18 U.S.C. 207(a)(1), 
(a)(2), (c), or (d) only if made on behalf of ``any other person.'' 
Proposed Sec.  2641.201(g)(2) cross-references the definition of 
``person'' in proposed Sec.  2641.104, but specifically states that 
self-representation is not prohibited. Proposed example 1 following 
proposed Sec.  2641.201(g) is illustrative. Proposed Sec.  
2641.201(g)(2) also includes a reference to sole proprietorships that 
is intended to distinguish that form of business enterprise from 
partnerships and corporations for purposes of the ``exception'' for 
self-representation. The proposed rule reflects that a corporation is a 
person separate from its owner or owners. As a result, if a former 
employee chooses to incorporate his consulting business, he must ensure 
that his communications with the Government do not run afoul of the 
post-employment statute's requirements since he will be representing 
another ``person.'' On the other hand, if the same former employee had 
chosen not to incorporate his business, he would be free to interact 
with current Government employees without fear of violating section 
207(a)(1) since he would be representing only himself.

Proposed Sec.  2641.201(h)--Particular Matter Involving Specific 
Parties

    Proposed Sec.  2641.201(h) explains a concept that has been central 
to the understanding of 18 U.S.C. 207 since its original enactment in 
1962. The phrase ``particular matter'' is broadly defined in section 
207(i)(3) to include ``any investigation, application, request for a 
ruling or determination, rulemaking, contract, controversy, claim, 
charge, accusation, arrest, or judicial or other proceeding.'' In 
section 207(a)(1) and (2), however, particular matter is modified by 
the additional phrase ``which involved a specific party or specific 
parties.'' See B. Manning, Federal Conflict of Interest Law 204 (1964) 
(explaining significance of the phrase); 2 Op. O.L.C. 151 (1978) 
(same). Proposed Sec.  2641.201(h) is intended to explain the nature 
and scope of this statutory element.
    The proposed regulation uses basically the same test for particular 
matters involving specific parties that is used in 5 CFR 2637.201(c). 
Proposed Sec.  2641.201(h)(1) states: ``These matters involve a 
specific activity or undertaking affecting the legal rights of the 
parties or an isolatable transaction or related set of transactions 
between identified parties, such as a specific contract, grant, 
license, product approval application, enforcement action, 
administrative adjudication, or court case.'' One minor change worth 
noting is that the proposed regulation speaks of ``identified'' 
parties, whereas section 2637.201(c)(1) used the term ``identifiable'' 
parties (following identical language originally found in B. Manning, 
supra, at 204). This change is consistent with the more recent 
definition of particular matter involving specific parties in 5 CFR 
2640.102(l). See 60 FR 47207, 47211 n.1 (September 11, 1995). The use 
of ``identified,'' rather than ``identifiable,'' is intended to 
distinguish more clearly between particular matters involving specific 
parties and mere ``particular matters,'' which are described elsewhere 
as including matters of general applicability that focus ``on the 
interests of a discrete and identifiable class of persons'' but do not 
involve specific parties. 5 CFR 2640.102(m) (emphasis added). See also 
5 CFR 2640.103(a)(1); 5 CFR 2635.402(b)(3). The use of the term 
``identified,'' however, does not mean that a matter will lack specific 
parties just because the name of a party is not disclosed to the 
Government, as

[[Page 7854]]

where an agent represents an unnamed principal.
    Consistent with this basic test and with Sec.  2637.201(c)(1), 
proposed Sec.  2641.201(h)(2) confirms that matters of general 
applicability are not particular matters involving specific parties. 
See also Shakeproof Indus. Prod. Div. of Ill. Tool Works, Inc. v. 
Department of Commerce, 104 F.3d 1309, 1313-14 (Fed. Cir. 1997). As 
illustrated by the examples following this provision, section 207(a) 
ordinarily does not prohibit former employees from making 
representations in connection with general rulemaking, policy and 
legislative matters, notwithstanding any personal and substantial 
participation or official responsibility they may have had with respect 
to such matters as a Federal employee.
    Proposed Sec.  2641.201(h)(3) indicates that specific parties must 
be involved, under section 207(a), both at the time the former employee 
was involved in the matter and at the time of the post-employment 
representation. This reflects a longstanding interpretation of section 
207(a), which was codified in 5 CFR 2637.201(c)(4). Nevertheless, the 
Ethics Reform Act of 1989 made certain adjustments to the grammatical 
structure of section 207(a) that may require some explanation. Prior to 
the 1989 Act, section 207(a) read, in pertinent part: ``Whoever * * * 
knowingly acts as agent or attorney for, or otherwise represents, any 
other person * * * in connection with any * * * particular matter 
involving specific parties * * * in which he participated personally 
and substantially as an officer or employee * * *.'' In 1989, the 
language pertaining to specific parties was broken out and moved to its 
own lettered subparagraph, which now reads: ``(C) which involved a 
specific party or specific parties at the time of such participation.'' 
18 U.S.C. 207(a)(1)(c) (emphasis added).\5\ Based on the legislative 
history, it appears that the amendment was intended simply to resolve 
any doubt that specific parties must have been involved at the time 
that the former employee participated in the matter, not to cast doubt 
on the well-understood requirement that specific parties must be 
involved at the time of the representation.\6\
---------------------------------------------------------------------------

    \5\ Similar language was enacted in 1989 in section 
207(a)(2)(C), which pertains to particular matters pending under an 
employee's official responsibility: ``(C) which involved a specific 
party or specific parties at the time it was so pending (emphasis 
added).''
    \6\ The leading Senate proponent of the 1989 amendments stated 
that many of the changes to section 207 ``simply reflect an effort 
to make the statute more readable.'' 135 Cong. Rec. S15954 (November 
17, 1989) (remarks of Sen. Levin). Senator Levin also entered into 
the record a section-by-section analysis stating that section 
207(a)(1) is ``similar to current law'' and describing it as a 
prohibition against ``lobbying * * * on a particular matter 
involving specific parties,'' id., which suggests this was not a 
novel effort to cover matters that do not involve specific parties 
at the time of the lobbying. Furthermore, the Department of Justice 
testified at a 1989 hearing with respect to H.R. 9, which contained 
the same language as the enacted amendments concerning the timing of 
the specific parties requirement. The Justice Department commented 
on this aspect of the proposal and specifically noted its 
consistency with the OGE regulation discussed above: ``The 
requirement that a specific party must have been involved at the 
time of the employee's government service clarifies present law in a 
way that is consistent with current regulations. It means, for 
example, that a Government employee who helped develop a set of 
regulations or policies is not precluded from becoming involved in a 
particular case or matter involving the application of the 
regulation or policy. See 5 CFR 737.5 (c)[now 5 CFR 2637.201(c)].'' 
Hearings Before the Subcommittee on Administrative Law and 
Governmental Relations of the Committee on the Judiciary, House of 
Representatives, on H.R. 2267 and Related Bills: Post-Employment 
Restrictions Act of 1989, 101st Cong., 1st Sess. 151 (April 27, 
1989)(statement of John C. Keeney, Deputy Assistant Attorney 
General, Criminal Division).
---------------------------------------------------------------------------

    Proposed Sec.  2641.201(h)(4) pertains to the related issue of when 
specific parties can be said to be involved in a particular matter. 
Section 207(a) can apply to participation in preliminary or informal 
stages of a particular matter. See, e.g., 2 Op. O.L.C. 313 (1978). 
Consequently it becomes important to determine, in light of the facts 
surrounding a given matter, at what point specific parties are first 
identified. Proposed Sec.  2641.201(h)(4) and the examples that follow 
are intended to provide guidance in making such determinations. In 
addition to general guidance applicable to all types of matters, the 
proposed regulation also provides more specific guidance with respect 
to contracts, grants, and other agreements, which historically have 
posed some of the most difficult and recurring questions. See OGE 
Informal Advisory Letter 96 x 21.
    Another set of difficult and recurring questions is addressed by 
proposed Sec.  2641.201(h)(5), which explains the requirement that the 
same particular matter must be involved both at the time of the former 
employee's Government service and at the time of post-employment 
representation. The proposed regulation uses substantially the same 
test as 5 CFR 2637.201(c)(4), including a similar list of factors that 
should be taken into consideration, where relevant, in determinations 
as to whether two matters constitute the same particular matter 
involving specific parties. The proposed examples following proposed 
Sec.  2641.201(h)(5) would illustrate the application of some of these 
factors and draw on various administrative and judicial precedents. 
E.g., United States v. Medico Indus., Inc., 784 F.2d 840 (7th Cir. 
1986); CACI, Inc.-Federal v. United States, 719 F.2d 1567 (Fed. Cir. 
1983); OGE Informal Advisory Letter 93 x 32. For purposes of clarity, 
one factor was not carried over from the previous list in Sec.  
2637.201(c)(4), namely, ``the continuing existence of an important 
Federal interest''; this factor was thought to add little to the 
analysis of section 207, since the statute already applies only to 
matters in which the United States is a party or at least has a 
``direct and substantial interest.'' 18 U.S.C. 207(a)(1), (a)(2).
    The principle reflected in proposed Sec.  2641.105--that the 
primary responsibility for rendering post-employment advice resides in 
the ethics official at the agency where the former employee served--is 
particularly important in connection with these ``same particular 
matter'' determinations. These questions frequently require an 
understanding of the specific operations, programs, and missions of the 
agencies involved. Moreover, there is judicial recognition that agency 
determinations with respect to the ``same particular matter'' element 
are ``entitled to weight.'' CACI, 719 F.2d at 1576; see also 
Shakeproof, 104 F.3d at 1314. This is not to suggest, of course, that 
deference to the agency is absolute. See, e.g., United States v. 
Gonzalez-Florido, 986 F.Supp. 687 (D.P.R. 1997).

Proposed Sec.  2641.201(i)--Participated Personally and Substantially

    Proposed Sec.  2641.201(i) defines the terms ``participate,'' 
``personally,'' and ``substantially.'' The first regulatory definition 
of these terms for purposes of 18 U.S.C. 207 was published in 1980 at 5 
CFR 2637.201(d). When Congress amended section 207 in 1989, it added a 
statutory definition of ``participated'' at section 207(i)(2). In the 
1990s, OGE published regulatory guidance concerning the meaning of 
these terms in connection with its implementation of 18 U.S.C. 208 at 5 
CFR part 2635 and 5 CFR part 2640. The current definitions of 
``personal and substantial'' at 5 CFR 2635.401(b)(4) and ``personal and 
substantial participation'' at 5 CFR 2640.103(a)(2) were patterned 
closely after definitions in 5 CFR part 2637. The language of proposed 
Sec.  2641.201(i) deviates somewhat from the language of these existing 
OGE regulations for several reasons. First, we are proposing to more 
clearly separate the definitions of the terms ``participate,'' 
``personally,'' and ``substantially.'' We would also exactly track the 
language of the

[[Page 7855]]

statutory definition of ``participated.'' More significantly, however, 
we are proposing to include some additional guidance that reflects our 
experience with several questions arising since publication of the 
earlier regulations.
    The first sentence of the definition of ``participate'' at proposed 
Sec.  2641.201(i)(1) is from 18 U.S.C. 207(i)(2). Consistent with 
existing guidance at 5 CFR 2637.201(d)(3), the definition then 
indicates that to participate can also mean to ``purposefully forbear 
in order to affect the outcome of a matter.'' The proposed definition 
also distinguishes participation from mere knowledge of a matter and 
from the definition of ``official responsibility'' as set forth in 
proposed Sec.  2641.202(j). Additionally, the proposed definition 
points out that an employee can participate in a particular matter even 
though it is not pending at his own agency. Finally, it would state 
that an employee does not participate in a particular matter within the 
meaning of section 207(a)(1) unless he does so in his official 
capacity.
    Under the proposed definition at Sec.  2641.201(i)(2), to 
participate ``personally'' includes the direct and active supervision 
of others. The existing regulations refer to active supervision of a 
``subordinate.'' As proposed, Sec.  2641.201(i)(2) indicates that the 
person supervised need not technically be a subordinate. An employee 
may participate in a matter, for example, by means of direct and active 
supervision of an employee who is merely on loan from another office. 
Separately, we are also proposing to make the fairly obvious point that 
an employee participates in a matter whether he does so ``individually 
or in combination with other persons.''
    The definition of ``substantially'' at proposed Sec.  
2641.201(i)(3) closely tracks the definitions of that term in 5 CFR 
part 2635 and 5 CFR part 2640. However, we are proposing to insert an 
additional sentence in response to two recent scenarios. The first 
concerned a former employee's involvement as a Government employee in a 
meeting with a private sector company. The meeting was preliminary to 
the company's submission of an application to the Government. The 
former employee was willing to concede that the meeting and the 
application were the same ``particular matter.'' He argued, however, 
that the meeting constituted an aspect of the matter that was 
insignificant in relation to the application process as a whole and 
that the former employee's participation was, therefore, insubstantial. 
In another case, a former employee argued that his participation in a 
multi-million dollar project had not been substantial since the dollar 
value of the aspect of the project in which he was involved was 
insignificant in relation to the dollar value of the project as a 
whole. The Office of Government Ethics rejected both arguments, noting 
that in both cases the former employee had made a substantive 
contribution to the matter. As we propose to explain in Sec.  
2641.201(i), ``[p]rovided that an employee participates in the 
substantive merits of a matter, his participation may be substantial 
even though his role in the matter, or the aspect of the matter in 
which he is participating, may be minor in relation to the matter as a 
whole.''
    We have included an additional sentence in the definition at 
proposed Sec.  2641.201(i)(3) emphasizing that participation in 
``peripheral'' aspects of a matter or in aspects not directly involving 
the substantive merits of a matter is not substantial. We would note, 
however, that such an aspect might itself constitute a particular 
matter with respect to which the permanent bar might apply. This is set 
forth in 5 CFR 2637.201(d)(2) and example 1 following 5 CFR 
2637.201(d)(1).
    Although reworded, proposed examples 1 and 2 following proposed 
Sec.  2641.201(i) are from existing 5 CFR 2637.201(c) and 2637.201(d). 
Proposed example 3 would make the point that an employee's 
participation may be substantial even though her role in the matter may 
be minor in relation to the matter as a whole.

Proposed Sec.  2641.201(j)--United States is a Party or Has a Direct 
and Substantial Interest

    Finally, proposed Sec.  2641.201(j) focuses on how to determine 
whether the United States is a party or has a direct and substantial 
interest in a particular matter at the time of a former employee's 
post-employment representational activity.
    The definition of ``United States'' at proposed Sec.  
2641.201(j)(1) is intended to encompass the entire Federal Government. 
As explained earlier in connection with the definitions in proposed 
Sec.  2641.104, we cited the definition of ``Government corporation'' 
in 18 U.S.C. 6 for purposes of defining ``United States'' in proposed 
Sec.  2641.201(j)(1). Also, as explained below in connection with 
proposed Sec.  2641.301(a), the Government of the District of Columbia 
is not encompassed by the term United States. Separately, we note that 
the proposed definition of United States at Sec.  2641.201(j)(1) 
encompasses the entire judicial branch. Compare proposed Sec.  
2641.201(f) which provides that a representation is not made ``to'' an 
employee of the United States unless made, inter alia, to an employee 
of a Federal court. The narrower interpretation in proposed Sec.  
2641.201(f) reflects the statutory language ``department, agency, 
court, or court-martial of the United States'' in 18 U.S.C. 207(a).
    Proposed Sec.  2641.201(j)(2) specifically states that ``the United 
States is neither a party to nor does it have a direct and substantial 
interest in a particular matter merely because a Federal statute is at 
issue or a Federal court is serving as the forum for resolution of the 
matter.'' See, e.g., 14 Op. Off. Legal Counsel O.L.C. 139 (June 7, 
1990) (predecessors to 18 U.S.C. 207(a)(1) and (a)(2) determined not to 
bar former employees from serving as trustees in bankruptcy cases 
unless the United States is a party or has a direct and substantial 
interest in the bankruptcy proceeding, e.g., if the United States is a 
creditor of the estate.) Of course, when a former employee wishes to 
participate in a judicial proceeding concerning the same particular 
matter with which he was involved while a Government employee, it is 
likely that his former agency will be a party to or have a direct and 
substantial interest in the subject of the proceeding or that the 
agency will itself be serving as the forum.
    As OGE has noted in relation to 18 U.S.C. 205, determining whether 
or not the United States has a direct and substantial interest in a 
particular matter ``may not be easy.'' OGE Informal Advisory Letter 94 
x 7. Proposed Sec.  2641.201(j)(2)(i) assigns the primary 
responsibility for coordinating this determination to the designated 
agency ethics official at the former employee's agency. This assignment 
is consistent with the DAEO's responsibility, as specified in proposed 
Sec.  2641.105(a), to provide advice to a former employee of his agency 
or to the individual's representative. If any agency has a continuing 
direct and substantial interest in a matter, we suggest that it will 
most likely be the agency in which the matter was pending when the 
former employee worked on it as a Government employee. If the 
circumstances suggest that another agency may have a direct and 
substantial interest in the matter, the DAEO should contact an agency 
ethics official at the other agency. Moreover, we anticipate that an 
agency's ethics staff will need only pursue resolution of a direct and 
substantial interest issue when all other elements of 18 U.S.C. 
207(a)(1) or 207(a)(2) appear satisfied.

[[Page 7856]]

    As proposed, the regulation does not establish any procedures for 
the internal coordination of an agency's direct and substantial 
interest determination. Under proposed Sec.  2641.201(j)(2)(i), it is 
within an agency's discretion to determine who must be consulted within 
the agency (or any department of which the agency is a part) in order 
to determine whether the agency will assert a direct and substantial 
interest in a particular matter. A DAEO may accept the assurance of 
another agency's DAEO (or equivalent official in the legislative or 
judicial branch) that he has been authorized by competent agency 
authority to convey the agency's direct and substantial interest 
determination.
    In making this determination, proposed Sec.  2641.201(j)(2)(ii) 
provides that appropriate officials shall consider ``all relevant 
factors.'' Thus, the proposed factors listed in Sec.  
2641.201(j)(2)(ii)(A)-(D) are not all-inclusive. We specifically seek 
public comment concerning useful revisions or additions to our proposed 
list.

Proposed Sec.  2641.202--18 U.S.C. 207(a)(2)

    All relevant statutory changes that were made to 18 U.S.C. 
207(a)(1) by the Ethics Reform Act of 1989 were also made to section 
207(a)(2), formerly section 207(b)(i), a two-year bar which similarly 
applies to all ``former employees.'' Proposed Sec.  2641.202(b) 
provides cross-references to the appropriate paragraphs of proposed 
Sec.  2641.301 for each of the exceptions and waivers that in certain 
circumstances negate the prohibition contained in section 207(a)(2). As 
sections 207(a)(1) and (a)(2) are identical except for their duration 
and the degree of involvement in a particular matter during Government 
service necessary to trigger the restriction, proposed Sec.  
2641.202(d)-(i) cross-reference relevant portions of proposed Sec.  
2641.201 relating to the permanent bar.

Proposed Sec.  2641.201(j)--Official Responsibility

    The first sentence of the definition of ``official responsibility'' 
in proposed Sec.  2641.202(j)(1) quotes the statutory definition of the 
term in 18 U.S.C. 202(b). In addition, consistent with existing 
guidance at 5 CFR 2637.202, proposed Sec.  2641.202(j)(1) explains that 
the scope of an employee's official responsibility is ordinarily 
determined by statute, regulation, Executive order, job description, or 
delegation of authority. Example 1 following proposed Sec.  2641.202(j) 
emphasizes that subject matter jurisdiction assigned by position 
description is not removed from the scope of an employee's official 
responsibilities merely because the employee does not actually exercise 
his authority to direct Government action in that subject area.
    Proposed Sec.  2641.202(j)(1), drawing from existing 5 CFR 
2637.202(b)(2), emphasizes the potential breadth of the term ``official 
responsibility,'' noting that ``[a]ll particular matters under 
consideration in an agency are under the official responsibility of the 
agency head and each is under that of any intermediate supervisor who 
supervises a person, including a subordinate, who actually participates 
in the matter or who has been assigned to participate in the matter 
within the scope of his duties'' (emphasis added). The highlighted 
language is new. It is intended to make clear that a supervisor can 
have official responsibility for a pending matter even though his 
subordinate has not yet retrieved the assigned matter from his in-box 
or, although having retrieved it, has not yet worked on it ``personally 
and substantially.'' This language would also make it clear that a 
supervisor need not have personally assigned the matter to the 
subordinate, provided the matter is pending with the subordinate and it 
falls within the scope of the subordinate's official duties. Proposed 
example 3 would emphasize the requirement that the assigned matter fall 
within the scope of the supervised employee's official duties. On the 
other hand, the proposed language is intended to indicate that an 
employee can have official responsibility for a matter even though he 
exercises only nominal supervision over the person actually doing the 
work; the supervised employee need not be a true subordinate. Thus, for 
example, OGE has advised that a former employee had official 
responsibility for a matter even though all work on a project was being 
accomplished by employees ``on loan'' from another office.
    As drafted, proposed Sec.  2641.202(j) indicates that a 
nonsupervisory subordinate is not deemed to have official 
responsibility for a matter to which he has been assigned, whether or 
not he has begun to work on it. But see United States v. Coleman, 805 
F.2d 474 (3d Cir. 1986) (affirming conviction of nonsupervisory 
employee for violation of 18 U.S.C. 207(b)(i), the predecessor to 
section 207(a)(2).) Proposed example 4 following proposed Sec.  
2641.202(j) emphasizes, however, that the nature of a nonsupervisory 
employee's participation in a particular matter could potentially make 
her subject to the permanent section 207(a)(1) bar as to that matter.
    Existing 5 CFR 2637.202(b)(3) provides that authority for an 
``ancillary'' consideration does not constitute responsibility for the 
particular matter as a whole. As proposed, Sec.  2641.202(j)(1) 
continues to make the point that responsibility for ancillary matters, 
such as budgeting, or equal employment considerations, does not 
constitute official responsibility for the whole of a matter. Proposed 
example 2 following Sec.  2641.202(j) illustrates this point. The 
proposed guidance makes the additional point that responsibility for 
nonsubstantive aspects of a matter similarly does not cause an 
employee's official responsibility to extend to the whole of a 
substantive matter.
    Guidance in proposed Sec.  2641.202(j)(2) concerning the meaning of 
``actually pending'' also derives from existing guidance in 5 CFR 
2637.202. New language clarifies that a supervisory employee acquires 
official responsibility for a matter as soon as it is referred to him 
for assignment, regardless of whether he subsequently assigns the 
matter to another employee or retains it for his own action. Thus, 
proposed Sec.  2641.202(j)(2) provides that a supervisory employee 
acquires official responsibility for any matter referred to the 
employee ``for assignment.'' In proposed example 5, the General Counsel 
is said to have acquired official responsibility for a certain matter 
as soon as it was referred to him as an issue requiring action by the 
legal department. In addition, as already noted, the proposed guidance 
notes that there is no requirement that a matter have been pending 
under an individual's official responsibility for any particular length 
of time. See, e.g., OGE Informal Advisory Letter 94 x 13. In proposed 
example 5, therefore, it would be enough that the particular matter had 
been pending under the General Counsel's official responsibility for 2 
days. Proposed Sec.  2641.202(j)(2) also indicates that a matter 
remains pending when it is not under ``active'' consideration, as 
discussed in OGE Informal Advisory Letter 85 x 6. Proposed example 6 is 
a reworded version of the current example following 5 CFR 2637.202(c).
    Proposed Sec.  2641.202(j)(3) addresses the applicability of 
section 207(a)(2) with respect to particular matters that fell within 
an employee's official responsibility only by virtue of a temporary 
assignment to a position. We recognize that while on detail or serving 
in an acting capacity, a temporary supervisor can potentially establish

[[Page 7857]]

policies, gain information, decide issues, and make contacts that may 
serve him well in his post-Government life. On the other hand, in 
proposing this regulatory provision, we sought to balance the concerns 
underlying section 207(a)(2) against the likelihood that a temporary 
assignment would permit an employee to acquire the knowledge and 
experience necessary to make those concerns legitimate. Such 
assignments occur frequently throughout the executive branch, sometimes 
lasting only a few days or otherwise involving circumstances indicating 
that the employee had no reasonable expectation of being able to 
exercise the full authority of the position. In many cases, where the 
employee functions only in a limited ``caretaker'' role, it seems 
remote that the policy concerns underlying section 207(a)(2) would be 
implicated. Although we were unable to establish a bright line test for 
determining when temporary duties implicate section 207(a)(2), we are 
proposing a nonexclusive list of factors that agencies can utilize in 
making such determinations, as set out in proposed Sec.  
2641.202(j)(3)(i)-(iv).
    Proposed Sec.  2641.202(j)(4) indicates that ``[t]he scope of an 
employee's official responsibility is not affected by annual leave, 
terminal leave, sick leave, excused absence, leave without pay, or 
similar absence from assigned duties.'' Related Sec.  2641.202(j)(5) as 
proposed would state that ``[o]fficial responsibility for a matter is 
not eliminated through self-disqualification or avoidance of personal 
participation in a matter * * *.'' Thus, a matter is not removed from 
an employee's official responsibility when he recuses himself from 
participation in the matter due to a conflicting financial or personal 
interest or during a job search as required by subparts D, E, and F of 
5 CFR part 2635 and 5 CFR part 2640. Example 8 following proposed Sec.  
2641.202(j) is illustrative. This interpretation is consistent with 
United States v. Dorfman 542 F. Supp. 402 (N.D. Ill. 1982), in which 
the court advised that a U.S. Attorney's recusal coupled with 
assignment of a particular matter to a ``first assistant'' would not 
remove the case from the U.S. Attorney's official responsibility. The 
court cited 5 CFR 737.7 (now 5 CFR 2637.202(b)(5)), a provision which 
was also the subject of OGE Informal Advisory Letter 86 x 2. As 
interpreted by OGE in that advisory letter, a contract could be removed 
from an employee's official responsibility if he had ``not only the 
contract but also the actual function dealing with the contract removed 
from his duties under his position description.'' Proposed Sec.  
2641.202(j)(5)) recognizes that the scope of an employee's official 
responsibility may be changed by an amendment of a position 
description.
    Proposed Sec.  2641.202(j)(6) does not explicitly address the scope 
of the term ``official responsibility'' in the case of an employee 
whose Government service lasted less than one year and was preceded by 
a break in Government service. However, proposed example 9 does provide 
our interpretation of the application of section 207(a)(2) where there 
has been a break in service in the last year of the former employee's 
Government service. By way of background, this issue was brought to our 
attention when a former high-ranking employee, after a break in service 
lasting a few months, agreed to serve as an SGE for a short period of 
time. When he left Government the second time, less than one year had 
passed since serving in his previous Government job. We noted that an 
initial section 207(a)(2) bar would have commenced at the end of his 
first period of Government service. The issue was whether the section 
207(a)(2) bar triggered by his second departure from Government should 
apply to particular matters for which he had responsibility during his 
first period of service (provided they were actually pending within the 
one-year period prior to his termination from his second Government 
job.) We determined that the second section 207(a)(2) restriction 
applied only to those particular matters that were actually pending 
under his official responsibility during his most recent period of 
Government service. (Of course, any section 207(a)(2) restriction 
remaining from the employee's termination from Government service 
immediately preceding the break in service would still be in effect.)
    Section 207(a)(2) also requires that the particular matter be one 
that the former employee ``knows or reasonably should know'' was 
pending under his official responsibility during his last year of 
Government service. As described in existing part 2637, section 
207(a)(2) had been interpreted to mean that the restriction would not 
apply to a former employee ``unless at the time of the proposed 
representation of another, he or she knows or learns that the matter 
had been under his or her responsibility.'' The proposed new guidance 
similarly provides that it is the former employee's knowledge at the 
time of the post-employment representation that is critical. Thus, the 
last sentence of proposed Sec.  2641.202(j)(7) notes that ``[i]t is not 
necessary that a former employee have known during his Government 
service that the matter was actually pending under his official 
responsibility.''
    Proposed Sec.  2641.202(j)(7) makes it clear that it is enough that 
the former employee ``reasonably should know'' at the time of his post-
employment representation that the matter was actually pending under 
his official responsibility within his last year of Government service. 
We are proposing to include a note following Sec.  2641.202(j) of the 
new regulation that would warn an employee that prudence dictates that 
he make inquiry ``when the facts suggest that a particular matter 
involving specific parties could have been actually pending under his 
official responsibility'' (emphasis added). The proposed note cross-
references the provision in proposed Sec.  2641.105(d) stating that an 
employee will not be deemed to violate section 207 when he contacts an 
employee of the United States for purposes of determining the 
applicability or meaning of section 207 as applied to his own 
activities.

Proposed Sec.  2641.203--18 U.S.C. 207(b)

    Pursuant to 18 U.S.C. 207(b), a former employee may not utilize 
specified nonpublic information to assist another person in relation to 
certain ongoing trade or treaty negotiations in which the former 
employee participated personally and substantially during his last year 
of Government service. The prohibition lasts for one year or until the 
termination of the negotiation, whichever occurs first. Enacted by the 
Ethics Reform Act of 1989 to protect sensitive Government information 
relating to certain trade or treaty negotiations, section 207(b) 
represents a significant departure from the earlier post-employment 
restrictions of section 207 since, like section 207(f) discussed below, 
it extends to ``behind-the-scenes'' assistance.
    While OGE intends to publish comprehensive regulatory guidance 
concerning 18 U.S.C. 207(b), Sec.  2641.203 of this proposed rule 
includes only a brief introductory summary of the restriction and 
paragraphs concerning applicable exceptions and waivers, and the 
commencement and duration of the restriction. We have reserved Sec.  
2641.203(d)-(i) for additional guidance.
    To date, OGE's written guidance relating to 18 U.S.C. 207(b) 
remains the interpretation of the restriction that was distributed by 
means of a memorandum dated October 26, 1990, which was published as 
OGE Informal Advisory Letter 90 x 17. OGE reissued updated

[[Page 7858]]

versions of the memorandum on November 5, 1992 and again on February 
17, 2000, by a Memorandum to Designated Agency Ethics Officials, 
General Counsels, and Inspectors General. Although the 1992 and 2000 
memoranda incorporate a few substantive changes, none affects our 
original 1990 summary of section 207(b). The February 2000 updated 
summary is available on our Web site under ``DAEOgrams,'' at http://www.usoge.gov.

Proposed Sec.  2641.204--18 U.S.C. 207(c)

    Section 207(c) of title 18, United States Code, is the one-year 
``cooling-off'' restriction that prohibits a former ``senior employee'' 
from communicating to or appearing before his former agency, on behalf 
of another person, with the intent to influence official action. The 
statutory language of section 207(c) was substantially revised by the 
Ethics Reform Act of 1989. As noted earlier, OGE published interim 
regulatory guidance in February 1991 at part 2641 concerning section 
207(c) as amended by the Ethics Reform Act of 1989. That rule set forth 
several definitions in connection with the establishment of interim 
procedures for the granting of exemptions and designation of components 
for purposes of section 207(c). As discussed above, in connection with 
proposed section 2641.104, we are proposing to make certain changes to 
the interim definitions in existing part 2641. (Our proposed changes to 
the existing exemption and component designation procedures at 5 CFR 
2641.201(d) and (e) are discussed further below in connection with 
renumbered proposed Sec. Sec.  2641.301(j) and 2641.302.)
    Proposed Sec.  2641.204(a) confirms that an executive branch 
employee can be subject to either 18 U.S.C. 207(c) or 207(d) but not 
both. Like section 207(d), section 207(c) states that the restriction 
applies ``[i]n addition to the restrictions set forth in subsections 
(a) and (b).'' Moreover, section 207(c)(2)(A) states that the section 
207(c) bar ``shall apply to a person (other than a person subject to 
the restrictions of subsection (d)) * * *.'' Accordingly, Sec.  
2641.204(a) as proposed would specifically provide that a former ``very 
senior employee'' is subject to the one-year cooling-off restriction 
set forth in section 207(d) in lieu of that set forth in section 
207(c).
    Proposed Sec.  2641.204(b) provides cross-references to the 
appropriate paragraphs of proposed Sec.  2641.301 for the exemption, 
exceptions, and waivers that in certain circumstances would negate the 
prohibition contained in 18 U.S.C. 207(c).
    Proposed Sec.  2641.204(c)(1) concerns the application of 18 U.S.C. 
207(c) to special Government employees (SGEs). Since its enactment in 
1978, section 207(c) has not applied to an SGE who served the 
Government fewer than 60 days during a statutorily specified time 
frame. As revised by the Ethics Reform Act of 1989, the current 
language of the statute provides that the one-year cooling-off period 
``shall not apply to a special Government employee who serves less than 
60 days in the 1-year period before his or her service or employment as 
such employee terminates.'' Proposed renumbered Sec.  2641.204(c)(1) 
confirms that the ``60 days'' refers to the number of days in which an 
employee served as an SGE and not to the number of days in which he 
served as a senior employee.
    We are proposing to include a sentence in Sec.  2641.204(c)(1) 
which addresses the manner in which the 60-day period should be 
computed for purposes of determining the applicability of section 
207(c) to a former senior SGE. Guidance concerning the counting of days 
in connection with the service of SGEs was contained in the former 
Federal Personnel Manual and has been endorsed in OGE informal advisory 
letters and OLC opinions. Consistent with that guidance, Sec.  
2641.204(c)(1) as proposed would state that ``[a]ny day on which work 
is performed shall count toward the 60-day threshold without regard to 
the number of hours worked on that day or whether the day falls on a 
weekend or holiday.'' See e.g., OGE Informal Advisory Letter 84 x 4 and 
7 Op. Off. Legal Counsel 123 (1983). The first example following 
proposed Sec.  2641.204(c) illustrates the proper method of counting 
the 60 days in the case of an SGE. It should be noted, however, that 
certain de minimis activities performed by an SGE on a given day might 
not be sufficient to count that day, under limited circumstances. See 
Manning, supra, at 28. The Office of Government Ethics has acknowledged 
a narrow de minimis standard where the activity is insignificant, both 
in terms of substance and in terms of the amount of time expended, and 
the SGE is not compensated by the Government specifically for that 
particular effort. An example would be a day on which the SGE did 
nothing more for the Government than make a brief telephone call to 
confirm the date of an official meeting. Proposed Sec.  2641.204(c)(1) 
would also specify the manner in which an SGE's rate of basic pay 
should be calculated for purposes of determining whether the rate of 
basic pay that he receives for his part-time or intermittent work is 
equal to or greater than the rate of basic pay payable for ES-5 within 
the meaning of section 207(c)(2)(A)(ii).
    Proposed 2641.204(c)(2) concerns the application of 18 U.S.C. 
207(c) to certain appointees or detailees. Specifically, this provision 
sets out those circumstances in which it has been determined that an 
individual appointed or detailed to an agency pursuant to the 
Intergovernmental Personnel Act (IPA), 5 U.S.C. 3371-3376, is subject 
to the restrictions of section 207(c). See ``Applicability of the Post-
Employment Restrictions of 18 U.S.C. Sec.  207(c) to Assignees Under 
the Intergovernmental Personnel Act,'' Memorandum of Daniel L. Koffsky, 
Acting Deputy Assistant Attorney General, Office of Legal Counsel, 
Department of Justice, to Susan F. Beard, Acting Assistant General 
Counsel, Department of Energy, June 26, 2000.
    Proposed Sec.  2641.204(d) emphasizes that 18 U.S.C. 207(c) is 
triggered upon termination from a senior employee position, not from 
termination of Government service, unless the two events occur 
simultaneously. (This interpretation applies equally with respect to 
sections 207(d) and 207(f) as specified in proposed Sec. Sec.  
2641.205(c) and 2641.206(c), respectively.) The two examples following 
proposed Sec.  2641.204(d) illustrate the timing of the section 207(c) 
restriction in the case of a senior employee who moves from one agency 
to another. Since the restriction can run while an individual continues 
to serve as a Government employee, the first example cross-references 
proposed Sec.  2641.301(a) which states that communications and 
appearances are permissible if made during the course of performing 
official duties as an employee of the United States. In the second 
example, the individual does not cease to be a senior employee until he 
terminates his senior position at the second agency.
    As 18 U.S.C 207(c) and the permanent bar share several elements in 
common, proposed Sec.  2641.201 is cross-referenced several times in 
proposed Sec.  2641.204. For example, both section 207(a)(1) and 207(c) 
require that there be a communication or appearance made with the 
intent to influence, although in the case of section 207(c), the 
representation is prohibited only if made to the former senior 
employee's former agency. Section 2641.201 is also cross-referenced for 
its proposed definition of ``on behalf of any other person.''

[[Page 7859]]

    Section 2641.204(g)--To or Before Employee of Former Agency
    Proposed Sec.  2641.204(g)(1) defines ``to or before employee of 
former agency.'' This provision is different from proposed Sec.  
2641.201(f) because that section focuses on employees ``of the United 
States'' rather than employees at the senior employee's ``former 
agency.''
    The term ``employee'' is defined in proposed Sec.  2641.204(g)(1) 
for purposes of identifying the individuals to whom a former senior 
employee may not direct a communication or appearance. Proposed Sec.  
2641.204(g)(1)(ii) reflects the fact that an individual serving in an 
agency pursuant to the IPA is deemed an ``employee'' of that agency 
and, hence, is an individual to whom a former senior employee of that 
agency may not direct a communication or appearance. Notably, the 
definition of employee at proposed Sec.  2641.204(g)(1) also includes 
an individual detailed to a former senior employee's former agency. 
Section 207(g) of the statute provides that ``a person who is detailed 
from one department, agency, or other entity to another department, 
agency, or other entity shall, during the period such person is 
detailed, be deemed to be an officer or employee of both * * *.'' As 
reflected in proposed Sec.  2641.204(g)(2)(iii), we interpreted this 
statutory provision to mean that an employee is barred from contacting 
any agency to which he was detailed during his last year of senior 
service, regardless of the duration of the detail. We also decided, 
however, that section 207(g) is relevant when identifying those 
employees serving in a former senior employee's former agency to whom a 
communication or appearance cannot be directed. Accordingly, proposed 
Sec.  2641.204(g)(1)(iii) specifies that the term employee encompasses 
an individual detailed from an agency to the former senior employee's 
former agency.
    As noted earlier, 18 U.S.C. 207(i)(1)(A) states that ``the term 
`officer or employee', when used to describe the person to whom a 
communication is made or before whom an appearance is made * * * shall 
include in subsections (a), (c), and (d), the President and the Vice 
President * * *.'' Under the proposed rule, a former senior employee of 
the Executive Office of the President is barred from contacting not 
only employees of that Office, but also the President and Vice 
President. On the other hand, former senior or very senior employees 
who formerly served in entities other than the Executive Office of the 
President would not be barred by section 207(c) or (d) from contacting 
the President or Vice President. This reasoning is reflected in 
proposed Sec.  2641.204(g)(1)(v); proposed Sec.  2641.204(g) is cross-
referenced in Sec.  2641.205(f) as proposed for purposes of the section 
207(d) restrictions.
    The definitions of ``department'' and ``agency'' in proposed Sec.  
2641.104, combined with the proposed guidance in Sec.  2641.204(g)(2), 
are key to understanding the scope of 18 U.S.C. 207(c). As we noted 
earlier in connection with the definition of ``agency'' in proposed 
Sec.  2641.104, we specifically included independent agencies (not in 
the legislative or judicial branches) within that definition.
    As already mentioned, and as explained further below in connection 
with proposed Sec.  2641.302, the Director of OGE is authorized to 
designate distinct and separate agency components for purposes of 
section 207(c). The designation of such components within an agency has 
the effect of narrowing the scope of the restriction as applied to 
former senior employees eligible to benefit from such designations.
    Proposed Sec.  2641.204(g)(2)(i) emphasizes that the 18 U.S.C. 
207(c) bar applies only with respect to an agency in which the former 
employee served within his last year of service as a senior employee. 
Example 3 following proposed Sec.  2641.204(g) illustrates the 
application of section 207(c) when a former senior employee's period of 
Government service was preceded by a break in Government service.
    Consistent with past interpretation, 18 U.S.C. 207(c) is described 
in proposed Sec.  2641.204(g)(2)(ii) as extending to any agency in 
which a former senior employee served in any capacity prior to his 
termination from a senior position, ``regardless of his position, rate 
of basic pay, or pay grade.'' See, e.g., OGE Memorandum to Designated 
Agency Ethics Officials, General Counsels, and Inspectors General 
(February 17, 2000), available under ``DAEOgrams'' on OGE's Web site, 
http://www.usoge.gov. Thus, the former employee in proposed example 2 
following Sec.  2641.204(g) is barred as to both the Commodity Futures 
Trading Commission (CFTC) and the Export-Import Bank of the United 
States even though she served in only a GS-15 position at the CFTC.
    Proposed Sec.  2641.204(g)(2)(iii) explains that, in addition to a 
detail, an employee may otherwise be deemed to be serving two entities 
simultaneously. The regulation would recognize that many employees are 
required to serve on committees or similar entities as a collateral 
duty. The regulation would specify that an employee will be deemed an 
employee of such an entity if required to serve pursuant to statute or 
Executive order.
    Defining the boundaries of an employee's former agency is key to 
the proper interpretation of 18 U.S.C. 207(c). Proposed Sec.  
2641.204(g)(2)(iv) addresses situations where organizational changes 
affecting an agency could make it difficult to determine if a successor 
agency is substantially the same as a former senior employee's former 
employing entity. For example, subsequent to an employee's termination 
from a senior employee position, his former employing entity could be 
made larger or smaller, merged in whole or in part with another agency, 
or even abolished.
    Significantly, proposed Sec.  2641.204(g)(2)(iv) need not be 
consulted unless the agency to which 18 U.S.C 207(c) applies ``has been 
significantly altered by organizational changes after [a senior 
employee's] termination from senior service * * *.'' Thus, it is not 
necessary to consult Sec.  2641.204(g)(2)(iv) as proposed merely 
because the name of a former senior employee's former agency has 
changed or because some personnel have retired or transferred. If, 
however, an organizational change is such that the former senior 
employee's former employing entity ``is not identifiable as 
substantially the same agency from which the former senior employee 
terminated * * *'', then the guidance in proposed Sec.  
2641.204(g)(2)(iv)(A) applies and the section 207(c) bar will not apply 
with respect to that entity. See OGE Informal Advisory Letter 85 x 5 
and example 4 following proposed Sec.  2641.204(g).
    Under proposed Sec.  2641.204(g)(2)(iv)(B), a former senior 
employee's 18 U.S.C. 207(c) bar will extend to the whole of an 
employing entity that has been affected by organizational changes if it 
``remains identifiable as substantially the same entity'' from which he 
terminated. Proposed example 5 emphasizes that a former employee would 
be barred from contacting current employees who had joined the new 
employing entity, but would not be barred from contacting an employee 
who had been transferred elsewhere. Under proposed Sec.  
2641.204(g)(2)(iv)(C), if a former employing entity is made separate 
but otherwise remains ``substantially the same,'' the section 207(c) 
bar would apply with respect to the separate entity. Proposed Sec.  
2641.204(g)(2)(iv) would require designated agency ethics officials to 
provide counseling in consultation with OGE when the scope

[[Page 7860]]

of section 207(c) is at issue as a result of an agency reorganization.
    The guidance concerning the meaning of ``to or before'' in proposed 
Sec.  2641.204(g)(3) closely tracks the corollary guidance in proposed 
Sec.  2641.201 as does the guidance at proposed Sec.  2641.204(g)(4) 
concerning public commentary. The guidance is repeated in Sec.  
2641.204 as proposed only because it has been tailored to the one-year 
restriction which is aimed only at communications to or appearances 
before an individual's former agency. Proposed Sec.  2641.204(h), 
concerning the phrase ``on behalf of any other person'', similarly 
cites the corollary discussion in proposed Sec.  2641.201(g).
    As amended by the Ethics Reform Act of 1989, 18 U.S.C. 207(c) 
prohibits a former senior employee from making certain communications 
or appearances on behalf of ``any other person'' in connection with 
``any matter on which such person seeks official action'' (emphasis 
added). The guidance at proposed Sec.  2641.204(i)(1) reflects that the 
reference to ``such person'' refers to the former senior employee.

Proposed Sec.  2641.204(i)--Matter in Which Former Employee Seeks 
Official Action

    Proposed Sec.  2641.204(i)(2) emphasizes that a communication or 
appearance can be prohibited even if not in connection with a 
``particular'' matter or a ``particular matter involving a specific 
party or parties.'' The adjective ``particular'' does not appear in the 
section 207(c). See 17 OP. Off. Legal Counsel. 37, 41-42 (1993) 
(describing effect of 1989 amendments to statute). Thus, proscribed 
contacts include those made in connection with ``[b]road policy options 
that are directed to a large and diverse group of persons.'' Compare 5 
CFR 2637.204(d). See also 5 CFR 2640.103(a)(1) and 2635.402(b)(3).
    Consistent with existing part 2637, proposed Sec.  
2641.204(i)(2)(iii) emphasizes that a communication or appearance may 
be barred even though made in connection with a new matter not pending 
at nor of interest to the agency prior to the post-employment contact. 
The Ethics Reform Act of 1989 deleted the requirement in 18 U.S.C. 
207(c) that the subject of a communication or appearance be ``pending 
before'' the former senior employee's former agency or of ``direct and 
substantial interest'' to it. In commenting upon H.R. 3660 prior to its 
passage, Senator Levin noted that ``the offense is committed if the 
former employee seeks official action by an agency or department 
employee.'' 135 Cong. Rec. S15954 (1989) (statement of Sen. Levin).
    The language ``seeks official action'' distinguishes between 
official and unofficial acts. As implemented in proposed Sec.  
2641.204(i)(1), ``[a] former senior employee seeks official action when 
the circumstances establish that he is making his communication or 
appearance for the purpose of inducing a current employee * * * to make 
a decision or to otherwise act in his official capacity'' (emphasis 
added).
    The proposed examples following Sec.  2641.204(i) as proposed 
illustrate the concept of ``official capacity.'' In proposed example 1, 
the former senior employee can solicit a personal charitable 
contribution from a current employee of his former department since he 
is not requesting that the current employee act in his official 
capacity. In example 2 as proposed, a former senior employee wishes to 
invite the Secretary of his former department to a cocktail party where 
he would introduce the agency head to several of his private clients. 
The former senior employee and the Secretary do not have a history of 
socializing outside the office, the clients could be affected by the 
Secretary's official duties, and the expenses of the party are being 
charged to the former senior employee's consulting firm. The example 
advises that the former senior employee should not contact the 
Secretary since ``[t]he circumstances do not establish that the 
communication would be made other than for the purpose of inducing the 
Secretary to make a decision in his official capacity about the 
invitation.''
    Proposed Sec.  2641.205--18 U.S.C. 207(d)
    The one-year ``cooling-off'' restriction of 18 U.S.C. 207(d) was 
enacted by the Ethics Reform Act of 1989. Section 207(d) differs from 
section 207(c) in that, in addition to being barred from contacting 
employees of his former department or agency, a former very senior 
employee is barred from representing another person before any 
individual currently appointed to an Executive Level position listed in 
5 U.S.C. 5312-5316.
    Proposed Sec.  2641.205(b) provides cross-references to the 
appropriate paragraphs of Sec.  2641.301 as proposed for the exceptions 
and waivers that in certain circumstances would negate the prohibition 
contained in 18 U.S.C. 207(d).
    Paragraphs (d)-(i) of proposed Sec.  2641.205 cross-reference the 
elements described in proposed Sec. Sec.  2641.201 and 2641.204 where 
relevant. Where cross-references to the Sec.  2641.204 elements are 
made, proposed Sec.  2641.205 highlights the differences between the 
senior employee and very senior employee restrictions. Proposed Sec.  
2641.205(f) points out that, unlike section 207(c), section 207(d) does 
not provide for the designation of departmental or agency components as 
a means of narrowing its impact. Proposed Sec.  2641.205(f) also 
indicates that section 207(d) applies to communications to or 
appearances before any agency in which an individual served as a very 
senior employee during his last year of very senior service. By 
comparison, as interpreted in proposed Sec.  2641.204(g)(2)(ii), 
section 207(c) applies to contacts with an employee of any agency in 
which the individual served ``in any capacity'' during the year prior 
to his termination from a senior position. Also, and more 
significantly, section 207(d) bars contacts not only with the 
individual's former agency but, as noted in proposed Sec.  2641.205(a) 
and (g), also with any official currently appointed to an Executive 
Schedule position. As emphasized in Example 2 following Sec.  2641.205, 
however, we have interpreted the bar to apply only with respect to 
Executive Level officials who are actually listed in sections 5312-5316 
of title 5 of the United States Code. This interpretation accords with 
the plain language of the provision (``any person appointed to a 
position in the executive branch which is listed in'' those sections).
    The note following proposed Sec.  2641.205(g) indicates that a 
communication to an Executive Level official may include a 
communication made through a subordinate of such official. A former 
very senior employee cannot evade the prohibition of 18 U.S.C. 207(d) 
simply by making a communication to a subordinate official, as long as 
such communication is still made with the intent that the information 
be conveyed to an Executive Level official and attributed to the former 
very senior employee, Cf. Memorandum for Amy L. Comstock, Director, 
OGE, from Joseph R. Guerra, Deputy Assistant Attorney General, OLC, 
January 19, 2001, available under ``Other Ethics Guidance, Conflict of 
Interest Prosecution Surveys and OLC Opinions'' on OGE's Web site, 
http://www.usoge.gov. This point is illustrated in proposed example 5.

Proposed Sec.  2641.206--18 U.S.C. 207(f)

    Section 207(f) of 18 U.S.C. was enacted by the Ethics Reform Act of 
1989. It prohibits both former senior and former very senior employees 
from representing, aiding, or advising a foreign government or foreign 
political

[[Page 7861]]

party with the intent to influence a decision of an employee of a 
Federal department or agency. Like sections 207(c) and 207(d), the 
restriction is measured from the date when an employee ceases to be a 
senior or very senior employee and not necessarily from his termination 
from Government service. Like section 207(b), section 207(f) differs 
from the other section 207 restrictions in that it prohibits certain 
``behind-the-scenes'' aid or advice in addition to prohibiting certain 
contacts with Government officials.
    We have reserved Sec.  2641.206(d)-(g) to indicate that OGE will 
revise Sec.  2641.206 in the future additional guidance concerning 
section 207(f). For now, proposed Sec.  2641.206 includes only a 
summary of the restriction and paragraphs concerning the restriction's 
applicability, commencement, and duration. Proposed Sec.  2641.206(c) 
indicates that section 207(f) is a one-year restriction except as 
applied to a former U.S. Trade Representative or former Deputy U.S. 
Trade Representative. Originally a one-year restriction as applied to 
individuals terminating from these positions, section 609 of Pub. L. 
102-395, 106 Stat. 691, amended section 207(f) to extend the one-year 
restriction to three years in the case of any individual becoming the 
U.S. Trade Representative after the 1992 effective date of that law. 
Subsequently, section 21(a) of Pub. L. 104-65, 109 Stat. 691, amended 
section 207(f)(2) to permanently bar either a former U.S. Trade 
Representative or former Deputy U.S. Trade Representative from engaging 
in the activities prohibited by section 207(f).

Subpart C--Exceptions, Waivers and Separate Components

    Proposed Sec.  2641.301(a)-(j) address the parenthetical ``except 
the United States'' provision contained in 18 U.S.C. 207(a)(1), (a)(2), 
(b), (c), and (d); the general exceptions and waivers described in 
section 207(j); the waiver authority in section 207(k); and section 
207(c)(2)(C)'s provision for the exclusion of certain positions from 
the coverage of sections 207(c) and (f). Proposed Sec.  2641.302 
concerns the designation of separate and departmental components to 
narrow the scope of the section 207(c) bar.

Proposed Sec.  2641.301(a)--Acting on Behalf of the United States

    As indicated by the parenthetical ``except the United States'' 
which appears in each of the substantive restrictions of 18 U.S.C. 207 
except section 207(f), otherwise prohibited activity is permissible if 
engaged in on behalf of the United States. In addition to this 
parenthetical, however, section 207(j)(1) of the current version of the 
statute provides that ``[t]he restrictions contained in this section 
shall not apply to acts done in carrying out official duties on behalf 
of the United States * * *'' Proposed Sec.  2641.301(a) implements the 
parenthetical language and section 207(j)(1).
    The definition of ``United States'' at proposed Sec.  
2641.301(a)(1) encompasses the entire Federal Government. The District 
of Columbia is not part of the United States for purposes of the 
exception. While former employees of the government of the District of 
Columbia are covered by 18 U.S.C. 207(a)(1) and (a)(2), section 
207(a)(3) makes it clear that the United States and the District of 
Columbia are separate entities for purposes of those restrictions. 
Thus, former employees of the United States may represent others before 
employees of the government of the District of Columbia and vice versa. 
Similarly, while section 207(j)(1) states that the restrictions of 
section 207 ``shall not apply to acts done in carrying out official 
duties on behalf of the United States or the District of Columbia * * 
*'' (emphasis added), we have interpreted this language merely to 
indicate that former employees of the District of Columbia may 
represent the government of the District of Columbia notwithstanding 
section 207(a)(1) or (a)(2). As we indicated earlier in connection with 
proposed Sec.  2641.104, however, we have defined the District of 
Columbia as a State for purposes of the section 207(j) exceptions 
implemented in Sec.  2641.301(b) and (c).
    Proposed Sec.  2641.301(a)(2) addresses the often repeated argument 
that an activity is undertaken on behalf of the United States if it 
benefits the United States. We have consistently rejected this 
expansive reading of the exception. See, e.g., OGE Memorandum to 
Designated Agency Ethics Officials, General Counsels, and Inspectors 
General (February 17, 2000), available under ``DAEOgrams'' on OGE's Web 
site, http://www.usoge.gov. As proposed, the regulation indicates that 
the exception does not apply merely because a former employee ``is 
performing work funded by the Government, because he is engaging in the 
activity in response to a contact initiated by the Government, because 
the Government will derive some benefit from the activity, or because 
he or the person on whose behalf he is acting may share the same 
objective as the Government.'' Proposed examples 1, 2, and 3 are 
illustrative. To the extent that OGE Informal Advisory Letter 81 x 9 
can be read as indicating that responses to Government-initiated 
exchanges are always permissible regardless of the circumstances, we 
expressly reject that reading here.
    Proposed Sec.  2641.301(a)(2)(i) states that activities are 
undertaken on behalf of the United States when undertaken in carrying 
out official duties as a current employee of the United States. Thus, 
as illustrated in examples 1 and 2 following proposed Sec.  
2641.301(a), a person who is reemployed by the United States may 
perform his official Government duties unfettered by the post-
employment restrictions in 18 U.S.C. 207. Notably, proposed example 2 
indicates that a former employee may carry out official duties as an 
employee of the legislative branch without violating the section 207 
restrictions when she undertakes an activity for a constituent. 
Departing from guidance in OGE Informal Advisory Letter 81 x 4, we are 
not proposing to distinguish service performed for a Congressman's 
constituent from actions taken in furtherance of a Congressman's 
``legislative function.''
    The note following the proposed Sec.  2641.301(a) examples cross-
references two additional examples, found elsewhere in the regulation, 
which also concern the operation of this exception in the case of 
current employees. The second of these, example 1 following proposed 
Sec.  2641.204(d), shows how the exception applies in the case of a 
current employee who, although having never left Government service, is 
a former employee by virtue of having terminated a senior employee 
position. But for the exception, the former senior employee might have 
been hindered in the performance of his official duties by 18 U.S.C. 
207(c).
    As described in proposed Sec.  2641.301(a), the exception for acts 
undertaken on behalf of the United States is not limited to acts 
carried out as an employee of the United States. This subject was 
addressed in OGE Informal Advisory Letter 82 x 16, which dealt with a 
former employee whose law firm was hired by his former agency to 
represent it in a case in which the employee had been personally and 
substantially involved while in Government. After advising that the 
former employee could not negotiate the terms of the legal services 
contract on behalf of his firm, OGE concluded that the former employee 
could perform the contract by representing the agency in court, because 
such representations would be on behalf of the United States. OGE also 
stated that the former employee could ``contact [the agency] for the 
files, discuss briefs previously

[[Page 7862]]

filed by [the agency], and discuss future strategy,'' because 
communications and appearances made for these purposes were 
characterized as lacking the necessary ``intent to influence'' element.
    In drafting proposed Sec.  2641.301(a)(2)(ii)(A), we followed the 
result reached in 82 x 16, although we departed, in part, from the 
analysis in that opinion. We have concluded that a former employee acts 
on behalf of the United States when he serves ``[a]s a representative 
of the United States pursuant to a specific agreement with the United 
States to provide representational services involving a fiduciary duty 
to the United States.'' Consequently, the ``on behalf of the United 
States'' provision would permit not only representational contacts made 
by the former employee to a court (or another agency) but also any 
contacts with the agency with which there is an agreement to provide 
representational services, if those contacts are necessary for the 
former employee to carry out his representational duties under the 
agreement. Contrary to the analysis in 82 x 16, however, we decline to 
base the latter conclusion on the absence of intent to influence with 
respect to such contacts, because we do not believe that it is always 
the case that communications required during the course of performing a 
contract with an agency are necessarily made without the intent to 
influence the agency. This subject is discussed in more detail above in 
connection with the ``intent to influence'' element.
    We specify in proposed Sec.  2641.301(a)(2)(ii)(A) that the 
representational services must involve a ``fiduciary duty to the United 
States.'' This serves to emphasize that the former employee must have 
an independent obligation to act primarily for the benefit of the 
Government. See Restatement of the Law (2d) Agency Sec.  13 (1958) 
(agreement to act on behalf of another person makes one a fiduciary 
with duty to act primarily for benefit of other person). It is 
important, therefore, to remember that a former employee will not be 
deemed to act on behalf of the United States merely because he is 
performing some kind of contract with the United States. See 
Restatement Sec.  14N, comments a & b (distinguishing between 
contractor who agrees to act on behalf of principal and thereby becomes 
fiduciary, and non-agent contractor who is not fiduciary). OGE Informal 
Advisory Letter 81 x 35 focused on the restrictions applicable to a 
former employee who went to work for a corporation that had a contract 
to provide certain services to the Government. The opinion is 
noteworthy for its conclusion that ``[t]he fact that the contract 
between [the Department] and [the Corporation] requires communication 
between them on many questions arising under [the Project] does not 
authorize [the former employee's] participation in such 
communications.''
    Communications to and appearances before the legislative branch are 
not prohibited by sections 207(a)(1), (a)(2), (c), or (d). On the other 
hand, communications or appearances before the legislative branch can 
be barred by section 207(b) or (f). In addition, a section 207 issue 
can arise when an employee of the executive branch is present at a 
forum held under the auspices of the legislative branch, as discussed 
in connection with the ``to or before'' element in proposed Sec.  
2641.201(f)(2). Under proposed Sec.  2641.301(a)(2)(ii)(B), however, a 
communication or appearance made by a former employee at the request of 
the Congress, in the context of a Congressional hearing, will be deemed 
made on behalf of the United States. This interpretation makes 
effective the permission, under the statute, for communications to 
Congress and its members. The provision is limited to hearings, 
however, in order not to permit a former employee to use the good 
offices of a Congressman to facilitate otherwise prohibited contacts 
with executive branch personnel.

Proposed Sec.  2641.301(b)--Acting as an Elected State or Local 
Government Official

    In addition to excepting communications or appearances made in 
carrying out official duties on behalf of the United States, 18 U.S.C. 
207(j)(1) authorizes a former employee to carry out official duties as 
an elected official of a State or local government notwithstanding 
sections 207(a)(1), (a)(2), (b), (c), (d), or (f). As we noted in OGE 
Informal Advisory Letter 87 x 1, this exception ``is grounded in 
considerations of federalism'' in that ``statutory restrictions should 
not unduly impede the ability of the elected representative of the 
people to perform the duties of his position.'' The two examples 
following proposed Sec.  2641.301(b) highlight the requirement that the 
former employee be acting as an ``elected official'' of the State or 
local government. The term ``State'' is defined in proposed Sec.  
2641.104 to include the District of Columbia, the Commonwealth of 
Puerto Rico, and United States territories or possessions.

Proposed Sec.  2641.301(c)--Acting on Behalf of Specified Entities

    Proposed Sec.  2641.301(c) describes a second exception permitting 
representational activity on behalf of a State or local government. The 
exception in 18 U.S.C. 207(j)(2) would permit communications and 
appearances in carrying out official duties as an employee of ``an 
agency or instrumentality of a State or local government'' 
notwithstanding sections 207(c) or (d). It also would except from those 
prohibitions communications and appearances made as an employee of 
certain institutions of higher education, hospitals, or medical 
research organizations. The wording of proposed Sec.  2641.301(c) 
indicates that the exception also applies when the former employee is 
employed by more than one of the entities specified in Sec.  
2641.301(c)(1), such as by an interstate compact organization composed 
of several States. See OGE Informal Advisory Letter 87 x 1. However, as 
proposed example 3 illustrates, the exemption does not apply to an 
association of States or State officials that is not an entity carrying 
out governmental functions. See Memorandum for An Agency General 
Counsel, from Beth Nolan, Deputy Assistant Attorney General, Office of 
Legal Counsel, Re: Applicability of the Exemption Provisions of 18 
U.S.C. Sec.  207(j)(2) to the Employment of a Former Federal Official 
by [an] Association (July 2, 1999) (OGE Informal Advisory Letter 87 x 1 
distinguished).
    In order to qualify for the exception, the former employee must be 
an ``employee'' of the State or local government or other specified 
entity and not merely a consultant or independent contractor. This 
interpretation had been adopted in OGE Informal Advisory Letter 87 x 1 
concerning the same exception in the previous version of 18 U.S.C. 207. 
That letter, citing legislative history relating to the Ethics in 
Government Act of 1978, had determined that the exception does not 
apply in the case of so-called ``hired guns.'' Use of the term 
``employee'' in the new version of the statute is consistent with that 
legislative history. See 125 Cong. Rec. H3696, H3697 (daily ed. May 24, 
1979). Accordingly, proposed Sec.  2641.301(c)(2) incorporates the 
distinction, providing that the term ``employee'' means a person who 
has an employee-employer relationship with a specified entity and 
excludes individuals serving a specified entity as a consultant or 
independent contractor. Example 2 following

[[Page 7863]]

proposed Sec.  2641.301(c) concerns an attorney who does not qualify 
for the exception because of this distinction.

Proposed Sec.  2641.301(d)--Communicating Information Based on Special 
Knowledge

    Proposed Sec.  2641.301(d) implements 18 U.S.C. 207(j)(4), an 
exception to sections 207(c) and (d) permitting a former senior or very 
senior employee to make an uncompensated ``statement'' if ``based on 
[his] own special knowledge in the particular area that is the subject 
of the statement * * *.''
    When originally enacted by Congress in 1978, 18 U.S.C. 207(c) 
prohibited a former senior employee from representing ``anyone'' before 
his former agency. Because section 207(c) barred self-representation 
(as well as the representation of others), the statute specifically 
permitted communications or appearances ``concerning matters of a 
personal and individual nature, such as personal income taxes or 
pension benefits.'' The statute also stated that the one-year cooling-
off provision did not prevent a former senior employee from ``making or 
providing a statement, which is based on the former officer's or 
employee's own special knowledge in the particular area that is the 
subject of the statement, provided that no compensation is thereby 
received, other than that regularly provided for by law or regulation 
for witnesses.''
    The current version of 18 U.S.C. 207(c) no longer prohibits self-
representation, and, therefore, the statute no longer includes an 
exception for communications of a personal and individual nature. On 
the other hand, the ``special knowledge'' exception survives. Of 
course, since self-representation is no longer barred, a former senior 
or very senior employee need not rely on this or any other exception to 
section 207(c) or (d) when he makes a communication solely on his own 
behalf.
    For purposes of implementing the section 207(j)(4) exception, we 
propose guidance as to what the terms ``special knowledge,'' 
``statement'' and ``compensation'' mean in section 207(j)(4). We 
indicate in proposed Sec.  2641.301(d)(1) that a former employee will 
be deemed to have ``special knowledge'' with respect to the subject 
area ``if he is familiar with the subject area as a result of 
education, interaction with experts, or other unique or particularized 
experience.'' While this standard does not require the ``outstanding 
qualifications'' in a field that are the prerequisite for a section 
207(j)(5) certification, discussed below, a former employee must have 
become knowledgeable with the subject prior to making contact with the 
Government. Proposed Sec.  2641.301(d)(2) defines the term 
``statement'' as ``a communication of facts directly observed by the 
former employee.''
    The proposed definition of compensation at Sec.  2641.301(d)(3) is 
broad. Reflecting the exception's amendment by the Ethics Reform Act of 
1989, the proposed definition does not exclude compensation provided 
for by law or regulation for witnesses. However, the proposed 
definition of compensation does exclude the payment of actual and 
necessary expenses incurred in connection with making the statement. 
Cf. Memorandum of Dawn Johnson, Acting Assistant Attorney General, 
Office of Legal Counsel, for the Counsel to the President, January 28, 
1998 (``compensation,'' within the meaning of 18 U.S.C. 203, does not 
include reimbursement of expenses in connection with representation), 
available on the DOJ Web site at http://www.usdoj.gov/olc/1998opinions.htm.

Proposed Sec.  2641.301(e)--Communicating Scientific or Technological 
Information

    Section 207(j)(5) of 18 U.S.C. permits a former employee to make 
communications ``solely for the purpose of furnishing scientific or 
technological information'' notwithstanding sections 207(a)(1), (a)(2), 
(c), or (d), provided that (1) the communications are made ``under 
procedures'' acceptable to the agency or agencies to which the 
communication is directed or (2) the head of such agency or agencies 
``makes a certification'' that meets certain requirements. A former 
employee cannot use this exception to avoid the restrictions in 
sections 207(b) or 207(f). Thus, a former employee cannot escape the 
reach of either of these latter two restrictions by merely limiting his 
use of covered trade or treaty information to that which is of a 
scientific or technological character or by assisting a foreign entity 
only by means of furnishing scientific or technological information.
    Proposed Sec.  2641.301(e) incorporates both the procedures and 
certification aspects of the section 207(j)(5) exception for 
communication of scientific and technological information and, in 
effect, constitutes, two exceptions. Proposed Sec.  2641.301(e) states 
the exception in general terms, and proposed Sec.  2641.301(e)(1)-
(e)(3) provides information common to both the procedures exception and 
the certification exception. Guidance on the promulgation and 
implementation of procedures is contained in proposed paragraph (e)(4). 
Guidance on the certification process is contained in proposed 
paragraph (e)(5).
    As originally enacted in 1962, section 207 had provided an 
exception from its substantive restrictions for former employees 
certified as possessing ``outstanding scientific or technological 
qualifications'' and only when in the ``national interest.'' This 
certification exception, since modified, survives as part of current 
section 207(j)(5). Prior to the amendments to section 207 in the Ethics 
Reform Act of 1989, the certification mechanism freed the former 
employee from any post-employment restrictions attendant to such 
matter, not just communications solely for the purpose of furnishing 
scientific and technological information. See OGE Informal Advisory 
Letter 80 x 9. The 1989 amendments changed the wording of the 
certification exception, limiting recipients of a section 207(j)(5) 
certification to making contacts ``solely for the purpose of furnishing 
scientific or technological information.'' This change imposes a 
significant limitation on the scope of activities permitted by a 
certification, because the recipient of the certification is prohibited 
from making communications that are not ``solely for the purpose of 
furnishing scientific or technological information.''
    The part of the exception involving procedures was added by the 
Ethics in Government Act of 1978. See 124 Cong. Rec. 31,983 (1978) 
(statement of Rep. Stratton) (explaining need for alternative in 
addition to existing certification mechanism). Since its original 
enactment, the procedures provision has always been limited to 
communications solely for the purpose of furnishing scientific or 
technological information.
    The exception in 18 U.S.C. 207(j)(5) permits otherwise prohibited 
``communications,'' but is silent as to ``appearances.'' We have worded 
proposed Sec.  2641.301(e) so that procedures and certifications under 
section 207(j)(5) permit both communications and appearances. It would 
defeat the purpose of the exception if it permitted a former employee 
to make communications but not to appear before the Government to make 
such communications.
    When drafting proposed Sec.  2641.301(e)(1), we were aware that 
certain legislative history in connection with the 1978 amendments 
indicated that the exception applies only to communications that are 
made ``solely for the purpose of furnishing scientific or technological 
information and

[[Page 7864]]

without the intent to influence.'' See 124 Cong. Rec. H35,671 (1978) 
(emphasis added). However, as discussed earlier in connection with the 
``intent to influence'' element in proposed Sec.  2641.201(e), the 
post-1989 version of section 207 prohibits no communications or 
appearances that are not made with the intent to influence the 
Government. The exception in section 207(j)(5) would be surplusage if 
it only applied to communications and appearances that are not 
prohibited in the first place, i.e., those made without any intent to 
influence. Even communications made solely for the purpose of conveying 
scientific or technological information may be deemed to be made with 
the intent to influence, if made for the purpose of affecting 
Government action in a matter that involves an appreciable element of 
dispute or discretionary Government action. Therefore, proposed Sec.  
2641.301(e)(1) reflects that a communication for the purpose of 
furnishing scientific or technological information may be permitted by 
the exception even when made in contexts involving intent to influence.
    The former Marine Corps employee in proposed example 1 following 
Sec.  2641.301(e)(4) as proposed, for example, may report the results 
of a series of scientific tests even though the methodology of those 
tests is expected to be and is, in fact, the subject of debate at the 
meeting. Moreover, he could report the results even though they tend to 
support the company's argument that it has complied with a certain 
contract specification. As emphasized in proposed Sec.  
2641.301(e)(1)(iii), the exception permits the communication of 
scientific or technological information in adversarial or other 
contexts even if the information is ``inherently influential.'' On the 
other hand, proposed example 1 emphasizes that the former Marine Corps 
employee could not present the company's argument that it has complied 
with a contract term regarding advance payments.
    Proposed Sec.  2641.301(e)(2) offers guidance concerning the 
meaning of the adjectives ``scientific'' and ``technological.'' It 
would provide that scientific or technological information refers, for 
example, to ``technical or engineering information relating to the 
natural sciences'' as distinguished from information ``associated with 
a nontechnical discipline such as law, economics, or political 
science.'' This distinction is consistent with the legislative history 
concerning the certification authority in section 207(j)(5). The 
Conference Report issued in connection with the Ethics in Government 
Act of 1978 reflected the intent of the Committee that the phrase 
``scientific, technological, or other technical discipline'' excludes 
the social sciences. S. Conf. Rep. No. 95-127 at 77 (1978). We expect 
that an agency will be in the best position to interpret these 
adjectives in the context of its own programs and consistent with the 
guidance in proposed Sec.  2641.301(e)(2).
    While proposed Sec.  2641.301(e)(2) requires that a communication 
convey scientific or technological information to be permissible under 
the exception, proposed Sec.  2641.301(e)(3) recognizes that a 
communication may be made for the purpose of furnishing scientific or 
technological information notwithstanding an ``incidental reference or 
remark'' of a nontechnical character. Thus, like existing 5 CFR 
2637.206(b), proposed Sec.  2641.301(e)(3)(ii) recognizes the 
permissibility of nontechnical communications ``when necessary to 
appreciate the practical significance of the basic scientific or 
technological information provided.'' Moreover, like 5 CFR 2637.206(a), 
Sec.  2641.301(e)(3)(iii) as proposed would permit incidental 
communications ``[i]ntended to facilitate the furnishing of scientific 
or technological information * * *.'' Significantly, however, proposed 
Sec.  2641.301(e)(3) emphasizes that, taken as a whole, a communication 
(or series of related communications) must ``primarily'' convey 
information of a scientific or technological character.
    Proposed examples 1 and 2 following Sec.  2641.301(e)(3) are 
illustrative. Example 1 emphasizes that it is the former employee's own 
communications that must primarily convey scientific or technological 
information. Thus, the former employee in that example is not deemed to 
make a permissible ``incidental'' reference to a product's expected 
cost when the scientific information, although communicated on the same 
occasion, is communicated by another individual. On the other hand, as 
indicated in proposed example 2, the former employee could state the 
product's expected cost if the whole of her communication otherwise 
focused primarily on relevant scientific principles.
    As specified in proposed Sec.  2641.301(e)(4), the exception is 
available to a former employee where the communication is made in 
accordance with procedures adopted by the agency to which the 
communication is directed. The prerequisite that the agency to which 
the communication is directed is the agency whose procedures must be 
complied with is consistent with existing regulatory guidance at 5 CFR 
2637.206(e) and with past OGE advice. See, e.g., OGE Informal Advisory 
Letter 96 x 21.
    The regulation as proposed does not specify any particular 
procedure or procedures that must be adopted by an agency. The language 
of the statute affords each agency the discretion to develop procedures 
it deems ``acceptable.'' Proposed Sec.  2641.301(e)(4)(i) suggests some 
possible mechanisms that could be employed by an agency to ensure the 
proper use of the exception. Many of these are taken from existing 
guidance at 5 CFR 2637.206(e).
    The certification provision in section 207(j)(5) would be 
implemented by proposed Sec.  2641.301(e)(5). As specified in proposed 
Sec.  2641.301(e)(5)(iii), these certifications must be issued by the 
head of the agency with which the former employee would have contact.
    We have interpreted section 207(j)(5) as permitting agency heads 
the discretion to limit their certification to only certain of the 
statute's substantive restrictions. For example, in OGE Informal 
Advisory Letter 97 x 14, we advised a designated agency ethics official 
that an agency head could waive section 207(c) only. Similarly, we have 
included a provision at proposed Sec.  2641.301(e)(5)(iii)(E) that 
confirms our view that the granting authority has discretion to impose 
other limitations on the scope of a section 207(j)(5) certification. As 
we said in OGE Informal Advisory Letter 80 x 9, a certification for 
technical expertise ``may be limited in nature at the discretion of the 
head of the agency or Department * * *.''
    While the authority to grant the certification ultimately rests 
with the appropriate agency head, proposed Sec.  2641.301(e)(5) 
incorporates the statutory requirement for advance consultation with 
OGE prior to issuance. We believe that the statutory ``national 
interest'' standard contemplates that this authority will be used 
infrequently. Moreover, legislative history surrounding the amendment 
of this provision in 1978 supports the view that certifications should 
be granted only in ``exceptional'' cases. S. Rep. No. 170, 95th Cong., 
1st Sess. 155 (1977).
    Proposed Sec.  2641.301(e)(5) provides that a section 207(j)(5) 
certification may be granted to a ``former employee.'' We believe that 
an agency head may entertain a request for a certification from a 
current employee who has firm post-employment plans, provided that the 
effective date of the certification occurs after the employee 
terminates Government service.

[[Page 7865]]

    Paragraphs (A), (B), and (C) of proposed Sec.  2641.301(e)(5)(i) 
describe the three statutory criteria that must be satisfied in order 
for a certification to be issued. Proposed Sec.  2641.301(e)(5)(i)(B) 
requires that the former employee will actually utilize his scientific, 
technological, or technical expertise in connection with the matter for 
which the waiver is granted. We believe this criterion follows from the 
statutory requirement that the former employee not only possess 
outstanding qualifications, but that he will be ``acting with respect 
to a particular matter which requires such qualifications.'' OGE will 
carefully examine the facts surrounding a waiver proposed for an 
individual who will occupy a management position to ensure this 
criterion is satisfied.
    We used the term ``matter'' in proposed Sec.  2641.301(e)(5)(i)(B). 
Section 207(j)(5) provides that a certification will apply with respect 
to a ``particular matter'' which requires outstanding qualifications in 
certain disciplines. Since sections 207(c) and (d) apply to any 
``matter'' rather than to any ``particular matter,'' we reasoned that 
the policy underlying the certification authority would be ill-served 
by a distinction permitting experts to contact the Government 
concerning action focused on a ``discrete and identifiable class of 
persons,'' but not on broad policy issues or conceptual work. See the 
definition of ``particular matter'' at proposed Sec.  2641.201(h)(1). 
See also 5 CFR 2640.103(a)(1).
    As part of the consultation process, OGE will carefully review an 
agency's draft certification to ensure that it specifies all of the 
information required by proposed Sec.  2641.301(e)(5)(iii). Proposed 
Sec.  2641.301(e)(5)(iii)(C) requires that a certification specify the 
name of the person on whose behalf the former employee will be acting. 
We do not read section 207(j)(5) as requiring that a certification 
recipient act only on behalf of a person specified in the 
certification. Rather, as already mentioned, we believe that the 
certification is specific to the matter that will be the subject of the 
recipient's post-employment contacts. Accordingly, under proposed Sec.  
2641.301(e)(5)(iii)(F), a certification must include a ``description of 
the matter and the communications that will be permissible or, if 
relevant, a statement that such information is protected from 
disclosure by statute.''
    We did not include in this proposed regulation the provision that 
has appeared at 5 CFR 2637.207(d) providing for pre-qualification of 
experts through creation of an ``agency registry.'' We are not aware 
that any agency has set up such a registry. Moreover, we are not 
convinced that such a registry would have anything but an insignificant 
impact on certification processing times. Indeed, we suspect that the 
administrative burden associated with a registry would outweigh any 
benefit.

Proposed Sec.  2641.301(f)--Testifying under Oath

    The amendment of 18 U.S.C. 207 by the Ethics Reform Act of 1989 
prompted our proposed major revision of regulatory guidance concerning 
the permissibility of testimony under oath. In the prior version of the 
statute, section 207(h) had stated that nothing in section 207 
prevented a former employee ``from giving testimony under oath * * *.'' 
The Ethics Reform Act of 1989 version of the statute also uses this 
language, in renumbered section 207(j)(6), but adds that a former 
employee ``who is subject to the restrictions contained in subsection 
(a)(1) with respect to a particular matter may not, except pursuant to 
court order, serve as an expert witness for any other person (except 
the United States) in that matter.''
    The proposed definition of ``testimony under oath'' is drawn from 
language in Rule 603 of the Federal Rules of Evidence. Proposed Sec.  
2641.301(f)(1) requires that the former employee's oral or written 
testimony be given in a proceeding ``in which applicable procedural 
rules require a witness to declare by oath or affirmation that he will 
testify truthfully.'' In addition, the exception does not apply unless 
the testimony is given in connection with a ``judicial, quasi-judicial, 
administrative or other legally recognized proceeding.'' Taken 
together, these two requirements emphasize that a former employee 
cannot escape the restrictions of 18 U.S.C. 207 by merely raising his 
right hand and assuring those present at any gathering that he is 
telling the truth. On the other hand, provided the requirements as 
proposed are met, these provisions would confirm that the exception 
permits a witness to give testimony, except as limited by proposed 
Sec.  2641.301(f)(2) concerning service as an expert witness.
    As already noted, while the testimony-under-oath exception 
generally permits testimony offered as an expert witness, the exception 
is subject to a significant statutory limitation in this regard. As 
specified in section 207(j)(6)(A), a former employee ``who is subject 
to the restrictions contained in subsection (a)(1) with respect to a 
particular matter'' may not ``serve as an expert witness'' except for 
the United States or pursuant to court order.
    Proposed Sec.  2641.301(f)(2)(ii) implements the court order 
provision. We specifically distinguished a subpoena as not falling 
within this definition. The practical nature of a subpoena is such that 
in many contexts it may be issued under the court's authority by 
counsel's filling out a form, without reasoned consideration by a court 
unless and until the subpoena is challenged. See, e.g., Doe v. 
DiGenova, 779 F.2d 74 (D.C. Cir. 1985) (subpoenas--grand jury or 
otherwise--do not qualify as ``order[s] of a court of competent 
jurisdiction'' under the Privacy Act.) Thus, the mere fact that an 
expert witness appears in court in response to a subpoena does not mean 
that he is testifying pursuant to court order within the meaning of 
section 207(j)(6)(A). Also, a court order merely qualifying a witness 
to testify as an expert is not a court order that directs the witness 
to testify in such a way as to overcome the expert witness bar. Because 
the United States will be represented in most proceedings in which it 
has a ``direct and substantial interest'' pursuant to 18 U.S.C. 
207(a)(1), the United States should make the court aware of the 
statutory bar where appropriate.
    The proposed regulation could not, and does not attempt to, 
instruct a judge as to the proper standard to apply in determining 
whether a court order is appropriate. Proposed example 4 suggests our 
view of an appropriate circumstance for a court to order expert 
testimony. We would expect that a court would order an expert witness 
otherwise barred by section 207(a)(1) to testify only where there are 
extraordinary circumstances present, such as where there is no other 
equivalent expert testimony available and the employee's prior 
involvement in the matter will not cause him to have an undue influence 
on proceedings.
    Of course, fact witness testimony is always allowable under the 
testimony-under-oath exception. However, some ``experts'' who could be 
fact witnesses because of having worked on matters while at their 
former agencies (thereby triggering the section 207(a)(1) bar) would 
prefer to serve as expert witnesses. An expert witness can be paid for 
his service as an expert while a payment for fact testimony may be 
prohibited by the bribery statute. See 18 U.S.C. 201. When Congress 
provided for the court order exception to the expert testimony bar in 
section 207, it did not intend to provide a mechanism for former 
employees who worked on

[[Page 7866]]

matters to receive compensation for testimony because of their personal 
knowledge of the facts.
    Proposed Sec.  2641.301(f)(3) implements section 207(j)(6) as it 
pertains to the permissibility of statements made under penalty of 
perjury. Proposed Sec.  2641.301(f)(3) emphasizes that this exception 
does not authorize an employee to ``submit a pleading, application, or 
other document as an attorney or other representative.'' See also 5 CFR 
2637.208(c). We also emphasize in Sec.  2641.301(f)(3) as proposed that 
when the permanent bar is applicable, a former employee is subject to 
the limitation concerning expert witness testimony even though his 
testimony could also be characterized as a statement made under penalty 
of perjury.
    The proposed note following Sec.  2641.301(f)(3) as proposed would 
emphasize that, for purposes of the exception, it is irrelevant that a 
witness may be compensated for his testimony. On the other hand, the 
note alerts former employees and others to the criminal provisions in 
18 U.S.C. 201(c)(3) and (d) which may prohibit fact witnesses from 
receiving compensation for testifying in certain forums other than as 
``provided by law'' or to cover ``the reasonable cost of travel and 
subsistence incurred and the reasonable value of time lost in 
attendance'' at a proceeding. Separately, the note also alerts the 
reader to the possible existence of agency procedures relating to the 
production or disclosure of Government information by current or former 
employees. See, e.g., Department of Justice regulations at 28 CFR part 
16, subpart B.

Proposed Sec.  2641.301(g)--Acting on Behalf of a Candidate or 
Political Party

    The Office of Government Ethics Authorization Act of 1996, Pub. L. 
104-179, 110 Stat. 1566, amended 18 U.S.C. 207(j) to add a new 
exception to sections 207(c) and (d). Under new section 207(j)(7), a 
former senior or very senior employee may represent a ``candidate'' for 
Federal or State office or ``an authorized committee, a national 
committee, a national Federal campaign committee, a State committee, or 
a political party.'' The proposed regulatory definitions of these terms 
at Sec.  2641.301(g)(1) closely track the statutory definitions in 
section 207(j)(7). As noted earlier in connection with proposed Sec.  
2641.301(b) and (c), the term ``State'' is defined in Sec.  2641.104 as 
proposed.
    Proposed Sec.  2641.301(g)(2)(ii) reflects that a communication or 
appearance must be made on behalf of ``one or more'' of the candidates 
or political organizations specified in Sec.  2641.301(g)(1) (i)-(vi). 
This language reflects our interpretation that the exception is 
available to a former senior or very senior employee who is 
simultaneously acting on behalf of more than one of the specified 
candidates or political organizations.
    If the former senior or very senior employee is representing a 
candidate, section 207(j)(7) applies only if the employee makes the 
communication or appearance on behalf of the candidate ``in his or her 
capacity as a candidate.'' Accordingly, the former Attorney General in 
proposed examples 2 and 3 following proposed Sec.  2641.301(g) could 
seek official action from a Government official about a tax matter of 
interest to a State committee, but could not make a communication on 
behalf of a candidate seeking the dismissal of an enforcement action 
involving the candidate's family business.
    The exception is available to a former senior or very senior 
employee who is retained either directly by a candidate or specified 
political organization or who is hired by a third person who provides 
services exclusively to candidates or the specified political 
organizations. Significantly, the exception is not available if the 
former employee is ``employed by'' any other person or entity at the 
time he makes the communication or appearance. This limitation, 
described at proposed Sec.  2641.301(g)(2)(i), is illustrated in 
example 4. The former senior employee in that example cannot avoid the 
section 207(c) bar by using the exception because he is employed by a 
firm that does not exclusively ``represent, aid, or advise'' the 
specified persons or entities.
    Section 207(j)(7) applies only when the communication or appearance 
is made ``solely on behalf of'' a specified candidate or political 
organization. We would highlight this restriction by denoting it as one 
of the ``limitations'' at Sec.  2641.301(g)(2) as proposed.
    Finally, proposed Sec.  2641.301(g) recognizes that even a 
communication or appearance purportedly made solely on behalf of a 
specified person or entity may unavoidably also involve a 
representation of the former senior or very senior employee's employer. 
Since the exception contemplates that former employees may become 
``employed by'' third persons or entities who provide services 
exclusively to candidates or political organizations, we did not 
believe that such an affiliation should preclude use of the exception. 
Accordingly, we indicate that a former employee may make a 
communication or appearance on behalf of such a third person or entity, 
described in proposed Sec.  2641.301(g)(2)(i)(B), provided the 
communication or appearance otherwise meets the requirements for the 
Sec.  2641.301(g) exception as proposed.

Proposed Sec.  2641.301(h)--Acting on Behalf of an International 
Organization Pursuant to a Waiver

    Section 207(j)(3) was added by the Ethics Reform Act of 1989 
version of section 207. This exception provides that the restrictions 
of the statute shall not apply to ``an appearance or communication on 
behalf of, or aid or advice to, an international organization in which 
the United States participates, if the Secretary of State certifies in 
advance that such activity is in the interests of the United States.'' 
The Secretary of State has issued several section 207(j)(3) waivers.
    Proposed Sec.  2641.301(h) provides that a section 207(j)(3) waiver 
may be granted to any ``former employee.'' We believe that the 
Secretary of State may entertain a request for a waiver from a current 
employee who has firm post-employment plans, provided that the 
effective date of the waiver occurs after the employee becomes a former 
employee.

Section 2641.301(i)--Acting as an Employee of a Government-Owned, 
Contractor Operated Entity Pursuant to a Waiver

    Section 207(k) of 18 U.S.C. authorizes the President to waive some 
or all of the substantive restrictions of section 207 for up to 25 
current employees of the executive branch (excluding any former 
employees who may be continuing to benefit from previously issued 
waivers). Subject to a slightly more flexible provision relating to 
prior employment at certain laboratories, a waiver under this section 
applies to an individual who returns to the same Government-owned, 
contractor operated entity by which he was employed just prior to 
entering Government service. Proposed Sec.  2641.301(i) re-states the 
statutory criteria and procedures applicable to such waivers.

Proposed Sec.  2641.301(j)--Waiver for Certain Positions From the 
Prohibitions of 18 U.S.C. 207 (c) and (f)

    Apart from the general exceptions and waivers described in section 
207(j) and the waiver authority set forth in section 207(k), section 
207(c) is not applicable to any former senior employee whose Government 
position has been waived from the prohibition by the Director of OGE. 
See section 207(c)(2)(C).
    On February 1, 1991 OGE published an interim rule (with request for

[[Page 7867]]

comments), which established procedures to waive positions pursuant to 
section 207(c)(2)(C). OGE has published waived positions as appendix A 
to 5 CFR part 2641.
    OGE received three written comments in response to the 1991 
rulemaking. One comment was generally supportive of the interim rule. A 
second comment raised, in part, the issue of the applicability of 
section 207(c) to employees detailed to senior employee positions. That 
issue has already been discussed as part of the discussion of the 
definition of ``senior employee'' in proposed Sec.  2641.104. The third 
comment requested ``clarification on the standards which will be used 
in determining whether to grant a waiver.'' More specifically, the 
comment stated that the rule ``could be improved by adding a list of 
factors to consider for determining whether there would be a potential 
for the use of undue influence or unfair advantage.''
    The statute lists two criteria that must be satisfied in order for 
the Director to waive a position from section 207(c). First, the 
Director must determine that the imposition of section 207(c) ``would 
create an undue hardship on the department or agency in obtaining 
qualified personnel to fill such position or positions,'' under section 
207(c)(2)(C)(i). Second, the Director must determine that ``granting 
the waiver would not create the potential for use of undue influence or 
unfair advantage,'' under section 207(c)(2)(C)(ii). Our interim rule 
listed some factors that could be relevant to such determinations, and 
the proposed rule would add additional guidance. It is impossible, 
however, to develop an exhaustive list of factors that could be 
considered. The waiver procedure envisions a case-by-case evaluation of 
the facts related to the hardship on the agency and the potential for 
undue influence and unfair advantage. It is up to the agency to bring 
any relevant factors to our attention in order to permit the Director 
to make the determinations required under the statute.
    In addition to modifying certain definitions, as already discussed, 
we are proposing to make several other changes to the existing 
provisions of part 2641 relating to waivers. First, as the underlying 
statute states that OGE may waive the restrictions of section 207(c), 
we have used the term ``waiver'' throughout the new, renumbered Sec.  
2641.301(j) as proposed, rather than the term ``exemption'' which 
appears in existing Sec.  2641.201(d). We would also renumber the 
existing paragraphs concerning waivers so that the paragraph describing 
the statutory criteria would appear in proposed Sec.  2641.301(j)(2) as 
proposed. In addition, we would reorder the statutory criteria in 
renumbered Sec.  2641.301(j)(2) as proposed to track the order in which 
they are set forth in the statute.
    We propose to modify renumbered Sec.  2641.301(j) to emphasize that 
a waiver of section 207(c) will operate to waive the restriction of 
section 207(f). This result follows from the fact that the one-year ban 
on providing certain assistance to foreign governments or foreign 
political parties set forth in section 207(f) applies, inter alia, to 
``[a]ny person who is subject to the restrictions contained in 
subsection (c) * * *'' of section 207. Thus, if a former senior 
employee is not subject to section 207(c) because that restriction has 
been waived by the Director of OGE, then he will similarly not be 
subject to section 207(f). We are proposing to insert necessary 
references to section 207(f) in renumbered Sec.  2641.301(j). Along the 
same lines, we propose that the Director consider, in relation to the 
statutory criterion for waiver at renumbered Sec.  2641.301(j)(2)(iii), 
the consequences of a position's waiver from the restrictions 
pertaining to foreign entities.
    We are proposing to amend renumbered Sec.  2641.301(j)(1) to 
indicate that OGE may consider waiving restrictions for a position if 
it ``could be occupied by a senior employee.'' We chose this wording 
mainly because individuals serving in Senior Executive Service 
positions are paid basic rates of pay which range from ES-1 to ES-6 
depending upon their individual qualifications. As long as a position 
could be occupied by a senior employee, OGE will not decline to 
consider a waiver merely because the current incumbent's pay rate is 
less than the ES-5 rate of basic pay triggering senior employee status.
    We are proposing to add an example to follow proposed renumbered 
Sec.  2641.301(j)(1), concerning eligible senior positions. As 
specified in 18 U.S.C. 207(c)(2)(C) and as would be reflected in 
renumbered Sec.  2641.301(j)(1), positions for which the rate of basic 
pay is ``specified in'' or ``fixed according to'' the Executive 
Schedule are ineligible for waiver. Proposed example 1 illustrates the 
application of this limitation.
    Waivers may not be issued to prevent or remedy individual 
hardships, but rather to address programmatic concerns. In the past, 
some waivers have been sought to ameliorate the effects of the one-year 
cooling-off provision as it would apply to a particular individual, 
rather than to prevent expected recruitment problems. The Office of 
Government Ethics has not granted such waivers. See, e.g., OGE Informal 
Advisory Letter 94 x 12. See also OGE Informal Advisory Letter 96 x 15, 
in which the Director of OGE declined to grant a waiver to remedy the 
consequences of an agency's misinterpretation of a personnel law which 
resulted in the retroactive reinstatement of an individual to her 
former senior position and the renewal of her one-year cooling-off 
period.
    We are proposing to modify renumbered Sec.  2641.301(j)(3)(i) by 
inserting the word ``recommend'' to emphasize the role of the 
designated agency ethics official. OGE expects that a request will not 
be forwarded for consideration by the Director unless the ethics 
official believes that waiver is warranted.
    We are proposing to reword the description of the ``hardship'' 
criterion, at renumbered Sec.  2641.301(j)(2)(i) and (ii), to emphasize 
what must be central to an agency's recommendation concerning this 
element. An agency must show that it ``has experienced or is 
experiencing undue hardship in obtaining qualified personnel'' and that 
``[w]aiver of the restriction with respect to the position or positions 
is expected to ameliorate the recruiting difficulties.'' See OGE 
Informal Advisory Letter 97 x 16.
    We are proposing to add an additional factor that would support an 
agency's claim of recruitment difficulties. Proposed Sec.  
2641.301(j)(2)(i)(A) confirms the relevance of position vacancy rates. 
Moreover, we are proposing to modify the factor at existing Sec.  
2641.201(d)(5)(ii), which currently provides that the Director of OGE 
will consider, inter alia, that the incumbent of a position proposed 
for waiver possess ``outstanding qualifications in a scientific, 
technological, or other technical discipline.'' We would revise this 
factor, at renumbered Sec.  2641.301(j)(2)(i)(C), to include 
outstanding qualifications in any other ``specialized discipline.''
    We are proposing to add a new sentence, at renumbered Sec.  
2641.301(j)(3)(i), indicating that a designated agency ethics official 
``may, at any time, request that a current waiver be revoked.'' In 
addition, we are proposing to delete the requirement that letters must 
be submitted annually to OGE concerning the continued waiver of the 
restriction. Finally, because OGE need publish a rule only when a 
revision to appendix A is warranted as a result of the granting of a 
new waiver or the revocation of an existing waiver, we propose to drop 
the requirement in existing Sec.  2641.201(d)(3) that OGE

[[Page 7868]]

annually publish an updated compilation. As proposed, renumbered Sec.  
2641.301(j)(3)(ii) would merely require that the Director of OGE 
``maintain a listing'' of waived positions in appendix A to 5 CFR part 
2641.

Section 2641.301(k)--Miscellaneous Statutory Exceptions

    Proposed Sec.  2641.301(k) lists statutory provisions, other than 
those in 18 U.S.C. 207 itself, which modify the scope of the post-
employment statute as it would otherwise apply to specified former 
employees or classes of former employees. We invite reviewers of this 
proposed rule to review our list and suggest modifications or 
additions.

Section 2641.302--Component Designations

    The scope of 18 U.S.C. 207(c) can be narrowed through designation, 
by the Director, of separate departmental or agency components. 
Authority for the designation of separate components is set forth in 
section 207(h). On February 1, 1991, OGE published an interim rule 
establishing procedures, currently codified at 5 CFR 2641.201(e), to 
designate separate agency components. OGE has published agency 
component designations as appendix B to 5 CFR part 2641.
    We are proposing to make several changes to existing Sec.  
2641.201(e), which would be renumbered as Sec.  2641.302. We have 
reorganized the paragraphs in existing Sec.  2641.201(e) concerning 
component designations so that the paragraph describing the statutory 
criteria would appear before the paragraph relating to procedures. In 
addition, we have reordered the two statutory criteria in renumbered 
Sec.  2641.302(c). We have also changed the due date for the written 
updates, required by existing Sec.  2641.201(e)(3)(ii), to July 1 and 
have dropped the requirement, at existing Sec.  2641.201(e)(3)(iii), 
that the Director of OGE publish an annual compilation of designated 
components. OGE would ``maintain a listing'' of designations in 
appendix B and would publish amendatory rules only when necessary.
    For clarity, we would avoid use of the term ``component'' in 
renumbered Sec.  2641.302(a) when referring to an undesignated agency 
or bureau within a parent agency. We are also proposing to add two 
examples to follow that section. The first illustrates the effect of a 
component designation in the case of a former senior employee of a 
parent agency. The second example concerns a former senior employee of 
a designated component. Both proposed examples would also show that an 
agency office that some might characterize as a ``component'' will, if 
not designated by the Director of OGE, nevertheless be considered part 
of the parent for purposes of determining the scope of the section 
207(c) bar.
    We propose to list four additional factors that the Director of OGE 
will consider in connection with the ``distinct and separate'' finding 
required by the statute. The first of these additional factors, at 
renumbered Sec.  2641.302(c)(1)(iii), would indicate that the Director 
will consider ``[t]he degree of supervision exercised by the parent 
over the component.'' In view of this addition, we are proposing to 
delete much of existing Sec.  2641.201(e)(7). That section had made 
clear that the Director may designate subordinate agencies or bureaus 
as distinct and separate from a parent notwithstanding that the parent 
may exercise some degree of general supervision over the subordinate 
entity. We would, however, retain the last sentence of existing Sec.  
2641.201(e)(7). As reworded and retitled, renumbered Sec.  2641.302(d) 
would continue to indicate that the Director will not ordinarily 
designate agencies or other administrative units that are encompassed 
by or otherwise supervised by an existing designated component.
    The other three new factors proposed at renumbered Sec.  
2641.302(c)(1) derive from OGE's experience in deciding several 
designation requests over the past few years. New Sec.  
2641.302(c)(1)(iv) would indicate that the Director will consider 
``[w]hether the component exercises responsibilities that cut across 
organizational lines within the parent.'' We have declined to designate 
an office that had been created administratively to provide personnel, 
payroll, and similar services to the parent and to its designated 
components. We also declined to designate an Inspector General's office 
as a component distinct and separate from the parent and other 
designated components. The two other new factors will confirm the 
relevance of the size of the component, both in absolute and relative 
terms. In one instance, for example, we declined to designate an office 
of fewer than 25 people that also would have been very small in 
relation to other designated components of the parent.
    In view of the passage of time since the original publication of 
part 2641, we are also proposing to delete existing Sec.  
2641.201(e)(3)(i) concerning the effective date of the Director's 
initial post-Ethics Reform Act designations. The introductory paragraph 
in Appendix B would continue to provide that ``[e]xcept as otherwise 
indicated, all designations are effective as of January 1, 1991.'' We 
also would reorganize existing Sec.  2641.201(e)(3)(ii) by creating 
separate paragraphs, proposed Sec.  2641.302(e)(1) and (e)(2), 
respectively titled ``Agency recommendation'' and ``Agency update.''
    Existing Sec.  2641.201(e)(4) currently provides that a new 
designation ``shall be effective as of the effective date of the rule 
that creates the designation * * *.'' Since a designation can 
substantially affect the scope of 18 U.S.C. 207(c) as applied to 
particular individuals, it is important that the designation become 
effective as soon as possible. We are proposing to modify existing 
Sec.  2641.201(e)(4) to establish the date of publication as the 
effective date for all future designations. However, since a revocation 
has the effect of expanding the section 207(c) bar, we propose to 
retain the 90-day delayed effective date with respect to revocations, 
now at renumbered Sec.  2641.302(f). As before, a revocation would not 
apply to any individual who terminated senior service prior to the 
expiration of the 90-day period.
    We also propose to revise existing Sec.  2641.201(e)(4) so that a 
new component designation ``shall be effective as to individuals who 
terminated senior service either before, on or after that date.'' This 
proposed change, at renumbered Sec.  2641.302(f), would serve to 
mitigate the consequences of administrative delays in connection with 
the publication of a rule designating a new component.
    As stated earlier in relation to Sec.  2641.204(g), it is necessary 
to identify a former senior employee's ``former agency'' in order to 
determine the scope of 18 U.S.C. 207(c). If a designated component is 
determined to be no longer identifiable as substantially the same 
entity, the section 207(c) bar will not apply to a former senior 
employee of that component. Example 1 following Sec.  2641.302(g) as 
proposed illustrates this concept. In the case of a designated 
component that remains identifiable as substantially the same entity, 
the bar will apply to a former senior employee as if the whole of the 
reorganized entity had been designated as a distinct and separate 
component by the Director. Proposed example 2 as proposed illustrates 
this idea. The example also points out that a former employee would not 
be barred from contacting a current employee who had been transferred 
outside the boundaries of the designated component, as reorganized.
    Although OGE has assigned the ``appropriate'' designated agency 
ethics official the primary responsibility for applying the standards 
of proposed

[[Page 7869]]

Sec.  2641.204(g) in the context of agency components, we emphasize 
that proposed Sec.  2641.302(g) would not constitute a delegation of 
the Director's authority to make or revoke component designations. 
Rather, it would reflect the practical necessity of determining if, 
subsequent to a reorganization, there is an identifiable successor to a 
component that had been previously designated as distinct and separate 
by OGE.
    Agency ethics officials would need turn to Sec.  2641.302(g) as 
proposed only when a designated component has been ``significantly 
altered by organizational changes.'' Proposed Sec.  2641.302(g) 
requires that the determination required by Sec.  2641.302(g) be made 
in consultation with OGE. While agency officials will be most familiar 
with the details of a significant reorganization, OGE personnel can 
assist in determining whether a designated component remains 
``identifiable as substantially the same entity.'' Moreover, such 
consultation should ensure that advice rendered to a particular 
individual will be consistent with any subsequent revision of appendix 
B by the OGE Director.

Appendixes

    Finally, we are proposing to delete existing footnotes 4 and 5 from 
the appendix B listing for the Department of Justice. The information 
in those footnotes would, henceforth, be contained in parentheses 
following the appropriate component.

B. Matters of Regulatory Procedure

Administrative Procedure Act

    Interested persons are invited to submit written comments on this 
proposed regulation, to be received by May 19, 2003. The comments will 
be carefully considered and any appropriate changes will be made to the 
regulation before a final rule is adopted and published in the Federal 
Register by OGE.

Executive Order 12866

    In promulgating this proposed rule, OGE has adhered to the 
regulatory philosophy and the applicable principles of regulation set 
forth in section 1 of Executive Order 12866, Regulatory Planning and 
Review. This proposed rule has also been reviewed by the Office of 
Management and Budget under that Executive order.

Executive Order 12988

    As Director of the Office of Government Ethics, I have reviewed 
this final amendatory regulation in light of section 3 of Executive 
Order 12988, Civil Justice Reform, and certify that it meets the 
applicable standards provided therein.

Regulatory Flexibility Act

    As Director of OGE, I certify under the Regulatory Flexibility Act 
(5 U.S.C. chapter 6) that this rule will not have a significant 
economic impact on a substantial number of small entities because it 
affects only current and former Federal employees.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply 
to this rule because it does not contain an information collection 
requirement that requires the approval of the Office of Management and 
Budget.

Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
chapter 25, subchapter II), this final rule will not significantly or 
uniquely affect small governments and will not result in increased 
expenditures by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more (as adjusted for 
inflation) in any one year.

Congressional Review Act

    The Office of Government Ethics has determined that this proposed 
rulemaking involves a nonmajor rule under the Congressional Review Act 
(5 U.S.C. chapter 8) and will, before the future final rule takes 
effect, submit a report thereon to the U.S. Senate, House of 
Representatives and General Accounting Office in accordance with that 
law.

List of Subjects in 5 CFR Parts 2637 and 2641

    Conflict of interests, Government employees.

    Approved: January 31, 2003.
Amy L. Comstock,
Director, Office of Government Ethics.

    Accordingly, for the reasons set forth in the preamble, the Office 
of Government Ethics proposes to amend 5 CFR Chapter XVI as follows:
    Under the authority of 5 U.S.C. App (Ethics in Government Act of 
1978):
    1. Part 2637 is removed.
    2. Part 2641 is revised to read as follows:

PART 2641--POST-EMPLOYMENT CONFLICT OF INTEREST RESTRICTIONS

Subpart A--General Provisions

Sec.
2641.101 Purpose.
2641.102 Applicability.
2641.103 Enforcement and penalties.
2641.104 Definitions.
2641.105 Advice.
Subpart B--Prohibitions
2641.201 Permanent restriction on any former employee's 
representations to United States concerning particular matter in 
which the employee participated personally and substantially [18 
U.S.C. 207(a)(1)].
2641.202 Two-year restriction on any former employee's 
representations to United States concerning particular matter for 
which the employee had official responsibility [18 U.S.C. 
207(a)(2)].
2641.203 One-year restriction on any former employee's 
representations, aid, or advice concerning ongoing trade or treaty 
negotiation [18 U.S.C. 207(b)].
2641.204 One-year restriction on any former senior employee's 
representations to former agency concerning any matter, regardless 
of prior involvement [18 U.S.C. 207(c)].
2641.205 One-year restriction on any former very senior employee's 
representations to former agency or certain officials concerning any 
matter, regardless of prior involvement [18 U.S.C. 207(d)].
2641.206 One-year restriction on any former senior or very senior 
employee's representations on behalf of, or aid or advice to, 
foreign entity [18 U.S.C. 207(f)].
Subpart C--Exceptions, Waivers and Separate Components
2641.301 Statutory exceptions and waivers.
2641.302 Separate agency components.
Appendix A to Part 2641--Positions Waived from 18 U.S.C. 207(c) and 
(f)
Appendix B to Part 2641--Agency Components for Purposes of 18 U.S.C. 
207(c)

    Authority: 5 U.S.C. App. (Ethics in Government Act of 1978); 18 
U.S.C. 207; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as 
modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.

Subpart A--General Provisions


Sec.  2641.101  Purpose.

    (a) Purpose of 18 U.S.C. 207. 18 U.S.C. 207 prohibits certain acts 
by former employees (including current employees who formerly served in 
``senior'' or ``very senior'' employee positions) which involve, or may 
appear to involve, the unfair use of prior Government employment. None 
of the restrictions of section 207 prohibit any former employee, 
regardless of Government rank or position, from accepting employment 
with any particular private or public employer. Rather, section 207 
prohibits a former employee from providing certain services to or on 
behalf of non-Federal

[[Page 7870]]

employers or other persons, whether or not done for compensation. These 
restrictions are personal to the employee and are not imputed to 
others. (See, however, the note following Sec.  2641.103 concerning 18 
U.S.C. 2.)
    (b) Purpose of part 2641. This part 2641 provides interpretive 
guidance explaining the scope and content of 18 U.S.C. 207 as it 
applies to former employees of the executive branch or of certain 
independent agencies (including current employees who formerly served 
in ``senior'' or ``very senior'' employee positions). Although certain 
restrictions in section 207 apply to former employees of the District 
of Columbia, Members and elected officials of the Congress and certain 
legislative staff, and employees of independent agencies in the 
legislative and judicial branches, this part is not intended to provide 
guidance to those individuals.

    Note to Sec.  2641.101: Part 2641 does not address post-
employment restrictions that may be contained in laws or authorities 
other than 18 U.S.C. 207. These restrictions include those in 18 
U.S.C. 203 and 41 U.S.C. 423(d).

Sec.  2641.102  Applicability.

    Since its enactment in 1962, 18 U.S.C. 207 has been amended several 
times. As a consequence of these amendments, former executive branch 
employees are subject to varying post-employment restrictions depending 
upon the date they terminated Government service (or service in a 
``senior'' or ``very senior'' employee position).
    (a) Employees terminating on or after January 1, 1991. Former 
employees who terminated or employees terminating Government service 
(or service in a ``senior'' or ``very senior'' employee position) on or 
after January 1, 1991, are subject to the provisions of 18 U.S.C. 207 
as amended by the Ethics Reform Act of 1989, title I, Public Law 101-
194, 103 Stat. 1716 (with amendments enacted by Act of May 4, 1990, 
Public Law 101-280, 104 Stat. 149) and by subsequent amendments. This 
part 2641 provides guidance concerning section 207 to these former 
employees.
    (b) Employees terminating between July 1, 1979 and December 31, 
1990. Former employees who terminated service between July 1, 1979, and 
December 31, 1990, are subject to the provisions of section 207 as 
amended by the Ethics in Government Act of 1978, title V, Public Law 
95-521, 92 Stat. 1864 (with amendments enacted by Act of June 22, 1979, 
Public Law No. 96-28, 93 Stat. 76). Regulations providing guidance 
concerning 18 U.S.C. 207 to these employees were last published in the 
2003 edition of Title 5 of the Code of Federal Regulations, revised as 
of January 1, 2003.
    (c) Employees terminating prior to July 1, 1979. Former employees 
who terminated service prior to July 1, 1979, are subject to the 
provisions of 18 U.S.C. 207 as enacted in 1962 by the Act of October 
23, 1962, Public Law 87-849, 76 Stat. 1123.

    Note to Sec.  2641.102: The provisions of this part 2641 reflect 
amendments to 18 U.S.C. 207 enacted subsequent to the Ethics Reform 
Act of 1989 and before [the effective date of the final rule]. An 
employee who terminated Government service (or service in a 
``senior'' or ``very senior'' employee position) between January 1, 
1991, and [the effective date of the final rule] may have become 
subject, upon termination, to a version of the statute that existed 
prior to the effective date of one or more of those amendments. 
Those amendments concerned: (1) Changes, effective in 1990 and 1996, 
concerning the rate of basic pay triggering ``senior employee'' 
status for purposes of section 207(c); (2) the reinstatement and 
subsequent amendment of the Presidential waiver authority in section 
207(k); (3) the length of the restriction set forth in section 
207(f) as applied to a former United States Trade Representative or 
Deputy United States Trade Representative; (4) the addition of 
section 207(j)(7), an exception to section 207(c) and (d); and (5) a 
change to section 207(j)(2)(B), an exception to section 207(c) and 
(d).

Sec.  2641.103  Enforcement and penalties.

    (a) Enforcement. Criminal and civil enforcement of the provisions 
of 18 U.S.C. 207 is the responsibility of the Department of Justice. An 
agency is required to report to the Attorney General any information, 
complaints or allegations of possible criminal conduct in violation of 
title 18 of the United States Code, including possible violations of 
section 207 by former officers and employees. See 28 U.S.C. 535. When a 
possible violation of section 207 is referred to the Attorney General, 
the referring agency shall concurrently notify the Director of the 
Office of Government Ethics of the referral in accordance with 5 CFR 
2638.603.
    (b) Penalties and injunctions. 18 U.S.C. 216 provides for the 
imposition of one or more of the following penalties and injunctions 
for a violation of section 207:
    (1) Criminal penalties. 18 U.S.C. 216(a) sets forth the maximum 
imprisonment terms for felony and misdemeanor violations of section 
207. Section 216(a) also provides for the imposition of criminal fines 
for violations of section 207. For the amount of the criminal fines 
that may be imposed, see 18 U.S.C. 3571.
    (2) Civil penalties. 18 U.S.C. 216(b) authorizes the Attorney 
General to take civil actions to impose civil penalties for violations 
of section 207 and sets forth the amounts of the civil fines.
    (3) Injunctive relief. 18 U.S.C. 216(c) authorizes the Attorney 
General to seek an order from a United States District Court to 
prohibit a person from engaging in conduct which violates section 207.
    (c) Other relief. In addition to any other remedies provided by 
law, the United States may, pursuant to 18 U.S.C. 218, void or rescind 
contracts, transactions, and other obligations of the United States in 
the event of a final conviction pursuant to section 207, and recover 
the amount expended or the thing transferred or its reasonable value.

    Note to Sec.  2641.103: A person or entity who aids, abets, 
counsels, commands, induces, or procures commission of a violation 
of section 207 is punishable as a principal under 18 U.S.C. 2.

Sec.  2641.104  Definitions.

    For purposes of this part:
    Agency means any department, independent establishment, commission, 
administration, authority, board or bureau of the United States or 
Government corporation. The term includes any independent agency not in 
the legislative or judicial branches.
    Agency ethics official means the designated agency ethics official 
(DAEO) or the alternate DAEO, appointed in accordance with 5 CFR 
2638.202(b), and any deputy ethics official described in 5 CFR 
2638.204.
    Department means one of the executive departments listed in 5 
U.S.C. 101.
    Designated agency ethics official (DAEO) means the official 
designated under 5 CFR 2638.201 to coordinate and manage an agency's 
ethics program.
    Employee means, for purposes of determining the individuals subject 
to 18 U.S.C. 207, any officer or employee of the executive branch or 
any independent agency that is not a part of the legislative or 
judicial branches. The term does not include the President or the Vice 
President (except, with respect to the Vice President, as otherwise 
provided), an enlisted member of the Armed Forces, or an officer or 
employee of the District of Columbia. The term includes an individual 
appointed as an employee or detailed to the Federal Government under 
the Intergovernmental Personnel Act (5 U.S.C. 3371-3376) or 
specifically subject to section 207 under the terms of another statute. 
It encompasses senior employees, very senior employees, and special 
Government employees. (This term is redefined elsewhere in this part, 
as necessary, when the term is used for other purposes.)

[[Page 7871]]

    Executive branch includes an executive department as defined in 5 
U.S.C. 101, a Government corporation, an independent establishment 
(other than the General Accounting Office), the Postal Service, the 
Postal Rate Commission, and also includes any other entity or 
administrative unit in the executive branch.
    Former employee means an individual who has completed a period of 
service as an employee. Unless otherwise indicated, the term 
encompasses a former senior employee and a former very senior employee. 
An individual becomes a former employee at the termination of 
Government service, whereas an individual becomes a former senior 
employee or a former very senior employee at the termination of service 
in a senior or very senior employee position. Consistent with 18 U.S.C. 
202(c) and the definition of ``employee'' in this section, the Vice 
President is a former employee only for purposes of 18 U.S.C. 207(d) 
and (f) [Sec. Sec.  2641.205 and 2641.206] and any applicable 
exceptions to those restrictions; there are no other section 207 or 
part 2641 restrictions applicable to the Vice President.

    Example 1 to the definition of former employee: An individual 
served as an employee of the Agency for International Development, 
an agency within the executive branch. Since he was, therefore, an 
``employee'' as that term is defined in this section by virtue of 
having served in the executive branch, he became a ``former 
employee'' when he terminated Government service to pursue his 
hobbies.
    Example 2 to the definition of former employee: An individual 
served as an employee of the Tennessee Valley Authority (TVA). Since 
the TVA is a corporation owned or controlled by the Government of 
the United States, she served as an employee in the ``executive 
branch'' as that term is defined in this section. She became a 
``former employee,'' therefore, when she terminated Government 
service to do some traveling.
    Example 3 to the definition of former employee: An individual 
terminated a GS-14 position in the executive branch to accept a 
position in the legislative branch. He did not become a ``former 
employee'' when he terminated service in the executive branch since 
he did not terminate ``Government service'' as that term is defined 
in this section.
    Example 4 to the definition of former employee: An individual is 
appointed by the President to serve as a special Government employee 
on the Oncological Drug Advisory Committee at the Department of 
Health and Human Services. The special Government employee meets 
with the committee five days per year. She does not terminate 
Government service at the end of each meeting of the committee and 
therefore does not at that time become a ``former employee.''
    Example 5 to the definition of former employee: An individual is 
a Major in the U.S. Army Reserve. The Major earns points toward 
retirement by participating in weekend drills and performing active 
duty for training for two weeks each year. The Major is not a 
special Government employee when he performs weekend drills, but is 
considered to be one while on active duty for training. The Major is 
considered to be a ``former employee'' when he terminates each 
period of active duty for training.

    Former senior employee is an individual who terminates service in a 
senior employee position (without successive Government service in 
another senior position).
    Former very senior employee is an individual who terminates service 
in a very senior employee position (without successive Government 
service in another very senior employee position).
    Government corporation means, for purposes of determining the 
individuals subject to 18 U.S.C. 207, a corporation that is owned or 
controlled by the Government of the United States. For purposes of 
identifying or determining individuals with whom post-employment 
contact is restricted, matters to which the United States is a party or 
has a direct and substantial interest, decisions which a former senior 
or very senior employee cannot seek to influence on behalf of a foreign 
entity, and whether a former employee is acting on behalf of the United 
States, it means a corporation in which the United States has a 
proprietary interest as distinguished from a custodial or incidental 
interest as shown by the functions, financing, control, and management 
of the corporation.
    Government service means a period of time during which an 
individual is employed by the Federal Government. As applied to a 
special Government employee (SGE), Government service refers to the 
period of time covered by the individual's appointment (or other act 
evidencing employment with the Government), regardless of any interval 
or intervals between days actually served. See example 4 to the 
definition of former employee in this section. In the case of Reserve 
officers of the Armed Forces or officers of the National Guard of the 
United States who are not otherwise employees of the United States, 
Government service shall be considered to end upon the termination of a 
period of active duty or active duty for training during which they 
served as SGEs. See example 5 to the definition of former employee in 
this section.
    He, his, and him include she, hers, and her, and vice versa.
    Judicial branch means the Supreme Court of the United States; the 
United States courts of appeals; the United States district courts; the 
Court of International Trade; the United States bankruptcy courts; any 
court created pursuant to Article I of the United States Constitution, 
including the United States Court of Appeals for the Armed Forces, the 
United States Claims Court, and the United States Tax Court, but not 
including a court of a territory or possession of the United States; 
the Federal Judicial Center; and any other agency, office, or entity in 
the judicial branch.
    Legislative branch means the Congress; it also means the Office of 
the Architect of the Capitol, the United States Botanic Garden, the 
General Accounting Office, the Government Printing Office, the Library 
of Congress, the Office of Technology Assessment, the Congressional 
Budget Office, the United States Capitol Police, and any other agency, 
entity, office, or commission established in the legislative branch.
    Person includes an individual, corporation, company, association, 
firm, partnership, society, joint stock company, or any other 
organization, institution, or entity, including any officer, employee, 
or agent of such person or entity. Unless otherwise indicated, the term 
is all-inclusive and applies to commercial ventures and nonprofit 
organizations as well as to foreign, State and local governments. The 
term includes the ``United States'' as that term is defined in Sec.  
2641.301(a)(1).
    Senior employee means an employee, other than a very senior 
employee who is:
    (1) Employed in a position for which the rate of pay is specified 
in or fixed according to 5 U.S.C. 5311-5318 (the Executive Schedule);
    (2) Employed in a position for which the rate of basic pay, 
exclusive of any locality-based pay adjustment or additional pay such 
as bonuses, awards, and various allowances, is equal to or greater than 
the rate of basic pay payable for level 5 of the Senior Executive 
Service;
    (3) Appointed by the President to a position under 3 U.S.C. 
105(a)(2)(B);
    (4) Appointed by the Vice President to a position under 3 U.S.C. 
106(a)(1)(B); or
    (5) An active duty commissioned officer of the uniformed services 
serving in a position for which the pay grade (as specified in 37 
U.S.C. 201) is pay grade O-7 or above.

    Example 1 to the definition of senior employee: A former 
administrative law judge serves on a commission created within the 
executive branch to adjudicate certain claims arising from a recent 
military operation. The position is uncompensated but the judge

[[Page 7872]]

receives travel expenses. The judge is not employed in a position 
for which the rate of pay is specified in or fixed according to the 
Executive Schedule, is not serving in a position to which he was 
appointed by the President or Vice President under 3 U.S.C. 
105(a)(2)(B) or 106(a)(1)(B), and is not employed in a position for 
which the basic rate of pay (exclusive of locality and additional 
pay) is equal to or greater than the rate of basic pay payable for 
level 5 of the Senior Executive Service. He is not a senior 
employee.
    Example 2 to the definition of senior employee: A doctor is 
hired to fill a ``senior-level'' position and is initially 
compensated pursuant to 5 U.S.C. 5376 at a rate of basic pay 
slightly less than that payable for level 5 of the Senior Executive 
Service. If both the annual pay adjustment provided for in 5 CFR 
534.504 and the periodic pay adjustment authorized in 5 CFR 534.503 
result in a rate of basic pay equal to or above the rate of basic 
pay payable for level 5 of the Senior Executive Service, the doctor 
will become a senior employee.

    Special Government employee means an officer or employee of the 
executive branch or an independent agency, as specified in 18 U.S.C. 
202(a). A special Government employee is retained, designated, 
appointed, or employed to perform temporary duties either on a full-
time or intermittent basis, with or without compensation, for a period 
not to exceed 130 days during any period of 365 consecutive days.
    State means one of the fifty States of the United States and the 
District of Columbia, the Commonwealth of Puerto Rico, and any 
territory or possession of the United States.
    Very senior employee means an employee who is:
    (1) Serving in the position of Vice President of the United States;
    (2) Employed in a position which is either listed in 5 U.S.C. 5312 
or for which the rate of pay is equal to the rate of pay payable for 
level I of the Executive Schedule;
    (3) Employed in a position in the Executive Office of the President 
which is either listed in 5 U.S.C. 5313 or for which the rate of pay is 
equal to the rate of pay payable for level II of the Executive 
Schedule;
    (4) Appointed by the President to a position under 3 U.S.C. 
105(a)(2)(A); or
    (5) Appointed by the Vice President to a position under 3 U.S.C. 
106(a)(1)(A).


Sec.  2641.105  Advice.

    (a) Agency ethics officials. Current or former employees or others 
who have questions about 18 U.S.C. 207 or about this part 2641 should 
seek advice from a designated agency ethics official or another agency 
ethics official. The agency in which an individual formerly served has 
the primary responsibility to provide oral or written advice concerning 
a former employee's post-employment activities. An agency ethics 
official, in turn, may consult with other agencies, such as those 
before whom a post-employment communication or appearance is 
contemplated, and with the Office of Government Ethics.
    (b) Office of Government Ethics. The Office of Government Ethics 
(OGE) will provide advice to agency ethics officials and others 
concerning 18 U.S.C. 207 and this part 2641. The OGE may provide advice 
orally or through issuance of a written advisory opinion and shall, as 
appropriate, consult with the agency or agencies concerned and with the 
Department of Justice.
    (c) Effect of advice. Reliance on the oral or written advice of an 
agency ethics official or the OGE cannot ensure that a former employee 
will not be prosecuted for a violation of 18 U.S.C. 207. However, good 
faith reliance on such advice is a factor that may be taken into 
account by the Department of Justice (DOJ) in the selection of cases 
for prosecution. In the case in which OGE issues a formal advisory 
opinion in accordance with subpart C of 5 CFR part 2638, the DOJ will 
not prosecute an individual who acted in good faith in accordance with 
that opinion. See 5 CFR 2638.309.
    (d) Contacts to seek advice. A former employee will not be deemed 
to act on behalf of any other person in violation of 18 U.S.C. 207 when 
he contacts an agency ethics official or other employee of the United 
States for the purpose of seeking guidance concerning the applicability 
or meaning of section 207 as applied to his own activities.
    (e) No attorney-client privilege. Disclosures made by a current or 
former employee to an agency ethics official, to any Government 
attorney, or to an employee of the Office of Government Ethics are not 
protected by an attorney-client privilege.

Subpart B--Prohibitions


Sec.  2641.201  Permanent restriction on any former employee's 
representations to United States concerning particular matter in which 
the employee participated personally and substantially [18 U.S.C. 
207(a)(1)].

    (a) Basic prohibition of 18 U.S.C. 207(a)(1). No former employee 
shall knowingly, with the intent to influence, make any communication 
to or appearance before an employee of the United States on behalf of 
any other person in connection with a particular matter involving a 
specific party or parties, in which he participated personally and 
substantially as an employee, and in which the United States is a party 
or has a direct and substantial interest.
    (b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(a)(1) 
does not apply to a former employee who is:
    (1) Acting on behalf of the United States. See Sec.  2641.301(a).
    (2) Acting as an elected State or local government official. See 
Sec.  2641.301(b).
    (3) Communicating scientific or technological information pursuant 
to procedures or certification. See Sec.  2641.301(e).
    (4) Testifying under oath. See Sec.  2641.301(f). (Note that this 
exception from Sec.  2641.201 is generally not available for expert 
testimony. See Sec.  2641.301(f)(2).)
    (5) Acting on behalf of an international organization pursuant to a 
waiver. See Sec.  2641.301(h).
    (6) Acting as an employee of a Government-owned, contractor 
operated entity pursuant to a waiver. See Sec.  2641.301(i).
    (c) Commencement and length of restriction. 18 U.S.C. 207(a)(1) is 
a permanent restriction that commences upon an employee's termination 
from Government service. The restriction lasts for the life of the 
particular matter involving specific parties in which the employee 
participated personally and substantially.
    (d) Communication or appearance--(1) Communication. A former 
employee makes a communication when he imparts or transmits information 
of any kind, including facts, opinions, ideas, questions or direction, 
to an employee of the United States, whether orally, in written 
correspondence, by electronic media, or by any other means. This 
includes only those communications with respect to which the former 
employee intends that the information conveyed will be attributed to 
himself, although it is not necessary that any employee of the United 
States actually recognize the former employee as the source of the 
information.
    (2) Appearance. A former employee makes an appearance when he is 
physically present before an employee of the United States, in either a 
formal or informal setting. Although an appearance also may be 
accompanied by certain communications, an appearance need not involve 
any communication by the former employee.
    (3) Behind-the-scenes assistance. Nothing in this section prohibits 
a former employee from providing assistance to another person, provided 
that the assistance does not involve a communication to or an 
appearance before an employee of the United States.

    Example 1 to paragraph (d): A former employee of the Federal 
Bureau of

[[Page 7873]]

Investigation makes a brief telephone call to a colleague in her 
former office concerning an ongoing investigation. She has made a 
communication. If she personally attends an informal meeting with 
agency personnel concerning the matter, she will have made an 
appearance.
    Example 2 to paragraph (d): A former employee of the National 
Endowment for the Humanities (NEH) accompanies other representatives 
of an NEH grantee to a meeting with the agency. Even if the former 
employee does not say anything at the meeting, he has made an 
appearance (although that appearance may or may not have been made 
with the intent to influence, depending on the circumstances).
    Example 3 to paragraph (d): A Government employee administered a 
particular contract for agricultural research with Q Company. Upon 
termination of her Government employment, she is hired by Q Company. 
She works on the matter covered by the contract, but has no direct 
contact with the Government. At the request of a company vice 
president, she prepares a paper describing the persons at her former 
agency who should be contacted and what should be said to them in an 
effort to increase the scope of funding of the contract and to 
resolve favorably a dispute over a contract clause. She may do so.
    Example 4 to paragraph (d): A former employee of the National 
Institutes of Health (NIH) prepares an application for an NIH 
research grant on behalf of her university employer. The application 
is signed and submitted by another university officer, but it lists 
the former employee as the principal investigator who will be 
responsible for the substantive work under the grant. He has not 
made a communication. He also may sign an assurance to the agency 
that he will be personally responsible for the direction and conduct 
of the research under the grant, pursuant to Sec.  
2641.201(e)(2)(iv). Moreover, he may personally communicate 
scientific or technological information to NIH concerning the 
application, provided that he does so under circumstances indicating 
no intent to influence the Government pursuant to Sec.  
2641.201(e)(2) or he makes the communication in accordance with the 
exception for scientific or technological information in Sec.  
2641.207(e).
    Example 5 to paragraph (d): A former employee established a 
small government relations firm with a highly specialized practice 
in certain environmental compliance issues. She prepared a report 
for one of her clients, which she knew would be presented to her 
former agency by the client. The report is not signed by the former 
employee, but the document does bear the name of her firm. The 
former employee expects that it is commonly known throughout the 
industry and the agency that she is the author of the report. If the 
report were submitted to the agency, the former employee would be 
making a communication and not merely confining herself to behind-
the-scenes assistance, because the circumstances indicate that she 
intended the information to be attributed to herself.

    (e) With the intent to influence--(1) Basic concept. The 
prohibition applies only to communications or appearances made by a 
former Government employee with the intent to influence the United 
States. A communication or appearance is made with the intent to 
influence when made for the purpose of:
    (i) Seeking a Government ruling, benefit, approval, or other 
discretionary Government action; or
    (ii) Affecting Government action in connection with an issue or 
aspect of a matter which involves an appreciable element of actual or 
potential dispute or controversy.

    Example 1 to paragraph (e)(1): A former employee of the 
Administration on Children and Families (ACF) signs a grant 
application and submits it to ACF on behalf of a nonprofit 
organization for which she now works. She has made a communication 
with the intent to influence an employee of the United States 
because her communication was made for the purpose of seeking a 
Government benefit.
    Example 2 to paragraph (e)(1): A former Government employee 
calls an agency official to complain about the auditing methods 
being used by the agency in connection with an audit of a Government 
contractor for which the former employee serves as a consultant. The 
former employee has made a communication with the intent to 
influence because his call was made for the purpose of seeking 
Government action in connection with an issue involving an 
appreciable element of dispute.

    (2) Intent to influence not present. Certain communications to and 
appearances before employees of the United States are not made with the 
intent to influence, within the meaning of paragraph (e)(1) of this 
section, including, but not limited to, communications and appearances 
made solely for the purpose of:
    (i) Making a routine request not involving a potential controversy, 
such as a request for publicly available documents or an inquiry as to 
the status of a matter;
    (ii) Making factual statements or asking factual questions in a 
context that involves neither an appreciable element of dispute nor an 
effort to seek discretionary Government action, such as conveying 
factual information regarding matters that are not potentially 
controversial during the regular course of performing a contract;
    (iii) Signing and filing the tax return of another person as 
preparer;
    (iv) Signing an assurance that one will be responsible as principal 
investigator for the direction and conduct of research under a Federal 
grant (see example 4 to paragraph (d) of this section);
    (v) Filing a Securities and Exchange Commission (SEC) Form 10-K or 
similar disclosure forms required by the SEC;
    (vi) Making a communication, at the initiation of the Government, 
concerning work performed or to be performed under a Government 
contract or grant, during a routine Government site visit to premises 
owned or occupied by a person other than the United States where the 
work is performed or would be performed, in the ordinary course of 
evaluation, administration, or performance of an actual or proposed 
contract or grant; or
    (vii) Purely social contacts (See example 4 to paragraph (f) of 
this section).

    Example 1 to paragraph (e)(2): A former Government employee 
calls an agency to ask for the date of a scheduled public hearing on 
her client's license application. This is a routine request not 
involving a potential controversy and is not made with the intent to 
influence.
    Example 2 to paragraph (e)(2): In the previous example, the 
agency's hearing calendar is quite full, as the agency has a 
significant backlog of license applications. The former employee 
calls a former colleague at the agency to ask if the hearing date 
for her client could be moved up on the schedule, so that her client 
can move forward with its business plans more quickly. This is a 
communication made with the intent to influence.
    Example 3 to paragraph (e)(2): A former employee of the 
Department of Defense (DOD) now works for a firm that has a DOD 
contract to produce an operator's manual for a radar device used by 
DOD. In the course of developing a chapter about certain technical 
features of the device, the former employee asks a DOD official 
certain factual questions about the device and its properties. The 
discussion does not concern any matter that is known to involve a 
potential controversy between the agency and the contractor. The 
former employee has not made a communication with the intent to 
influence.
    Example 4 to paragraph (e)(2): A former medical officer of the 
Food and Drug Administration (FDA) sends a letter to the agency in 
which he sets out certain data from safety and efficacy tests on a 
new drug for which his employer, ABC Drug Co., is seeking FDA 
approval. Even if the letter is confined to arguably ``factual'' 
matters, such as synopses of data from clinical trials, the 
communication is made for the purpose of obtaining a discretionary 
Government action, i.e., approval of a new drug. Therefore, this is 
a communication made with the intent to influence.
    Example 5 to paragraph (e)(2): A former Government employee now 
works for a management consulting firm, which has a Government 
contract to produce a study on the efficiency of certain agency 
operations. Among other things, the contract calls for the 
contractor to develop a range of alternative options for potential 
restructuring of certain internal Government procedures. The former 
employee would like to meet with agency representatives to present a 
tentative list of options developed by the contractor. She

[[Page 7874]]

may not do so. There is a potential for controversy between the 
Government and the contractor concerning the extent and adequacy of 
any options presented, and, moreover, the contractor may have its 
own interest in emphasizing certain options as opposed to others 
because some options may be more difficult and expensive for the 
contractor to develop fully than others.
    Example 6 to paragraph (e)(2): A former employee of the Internal 
Revenue Service (IRS) prepares his client's tax return, signs it as 
preparer, and mails it to the IRS. He has not made a communication 
with the intent to influence. In the event that any controversy 
should arise concerning the return, the former employee may not 
represent the client in the proceeding, although he may answer 
direct factual questions about the records he used to compile 
figures for the return, provided that he does not argue any theories 
or positions to justify the use of one figure rather than another.
    Example 7 to paragraph (e)(2): An agency official visits the 
premises of a prospective contractor to evaluate the testing 
procedure being proposed by the contractor for a research contract 
on which it has bid. A former employee of the agency, now employed 
by the contractor, is the person most familiar with the technical 
aspects of the proposed testing procedure. The agency official asks 
the former employee about certain technical features of the 
equipment used in connection with the testing procedure. The former 
employee may provide factual information that is responsive to the 
questions posed by the agency official, as such information is 
requested by the Government under circumstances for its convenience 
in reviewing the bid. However, the former employee may not argue for 
the appropriateness of the proposed testing procedure or otherwise 
advocate any position on behalf of the contractor.

    (3) Change in circumstances. If, at any time during the course of a 
communication or appearance otherwise permissible under paragraph 
(e)(2) of this section, it becomes apparent that circumstances have 
changed which would indicate that any further communication or 
appearance would be made with the intent to influence, the former 
employee must refrain from such further communication or appearance.

    Example 1 to paragraph (e)(3): A former Government employee 
accompanies the vice president of a company to a meeting with agency 
officials to convey test results called for under a Government 
contract. During the course of the meeting, an unexpected dispute 
arises concerning certain terms of the contract. The former employee 
may not participate in any discussion of this issue. Moreover, if 
the circumstances clearly indicate that even her continued presence 
during this discussion would be an appearance made with the intent 
to influence, she should excuse herself from the meeting.
    (4) Mere physical presence intended to influence. Under some 
circumstances, a former employee's mere physical presence, without any 
communication by the employee concerning any material issue or 
otherwise, may constitute an appearance with the intent to influence an 
employee of the United States. Relevant considerations include such 
factors as whether:
    (i) The former employee has been given actual or apparent authority 
to make any decisions, commitments, or substantive arguments in the 
course of the appearance;
    (ii) The Government employee before whom the appearance is made has 
substantive responsibility for the matter and does not simply perform 
ministerial functions, such as the acceptance of paperwork;
    (iii) The former employee's presence is relatively prominent;
    (iv) The former employee is paid for making the appearance;
    (v) It is anticipated that others present at the meeting will make 
reference to the views or past or present work of the former employee;
    (vi) Circumstances do not indicate that the former employee is 
present merely for informational purposes, for example, merely to 
listen and record information for later use;
    (vii) The former employee has entered a formal appearance in 
connection with a legal proceeding at which he is present; and
    (viii) The appearance is before former subordinates or others in 
the same chain of command as the former employee.

    Example 1 to paragraph (e)(4): A former Regional Administrator 
of the Occupational Safety and Health Administration (OSHA) becomes 
a consultant for a company being investigated for possible 
enforcement action by the regional OSHA office. She is hired by the 
company to coordinate and guide its response to the OSHA 
investigation. She accompanies company officers to an informal 
meeting with OSHA, which is held for the purpose of airing the 
company's explanation of certain findings in an adverse inspection 
report. The former employee is introduced at the meeting as the 
company's compliance and governmental affairs adviser but she does 
not make any statements during the meeting concerning the 
investigation. She is paid a fee for attending this meeting. She has 
made an appearance with the intent to influence.
    Example 2 to paragraph (e)(4): A former employee of an agency 
now works for a manufacturer that seeks agency approval for a new 
product. The agency convenes a public advisory committee meeting for 
the purpose of receiving expert advice concerning the product. 
Representatives of the manufacturer will make an extended 
presentation of the data supporting the application for approval, 
and a special table has been reserved for them in the meeting room 
for this purpose. The former employee does not participate in the 
manufacturer's presentation to the advisory committee and does not 
even sit in the section designated for the manufacturer. Rather, he 
sits in the back of the room in a large area reserved for the public 
and the media. The manufacturer's speakers make no reference to the 
involvement or views of the former employee with respect to the 
matter. Even though the former employee may be recognized in the 
audience by certain agency employees, he has not made an appearance 
with the intent to influence because his presence is relatively 
inconspicuous and there is little to identify him with the 
manufacturer or the advocacy of its representatives at the meeting.

    (f) To or before an employee of the United States--(1) Employee of 
the United States. For purposes of this paragraph, an ``employee of the 
United States'' means the President, the Vice President, and any 
current Federal employee (including an individual appointed as an 
employee or detailed to the Federal Government under the 
Intergovernmental Personnel Act (5 U.S.C. 3371-3376)) who is detailed 
to or employed by any:
    (i) Agency (including a Government corporation);
    (ii) Independent agency in the executive, legislative, or judicial 
branch;
    (iii) Federal court; or
    (iv) Court-martial.
    (2) To or before. Except as provided in paragraph (f)(3) of this 
section, a communication ``to'' or appearance ``before'' an employee of 
the United States is one:
    (i) Directed to and received by an entity specified in paragraphs 
(f)(1)(i) through (f)(1)(iv) of this section even though not addressed 
to a particular employee, e.g., as when a former employee mails 
correspondence to an agency but not to any named employee; or
    (ii) Directed to and received by an employee in his capacity as an 
employee of an entity specified in paragraphs (f)(1)(i) through 
(f)(1)(iv) of this section, e.g., as when a former employee directs 
remarks to an employee representing the United States as a party or 
intervenor in a Federal or non-Federal judicial proceeding. A former 
employee does not direct his communication or appearance to a bystander 
who merely happens to overhear the communication or witness the 
appearance.
    (3) Public commentary. (i) A former employee who addresses a public 
gathering or a conference, seminar, or similar forum as a speaker or 
panel participant will not be considered to be making a prohibited 
communication or appearance if the forum:
    (A) Is not sponsored or co-sponsored by an entity specified in 
paragraphs (f)(1)(i) through (f)(1)(iv) of this section;

[[Page 7875]]

    (B) Is attended by a large number of people; and
    (C) A significant proportion of those attending are not employees 
of the United States.
    (ii) In the circumstances described in paragraph (f)(3)(i) of this 
section, a former employee may engage in exchanges with any other 
speaker or with any member of the audience.
    (iii) A former employee also may permit the broadcast or 
publication of a commentary provided that it is broadcast or appears in 
a newspaper, periodical, or similar widely available publication.

    Example 1 to paragraph (f): A Federal Trade Commission (FTC) 
employee participated in the FTC's decision to initiate an 
enforcement proceeding against a particular company. After 
terminating Government service, the former employee is hired by the 
company to lobby key Members of Congress concerning the necessity of 
the proceeding. He may contact Members of Congress or their staff 
since a communication to or appearance before such persons is not 
made to or before an ``employee of the United States'' as that term 
is defined in paragraph (f)(1) of this section.
    Example 2 to paragraph (f): In the previous example, the former 
FTC employee arranges to meet with a Congressional staff member to 
discuss the necessity of the proceeding. A current FTC employee is 
invited by the staff member to attend and is authorized by the FTC 
to do so in order to present the agency's views. The former employee 
may not argue his new employer's position at that meeting since his 
arguments would unavoidably be directed to the FTC employee in his 
capacity as an employee of the FTC.
    Example 3 to paragraph (f): The Department of State granted a 
waiver pursuant to 18 U.S.C. 208(b)(1) to permit one of its 
employees to serve in his official capacity on the Board of 
Directors of a private association. The employee participates in a 
Board meeting to discuss what position the association should take 
concerning the award of a recent contract by the Department of 
Energy (DOE). When a former DOE employee addresses the Board to 
argue that the association should object to the award of the 
contract, she is directing her communication to a Department of 
State employee in his capacity as an employee of the Department of 
State.
    Example 4 to paragraph (f): A Federal Communications Commission 
(FCC) employee participated in a proceeding to review the renewal of 
a license for a television station. After terminating Government 
service, he is hired by the company that holds the license. At a 
cocktail party, the former employee meets his former supervisor who 
is still employed by the FCC and begins to discuss the specifics of 
the license renewal case with him. The former employee is directing 
his communication to an FCC employee in his capacity as an employee 
of the FCC. Moreover, as the conversation concerns the license 
renewal matter, it is not a purely social contact and satisfies the 
element of the intent to influence the Government within the meaning 
of paragraph (e) of this section.
    Example 5 to paragraph (f): A Department of Commerce employee 
participated in the negotiation of a proposed treaty with another 
country. After terminating Government service, she goes to work for 
a company that would be affected by the treaty. She is invited to 
speak about the pending negotiation at a conference sponsored by a 
trade association. The conference is attended by 100 individuals, 50 
of whom are employees of entities specified in paragraphs (f)(1)(i)-
(f)(1)(iv) of this section. The former employee may speak at the 
conference and may engage in a discussion of the merits of the 
treaty in response to a question posed by a Department of 
Agriculture employee in attendance.
    Example 6 to paragraph (f): An employee of the Defense Base 
Closure and Realignment Commission participated in recommending that 
a particular military base be closed. After terminating Government 
service, the former employee may, on behalf of an organization with 
which he is affiliated, write and permit publication of an op-ed 
piece in a metropolitan newspaper in support of the recommendation 
to close that base.
    Example 7 to paragraph (f): ABC Company has a contract with the 
Department of Energy which requires that contractor personnel work 
closely with agency employees in adjoining offices and work stations 
in the same building. After leaving the Department, a former 
employee goes to work for another corporation that has an interest 
in performing certain work related to the same contract, and he 
arranges a meeting with certain ABC employees at the building where 
he previously worked on the project. At the meeting, he asks the ABC 
employees to mention the interest of his new employer to the project 
supervisor, who is an agency employee. Moreover, he tells the ABC 
employees that they can say that he was the source of this 
information. The ABC employees in turn convey this information to 
the project supervisor. The former employee has made a communication 
to an employee of the Department of Energy. His communication is 
directed to an agency employee because he intended that the 
information be conveyed to an agency employee with the intent that 
it be attributed to himself, and the circumstances indicate such a 
close working relationship between contractor personnel and agency 
employees that it was likely that the information conveyed to 
contractor personnel would be received by the agency.

    (g) On behalf of any other person--(1) On behalf of. (i) A former 
employee makes a communication or appearance on behalf of another 
person if the former employee is acting as the other person's agent or 
attorney or if:
    (A) The former employee is acting with the consent of the other 
person, whether express or implied; and
    (B) The former employee is acting subject to some degree of control 
or direction by the other person in relation to the communication or 
appearance.
    (ii) A former employee does not act on behalf of another merely 
because his communication or appearance is consistent with the 
interests of the other person, is in support of the other person, or 
may cause the other person to derive a benefit as a consequence of the 
former employee's activity.
    (2) Any other person. The term ``person'' is defined in Sec.  
2641.104. For purposes of this paragraph, the term excludes the former 
employee himself or any sole proprietorship owned by the former 
employee.

    Example 1 to paragraph (g): An employee of the Bureau of Land 
Management (BLM) participated in the decision to grant a private 
company the right to explore for minerals on certain Federal lands. 
After retiring from Federal service to pursue her hobbies, the 
former employee becomes concerned that BLM is misinterpreting a 
particular provision of the lease. The former employee may contact a 
current BLM employee on her own behalf in order to argue that her 
interpretation is correct.
    Example 2 to paragraph (g): The former BLM employee from the 
previous example later joins an environmental organization as an 
uncompensated volunteer. The leadership of the organization 
authorizes the former employee to engage in any activity that she 
believes will advance the interests of the organization. She makes a 
communication on behalf of the organization when, pursuant to this 
authority, she writes to BLM on the organization's letterhead in 
order to present an additional argument concerning the 
interpretation of the lease provision. Although the organization did 
not direct her to send the specific communication to BLM, the 
circumstances establish that she made the communication with the 
consent of the organization and subject to a degree of control or 
direction by the organization.
    Example 3 to paragraph (g): An employee of the Administration 
for Children and Families wrote the statement of work for a 
cooperative agreement to be issued to study alternative workplace 
arrangements. After terminating Government service, the former 
employee joins a nonprofit group formed to promote family 
togetherness. He is asked by his former agency to attend a meeting 
in order to offer his recommendations concerning the ranking of the 
grant applications he had reviewed while still a Government 
employee. The management of the nonprofit group agrees to permit him 
to take leave to attend the meeting in order to present his personal 
views concerning the ranking of the applications. Although the 
former employee is a salaried employee of the non-profit group and 
his recommendations may be consistent with the group's interests, 
the circumstances establish that he did not make the communication 
pursuant to mutual consent.
    Example 4 to paragraph (g): An Assistant Secretary of Defense 
participated in a meeting at which a defense contractor pressed 
Department of Defense (DOD) officials to continue funding the 
contractor's sole source contract to develop the prototype

[[Page 7876]]

of a specialized robot. After terminating Government service, the 
former Assistant Secretary approaches the contractor and suggests 
that she can convince her former DOD colleagues to pursue 
development of the prototype robot. The contractor agrees that the 
former Assistant Secretary's proposed efforts could be useful and 
asks her to set up a meeting with key DOD officials for the 
following week. Although the former Assistant Secretary is not an 
employee of the contractor, the circumstances establish that she is 
acting subject to some degree of control or direction by the 
contractor.

    (h) Particular matter involving a specific party or parties-- (1) 
Basic concept. The prohibition applies only to communications or 
appearances made in connection with a ``particular matter involving a 
specific party or parties.'' Although ``particular matter'' is defined 
broadly to include ``any investigation, application, request for a 
ruling or determination, rulemaking, contract, controversy, claim, 
charge, accusation, arrest, or judicial or other proceeding,'' 18 
U.S.C. 207(i)(3), such particular matters also must involve a specific 
party or parties in order to fall within the prohibition. These matters 
involve a specific activity or undertaking affecting the legal rights 
of the parties or an isolatable transaction or related set of 
transactions between identified parties, such as a specific contract, 
grant, license, product approval application, enforcement action, 
administrative adjudication, or court case.

    Example 1 to paragraph (h)(1): An employee of the Department of 
Housing and Urban Development approved a specific city's application 
for Federal assistance for a renewal project. After leaving 
Government service, she may not represent the city in relation to 
that application as it is a particular matter involving specific 
parties in which she participated personally and substantially as a 
Government employee.
    Example 2 to paragraph (h)(1): An attorney in the Department of 
Justice drafted provisions of a civil complaint that is filed in 
Federal court alleging violations of certain environmental laws by 
ABC Company. The attorney may not subsequently represent ABC before 
the Government in connection with the lawsuit, which is a particular 
matter involving specific parties.
    Example 3 to paragraph (h)(1): A former Government employee 
seeks to represent a foreign government before an agency in 
connection with certain issues arising under a bilateral treaty that 
he helped to negotiate as a Government employee. He may not do so, 
if it is determined that the matter with respect to which he seeks 
to represent the foreign government is the same matter in which he 
previously participated as a Government employee. Although bilateral 
treaties may involve the adoption of broad national policies that do 
not focus specifically on the rights of any one person or company 
within the United States, such matters do involve specific parties, 
namely the United States and the foreign country, which are parties 
to a contract-like agreement. Note also that certain employees may 
be subject to additional restrictions with respect to trade and 
treaty negotiations or representation of a foreign entity, pursuant 
to 18 U.S.C. 207(b) and (f).

    (2) Matters of general applicability not covered. Legislation or 
rulemaking of general applicability and the formulation of general 
policies, standards or objectives, or other matters of general 
applicability are not particular matters involving specific parties.

    Example 1 to paragraph (h)(2): A former employee of the Mine 
Safety and Health Administration (MSHA) participated personally and 
substantially in the development of a regulation establishing 
certain new occupational health and safety standards for mine 
workers. Because the regulation applies to the entire mining 
industry, it is a particular matter of general applicability, not a 
matter involving specific parties, and the former employee would not 
be prohibited from making post-employment representations to the 
Government in connection with this regulation.
    Example 2 to paragraph (h)(2): The former employee in the 
previous example also assisted MSHA in its defense of a lawsuit 
brought by a trade association challenging the same regulation. This 
lawsuit is a particular matter involving specific parties, and the 
former MSHA employee would be prohibited from representing the trade 
association or anyone else in connection with the case.
    Example 3 to paragraph (h)(2): An employee of the National 
Science Foundation formulated policies for a grant program for 
organizations nationwide to produce science education programs 
targeting elementary school age children. She is not prohibited from 
later representing a specific organization in connection with its 
application for assistance under the program.
    Example 4 to paragraph (h)(2): An employee in the legislative 
affairs office of the Immigration and Naturalization Service (INS) 
drafted official comments submitted to Congress with respect to a 
pending immigration reform bill. After leaving the Government, he 
contacts the White House on behalf of a private organization seeking 
to influence the administration to insist on certain amendments to 
the bill. This is not prohibited. Generally, legislation is not a 
particular matter involving specific parties. However, if the same 
employee had participated as an INS employee in formulating the 
agency's position on proposed private relief legislation granting 
citizenship to a specific individual, this matter would involve 
specific parties, and the employee would be prohibited from later 
making representational contacts in connection with this matter.
    Example 5 to paragraph (h)(2): An employee of the Food and Drug 
Administration (FDA) drafted a proposed rule requiring all 
manufacturers of a particular type of medical device to obtain pre-
market approval for their products. It was known at the time that 
only three or four manufacturers currently were marketing or 
developing such products. However, there was nothing to preclude 
other manufacturers from entering the market in the future. 
Moreover, the regulation on its face was not limited in application 
to those companies already known to be involved with this type of 
product at the time of promulgation. Because the proposed rule would 
apply to an open-ended class of manufacturers, not just specifically 
identified companies, it would not be a particular matter involving 
specific parties. After leaving Government, the former FDA employee 
would not be prohibited from representing a manufacturer in 
connection with the final rule or the application of the rule in any 
specific case.
    Example 6 to paragraph (h)(2): A former agency attorney 
participated in drafting a standard form contract and certain 
standard terms and clauses for use in all future contracts. The 
adoption of a standard form and language for all contracts is a 
matter of general applicability, not a particular matter involving 
specific parties. Therefore, the attorney would not be prohibited 
from representing another person in a dispute involving the 
application of one of the standard terms or clauses in a specific 
contract in which he did not participate as a Government employee.

    (3) Specific parties at all relevant times. The particular matter 
must involve specific parties both at the time the individual 
participated as a Government employee and at the time the former 
employee makes the communication or appearance, although the parties 
need not be identical at both times.

    Example 1 to paragraph (h)(3): An employee of the Department of 
Defense (DOD) performed certain feasibility studies and other basic 
conceptual work for a possible innovation to a missile system. At 
the time she was involved in the matter, DOD had not identified any 
prospective contractors who might perform the work on the project. 
After she left Government, DOD issued a request for proposals to 
construct the new system, and she now seeks to represent one of the 
bidders in connection with this procurement. She may do so. Even 
though the procurement is a particular matter involving specific 
parties at the time of her proposed representation, no parties to 
the matter had been identified at the time she participated in the 
project as a Government employee.
    Example 2 to paragraph (h)(3): A former employee in an agency 
inspector general's office conducted the first investigation of its 
kind concerning a particular fraudulent accounting practice by a 
grantee. This investigation resulted in a significant monetary 
recovery for the Government, as well as a settlement agreement in 
which the grantee agreed to use only certain specified accounting 
methods in the future. As a result of this case, the agency decided 
to issue a proposed rule expressly prohibiting the fraudulent 
accounting practice and requiring

[[Page 7877]]

all grantees to use the same accounting methods that had been 
developed in connection with the settlement agreement. The former 
employee may represent a group of grantees submitting comments 
critical of the proposed regulation. Although the proposed 
regulation in some respects evolved from the earlier fraud case, 
which did involve specific parties, the subsequent rulemaking 
proceeding does not involve specific parties.

    (4) Preliminary or informal stages in a matter. When a particular 
matter involving specific parties begins depends on the facts. A 
particular matter may involve specific parties prior to any formal 
action or filings by the agency or other parties. Much of the work with 
respect to a particular matter is accomplished before the matter 
reaches its final stage, and preliminary or informal action is covered 
by the prohibition, provided that specific parties to the matter 
actually have been identified. With matters such as grants, contracts, 
and other agreements, ordinarily specific parties are first identified 
when initial proposals or indications of interest, such as responses to 
requests for proposals (RFP) or earlier expressions of interest, are 
received by the Government; in unusual circumstances, however, a 
prospective grant, contract, or agreement may involve specific parties 
even prior to the receipt of a proposal or expression of interest, if 
there are sufficient indicia that the Government has specifically 
identified a party.

    Example 1 to paragraph (h)(4): A Government employee 
participated in internal agency deliberations concerning the merits 
of taking enforcement action against a company for certain trade 
practices. He left the Government before any charges were filed 
against the company. He has participated in a particular matter 
involving specific parties and may not represent another person in 
connection with the ensuing administrative or judicial proceedings 
against the company.
    Example 2 to paragraph (h)(4): A former special Government 
employee (SGE) of the Agency for Health Care Policy and Research 
served, before leaving the agency, on a ``peer review'' committee 
that made a recommendation to the agency concerning the technical 
merits of specific grant proposal submitted by a university. The 
committee's recommendations are nonbinding and constitute only the 
first of several levels of review within the agency. Nevertheless, 
the SGE participated in a particular matter involving specific 
parties and may not represent the university in subsequent efforts 
to obtain the same grant.
    Example 3 to paragraph (h)(4): Prior to filing a product 
approval application with a regulatory agency, a company sought 
guidance from the agency. The company provided specific information 
concerning the product, including its composition and intended uses, 
safety and efficacy data, and the results and designs of prior 
studies on the product. After a series of meetings, the agency 
advised the company concerning the design of additional studies that 
it should perform in order to address those issues that the agency 
still believed were unresolved. Even though no formal application 
had been filed, this was a particular matter involving specific 
parties. The agency guidance was sufficiently specific, and it was 
clearly intended to address the substance of a prospective 
application and to guide the prospective applicant in preparing an 
application that would meet approval requirements. An agency 
employee who was substantially involved in developing this guidance 
could not leave the Government and represent the company when it 
submits its formal product approval application.
    Example 4 to paragraph (h)(4): A Government scientist 
participated in preliminary, internal deliberations about her 
agency's need for additional laboratory facilities. After she 
terminated Government service, the General Services Administration 
(GSA) issued a request for proposals (RFP) seeking private 
architectural services to design the new laboratory space for the 
agency. The former employee may represent an architectural firm in 
connection with its response to the RFP. During the preliminary 
stage in which the former employee participated, no specific 
architectural firms had been identified for the proposed work.
    Example 5 to paragraph (h)(4): In the previous example, the 
proposed laboratory was to be an extension of a recently completed 
laboratory designed by XYZ Architectural Associates. From the very 
beginning of deliberations, both the agency and GSA were aware that 
the proposed laboratory extension posed unique architectural issues, 
intimately related to certain technical features of the original 
laboratory design, that might best be addressed by XYZ, which had 
specific experience and certain efficiencies resulting from its 
prior work. Before leaving the Government, the former employee 
participated in meetings in which these design issues and the ways 
in which XYZ might resolve them were discussed internally. Although 
XYZ was not contacted at this stage, and the ultimate procurement 
process would be open to all bidders, the agency had already 
identified XYZ as a likely qualified bidder based on the 
circumstances surrounding XYZ's recent involvement in a related 
matter. The former employee may not represent XYZ or any other 
competing contractor before the Government in connection with this 
matter.

    (5) Same particular matter. The prohibition applies only to 
communications or appearances in connection with the same particular 
matter involving specific parties in which the former employee 
participated as a Government employee. The same particular matter may 
continue in another form or in part. In determining whether two 
particular matters involving specific parties are the same, all 
relevant factors should be considered, including the extent to which 
the matters involve the same basic facts, the same or related parties, 
related issues, the same confidential information, and the amount of 
time elapsed. With matters such as grants, contracts or other 
agreements, a new matter typically does not arise simply because there 
are amendments, modifications, or extensions, unless there are 
fundamental changes in objectives or the nature of the matter.

    Example 1 to paragraph (h)(5): An employee drafted one provision 
of an agency contract to procure new software. After she left 
Government, a dispute arose under the same contract concerning a 
provision that she did not draft. She may not represent the 
contractor in this dispute. The contract as a whole is the 
particular matter involving specific parties and may not be 
fractionalized into separate clauses for purposes of avoiding the 
prohibition of 18 U.S.C. 207(a)(1).
    Example 2 to paragraph (h)(5): A former special Government 
employee (SGE) recommended that his agency approve a new food 
additive made by Good Foods, Inc., on the grounds that it was proven 
safe for human consumption. The Healthy Food Alliance (HFA) sued the 
agency in Federal court to challenge the decision to approve the 
product. After leaving Government service, the former SGE may not 
serve as an expert witness on behalf of HFA in this litigation 
because it is a continuation of the same product approval matter in 
which he participated personally and substantially.
    Example 3 to paragraph (h)(5): An employee of the Department of 
the Army negotiated and supervised a contract with Munitions, Inc. 
for four million mortar shells meeting certain specifications. After 
the employee left the Government, the Army sought a contract 
modification to add another one million shells. All specifications 
and contractual terms except price, quantity and delivery dates were 
identical to those in the original contract. The former Army 
employee may not represent Munitions in connection with this 
modification, because it is part of the same particular matter 
involving specific parties as the original contract.
    Example 4 to the paragraph (h)(5): In the previous example, 
certain changes in technology occurred since the date of the 
original contract, and the proposed contract modifications would 
require the additional shells to incorporate new design features. 
Moreover, because of changes in the Army's internal system for 
storing and distributing shells to various locations, the 
modifications would require Munitions to deliver its product to 
several de-centralized destination points, thus requiring Munitions 
to develop novel delivery and handling systems and incur new 
transportation costs. The Army considers these modifications to be 
fundamental changes in the approach and objectives of the contract 
and may determine that these changes constitute a new particular 
matter.
    Example 5 to paragraph (h)(5): A Government employee reviewed 
and approved certain wiretap applications. The

[[Page 7878]]

prosecution of a person overheard during the wiretap, although not 
originally targeted, must be regarded as part of the same particular 
matter as the original wiretap application. The reason is that the 
validity of the wiretap may be put in issue and many of the facts 
giving rise to the wiretap application would be involved.

    (i) Participated personally and substantially-- (1) Participate. To 
``participate'' means to take an action as an employee through 
decision, approval, disapproval, recommendation, the rendering of 
advice, investigation, or other such action, or to purposefully forbear 
in order to affect the outcome of a matter. An employee can participate 
in particular matters that are pending other than in his own agency. An 
employee does not participate in a matter merely because he had 
knowledge of its existence or because it was pending under his official 
responsibility. An employee does not participate in a matter within the 
meaning of this section unless he does so in his official capacity.
    (2) Personally. To participate ``personally'' means to participate:
    (i) Directly, either individually or in combination with other 
persons; or
    (ii) Through direct and active supervision of the participation of 
any person he supervises, including a subordinate.
    (3) Substantially. To participate ``substantially'' means that the 
employee's involvement is of significance to the matter. Participation 
may be substantial even though it is not determinative of the outcome 
of a particular matter. However, it requires more than official 
responsibility, knowledge, perfunctory involvement, or involvement on 
an administrative or peripheral issue. A finding of substantiality 
should be based not only on the effort devoted to a matter, but also on 
the importance of the effort. While a series of peripheral involvements 
may be insubstantial, the single act of approving or participating in a 
critical step may be substantial. Provided that an employee 
participates in the substantive merits of a matter, his participation 
may be substantial even though his role in the matter, or the aspect of 
the matter in which he is participating, may be minor in relation to 
the matter as a whole. Participation in peripheral aspects of a matter 
or in aspects not directly involving the substantive merits of a matter 
(such as reviewing budgetary procedures or scheduling meetings) is not 
substantial.

    Example 1 to paragraph (i): A General Services Administration 
(GSA) attorney drafted a standard form contract and certain standard 
terms and clauses for use in future contracts. A contracting officer 
uses one of the standard clauses in a subsequent contract without 
consulting the GSA attorney. The attorney did not participate 
personally in the subsequent contract.
    Example 2 to paragraph (i): An Internal Revenue Service (IRS) 
attorney is neither in charge of nor does she have official 
responsibility for litigation involving a particular delinquent 
taxpayer. At the request of a co-worker who is assigned 
responsibility for the litigation, the lawyer provides advice 
concerning strategy during the discovery stage of the litigation. 
The IRS attorney participated personally in the litigation.
    Example 3 to paragraph (i): The IRS attorney in the previous 
example had no further involvement in the litigation. She 
participated substantially in the litigation notwithstanding that 
the post-discovery stages of the litigation lasted for ten years 
after the day she offered her advice.
    Example 4 to paragraph (i): The General Counsel of the Office of 
Government Ethics (OGE) contacts the OGE attorney who is assigned to 
evaluate all requests for ``certificates of divestiture'' to check 
on the status of the attorney's work with respect to all pending 
requests. The General Counsel makes no comment concerning the merits 
or relative importance of any particular request. The General 
Counsel did not participate in any particular request when she 
checked on the status of all pending requests.
    Example 5 to paragraph (i): The OGE attorney in the previous 
example completes his evaluation of a particular certificate of 
divestiture request and forwards his recommendation to the General 
Counsel. The General Counsel forwards the package to the Director of 
OGE with a note indicating her concurrence with the attorney's 
recommendation. The General Counsel participated substantially in 
the request.
    Example 6 to paragraph (i): An International Trade Commission 
(ITC) computer programmer developed software designed to analyze 
data related to unfair trade practice complaints. At the request of 
an ITC employee who is considering the merits of a particular 
complaint, the programmer enters all the data supplied to her, runs 
the computer program, and forwards the results to the employee who 
will make a recommendation to an ITC Commissioner concerning the 
disposition of the complaint. The programmer did not participate 
substantially in the complaint.

    (j) United States is a party or has a direct and substantial 
interest--(1) United States. For purposes of this paragraph, the 
``United States'' means:
    (i) The executive branch (including a Government corporation);
    (ii) The legislative branch; or
    (iii) The judicial branch.
    (2) Party or direct and substantial interest. The United States may 
be a party to or have a direct and substantial interest in a particular 
matter even though it is pending in a non-Federal forum, such as a 
State court. The United States is neither a party to nor does it have a 
direct and substantial interest in a particular matter merely because a 
Federal statute is at issue or a Federal court is serving as the forum 
for resolution of the matter. When it is not clear whether the United 
States is a party to or has a direct and substantial interest in a 
particular matter, this determination shall be made in accordance with 
the following procedure:
    (i) Coordination by designated agency ethics official. The 
designated agency ethics official (DAEO) for the former employee's 
agency shall have the primary responsibility for coordinating this 
determination. When it appears likely that a component of the United 
States Government other than the former employee's former agency may be 
a party to or have a direct and substantial interest in the particular 
matter, the DAEO shall coordinate with agency ethics officials serving 
in those components.
    (ii) Agency determination. A component of the United States 
Government shall determine if it is a party to or has a direct and 
substantial interest in a matter in accordance with its own internal 
procedures. It shall consider all relevant factors, including whether:
    (A) The component has a financial interest in the matter;
    (B) The matter is likely to have an effect on the policies, 
programs, or operations of the component;
    (C) The component is involved in any proceeding associated with the 
matter, e.g., as by having provided witnesses or documentary evidence; 
and
    (D) The component has more than an academic interest in the outcome 
of the matter.


Sec.  2641.202  Two-year restriction on any former employee's 
representations to United States concerning particular matter for which 
the employee had official responsibility [18 U.S.C. 207(a)(2)].

    (a) Basic prohibition of 18 U.S.C. 207(a)(2). For two years after 
his Government service terminates, no former employee shall knowingly, 
with the intent to influence, make any communication to or appearance 
before an employee of the United States on behalf of any other person 
in connection with a particular matter involving a specific party or 
parties, in which the United States is a party or has a direct and 
substantial interest, and which such person knows or reasonably should 
know was actually pending under his official responsibility within the 
one-year period prior to the termination of his Government service.
    (b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(a)(2) 
does not apply to a former employee who is:

[[Page 7879]]

    (1) Acting on behalf of the United States. See Sec.  2641.301(a).
    (2) Acting as an elected State or local government official. See 
Sec.  2641.301(b).
    (3) Communicating scientific or technological information pursuant 
to procedures or certification. See Sec.  2641.301(e).
    (4) Testifying under oath. See Sec.  2641.301(f).
    (5) Acting on behalf of an international organization pursuant to a 
waiver. See Sec.  2641.301(h).
    (6) Acting as an employee of a Government-owned, contractor 
operated entity pursuant to a waiver. See Sec.  2641.301(i).
    (c) Commencement and length of restriction. 18 U.S.C. 207(a)(2) is 
a two-year restriction that commences upon an employee's termination 
from Government service. See example 9 to paragraph (j) of this 
section.
    (d) Communication or appearance. See Sec.  2641.201(d).
    (e) With the intent to influence. See Sec.  2641.201(e).
    (f) To or before an employee of the United States. See Sec.  
2641.201(f).
    (g) On behalf of any other person. See Sec.  2641.201(g).
    (h) Particular matter involving a specific party or parties. See 
Sec.  2641.201(h).
    (i) United States is a party or has a direct and substantial 
interest. See Sec.  2641.201(j).
    (j) Official responsibility--(1) Definition. ``Official 
responsibility'' means the direct administrative or operating 
authority, whether intermediate or final, and either exercisable alone 
or with others, and either personally or through subordinates, to 
approve, disapprove, or otherwise direct Government action. Ordinarily, 
the scope of an employee's official responsibility is determined by 
those functions assigned by statute, regulation, Executive order, job 
description, or delegation of authority. All particular matters under 
consideration in an agency are under the official responsibility of the 
agency head and each is under that of any intermediate supervisor who 
supervises a person, including a subordinate, who actually participates 
in the matter or who has been assigned to participate in the matter 
within the scope of his official duties. A nonsupervisory employee does 
not have official responsibility for his own assignments within the 
meaning of section 207(a)(2). Authority to direct Government action 
concerning only ancillary or nonsubstantive aspects of a matter, such 
as budgeting, equal employment, scheduling, or format requirements does 
not, ordinarily, constitute official responsibility for the matter as a 
whole.
    (2) Actually pending. A matter is actually pending under an 
employee's official responsibility if it has been referred to the 
employee for assignment or has been referred to or is under 
consideration by any person he supervises, including a subordinate. A 
matter remains pending even when it is not under ``active'' 
consideration. There is no requirement that the matter must have been 
pending under the employee's official responsibility for a certain 
length of time.
    (3) Temporary duties. An employee ordinarily acquires official 
responsibility for all matters within the scope of his position 
immediately upon assuming the position. However, under certain 
circumstances, an employee who is on detail (or other temporary 
assignment) to a position or who is serving in an ``acting'' status 
might not be deemed to have official responsibility for any matter by 
virtue of such temporary duties. Specifically, an employee performing 
such temporary duties will not thereby acquire official responsibility 
for matters within the scope of the position where he functions only in 
a limited ``caretaker'' capacity, as evidenced by such factors as:
    (i) Whether the employee serves in the position for no more than 60 
consecutive calendar days;
    (ii) Whether there is actually another incumbent for the position, 
who is temporarily absent, for example, on travel or leave;
    (iii) Whether there has been no event triggering the provisions of 
5 U.S.C. 3345(a); and
    (iv) Whether there are any other circumstances indicating that, 
given the temporary nature of the detail or acting status, there was no 
reasonable expectation of the full authority of the position.
    (4) Effect of leave status. The scope of an employee's official 
responsibility is not affected by annual leave, terminal leave, sick 
leave, excused absence, leave without pay, or similar absence from 
assigned duties.
    (5) Effect of disqualification. Official responsibility for a 
matter is not eliminated through self-disqualification or avoidance of 
personal participation in a matter, as when an employee is disqualified 
from participating in a matter in accordance with subparts D, E, or F 
of 5 CFR part 2635 or part 2640. Official responsibility for a matter 
can be terminated by a formal modification of an employee's 
responsibilities, such as by a change in the employee's position 
description.
    (6) One-year period before termination. Section 207(a)(2) applies 
only with respect to a particular matter that was actually pending 
under the former employee's official responsibility:
    (i) At some time when the matter involved a specific party or 
parties; and
    (ii) Within his last year of Government service.
    (7) Knowledge of official responsibility. A communication or 
appearance is not prohibited unless, at the time of the proposed post-
employment communication or appearance, the former employee knows or 
reasonably should know that the matter was actually pending under his 
official responsibility within the one-year period prior to his 
termination from Government service. It is not necessary that a former 
employee have known during his Government service that the matter was 
actually pending under his official responsibility.


    Note to paragraph (j): 18 U.S.C. 207(a)(2) requires only that 
the former employee ``reasonably should know'' that the matter was 
pending under his official responsibility. Consequently, when the 
facts suggest that a particular matter involving specific parties 
could have been actually pending under his official responsibility, 
a former employee should seek information from an agency ethics 
official or other Government official to clarify his role in the 
matter. See the definition of agency ethics official in Sec.  
2641.105.

    Example 1 to paragraph (j): An Assistant Secretary of State's 
position description specifies that he is responsible for a certain 
class of treaty negotiations. These negotiations are handled by an 
office under his supervision. As a practical matter, however, the 
Assistant Secretary has not become involved with any treaty 
negotiation of this type. The Assistant Secretary has official 
responsibility for all such treaty negotiations as specified in his 
position description.
    Example 2 to paragraph (j): A budget officer at the National 
Oceanic and Atmospheric Administration (NOAA) is asked to review 
NOAA's budget to determine if there are funds still available for 
the purchase of a new hurricane tracking device. The budget officer 
does not have official responsibility for the resulting contract 
even though she is responsible for all budget matters within the 
agency. The identification of funds for the contract is an ancillary 
aspect of the contract.
    Example 3 to paragraph (j): An Internal Revenue Service (IRS) 
auditor worked in the office responsible for the tax-exempt status 
of nonprofit organizations. Subsequently, he was transferred to the 
IRS office concerned with public relations. When contacted by an 
employee of his former office for advice concerning a matter 
involving a certain nonprofit organization, the auditor provides 
useful suggestions. The auditor's supervisor

[[Page 7880]]

in the public relations office does not have official responsibility 
for the nonprofit matter since it does not fall within the scope of 
the auditor's current duties.
    Example 4 to paragraph (j): An information manager at the 
Central Intelligence Agency (CIA) assigns a nonsupervisory 
subordinate to research an issue concerning a request from a news 
organization for information concerning past agency activities. 
Before she commences any work on the assignment, the subordinate 
terminates employment with the CIA. The request was not pending 
under the subordinate's official responsibility since a non-
supervisory employee does not have official responsibility for her 
own assignments. (Once the subordinate commences work on the 
assignment, she may be participating ``personally and 
substantially'' within the meaning of 18 U.S.C. 207(a)(1) and Sec.  
2641.201(i).)
    Example 5 to paragraph (j): A regional employee of the Federal 
Emergency Management Agency requests guidance from the General 
Counsel concerning a contractual dispute with Baker Company. The 
General Counsel immediately assigns the matter to a staff attorney 
whose workload can accommodate the assignment, then retires from 
Government two days later. Although the staff attorney did not 
retrieve the assignment from his in-box prior to the General 
Counsel's departure, the Baker matter was actually pending under the 
General Counsel's official responsibility from the time the General 
Counsel received the request for guidance.
    Example 6 to paragraph (j): A staff attorney in the Federal 
Emergency Management Agency's Office of General Counsel is consulted 
by procurement officers concerning the correct resolution of a 
contractual matter involving Able Company. The attorney renders an 
opinion resolving the question. The same legal question arises later 
in several contracts with other companies but none of the disputes 
with such companies is referred to the Office of General Counsel. 
The General Counsel had official responsibility for the 
determination of the Able Company matter but the subsequent matters 
were never actually pending under his official responsibility.
    Example 7 to paragraph (j): An employee of the National 
Endowment for the Humanities becomes ``acting'' Division Director of 
the Division of Education Programs when the Division Director is 
away from the office for three days to attend a conference. During 
those three days, the employee has authority to direct Government 
action in connection with many matters with which she ordinarily 
would have no involvement. However, in view of the brief time period 
and the fact that there remains an incumbent in the position of 
Division Director, the agency ethics official properly may determine 
that acting official did not acquire official responsibility for all 
matters then pending in the Division.
    Example 8 to paragraph (j): A division director at the Food and 
Drug Administration disqualified himself from participating in the 
review of a drug for Alzheimer's disease, in accordance with subpart 
E of 5 CFR part 2635, because his brother headed the private sector 
team which developed the drug. The matter was instead assigned to 
the division director's deputy. The director continues to have 
official responsibility for review of the drug. The division 
director also would have retained official responsibility for the 
matter had he either asked his supervisor or another division 
director to oversee the matter.
    Example 9 to paragraph (j): The Deputy Secretary of a department 
terminates Government service to stay home with her newborn 
daughter. Four months later, she returns to the department to serve 
on an advisory committee as a special Government employee (SGE). 
After three months, she terminates Government service once again in 
order to accept a part-time position with a public relations firm. 
The 18 U.S.C. 207(a)(2) bar commences when she resigns as Deputy 
Secretary and continues to run for two years. (Any action taken in 
carrying out official duties as a member of the advisory committee 
would be undertaken on behalf of the United States and would, 
therefore, not be restricted by 18 U.S.C 207(a)(2). See Sec.  
2641.301(a).) A second two-year restriction commences when she 
terminates from her second period of Government service but it 
applies only with respect to any particular matter actually pending 
under her official responsibility during her three-month term as an 
SGE.

Sec.  2641.203  One-year restriction on any former employee's 
representations, aid, or advice concerning ongoing trade or treaty 
negotiation [18 U.S.C. 207(b)].

    (a) Basic prohibition of 18 U.S.C. 207(b). For one year after his 
Government service terminates, no former employee shall knowingly 
represent, aid, or advise on the basis of ``covered information,'' any 
other person concerning an ongoing trade or treaty negotiation in 
which, during his last year of Government service, he participated 
personally and substantially as an employee. ``Covered information'' 
refers to agency records which were accessible to the employee which he 
knew or should have known were designated as exempt from disclosure 
under the Freedom of Information Act (5 U.S.C. 552).
    (b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(b) 
does not apply to a former employee who is:
    (1) Acting on behalf of the United States. See Sec.  2641.301(a).
    (2) Acting as an elected State or local government official. See 
Sec.  2641.301(b).
    (3) Testifying under oath. See Sec.  2641.301(f).
    (4) Acting on behalf of an international organization pursuant to a 
waiver. See Sec.  2641.301(h).
    (5) Acting as an employee at a Government-owned, contractor 
operated entity pursuant to a waiver. See Sec.  2641.301(i).
    (c) Commencement and length of restriction. 18 U.S.C. 207(b) 
commences upon an employee's termination from Government service. The 
restriction lasts for one year or until the termination of the 
negotiation, whichever occurs first.
    (d) Represent, aid, or advise. [Reserved]
    (e) Any other person. [Reserved]
    (f) On the basis of. [Reserved]
    (g) Covered Information. [Reserved]
    (h) Ongoing trade or treaty negotiation. [Reserved]
    (i) Participated personally and substantially. [Reserved]


Sec.  2641.204  One-year restriction on any former senior employee's 
representations to former agency concerning any matter, regardless of 
prior involvement [18 U.S.C. 207(c)].

    (a) Basic prohibition of 18 U.S.C. 207(c). For one year after his 
service in a senior position terminates, no former senior employee may 
knowingly, with the intent to influence, make any communication to or 
appearance before an employee of an agency in which he served in any 
capacity within the one-year period prior to his termination from a 
senior position, if that communication or appearance is made on behalf 
of any other person in connection with any matter on which the former 
senior employee seeks official action by any employee of such agency. 
An individual who served in a ``very senior employee'' position is 
subject to the broader one-year restriction set forth in 18 U.S.C. 
207(d) in lieu of that set forth in section 207(c). See Sec.  2641.205.
    (b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(c) 
does not apply to a former senior employee who is:
    (1) Acting on behalf of the United States. See Sec.  2641.301(a).
    (2) Acting as an elected State or local government official. See 
Sec.  2641.301(b).
    (3) Acting on behalf of specified entities. See Sec.  2641.301(c).
    (4) Making uncompensated statements based on special knowledge. See 
Sec.  2641.301(d).
    (5) Communicating scientific or technological information pursuant 
to procedures or certification. See Sec.  2641.301(e).
    (6) Testifying under oath. See Sec.  2641.301(f).
    (7) Acting on behalf of a candidate or political party. See Sec.  
2641.301(g).
    (8) Acting on behalf of an international organization pursuant to a 
waiver. See Sec.  2641.301(h).
    (9) Acting as an employee of a Government-owned, contractor 
operated entity pursuant to a waiver. See Sec.  2641.301(i).

[[Page 7881]]

    (10) Subject to a waiver issued for certain positions. See Sec.  
2641.301(j).
    (c) Applicability to special Government employees and 
Intergovernmental Personnel Act appointees or detailees--(1) Special 
Government employees. (i) 18 U.S.C. 207(c) applies to an individual as 
a result of service as a special Government employee (SGE) who:
    (A) Served in a senior employee position while serving as an SGE; 
and
    (B) Served 60 or more days as an SGE during the one-year period 
before terminating service as a senior employee.
    (ii) Any day on which work is performed shall count toward the 60-
day threshold without regard to the number of hours worked that day or 
whether the day falls on a weekend or holiday. For purposes of 
determining whether an SGE's rate of basic pay is equal to or greater 
than the rate of basic pay payable for level 5 of the Senior Executive 
Service, within the meaning of the definition of senior employee in 
Sec.  2641.104, the employee's hourly rate of pay (or daily rate 
divided by eight) shall be multiplied by 2087, the number of Federal 
working hours in one year. (In the case of a Reserve officer of the 
Armed Forces or an officer of the National Guard who is an SGE serving 
in a senior employee position, 18 U.S.C. 207(c) applies if the officer 
served 60 or more days as an SGE within the one-year period prior to 
his termination from a period of active duty or active duty for 
training.)
    (2) Intergovernmental Personnel Act appointees or detailees. 18 
U.S.C. 207(c) applies to an individual serving as a senior employee 
pursuant to an appointment or detail under the Intergovernmental 
Personnel Act, 5 U.S.C. 3371-3376. An individual is a senior employee 
if he received total pay from Federal or non-Federal sources equal to 
or greater than the rate of basic pay payable for level 5 of the Senior 
Executive Service (exclusive of any reimbursement for a non-Federal 
employer's share of benefits not paid to the employee as salary), and:
    (i) The individual served in a Federal position ordinarily 
compensated at a rate equal to or greater than level 5 of the Senior 
Executive Service, regardless of what portion of the pay is derived 
from Federal expenditures or expenditures by the individual's non-
Federal employer;
    (ii) The individual received a direct Federal payment, pursuant to 
5 U.S.C. 3374(c)(1), that supplemented the salary that he received from 
his non-Federal employer; or
    (iii) The individual's non-Federal employer received Federal 
reimbursement equal to or greater than the amount of basic pay payable 
for level 5 of the Senior Executive Service.

    Example 1 to paragraph (c): An employee of a private research 
institution serves on an advisory committee that convenes 
periodically to discuss United States policy on foreign arms sales. 
The expert is compensated at a daily rate which is the equivalent of 
the rate of basic pay payable to a full-time employee for level 5 of 
the Senior Executive Service. The individual serves two hours per 
day for 65 days before resigning from the advisory committee nine 
months later. The individual becomes subject to 18 U.S.C. 207(c) 
when she resigns from the advisory committee since she served 60 or 
more days as a special Government employee during the one-year 
period before terminating service as a senior employee.
    Example 2 to paragraph (c): An individual is detailed from a 
university to a Federal department under the Intergovernmental 
Personnel Act to do work that had previously been performed by a GS-
15 employee. While on detail, the individual continues to receive 
pay from the university in an amount $5,000 less than the rate of 
basic pay payable for level 5 of the Senior Executive Service (SES). 
In addition, the department pays a $25,000 supplement directly to 
the individual, as authorized by 5 U.S.C. 3374(c)(1). Since the 
employee's total pay is equal to or greater than the rate of basic 
pay payable for level 5 of the SES, and a portion of that 
compensation is paid directly to the individual by the department, 
he becomes subject to 18 U.S.C 207(c) when his detail ends.

    (d) Commencement and length of restriction. 18 U.S.C. 207(c) is a 
one-year restriction. The one-year period is measured from the date 
when the employee ceases to serve in a senior employee position, not 
from the termination of Government service, unless the two events occur 
simultaneously. (In the case of a Reserve officer of the Armed Forces 
or an officer of the National Guard who is a special Government 
employee serving in a senior employee position, section 207(c) is 
measured from the date when the officer terminates a period of active 
duty or active duty for training.)

    Example 1 to paragraph (d): An employee at the Department of 
Labor (DOL) serves in a senior employee position. He then accepts a 
GS-15 position at the Federal Labor Relations Authority (FLRA) but 
terminates Government service six months later to accept a job with 
private industry. 18 U.S.C. 207(c) commences when he ceases to be a 
senior employee at DOL, even though he does not terminate Government 
service at that time. (Any action taken in carrying out official 
duties on behalf of FLRA while still employed by that agency would 
be undertaken on behalf of the United States and would, therefore, 
not be restricted by section 207(c). See Sec.  2641.301(a).)
    Example 2 to paragraph (d): In the previous example, the DOL 
employee accepts a senior employee position at FLRA rather than a 
GS-15 position. The bar of 18 U.S.C. 207(c) commences when, six 
months later, he terminates service in the second senior employee 
position to accept a job with private industry. (The bar will apply 
with respect to both the DOL and FLRA. See paragraph (g) of Sec.  
2641.204 and examples 2 and 3 to that paragraph).

    (e) Communication or appearance. See Sec.  2641.201(d).
    (f) With the intent to influence. See Sec.  2641.201(e).
    (g) To or before employee of former agency--(1) Employee. For 
purposes of this paragraph, a former senior employee may not contact:
    (i) Any current Federal employee of the former senior employee's 
``former agency'' as defined in paragraph (g)(2) of this section;
    (ii) An individual detailed under the Intergovernmental Personnel 
Act (5 U.S.C. 3371-3376) to the former senior employee's former agency;
    (iii) An individual detailed to the former senior employee's former 
agency from another agency;
    (iv) An individual serving with the former senior employee's former 
agency as a collateral duty pursuant to statute or Executive order; and
    (v) In the case of a communication or appearance made by a former 
senior employee who is barred by 18 U.S.C. 207(c) from communicating to 
or appearing before the Executive Office of the President, the 
President and Vice President.
    (2) Former agency. The term ``agency'' is defined in Sec.  
2641.104. Unless eligible to benefit from the designation of distinct 
and separate agency components as described in Sec.  2641.302, a former 
senior employee's former agency will ordinarily be considered to be the 
whole of any larger agency of which his former agency was a part on the 
date he terminated senior service.
    (i) One-year period before termination. 18 U.S.C. 207(c) applies 
with respect to agencies in which the former senior employee served 
within the one-year period prior to his termination from a senior 
employee position.
    (ii) Served in any capacity. Once the restriction commences, 18 
U.S.C. 207(c) applies with respect to any agency in which the former 
senior employee served in any capacity during the one-year period, 
regardless of his position, rate of basic pay, or pay grade.
    (iii) Multiple Assignments. An employee can simultaneously serve in 
more than one agency. A former senior employee will be considered to 
have

[[Page 7882]]

served in his own employing entity and in any entity to which he was 
detailed for any length of time or with which he was required to serve 
as a collateral duty pursuant to statute or Executive order.
    (iv) Effect of organizational changes. If a former senior 
employee's former agency has been significantly altered by 
organizational changes after his termination from senior service, it 
may be necessary to determine whether a successor entity is the same 
agency as the former senior employee's former agency. The appropriate 
designated agency ethics official, in consultation with the Office of 
Government Ethics, shall identify the entity that is the individual's 
former agency. Whether a successor entity is the same as the former 
agency depends upon whether it has substantially the same 
organizational mission, the extent of the termination or dispersion of 
the agency's functions, and other factors as may be appropriate.
    (A) Agency abolished or substantially changed. If a successor 
entity is not identifiable as substantially the same agency from which 
the former senior employee terminated, the 18 U.S.C. 207(c) prohibition 
will not bar communications or appearances by the former senior 
employee to that successor entity.
    (B) Agency substantially the same. If a successor entity remains 
identifiable as substantially the same entity from which the former 
senior employee terminated, the 18 U.S.C. 207(c) bar will extend to the 
whole of the successor entity.
    (C) Employing entity is made separate. If an employing entity is 
made separate from an agency of which it was a part, but it remains 
identifiable as substantially the same entity from which the former 
senior employee terminated senior service before the entity was made 
separate, the 18 U.S.C 207(c) bar will apply to a former senior 
employee of that entity only with respect to the new separate entity.
    (D) Component designations. If a former senior employee's former 
agency was a designated ``component'' within the meaning of Sec.  
2641.302 on the date of his termination as senior employee, see Sec.  
2641.302(g).
    (3) To or before. Except as provided in paragraph (g)(4) of this 
section, a communication ``to'' or appearance ``before'' an employee of 
a former senior employee's former agency is one:
    (i) Directed to and received by the former senior employee's former 
agency, even though not addressed to a particular employee; or
    (ii) Directed to and received by an employee in his capacity as an 
employee of a former senior employee's former agency including in his 
capacity as an employee serving in the agency on detail or, if pursuant 
to statute or Executive order, as a collateral duty. A former senior 
employee does not direct his communication or appearance to a bystander 
who merely happens to overhear the communication or witness the 
appearance.
    (4) Public commentary. (i) A former senior employee who addresses a 
public gathering or a conference, seminar, or similar forum as a 
speaker or panel participant will not be considered to make a 
prohibited communication or appearance if the forum:
    (A) Is not sponsored or co-sponsored by the former senior 
employee's former agency;
    (B) Is attended by a large number of people; and
    (C) A significant proportion of those attending are not employees 
of the former senior employee's former agency.
    (ii) In the circumstances described in paragraph (g)(4)(i) of this 
section, a former senior employee may engage in exchanges with any 
other speaker or with any member of the audience.
    (iii) A former senior employee also may permit the broadcast or 
publication of a commentary provided that it is broadcast or appears in 
a newspaper, periodical, or similar widely-available publication.

    Example 1 to paragraph (g): Two months after retiring from a 
senior employee position at the United States Department of 
Agriculture (USDA), the former senior employee is asked to represent 
a poultry producer in a compliance matter involving the producer's 
storage practices. The former senior employee may not represent the 
poultry producer before a USDA employee in connection with the 
compliance matter or any other matter in which official action is 
sought from the USDA. He has ten months remaining of the one-year 
bar which commenced upon his termination as a senior employee with 
the USDA.
    Example 2 to paragraph (g): An individual serves for several 
years at the Commodity Futures Trading Commission (CFTC) as a GS-15. 
With no break in service, she then accepts a senior employee 
position at the Export-Import Bank of the United States (Ex-Im Bank) 
where she remains for nine months until she leaves Government 
service in order to accept a position in the private sector. Since 
the individual served in both the CFTC and the Ex-Im Bank within her 
last year of senior service, she is barred by 18 U.S.C. 207(c) as to 
both agencies for one year commencing from her termination from the 
senior employee position at the Ex-Im Bank.
    Example 3 to paragraph (g): An individual serves for several 
years at the Securities and Exchange Commission (SEC) in a senior 
employee position. He terminates Government service in order to care 
for his parent who is recovering from heart surgery. Two months 
later, he accepts a senior employee position at the Overseas Private 
Investment Corporation (OPIC) where he remains for nine months until 
he leaves Government service in order to accept a position in the 
private sector. The 18 U.S.C. 207(c) bar commences when he resigns 
from the SEC and continues to run for one year. (Any action taken in 
carrying out official duties as an employee of OPIC would be 
undertaken on behalf of the United States and would, therefore, not 
be restricted by section 207(c). See Sec.  2641.301(a).) A second 
one-year restriction commences when he resigns from OPIC. The second 
restriction will apply with respect to OPIC only. Upon his 
termination from the OPIC position, he will have one remaining month 
of the section 207(c) restriction arising from his termination of 
his SEC position. This remaining month of restriction will run 
concurrently with the first month of the one-year OPIC restriction.
    Example 4 to paragraph (g): An architect serves in a senior 
employee position in the Agency for Affordable Housing. Subsequent 
to her termination from the position, the agency is abolished and 
its functions are distributed among three other agencies within 
three departments, the Department of Housing and Urban Development, 
the Department of the Interior, and the Department of Justice. None 
of these successor entities is identifiable as substantially the 
same entity as the Agency for Affordable Housing, and, accordingly, 
the 18 U.S.C 207(c) bar will not apply to the architect.

    (h) On behalf of any other person. See Sec.  2641.201(g).
    (i) Matter on which former senior employee seeks official action--
(1) Seeks official action. A former senior employee seeks official 
action when the circumstances establish that he is making his 
communication or appearance for the purpose of inducing a current 
employee, as defined in paragraph (g) of this section, to make a 
decision or to otherwise act in his official capacity.
    (2) Matter. The prohibition on seeking official action applies with 
respect to any matter, including:
    (i) Any ``particular matter involving a specific party or parties'' 
as defined in Sec.  2641.201(h);
    (ii) The consideration or adoption of broad policy options that are 
directed to a large and diverse group of persons;
    (iii) A new matter that was not previously pending at or of 
interest to the former senior employee's former agency; and
    (iv) A matter pending at any other agency in the executive branch, 
an independent agency, the legislative branch, or the judicial branch.

    Example 1 to paragraph (i): A former senior employee at the 
National Capital Planning Commission (NCPC) wishes to

[[Page 7883]]

contact a friend who still works at the NCPC to solicit a donation 
for a local charitable organization. The former senior employee may 
do so since the circumstances establish that he would not be making 
the communication for the purpose of inducing the NCPC employee to 
make a decision in his official capacity about the donation.
    Example 2 to paragraph (i): A former senior employee at the 
Department of Defense wishes to contact the Secretary of Defense to 
ask him if he would be interested in attending a cocktail party. At 
the party, the former senior employee would introduce the Secretary 
to several of the former senior employee's current business clients 
who have sought the introduction. The former senior employee and the 
Secretary do not have a history of socializing outside the office, 
the Secretary is in a position to affect the interests of the 
business clients, and all expenses associated with the party will be 
paid by the former senior employee's consulting firm. The former 
senior employee should not contact the Secretary. The circumstances 
do not establish that the communication would be made other than for 
the purpose of inducing the Secretary to make a decision in his 
official capacity about the invitation.
    Example 3 to paragraph (i): A former senior employee at the 
National Science Foundation (NSF) accepts a position as vice 
president of a company that was hurt by recent cuts in the defense 
budget. She contacts the NSF's Director of Legislative and Public 
Affairs to ask the Director to contact a White House official in 
order to press the need for a new science policy to benefit her 
company. The former senior employee made a communication for the 
purpose of inducing the NSF employee to make a decision in his 
official capacity about contacting the White House.


Sec.  2641.205  One-year restriction on any former very senior 
employee's representations to former agency or certain officials 
concerning any matter, regardless of prior involvement [18 U.S.C. 
207(d)].

    (a) Basic prohibition of 18 U.S.C. 207(d). For one year after his 
service in a very senior employee position terminates, no former very 
senior employee shall knowingly, with the intent to influence, make any 
communication to or appearance before any official appointed to an 
Executive Schedule position listed in 5 U.S.C. 5312-5316 or before any 
employee of an agency in which he served as a very senior employee 
within the one-year period prior to his termination from a very senior 
employee position, if that communication or appearance is made on 
behalf of any other person in connection with any matter on which the 
former very senior employee seeks official action by any official or 
employee.
    (b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(d) 
does not apply to a former very senior employee who is:
    (1) Acting on behalf of the United States. See Sec.  2641.301(a).
    (2) Acting as an elected State or local government official. See 
Sec.  2641.301(b).
    (3) Acting on behalf of specified entities. See Sec.  2641.301(c).
    (4) Making uncompensated statements based on special knowledge. See 
Sec.  2641.301(d).
    (5) Communicating scientific or technological information pursuant 
to procedures or certification. See Sec.  2641.301(e).
    (6) Testifying under oath. See Sec.  2641.301(f).
    (7) Acting on behalf of a candidate or political party. See Sec.  
2641.301(g).
    (8) Acting on behalf of an international organization pursuant to a 
waiver. See Sec.  2641.301(h).
    (9) Acting as an employee of a Government-owned, contractor 
operated entity pursuant to a waiver. See Sec.  2641.301(i).
    (c) Commencement and length of restriction. 18 U.S.C. 207(d) is a 
one-year restriction. The one-year period is measured from the date 
when the employee ceases to serve in a very senior employee position, 
not from the termination of Government service, unless the two events 
occur simultaneously. See examples 1 and 2 to paragraph (d) of Sec.  
2641.204.
    (d) Communication or appearance. See Sec.  2641.201(d).
    (e) With the intent to influence. See Sec.  2641.201(e).
    (f) To or before employee of former agency. See Sec.  2641.204(g), 
except that this section covers only former very senior employees and 
applies only with respect to the agency or agencies in which a former 
very senior employee served as a very senior employee, and very senior 
employees do not benefit from the designation of distinct and separate 
agency components as referenced in Sec.  2641.204(g)(2).
    (g) To or before an official appointed to an Executive Schedule 
position. See Sec.  2641.204(g)(3) for ``to or before,'' except that 
this section covers only former very senior employees and also extends 
to a communication or appearance before any official currently 
appointed to a position that is listed in sections 5 U.S.C. 5312-5316. 
A communication made to an official described in 5 U.S.C. 5312-5316 can 
include a communication to a subordinate of such official with the 
intent that the information be conveyed directly to the official and 
attributed to the former very senior employee.
    (h) On behalf of any other person. See Sec.  2641.201(g).
    (i) Matter on which former very senior employee seeks official 
action. See Sec.  2641.204(i), except that this section only covers 
former very senior employees.

    Example 1 to Sec.  2641.205: The former Attorney General may not 
contact the Assistant Attorney General of the Antitrust Division on 
behalf of a professional sports league in support of a proposed 
exemption from certain laws, nor may he contact the Secretary of 
Labor. He may, however, speak directly to the President or Vice 
President concerning the issue.
    Example 2 to Sec.  2641.205: The former White House Chief of 
Staff is now the Chief Executive Officer of a major computer firm 
and wishes to convince the new Administration to change its new 
policy concerning computer chips. The former Chief of Staff may 
contact an employee of the Department of Commerce who, although paid 
at a level fixed according to level III of the Executive Schedule, 
does not occupy a position actually listed in 5 U.S.C. 5312-5316. 
She could not contact an employee working in the Office of the 
United States Trade Representative, an office within the Executive 
Office of the President (her former agency).
    Example 3 to Sec.  2641.205: A senior employee serves in the 
Department of Agriculture for several years. He is then appointed to 
serve as the Secretary of Health and Human Services (HHS) but 
resigns seven months later. Since the individual served as a very 
senior employee only at HHS, he is barred for one year by 18 U.S.C. 
207(d) as to any employee of HHS and any official currently 
appointed to an Executive Schedule position listed in 5 U.S.C. 5312-
5316, including any such official serving in the Department of 
Agriculture. (In addition, a one-year section 207(c) bar commenced 
when he terminated service as a senior employee at the Department of 
Agriculture.)
    Example 4 to Sec.  2641.205: The former Secretary of the 
Department of Labor may not represent another person in a meeting 
with the current Secretary of Transportation to discuss a proposed 
regulation on highway safety standards.
    Example 5 to Sec.  2641.205: In the previous example, the former 
very senior employee would like to meet instead with the special 
assistant to the Secretary of Transportation. The former employee 
knows that the special assistant has a close working relationship 
with the Secretary, and he expects that the special assistant will 
brief the Secretary about any discussions at the proposed meeting. 
The former very senior employee may not meet with the assistant.

Sec.  2641.206  One-year restriction on any former senior or very 
senior employee's representations on behalf of, or aid or advice to, a 
foreign entity [18 U.S.C. 207(f)].

    (a) Basic prohibition of 18 U.S.C. 207(f). For one year after 
service in a senior or very senior employee position terminates, no 
former senior employee or former very senior employee shall knowingly, 
with the intent to influence a decision of an employee of an agency of 
the United States, represent, aid, or

[[Page 7884]]

advise a foreign government or foreign political party.
    (b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(f) 
does not apply to a former senior or former very senior employee who 
is:
    (1) Acting on behalf of the United States. See Sec.  2641.301(a). 
(Note, however, the limitation in Sec.  2641.301(a)(2)(ii).)
    (2) Acting as an elected State or local government official. See 
Sec.  2641.301(b).
    (3) Testifying under oath. See Sec.  2641.301(f).
    (4) Acting on behalf of an international organization pursuant to a 
waiver. See Sec.  2641.301(h).
    (5) Acting as an employee of a Governmentowned, contractor operated 
entity pursuant to a waiver. See Sec.  2641.301(i).
    (6) Subject to a waiver issued for certain positions. See Sec.  
2641.301(j).
    (c) Commencement and length of restriction--(1) Generally. Except 
as provided in paragraph (c)(2) of this section, 18 U.S.C. 207(f) is a 
one-year restriction. The one-year period is measured from the date 
when an employee ceases to be a senior or very senior employee, not 
from the termination of Government service, unless the two occur 
simultaneously. See example 1 to paragraph (d) of Sec.  2641.204.
    (2) U.S. Trade Representative or Deputy U.S. Trade Representative. 
18 U.S.C. 207(f) is a permanent restriction as applied to a former U.S. 
Trade Representative or Deputy U.S. Trade Representative.
    (d) Represent, aid, or advise. [Reserved]
    (e) With the intent to influence. [Reserved]
    (f) Decision of employee of an agency. [Reserved]
    (g) Foreign entity. [Reserved]

Subpart C--Exceptions, Waivers and Separate Components


Sec.  2641.301  Statutory exceptions and waivers.

    (a) Exception for acting on behalf of United States. A former 
employee is not prohibited by any of the prohibitions of 18 U.S.C. 207 
from engaging in any activity on behalf of the United States.
    (1) United States. For purposes of this paragraph, the term 
``United States'' means:
    (i) The executive branch (including a Government corporation);
    (ii) The legislative branch; or
    (iii) The judicial branch.
    (2) On behalf of the United States. A former employee will be 
deemed to engage in the activity on behalf of the United States if he 
acts in accordance with paragraph (a)(2)(i) or (a)(2)(ii) of this 
section.
    (i) As employee of the United States. A former employee engages in 
an activity on behalf of the United States when he carries out official 
duties as a current employee of the United States.
    (ii) As other than employee of the United States. (A) Provided that 
he does not represent, aid, or advise a foreign entity in violation of 
18 U.S.C. 207(f), a former employee engages in an activity on behalf of 
the United States when he serves:
    (1) As a representative of the United States pursuant to a specific 
agreement with the United States to provide representational services 
involving a fiduciary duty to the United States; or
    (2) As a witness called by the United States (including a 
Congressional committee or subcommittee) to testify at a Congressional 
hearing (even if applicable procedural rules do not require him to 
declare by oath or affirmation that he will testify truthfully).
    (B) A former employee will not be deemed to engage in an activity 
on behalf of the United States merely because he is performing work 
funded by the Government, because he is engaging in the activity in 
response to a contact initiated by the Government, because the 
Government will derive some benefit from the activity, or because he or 
the person on whose behalf he is acting may share the same objective as 
the Government.


    Note to paragraph (a)(2)(ii): See also Sec.  2641.301(f) 
concerning the permissibility of testimony under oath, including 
testimony as an expert witness, when a former employee is called as 
a witness by the United States.

    Example 1 to paragraph (a): An employee of the Department of 
Labor (DOL) transfers to become an employee of the Pension Benefit 
Guaranty Corporation (PBGC). The PBGC, a whollyowned Government 
corporation, is a corporation in which the United States has a 
proprietary interest. The former DOL employee may press the PBGC's 
point of view in a meeting with DOL employees concerning an airline 
bankruptcy case in which he was personally and substantially 
involved while at the DOL. His communications to the DOL on behalf 
of the PBGC would be made on behalf of the United States.
    Example 2 to paragraph (a): A Federal Transit Administration 
(FTA) employee recommended against the funding of a certain subway 
project. After terminating Government service, she is hired by a 
Congressman as a member of his staff to perform a variety of duties, 
including miscellaneous services for the Congressman's constituents. 
The former employee may contact the FTA on behalf of a constituent 
group as part of her official duties in order to argue for the 
reversal of the subway funding decision in which she participated 
while still an employee of the FTA. Her communications to the FTA on 
behalf of the constituent group would be made on behalf of the 
United States.
    Example 3 to paragraph (a): A Postal Service attorney 
participated in discussions with the Office of Personnel Management 
(OPM) concerning a dispute over the mailing of health plan 
brochures. After terminating Government service, the attorney joins 
a law firm as a partner. He is assigned by the firm's managing 
partner to represent the Postal Service pursuant to a contract 
requiring the firm to provide certain legal services. The former 
senior employee may represent the Postal Service in meetings with 
OPM concerning the dispute about the health plan brochures. The 
former senior employee's suggestions to the Postal Service 
concerning strategy and his arguments to OPM concerning the dispute 
would be made on behalf of the United States (even though he is also 
acting on behalf of his law firm when he performs representational 
services for the United States). A communication to the Postal 
Service concerning a disagreement about the law firm's fee, however, 
would not be made on behalf of the United States.
    Example 4 to paragraph (a): A former senior employee of the Food 
and Drug Administration (FDA), now an employee of a drug company, is 
called by a Congressional committee to give unsworn testimony 
concerning the desirability of instituting cost controls in the 
pharmaceutical industry. The former senior employee may address the 
committee even though her testimony will unavoidably also be 
directed to a current employee of the FDA who has also been asked to 
testify as a member of the same panel of experts. The former 
employee's communications at the hearing, provided at the request of 
the United States, would be made on behalf of the United States.
    Example 5 to paragraph (a): A National Security Agency (NSA) 
analyst drafted the specifications for a contract that was awarded 
to the Secure Data Corporation to develop prototype software for the 
processing of foreign intelligence information. After terminating 
Government service, the analyst is hired by the corporation. The 
former employee may not attempt to persuade NSC officials that the 
software is in accord with the specifications. Although the 
development of the software is expected to significantly enhance the 
processing of foreign intelligence information and the former 
employee's opinions might be useful to current NSC employees, his 
communications would not be made on behalf of the United States.
    Example 6 to paragraph (a): A senior employee at the Department 
of the Air Force specialized in issues relating to the effective 
utilization of personnel. After terminating Government service, the 
former senior employee is hired by a contractor operating a 
Federally Funded Research and Development Center (FFRDC). The FFRDC 
is not a ``Government corporation'' as defined in Sec.  2641.104. 
The former senior employee may not attempt to convince the Air Force 
of

[[Page 7885]]

the manner in which Air Force funding should be allocated among 
projects proposed to be undertaken by the FFRDC. Although the work 
performed by the FFRDC will be determined by the Air Force, may be 
accomplished at Governmentowned facilities, and will benefit the 
Government, her communications would not be made on behalf of the 
United States.
    Example 7 to paragraph (a): A Department of Justice (DOJ) 
attorney represented the United States in a civil enforcement action 
against a company that had engaged in fraudulent activity. The 
settlement of the case required that the company correct certain 
deficiencies in its operating procedures. After terminating 
Government service, the attorney is hired by the company. When DOJ 
auditors schedule a meeting with the company's legal staff to review 
company actions since the settlement, the former employee may not 
attempt to persuade the auditors that the company is complying with 
the terms of the settlement. Although the former employee's insights 
might facilitate the audit, his communications would not be made on 
behalf of the United States even though the Government's auditors 
initiated the contact with the former employee.

    Note to paragraph (a): See also example 9 to paragraph (j) of 
Sec.  2641.202 and example 1 to paragraph (d) of Sec.  2641.204.

    (b) Exception for acting on behalf of State or local government as 
elected official. A former employee is not prohibited by any of the 
prohibitions of 18 U.S.C. 207 from engaging in any post-employment 
activity on behalf of one or more State or local governments, provided 
the activity is undertaken in carrying out official duties as an 
elected official of a State or local government.

    Example 1 to paragraph (b): A former employee of the Department 
of Housing and Urban Development (HUD) participated personally and 
substantially in the evaluation of a grant application from a 
certain city. After terminating Government service, he was elected 
mayor of that city. The former employee may contact an Assistant 
Secretary at HUD to argue that additional funds are due the city 
under the terms of the grant.
    Example 2 to paragraph (b): A former employee of the Federal 
Highway Administration (FHWA) participated personally and 
substantially in the decision to provide funding for a bridge across 
the White River in Arkansas. After terminating Government service, 
she accepted the Governor's offer to head the highway department in 
Arkansas. A communication to or appearance before the FHWA 
concerning the terms of the construction grant would not be made as 
an elected official of a State or local government.

    (c) Acting on behalf of specified entities. A former senior or very 
senior employee is not prohibited by 18 U.S.C. 207(c) or (d), or 
Sec. Sec.  2641.204 or 2641.205, from making a communication or 
appearance on behalf of one or more entities specified in paragraph 
(c)(1) of this section, provided the communication or appearance is 
made in carrying out official duties as an employee of a specified 
entity.
    (1) Specified entities. For purposes of this paragraph, a specified 
entity is:
    (i) An agency or instrumentality of a State or local government;
    (ii) A hospital or medical research organization, if exempted from 
taxation under 26 U.S.C. 501(c)(3); or
    (iii) An accredited, degree-granting institution of higher 
education, as defined in 20 U.S.C. 1001.
    (2) Employee. For purposes of this paragraph, the term ``employee'' 
of a specified entity means a person who has an employee-employer 
relationship with an entity specified in paragraph (c)(1) of this 
section. It includes a person who is employed to work part-time for a 
specified entity. The term excludes an individual performing services 
for a specified entity as a consultant or independent contractor.

    Example 1 to paragraph (c): A senior employee leaves her 
position at the National Institutes of Health (NIH) and takes a 
full-time position at the Gene Research Foundation, a tax-exempt 
organization pursuant to 26 U.S.C. 501(c)(3). As an employee of a 
501(c)(3) tax-exempt medical research organization, the former 
senior employee is not barred by 18 U.S.C. 207(c) from representing 
the Foundation before the NIH.
    Example 2 to paragraph (c): A former senior employee of the 
Environmental Protection Agency (EPA) joins a law firm in Richmond, 
Virginia. The firm is hired by the Commonwealth of Virginia to 
represent it in discussions with the EPA about an environmental 
impact statement concerning the construction of a highway 
interchange. The former senior employee's arguments concerning the 
environmental impact statement would not be made as an employee of 
the Commonwealth of Virginia.
    Example 3 to paragraph (c): A former senior employee becomes an 
employee of the ABC Association. The ABC Association is a nonprofit 
organization whose membership consists of a broad representation of 
State health agencies and senior State health officials, and it 
performs services from which certain State governments benefit, 
including collecting information from its members and conveying that 
information and views to the Federal Government. However, the ABC 
Association has not been delegated authority by any State government 
to perform any governmental functions, and it does not operate under 
the regulatory, financial, or management control of any state 
government. Therefore, the ABC Association is not an agency or 
instrumentality of a state government, and the former senior 
employee may not represent the organization before his former agency 
within one year after terminating his senior employee position.

    (d) Exception for uncompensated statements based on special 
knowledge. A former senior or very senior employee is not prohibited by 
18 U.S.C. 207(c) or (d), or Sec. Sec.  2641.204 or 2641.205, from 
making a statement based on his own special knowledge in the particular 
area that is the subject of the statement, provided that he receives no 
compensation for making the statement.
    (1) Special knowledge. A former employee has special knowledge 
concerning a subject area if he is familiar with the subject area as a 
result of education, interaction with experts, or other unique or 
particularized experience.
    (2) Statement. A statement for purposes of this paragraph is a 
communication of facts directly observed by the former employee.
    (3) Compensation. Compensation includes any form of remuneration or 
income that is given in consideration, in whole or in part, for the 
statement. It does not include the payment of actual and necessary 
expenses incurred in connection with making the statement.

    Example 1 to paragraph (d): The Chairman of the Council of 
Economic Advisors was personally and substantially involved in 
discussions with other White House officials concerning the 
advisability of a three-phase reduction in the capital gains tax. 
After Government service, the former Chairman affiliates with a 
nonprofit group that advocates a position on the three-phase capital 
gains issue that is similar to his own. The former Chairman, who 
receives no salary from the nonprofit organization, may meet with 
the current Chairman on the organization's behalf to state what 
steps had previously been taken by the Council to address the issue. 
The statement would be permissible even if the nonprofit 
organization reimbursed the former Chairman for his actual and 
necessary travel expenses incurred in connection with making the 
statement.
    Example 2 to paragraph (d): A former senior employee becomes a 
government relations consultant, and he enters into a $5,000 per 
month retainer agreement with XYZ Corporation for government 
relations services. He would like to meet with his former agency to 
discuss a regulatory matter involving his client. Even though he 
would not be paid by XYZ specifically for this particular meeting, 
he nevertheless would receive compensation for any statements at the 
meeting, because of the monthly payments under his standing retainer 
agreement. Therefore he may not rely on the exemption for 
uncompensated statements based on special knowledge.

    (e) Exception for furnishing scientific or technological 
information. A former employee is not prohibited by 18 U.S.C. 207(a), 
(c), or (d), or Sec. Sec.  2641.201, 2641.202, 2641.204, or 2641.205, 
from making communications, including appearances, solely for the 
purpose of furnishing scientific or technological information, provided 
the

[[Page 7886]]

communications are made either in accordance with procedures adopted by 
the agency or agencies to which the communications are directed or the 
head of such agency or agencies, in consultation with the Director of 
the Office of Government Ethics, makes a certification published in the 
Federal Register.
    (1) Purpose of information. A communication made solely for the 
purpose of furnishing scientific or technological information may be:
    (i) Made in connection with a matter that involves an appreciable 
element of actual or potential dispute;
    (ii) Made in connection with an effort to seek a discretionary 
Government ruling, benefit, approval, or other action; or
    (iii) Inherently influential in relation to the matter in dispute 
or the Government action sought.
    (2) Scientific or technological information. The former employee 
must convey information of a scientific or technological character, 
such as technical or engineering information relating to the natural 
sciences. The exception does not extend to information associated with 
a nontechnical discipline such as law, economics, or political science.
    (3) Incidental references or remarks. Provided the former 
employee's communication primarily conveys information of a scientific 
or technological character, the entirety of the communication will be 
deemed made solely for the purpose of furnishing such information 
notwithstanding an incidental reference or remark:
    (i) Unrelated to the matter to which the post-employment 
restriction applies;
    (ii) Concerning feasibility, risk, cost, speed of implementation, 
or other considerations when necessary to appreciate the practical 
significance of the basic scientific or technological information 
provided; or
    (iii) Intended to facilitate the furnishing of scientific or 
technological information, such as those references or remarks 
necessary to determine the kind and form of information required or the 
adequacy of information already supplied.

    Example 1 to paragraph (e)(3): After terminating Government 
service, a former senior employee at the National Security Agency 
(NSA) accepts a position as a senior manager at a firm specializing 
in the development of advanced security systems. The former senior 
employee and another firm employee place a conference call to a 
current NSA employee to follow up on an earlier discussion in which 
the firm had sought funding from the NSA to develop a certain 
proposed security system. After the other firm employee explains the 
scientific principles underlying the proposed system, the former 
employee may not state the system's expected cost. Her communication 
would not primarily convey information of a scientific or 
technological character.
    Example 2 to paragraph (e)(3): If, in the previous example, the 
former senior employee explained the scientific principles 
underlying the proposed system, she could also have stated its 
expected cost as an incidental reference or remark.

    (4) Communications made under procedures acceptable to the agency. 
(i) An agency may adopt such procedures as are acceptable to it, 
specifying conditions under which former Government employees may make 
communications solely for the purpose of furnishing scientific or 
technological information, in light of the agency's particular programs 
and needs. In promulgating such procedures, an agency may consider, for 
example, one or more of the following:
    (A) Requiring that the former employee specifically invoke the 
exception prior to making a communication (or series of 
communications);
    (B) Requiring that the designated agency ethics official for the 
agency to which the communication is directed (or other agency 
designee) be informed when the exception is used;
    (C) Limiting communications to certain formats which are least 
conducive to the use of personal influence;
    (D) Segregating, to the extent possible, meetings and presentations 
involving technical substance from those involving other aspects of the 
matter; or
    (E) Employing more restrictive practices in relation to 
communications concerning specified categories of matters or specified 
aspects of a matter, such as in relation to the pre-award as 
distinguished from the post-award phase of a procurement.
    (ii) The Director of the Office of Government Ethics may review any 
agency implementation of this exception in connection with OGE's 
executive branch ethics program oversight responsibilities. See 5 CFR 
part 2638.

    Example 1 to paragraph (e)(4): A Marine Corps engineer 
participates personally and substantially in drafting the 
specifications for a new assault rifle. After terminating Government 
service, he accepts a job with the company that was awarded the 
contract to produce the rifle. Provided he acts in accordance with 
agency procedures, he may accompany the President of the company to 
a meeting with Marine Corps employees and report the results of a 
series of metallurgical tests. These results support the company's 
argument that it has complied with a particular specification. He 
may do so even though the meeting was expected to be and is, in 
fact, a contentious one in which the company's testing methods are 
at issue. He may not, however, present the company's argument that 
an advance payment is due the company under the terms of the 
contract since this would not be a mere incidental reference or 
remark within the meaning of paragraph (e)(3) of this section.

    (5) Certification for expertise in technical discipline. A 
certification issued in accordance with this section shall be effective 
on the date it is executed (unless a later date is specified), provided 
that it is transmitted to the Federal Register for publication.
    (i) Criteria for issuance. A certification issued in accordance 
with this section may not broaden the scope of the exception and may be 
issued only when:
    (A) The former employee has outstanding qualifications in a 
scientific, technological, or other technical discipline (involving 
engineering or other natural sciences as distinguished from a 
nontechnical discipline such as law, economics, or political science);
    (B) The matter requires the use of such qualifications; and
    (C) The national interest would be served by the former employee's 
participation.
    (ii) Submission of requests. The individual wishing to make the 
communication shall forward a written request to the head of the agency 
to which the communications would be directed. Any such request shall 
address the criteria set forth in paragraph (e)(5)(i) of this section.
    (iii) Issuance. The head of the agency to which the communications 
would be directed may, upon finding that the criteria specified in 
paragraph (e)(5)(i) of this section are satisfied, approve the request 
by executing a certification, which shall be published in the Federal 
Register. A copy of the certification shall be forwarded to the 
affected individual. The head of the agency shall, prior to execution 
of the certification, furnish a draft copy of the certification to the 
Director of the Office of Government Ethics and consider the Director's 
comments, if any, in relation to the draft. The certification shall 
specify:
    (A) The name of the former employee;
    (B) The Government position or positions held by the former 
employee during his most recent period of Government service;
    (C) The identity of the employer or other person on behalf of which 
the former employee will be acting;

[[Page 7887]]

    (D) The restriction or restrictions to which the certification 
shall apply;
    (E) Any limitations imposed by the agency head (or deputy or acting 
head) with respect to the scope of the certification; and
    (F) The basis for finding that the criteria specified in paragraph 
(e)(5)(i) of this section are satisfied, specifically including a 
description of the matter and the communications that will be 
permissible or, if relevant, a statement that such information is 
protected from disclosure by statute.
    (iv) Copy to Office of Government Ethics. Once published, the 
agency shall provide the Director of the Office of Government Ethics 
with a copy of the certification as published in the Federal Register.
    (v) Revocation. The agency head may revoke a certification and 
shall forward a written notice of the revocation to the former employee 
and to the OGE Director. Revocation of a certification shall be 
effective on the date specified in the notice revoking the 
certification.
    (f) Exception for giving testimony under oath or making statements 
required to be made under penalty of perjury. Subject to the limitation 
described in paragraph (f)(2) of this section concerning expert witness 
testimony, a former employee is not prohibited by any of the 
prohibitions of 18 U.S.C. 207 from giving testimony under oath or 
making a statement required to be made under penalty of perjury.
    (1) Testimony under oath. Testimony under oath is evidence 
delivered by a witness either orally or in writing, including 
deposition testimony and written affidavits, in connection with a 
judicial, quasi-judicial, administrative, or other legally recognized 
proceeding in which applicable procedural rules require a witness to 
declare by oath or affirmation that he will testify truthfully.
    (2) Limitation on exception for service as an expert witness. The 
exception described in paragraph (f)(1) of this section does not negate 
the bar of 18 U.S.C. 207(a)(1), or Sec.  2641.201, to a former employee 
serving as an expert witness; where the bar of section 207(a)(1) 
applies, a former employee may not serve as an expert witness except:
    (i) If he is called as a witness by the United States; or
    (ii) By court order. For this purpose, a subpoena is not a court 
order, nor is an order merely qualifying an individual to testify as an 
expert witness.
    (3) Statements made under penalty of perjury. A former employee may 
make any statement required to be made under penalty of perjury, except 
that he may not:
    (i) Submit a pleading, application, or other document as an 
attorney or other representative; or
    (ii) Serve as an expert witness where the bar of 18 U.S.C. 
207(a)(1) applies, except as provided in paragraph (f)(2) of this 
section.

    Note to paragraph (f): Whether compensation of a witness is 
appropriate is not addressed by 18 U.S.C. 207. However, 18 U.S.C. 
201 may prohibit individuals from receiving compensation for 
testifying under oath in certain forums except as authorized by 18 
U.S.C. 201(d). Note also that there may be statutory or other bars 
on the disclosure by a current or former employee of information 
from the agency's files or acquired in connection with the 
individual's employment with the Government; a former employee's 
agency may have promulgated procedures to be followed with respect 
to the production or disclosure of such information.

    Example 1 to paragraph (f): A former employee is subpoenaed to 
testify in a case pending in a United States district court 
concerning events at the agency she observed while she was 
performing her official duties with the Government. She is not 
prohibited by 18 U.S.C. 207 from testifying as a fact witness in the 
case.
    Example 2 to paragraph (f): An employee was removed from service 
by his agency in connection with a series of incidents where the 
employee was absent without leave or was unable to perform his 
duties because he appeared to be intoxicated. The employee's 
supervisor, who had assisted the agency in handling the issues 
associated with the removal, subsequently left Government. In the 
ensuing case in Federal court between the employee who had been 
removed and his agency over whether he had been discriminated 
against because of his disabling alcoholism, his former supervisor 
was asked whether on certain occasions the employee had been 
intoxicated on the job and unable to perform his assigned duties. 
Opposing counsel objected to the question on the basis that the 
question required expert testimony and the witness had not been 
qualified as an expert. The judge overruled the objection on the 
basis that the witness would not be providing expert testimony but 
opinions or inferences which are rationally based on his perception 
and helpful to a clear understanding of his testimony or the 
determination of a fact in issue. The former employee may provide 
the requested testimony without violating 18 U.S.C. 207.
    Example 3 to paragraph (f): A former senior employee of the 
Environmental Protection Agency (EPA) is a recognized expert 
concerning compliance with Clean Air Act requirements. Within one 
year after terminating Government service, she is retained by a 
utility company that is the defendant in a lawsuit filed against it 
by the EPA. While the matter had been pending while she was with the 
agency, she had not worked on the matter. After the court rules that 
she is qualified to testify as an expert, the former senior employee 
may offer her sworn opinion that the utility company's practices are 
in compliance with Clean Air Act requirements. She may do so 
although she would otherwise have been barred by 18 U.S.C. 207(c) 
from making the communication to the EPA.
    Example 4 to paragraph (f): In the previous example, an EPA 
scientist served as a member of the EPA investigatory team that 
compiled a report concerning the utility company's practices during 
the discovery stage of the lawsuit. She later terminated Government 
service to join a consulting firm and is hired by the utility 
company to assist it in its defense. She may not, without a court 
order, serve as an expert witness for the company in the matter 
since she is barred by 18 U.S.C. 207(a)(1) from making the 
communication to the EPA. On application by the utility company for 
a court order permitting her service as an expert witness, the court 
found that there were no extraordinary circumstances that would 
justify overriding the specific statutory bar to such testimony. 
Such extraordinary circumstances might be where no other equivalent 
expert testimony can be obtained and an employee's prior involvement 
in the matter would not cause her testimony to have an undue 
influence on proceedings. Without such extraordinary circumstances, 
ordering such expert witness testimony would undermine the bar on 
such testimony.

    (g) Exception for representing certain candidates or political 
organizations. Except as provided in paragraph (g)(2) of this section, 
a former senior or very senior employee is not prohibited by 18 U.S.C. 
207(c) or (d), or Sec. Sec.  2641.204 or 2641.205, from making a 
communication or appearance on behalf of a candidate in his capacity as 
a candidate or an entity specified in paragraphs (g)(1)(ii) through 
(g)(1)(vi) of this section.
    (1) Specified persons or entities. For purposes of this paragraph 
(g), the specified persons or entities are:
    (i) A candidate. A candidate means any person who seeks nomination 
for election, or election to, Federal or State office or who has 
authorized others to explore on his own behalf the possibility of 
seeking nomination for election, or election to, Federal or State 
office;
    (ii) An authorized committee. An authorized committee means any 
political committee designated in writing by a candidate as authorized 
to receive contributions or make expenditures to promote the nomination 
or election of the candidate or to explore the possibility of seeking 
the nomination or election of the candidate. The term does not include 
a committee that receives contributions or makes expenditures to 
promote more than one candidate;
    (iii) A national committee. A national committee means the 
organization

[[Page 7888]]

which, under the bylaws of a political party, is responsible for the 
day-to-day operation of the political party at the national level;
    (iv) A national Federal campaign committee. A national Federal 
campaign committee means an organization which, under the bylaws of a 
political party, is established primarily to provide assistance at the 
national level to candidates nominated by the party for election to the 
office of Senator or Representative in, or Delegate or Resident 
Commissioner to, the Congress;
    (v) A State committee. A State committee means the organization 
which, under the bylaws of a political party, is responsible for the 
day-to-day operation of the political party at the State level; or
    (vi) A political party. A political party means an association, 
committee, or organization that nominates a candidate for election to 
any Federal or State elected office whose name appears on the election 
ballot as the candidate of the association, committee, or organization.
    (2) Limitations. The exception in this paragraph (g) shall not 
apply if the communication or appearance:
    (i) Is made at a time the former senior or very senior employee is 
employed by any person or entity other than:
    (A) A person or entity specified in paragraph (g)(1) of this 
section; or
    (B) A person or entity who exclusively represents, aids, or advises 
persons or entities described in paragraph (g)(1) of this section;
    (ii) Is made other than solely on behalf of one or more persons or 
entities specified in paragraph (g)(1) or (g)(2)(i)(B) of this section; 
or
    (iii) Is made to or before the Federal Election Commission by a 
former senior or very senior employee of the Federal Election 
Commission.

    Example 1 to paragraph (g):
    The former Counsel to the President becomes the full-time head 
of the President's re-election committee. The former Counsel may, 
within one year of terminating his very senior employee position, 
represent the re-election committee to the White House travel office 
in discussions regarding the appropriate amounts of reimbursements 
by the committee of political travel costs of the President.
    Example 2 to paragraph (g): The former U.S. Attorney General is 
asked by a candidate running for Governor of Alabama to contact the 
Chairman of the Federal Trade Commission (a position listed in 5 
U.S.C. 5314) to seek the dismissal of a pending enforcement action 
involving the candidate's family business. The former very senior 
employee's communication to the Chairman would not be made on behalf 
of the candidate in his capacity as a candidate and, thus, would be 
barred by 18 U.S.C. 207(d).
    Example 3 to paragraph (g): In the previous example, the former 
Attorney General could contact the Commissioner of Internal Revenue 
(a position listed in 5 U.S.C. 5314) to urge the review of a tax 
ruling affecting Alabama's Republican Party since the communication 
would be made on behalf of a State committee.
    Example 4 to paragraph (g): The former Assistant Secretary for 
Legislative and Intergovernmental Affairs at the Department of 
Commerce is hired as a consultant by a company that provides 
advisory services to political candidates and senior executives in 
private industry. Her only client is a candidate for the U.S. 
Senate. The former senior employee may not contact the Deputy 
Secretary of Commerce within one year of her termination from the 
Department to request that the Deputy Secretary give an official 
speech in which he would express support for legislation proposed by 
the candidate. The communication would be prohibited by 18 U.S.C. 
207(c) because it would be made when the former senior employee was 
employed by an entity that did not exclusively represent, aid, or 
advise persons or entities specified in paragraph (g)(1) of this 
section.

    (h) Waiver for acting on behalf of international organization. (1) 
The Secretary of State may grant a former employee an individual waiver 
of one or more of the restrictions in 18 U.S.C. 207 where the employee 
would act on behalf of an international organization in which the 
United States participates. The Secretary of State must certify in 
advance that the proposed activity is in the interests of the United 
States.
    (2) An employee who is detailed under 5 U.S.C. 3343 to an 
international organization remains an employee of his agency. In 
contrast, an employee who transfers under 5 U.S.C. 3581-3584 to an 
international organization is a former employee of his agency.
    (i) Waiver for re-employment by Government-owned contractor 
operated entity. The President may grant a waiver of one or more of the 
restrictions in 18 U.S.C. 207 to eligible employees upon the 
determination and certification in writing that the waiver is in the 
public interest and the services of the individual are critically 
needed for the benefit of the Federal Government. Upon the issuance of 
a waiver pursuant to this paragraph, the restriction or restrictions 
waived will not apply to a former employee acting as an employee of the 
same Government-owned, contractor operated entity with which he was 
employed immediately before the period of Government service during 
which the waiver was granted. If the individual was employed by the 
Lawrence Livermore National Laboratory, the Los Alamos National 
Laboratory, or the Sandia National Laboratory immediately before the 
person's Federal Government employment began, the restriction or 
restrictions waived shall not apply to a former employee acting as an 
employee of any one of those three national laboratories after the 
former employee's Government service has terminated.
    (1) Eligible employees. Any current civilian employee of the 
executive branch, other than an employee serving in the Executive 
Office of the President, who served as an officer or employee at a 
Government-owned, contractor operated entity immediately before he 
became a Government employee. A total of no more than 25 current 
employees shall hold waivers at any one time.
    (2) Issuance. The President may not delegate the authority to issue 
waivers under this paragraph. If the President issues a waiver, a 
certification shall be published in the Federal Register and shall 
identify:
    (i) The employee covered by the waiver by name and position; and
    (ii) The reasons for granting the waiver.
    (3) Copy to Office of Government Ethics. A copy of the 
certification shall be provided to the Director of the Office of 
Government Ethics.
    (4) Effective date. A waiver issued under this section shall be 
effective on the date the certification is published in the Federal 
Register.
    (5) Reports. Each former employee holding a waiver must submit 
semiannual reports, for a period of two years after terminating 
Government service, to the President and the OGE Director.
    (i) Submission. The reports shall be submitted:
    (A) Not later than six months and 60 days after the date of the 
former employee's termination from the period of Government service 
during which the waiver was granted; and
    (B) Not later than 60 days after the end of any successive six-
month period.
    (ii) Content. Each report shall describe all activities undertaken 
by the former employee during the six-month period that would have been 
prohibited by 18 U.S.C. 207 but for the waiver.
    (iii) Public availability. All reports filed with the OGE Director 
under this paragraph shall be made available for public inspection and 
copying.

    Note to paragraph (i)(5): 18 U.S.C. 207(k)(5)(D) specifies that 
an individual who is granted a waiver as described in this paragraph 
is ineligible for appointment in the civil service unless all 
reports required by that section have been filed.

    (6) Revocation. A waiver shall be revoked when the recipient of the

[[Page 7889]]

waiver fails to file a report required by paragraph (i)(4) of this 
section, and the recipient of the waiver shall be notified of such 
revocation. The revocation shall take effect upon the person's receipt 
of the notification and shall remain in effect until the report is 
filed.
    (j) Waiver of restrictions of 18 U.S.C. 207(c) and (f) for certain 
positions. The Director of the Office of Government Ethics may waive 
application of the restriction of section 18 U.S.C. 207(c) and Sec.  
2641.204, with respect to certain positions or categories of positions. 
When the restriction of 18 U.S.C. 207(c) has been waived by the 
Director pursuant to this paragraph, the one-year restriction of 18 
U.S.C. 207(f) and Sec.  2641.206 also will not be triggered upon an 
employee's termination from the position.
    (1) Eligible senior employee positions. Any position which could be 
occupied by a senior employee is eligible for a waiver of the 18 U.S.C. 
207(c) restriction except the following:
    (i) Positions for which the rate of pay is specified in or fixed 
according to 5 U.S.C. 5311-5318 (the Executive Schedule);
    (ii) Positions for which occupants are appointed by the President 
pursuant to 3 U.S.C. 105(a)(2)(B); or
    (iii) Positions for which occupants are appointed by the Vice 
President pursuant to 3 U.S.C. 106(a)(1)(B).

    Example 1 to paragraph (j)(1): The head of a department has 
authority to fix the annual salary for a category of positions 
administratively at a rate of compensation not in excess of the rate 
of compensation provided for level IV of the Executive Schedule (5 
U.S.C. 5315). He sets a salary level that does not reference any 
Executive Schedule salary. The level of compensation is not 
``specified in'' or ``fixed according to'' the Executive Schedule. 
If the authority pursuant to which compensation for a position is 
set instead stated that the position is to be paid at the rate of 
level IV of the Executive Schedule, the salary for the position 
would be fixed according to the Executive Schedule.

    (2) Criteria for waiver. A waiver of restrictions for a position or 
category of positions shall be based on findings that:
    (i) The agency has experienced or is experiencing undue hardship in 
obtaining qualified personnel to fill such position or positions as 
shown by relevant factors which may include, but are not limited to:
    (A) Vacancy rates;
    (B) The payment of a special rate of pay to the incumbent of the 
position pursuant to specific statutory authority; or
    (C) The requirement that the incumbent of the position have 
outstanding qualifications in a scientific, technological, technical, 
or other specialized discipline;
    (ii) Waiver of the restriction with respect to the position or 
positions is expected to ameliorate the recruiting difficulties; and
    (iii) The granting of the waiver would not create the potential for 
the use of undue influence or unfair advantage based on past Government 
service, including the potential for use of such influence or advantage 
for the benefit of a foreign entity.
    (3) Procedures. A waiver shall be granted in accordance with the 
following procedures:
    (i) Agency recommendation. An agency's designated agency ethics 
official (DAEO) may, at any time, recommend the waiver of the 18 U.S.C. 
207(c) (and section 207(f)) restriction for a position or category of 
positions by forwarding a written request to the Director addressing 
the criteria set forth in paragraph (j)(2) of this section. A DAEO may, 
at any time, request that a current waiver be revoked.
    (ii) Action by Office of Government Ethics. The Director of the 
Office of Government Ethics shall promptly provide to the designated 
agency ethics official a written response to each request for waiver or 
revocation. The Director shall maintain a listing of positions or 
categories of positions in appendix A to this part for which the 18 
U.S.C. 207(c) restriction has been waived. The Director shall publish 
notice in the Federal Register when revoking a waiver.
    (4) Effective dates. A waiver shall be effective on the date of the 
written response to the designated agency ethics official indicating 
that the request for waiver has been granted. A waiver shall inure to 
the benefit of the individual who holds the position when the waiver 
takes effect, as well as to his successors, but shall not benefit 
individuals who terminated senior service prior to the effective date 
of the waiver. Revocation of a waiver shall be effective 90 days after 
the date that the OGE Director publishes notice of the revocation in 
the Federal Register. Individuals who formerly served in a position for 
which a waiver of restrictions was applicable will not become subject 
to 18 U.S.C. 207(c) (or section 207(f)) if the waiver is revoked after 
their termination from the position.
    (k) Miscellaneous statutory exceptions. Several statutory 
authorities specifically modify the scope of 18 U.S.C. 207 as it would 
otherwise apply to a former employee or class of former employees. 
These authorities include:
    (1) 22 U.S.C. 3310(c), permitting employees of the American 
Institute in Taiwan to represent the Institute notwithstanding 18 
U.S.C. 207;
    (2) 22 U.S.C. 3613(d), permitting the individual who was 
Administrator of Panama Canal Commission on the date of its termination 
to act in carrying out official duties as Administrator of the Panama 
Canal Authority notwithstanding 18 U.S.C. 207;
    (3) 22 U.S.C. 3622(e), permitting an individual who was an employee 
of the Panama Canal Commission on the date of its termination to act in 
carrying out official duties on behalf of the Panama Canal Authority;
    (4) 25 U.S.C. 450i(j), permitting a former employee who is employed 
by an Indian tribe to act on behalf of the tribe notwithstanding 18 
U.S.C. 207 if the former employee submits notice of any personal and 
substantial involvement in the matter during Government service;
    (5) 38 U.S.C. 5902(d), permitting a former employee who is a 
retired officer, warrant officer, or enlisted member of the Armed 
Forces, while not on active duty, to act on behalf of certain claimants 
notwithstanding 18 U.S.C. 207 if the claim arises under laws 
administered by the Secretary of Veterans Affairs;
    (6) 50 U.S.C. 405(b), permitting a former part-time member of an 
advisory committee appointed by the Federal Emergency Management 
Agency, the Central Intelligence Agency, or the National Security 
Council to engage in conduct notwithstanding 18 U.S.C. 207 except with 
respect to any particular matter directly involving an agency the 
former member advised or in which such agency is directly interested; 
and
    (7) 50 U.S.C. app. 463, permitting former employees appointed to 
certain positions under 50 U.S.C. App. 451 et seq. (Military Selective 
Service Act) to engage in conduct notwithstanding 18 U.S.C. 207.

    Note to paragraph (k): Exceptions from 18 U.S.C. 207 may be 
included in legislation mandating privatization of Governmental 
entities. See, for example, 42 U.S.C. 2297h-3(c), concerning the 
privatization of the United States Enrichment Corporation.

    (1) Guide to available exceptions and waivers to the prohibitions 
of 18 U.S.C. 207. This chart lists the exceptions and waivers set forth 
in 18 U.S.C. 207 and for each exception and waiver identifies the 
prohibitions of section 207 excepted or subject to waiver. Detailed 
guidance on the applicability of the exceptions and waivers is 
contained in the cross-referenced paragraphs of this section.

[[Page 7890]]



                                                            Section 207 Prohibitions Affected
--------------------------------------------------------------------------------------------------------------------------------------------------------
                 Exception/Waiver                        (a)(1)           (a)(2)            (b)              (c)              (d)              (f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Acting for the United States, see Sec.                 [sbull]          [sbull]          [sbull]          [sbull]          [sbull]          [sbull]
 2641.301(a)......................................
(2) Elected State or local government official,            [sbull]          [sbull]          [sbull]          [sbull]          [sbull]          [sbull]
 see Sec.   2641.301(b)...........................
(3) Acting for specified entities, see Sec.         ...............  ...............  ...............         [sbull]          [sbull]   ...............
 2641.301(c)......................................
(4) Special knowledge, see Sec.   2641.301(d).....  ...............  ...............  ...............         [sbull]          [sbull]   ...............
(5) Scientific or technological information, see           [sbull]          [sbull]   ...............         [sbull]          [sbull]   ...............
 Sec.   2641.301(e)...............................
(6) Testimony, see Sec.   2641.301(f).............         [sbull]          [sbull]          [sbull]          [sbull]          [sbull]          [sbull]
(7) Acting for a candidate or political party, see  ...............  ...............  ...............         [sbull]          [sbull]   ...............
 Sec.   2641.301(g)...............................
(8) Acting for an international organization, see          [sbull]          [sbull]          [sbull]          [sbull]          [sbull]          [sbull]
 Sec.   2641.301(h)...............................
(9) Employee of a Government-owned, contractor             [sbull]          [sbull]          [sbull]          [sbull]          [sbull]          [sbull]
 operated entity, see Sec.   2641.301(i)..........
(10) Waiver for certain positions, see Sec.         ...............  ...............  ...............         [sbull]   ...............         [sbull]
 2641.301(j)......................................
--------------------------------------------------------------------------------------------------------------------------------------------------------

Sec.  2641.302  Separate agency components.

    (a) Designation. For purposes of 18 U.S.C. 207(c) only, and Sec.  
2641.204, the Director of the Office of Government Ethics may designate 
agency ``components'' that are distinct and separate from the 
``parent'' agency and from each other. Absent such designation, the 
representational bar of section 207(c) extends to the whole of the 
agency in which the former senior employee served. An eligible former 
senior employee who served in the parent agency is not barred by 
section 207(c) from making communications to or appearances before any 
employee of any designated component of the parent, but is barred as to 
any employee of the parent or of any agency or bureau of the parent 
that has not been designated. An eligible former senior employee who 
served in a designated component of the parent agency is barred from 
communicating to or making an appearance before any employee of that 
designated component, but is not barred as to any employee of the 
parent, of another designated component, or of any other agency or 
bureau of the parent that has not been designated.

    Example 1 to paragraph (a): While employed in the Office of the 
Secretary of Defense, a former career Senior Executive Service 
employee was employed in a position for which the rate of basic pay 
exceeded that payable for level 5 of the Senior Executive Service. 
He is prohibited from contacting the Secretary of Defense and DOD's 
Inspector General. However, because eligible under paragraph (b) of 
this section to benefit from component designation procedures, he is 
not prohibited by 18 U.S.C. 207(c) from contacting the Secretary of 
the Army. (The Department of the Army is a designated component of 
the parent, DOD. The Office of the Secretary of Defense and the 
Office of the DOD Inspector General are both part of the parent, 
DOD. See the listing of DOD components in appendix B to this part.)
    Example 2 to paragraph (a): Because eligible under paragraph (b) 
of this section to benefit from component designation procedures, a 
former Navy Admiral who last served as the Vice Chief of Naval 
Operations is not prohibited by 18 U.S.C. 207(c) from contacting the 
Secretary of Defense, the Secretary of the Army, or DOD's Inspector 
General. He is prohibited from contacting the Secretary of the Navy. 
(The Department of the Navy is a designated component of the parent, 
DOD. The Office of the Secretary of Defense and the Office of the 
DOD Inspector General are both part of the parent. See the listing 
of DOD components in appendix B to this part.)

    (b) Eligible former senior employees. All former senior employees 
are eligible to benefit from this procedure except those who were 
senior employees by virtue of having been:
    (1) Employed in a position for which the rate of pay is specified 
in or fixed according to 5 U.S.C. 5311-5318 (the Executive Schedule) 
(see example 1 to paragraph (j)(1) of Sec.  2641.301);
    (2) Appointed by the President to a position under 3 U.S.C. 
105(a)(2)(B); or
    (3) Appointed by the Vice President to a position under 3 U.S.C. 
106(a)(1)(B).

    Example 1 to paragraph (b): A former senior employee who had 
served as Deputy Commissioner of the Internal Revenue Service is not 
eligible to benefit from the designation of components for the 
Department of the Treasury because the position of Deputy 
Commissioner is listed in 5 U.S.C. 5316, at a rate of pay payable 
for level V of the Executive Schedule.

    (c) Criteria for designation. A component designation must be based 
on findings that:
    (1) The component is an agency or bureau, within a parent agency, 
that exercises functions which are distinct and separate from the 
functions of the parent agency and from the functions of other 
components of that parent as shown by relevant factors which may 
include, but are not limited to:
    (i) The component's creation by statute or a statutory reference 
indicating that it exercises functions which are distinct and separate;
    (ii) The component's exercise of distinct and separate subject 
matter or geographical jurisdiction;
    (iii) The degree of supervision exercised by the parent over the 
component;
    (iv) Whether the component exercises responsibilities that cut 
across organizational lines within the parent;
    (v) The size of the component in absolute terms; and
    (vi) The size of the component in relation to other agencies or 
bureaus within the parent.
    (2) There exists no potential for the use of undue influence or 
unfair advantage based on past Government service.
    (d) Subdivision of components. The Director will not ordinarily 
designate agencies that are encompassed by or otherwise supervised by 
an existing designated component.
    (e) Procedures. Distinct and separate components shall be 
designated in accordance with the following procedure:
    (1) Agency recommendation. A designated agency ethics official may, 
at any time, recommend the designation of

[[Page 7891]]

an additional component or the revocation of a current designation by 
forwarding a written request to the Director of the Office of 
Government Ethics addressing the criteria set forth in paragraph (c) of 
this section.
    (2) Agency update. Designated agency ethics officials shall, by 
July 1 of each year, forward to the OGE Director a letter stating 
whether components currently designated should remain designated in 
light of the criteria set forth in paragraph (c) of this section.
    (3) Action by the Office of Government Ethics. The Director of the 
Office of Government Ethics shall, by rule, make or revoke a component 
designation after considering the recommendation of the designated 
agency ethics official. The Director shall maintain a listing of all 
designated agency components in appendix B to this part.
    (f) Effective dates. A component designation shall be effective on 
the date the rule creating the designation is published in the Federal 
Register and shall be effective as to individuals who terminated senior 
service either before, on or after that date. Revocation of a component 
designation shall be effective 90 days after the publication in the 
Federal Register of the rule that revokes the designation, but shall 
not be effective as to individuals who terminated senior service prior 
to the expiration of such 90-day period.
    (g) Effect of organizational changes. (1) If a former senior 
employee served in an agency with component designations and the agency 
or a designated component that employed the former senior employee has 
been significantly altered by organizational changes, the appropriate 
designated agency ethics official shall determine whether any successor 
entity is substantially the same as the agency or a designated 
component that employed the former senior employee. Section 
2641.204(g)(2)(iv)(A) through (g)(2)(iv)(C) should be used for guidance 
in determining how the 18 U.S.C. 207(c) bar applies when an agency or a 
designated component has been significantly altered.
    (2) Consultation with Office of Government Ethics. When counseling 
individuals concerning the applicability of 18 U.S.C. 207(c) subsequent 
to significant organizational changes, the appropriate designated 
agency ethics official (DAEO) shall consult with the Office of 
Government Ethics. When it is determined that appendix B to this part 
no longer reflects the current organization of a parent agency, the 
DAEO shall promptly forward recommendations for designations or 
revocations in accordance with paragraph (e) of this section.

    Example 1 to paragraph (g): An eligible former senior employee 
had served as an engineer in the Agency for Transportation Safety, 
an agency within Department X primarily focusing on safety issues 
relating to all forms of transportation. The agency had been 
designated as a distinct and separate component of Department X by 
the Director of the Office of Government Ethics. Subsequent to his 
termination from the position, the functions of the agency are 
distributed among three other designated components with 
responsibilities relating to air, sea, and land transportation, 
respectively. The agency's few remaining programs are absorbed by 
the parent. As the designated component from which the former senior 
employee terminated is no longer identifiable as substantially the 
same entity, the 18 U.S.C. 207(c) bar will not affect him.
    Example 2 to paragraph (g): A scientist served in a senior 
employee position in the Agency for Medical Research, an agency 
within Department X primarily focusing on cancer research. The 
agency had been designated as a distinct and separate component of 
Department X by the Director of the Office of Government Ethics. 
Subsequent to her termination from the position, the mission of the 
Agency for Medical Research is narrowed and it is renamed the Agency 
for Cancer Research. Approximately 20% of the employees of the 
former agency are transferred to various other parts of the 
Department to continue their work on medical research unrelated to 
cancer. The Agency for Cancer Research is determined to be 
substantially the same entity as the designated component in which 
she formerly served, and the 18 U.S.C. 207(c) bar applies with 
respect to the scientist's contacts with employees of the Agency for 
Cancer Research. She would not be barred from contacting an employee 
who was among the 20% of employees who were transferred to other 
parts of the Department.

    (h) Unauthorized designations. No agency or bureau within the 
Executive Office of the President may be designated as a separate 
agency component.

Appendix A to Part 2641--Positions Waived from 18 U.S.C. 207(c) and (f)

    Pursuant to the provisions of 18 U.S.C. 207(c)(2)(C) and 5 CFR 
2641.301(j), each of the following positions is waived from the 
provisions of 18 U.S.C. 207(c) and 5 CFR 2641.204, as well as the 
provisions of 18 U.S.C. 207(f) and 5 CFR 2641.206. All waivers are 
effective as of the date indicated.

Agency: Department of Justice

    Positions: United States Trustee (21) (effective June 2, 1994).

Agency: Securities and Exchange Commission

    Positions: Solicitor, Office of General Counsel (effective October 
29, 1991).
    Chief Litigation Counsel, Division of Enforcement (effective 
October 29, 1991).

Appendix B to Part 2641--Agency Components for Purposes of 18 U.S.C. 
207(c)

    Pursuant to the provisions of 18 U.S.C. 207(h), each of the 
following agencies is determined, for purposes of 18 U.S.C. 207(c), and 
5 CFR 2641.204, to have within it distinct and separate components as 
set forth below. Except as otherwise indicated, all designations are 
effective as of January 1, 1991.

Parent: Department of Commerce

    Components: Bureau of the Census, Bureau of Export Administration 
(effective January 28, 1992), Economic Development Administration, 
International Trade Administration, Minority Business Development 
Administration, National Oceanic and Atmospheric Administration, 
National Telecommunications and Information Administration, Patent and 
Trademark Office, Technology Administration (effective January 28, 
1992),

Parent: Department of Defense

    Components: Department of the Air Force, Department of the Army, 
Department of the Navy, Defense Information Systems Agency, Defense 
Intelligence Agency, Defense Logistics Agency, Defense Threat Reduction 
Agency (effective February 5, 1999), National Imagery and Mapping 
Agency (effective May 16, 1997), National Reconnaissance Office 
(effective January 30, 2003), National Security Agency.

Parent: Department of Energy

    Component: Federal Energy Regulatory Commission.

Parent: Department of Health and Human Services

    Components: Administration on Aging (effective May 16, 1997), 
Administration for Children and Families (effective January 28, 1992), 
Agency for Healthcare Research and Quality (formerly Agency for Health 
Care Policy and Research) (effective May 16, 1997), Agency for Toxic 
Substances and Disease Registry (effective May 16, 1997), Centers for 
Disease Control and Prevention (effective May 16, 1997), Centers for 
Medicare and Medicaid Services (formerly Health Care Financing 
Administration), Food and Drug Administration, Health Resources and 
Services Administration (effective May 16, 1997), Indian Health Service 
(effective May 16, 1997), National Institutes of Health (effective May 
16,

[[Page 7892]]

1997), Substance Abuse and Mental Health Services Administration 
(effective May 16, 1997).

Parent: Department of the Interior

    Components \1\: Bureau of Indian Affairs (effective January 28, 
1992), Bureau of Land Management (effective January 28, 1992), Bureau 
of Reclamation (effective January 28, 1992), Minerals Management 
Service (effective January 28, 1992), National Park Service (effective 
January 28, 1992), Office of Surface Mining Reclamation and Enforcement 
(effective January 28, 1992), U.S. Fish and Wildlife Service (effective 
January 28, 1992), U.S. Geological Survey (effective January 28, 1992).
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    \1\ All designated components under the jurisdiction of a 
particular Assistant Secretary shall be considered a single 
component for purposes of determining the scope of 18 U.S.C. 207(c) 
as applied to senior employees serving on the immediate staff of 
that Assistant Secretary.
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Parent: Department of Justice

    Components: Antitrust Division, Bureau of Prisons (including 
Federal Prison Industries, Inc.), Civil Division, Civil Rights 
Division, Community Relations Service, Criminal Division, Drug 
Enforcement Administration, Environment and Natural Resources Division, 
Executive Office for United States Attorneys \2\ (effective January 28, 
1992), Executive Office for United States Trustees \3\ (effective 
January 28, 1992), Federal Bureau of Investigation, Foreign Claims 
Settlement Commission, Immigration and Naturalization Service, 
Independent Counsel appointed by the Attorney General, Office of 
Justice Programs, Office of the Pardon Attorney (effective January 28, 
1992), Offices of the United States Attorney (each of 94 offices), 
Offices of the United States Trustee (each of 21 offices), Tax 
Division, United States Marshals Service (effective May 16, 1997), 
United States Parole Commission.
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    \2\ The Executive Office for United States Attorneys shall not 
be considered separate from any Office of the United States Attorney 
for a judicial district, but only from other designated components 
of the Department of Justice.
    \3\ The Executive Office for United States Trustees shall not be 
considered separate from any Office of the United States Trustee for 
a region, but only from other designated components of the 
Department of Justice.
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Parent: Department of Labor

    Components: Bureau of Labor Statistics, Employment and Training 
Administration, Employment Standards Administration, Mine Safety and 
Health Administration, Occupational Safety and Health Administration, 
Office of Disability Employment Policy (effective January 30, 2003), 
Pension and Welfare Benefits Administration (effective May 16, 1997).

Parent: Department of State

    Component: Foreign Service Grievance Board.

Parent: Department of Transportation

    Components: Federal Aviation Administration, Federal Highway 
Administration, Federal Motor Carrier Safety Administration (effective 
January 30, 2003), Federal Railroad Administration, Federal Transit 
Administration, Maritime Administration, National Highway Traffic 
Safety Administration, Saint Lawrence Seaway Development Corporation, 
Surface Transportation Board (effective May 16, 1997), Transportation 
Security Administration (effective January 30, 2003), United States 
Coast Guard.

Parent: Department of the Treasury

    Components: Bureau of Alcohol, Tobacco and Firearms, Bureau of 
Engraving and Printing, Bureau of the Mint, Bureau of the Public Debt, 
Comptroller of the Currency, Federal Law Enforcement Training Center, 
Financial Crimes Enforcement Center (FinCEN) (effective January 30, 
2003), Financial Management Service, Internal Revenue Service, Office 
of Thrift Supervision, United States Customs Service, United States 
Secret Service.
[FR Doc. 03-3043 Filed 2-14-03; 8:45 am]
BILLING CODE 6345-02-P