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25 June 2008
[Federal Register: June 25, 2008 (Volume 73, Number 123)]
[Rules and Regulations]
[Page 36167-36210]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25jn08-32]
[[Page 36167]]
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Part II
Office of Government Ethics
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5 CFR Parts 2637 and 2641
Post-Employment Conflict of Interest Restrictions; Final Rule
[[Page 36168]]
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OFFICE OF GOVERNMENT ETHICS
5 CFR Parts 2637 and 2641
RIN 3209-AA14
Post-Employment Conflict of Interest Restrictions
AGENCY: Office of Government Ethics (OGE).
ACTION: Final rule.
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SUMMARY: OGE regulations have provided guidance concerning the post-
employment conflict of interest restrictions of 18 U.S.C. 207 for
Government employees terminating service between July 1, 1979 and
December 31, 1990. As a result of amendments to section 207 that became
effective January 1, 1991, and subsequently, employees terminating
service in the executive branch or in an independent agency (or
terminating service from certain high-level Government positions) since
that date are subject to substantially revised post-employment
restrictions. The purpose of these new regulations is to provide
regulatory guidance explaining the scope and content of the statutory
restrictions as they apply to employees terminating service on or after
January 1, 1991. This final rule would expand the regulatory guidance
OGE has previously published concerning the current version of section
207 and make minor modifications to those earlier rulemakings. It would
also remove the old obsolete regulations from the Code of Federal
Regulations.
DATES: July 25, 2008.
FOR FURTHER INFORMATION CONTACT: Richard M. Thomas, Associate General
Counsel, Office of Government Ethics; Telephone: 202-482-9300: TDD:
202-482-9293; FAX: 202-482-9237.
SUPPLEMENTARY INFORMATION:
I. Rulemaking History
On February 18, 2003, the Office of Government Ethics (OGE)
published for comment a proposed rule that would provide guidance and
certain implementing procedures concerning the post-employment conflict
of interest statute, 18 U.S.C. 207, as applied to former officers and
employees of the executive branch. See 68 FR 7844-7892 (February 18,
2003). The proposed rule was issued pursuant to OGE's authority under
the Ethics in Government Act of 1978, as amended, and Executive Order
12674, as modified by E.O. 12731.
As explained in the preamble, the proposed rule provided for minor
modifications to existing guidance and procedures in part 2641, as well
as substantially expanded guidance to address more comprehensively the
application of section 207.
The proposed rule also provided for the removal of part 2637
(formerly part 737). Part 2637 interpreted and implemented a version of
section 207 that was in effect prior to January 1, 1991, the effective
date of the relevant provisions of the Ethics Reform Act of 1989.
Although part 2637 had provided comprehensive post-employment advice in
the past, numerous statutory changes, beginning with the Ethics Reform
Act of 1989, rendered the content of much of part 2637 inapplicable to
the current statute. For this reason, the current version of part 2637
carries an introductory note emphasizing that the regulation applies to
``individuals terminating Government service prior to January 1,
1991.'' It is OGE's intent that the advice now contained in part 2641,
as amended by the final rule, will provide both comprehensive and
current guidance applicable to employees terminating subsequent to
January 1, 1991. Therefore, part 2637 is being removed in its entirety,
with the proviso that the last published edition of the 5 CFR in which
part 2637 was published (the one revised as of January 1, 2008) will be
retained by OGE, and should be retained by agency ethics officials, to
provide interpretive guidance to employees who terminated service
before January 1, 1991.
The history of parts 2637 and 2641 is discussed in detail in the
preamble to the proposed rule, at 68 FR 7844-7845. In addition, since
the publication of the proposed rule, the appendices to part 2641 have
been amended three times. First, by a final rule issued November 23,
2004, OGE modified the list of separate agency and departmental
component designations in Appendix B, pursuant to 18 U.S.C. 207(h), for
purposes of the one-year cooling-off restriction applicable to former
senior employees of an agency or department, under 18 U.S.C. 207(c).
See 69 FR 68053-68056 (November 23, 2004). Second, by a final rule
issued March 8, 2007, OGE again modified the list of separate agency
and departmental component designations in Appendix B and also modified
the list of waived positions in Appendix A, pursuant to 18 U.S.C.
207(c)(2)(C), for purposes of the one-year restriction applicable to
former senior employees. See 72 FR 10339-10342 (March 8, 2007). Third,
by a final rule issued March 6, 2008, OGE once more modified the list
of separate agency and departmental component designations in Appendix
B. See 73 FR 12007-12009 (March 6, 2008).
Additionally, three amendments to 18 U.S.C. 207 have become
effective since the publication of the proposed rule, and the effect of
these amendments is addressed in the final rule. First, the amendments
enacted by section 209(d) of the E-Government Act of 2002, Public Law
107-347, were noted in the preamble of the proposed rule, but the
amendments did not become effective until nearly two months after the
proposed rule was published. See 68 FR 7844. The proposed rule did not
implement these statutory amendments, but the preamble specifically
invited comments concerning the implementation of the amendments and
noted that the effect of the amendments would be addressed in the final
rule, as appropriate. During the comment period applicable to the
proposed rule, OGE received no recommendations concerning the
implementation of these amendments, which involve the addition of a new
category of senior employee under 18 U.S.C. 207(c)(2)(A)(v) and a new
restriction on contract advice under section 207(l), both applicable
only to former private sector assignees under the Information
Technology Exchange Program. The final rule implements these
amendments, as discussed more fully below, through changes to proposed
sections 2641.104 (definition of senior employee), 2641.301(j) (waiver
of restrictions of 18 U.S.C. 207(c) and (f) for certain positions), and
2641.301(l) (guide to available exceptions and waivers), and the
promulgation of new section 2641.207 (setting out basic outline of new
restriction in 18 U.S.C. 207(l)). Second, one category of senior
employees covered by 18 U.S.C. 207(c) was amended by section 1125(b)(1)
of the National Defense Authorization Act for Fiscal Year 2004, Public
Law 108-136, November 24, 2003. Therefore, as discussed more fully
below, the definition of senior employee in proposed section 2641.104
has been revised to conform to the current version of 18 U.S.C.
207(c)(2)(A)(ii). Third, the Honest Leadership and Open Government Act
of 2007 amended 18 U.S.C. 207(d) by extending the cooling-off period
for very senior employees to two years, which is addressed in revised
section 2641.205. See Public Law 110-81, sec. 101(a), September 14,
2007. Section 104 of the same Act also added a cross-reference, in 18
U.S.C. 207(j)(1)(B), to a revised exception in the Indian Self-
Determination and Education Assistance Act; proposed section
2641.301(k)(4) has been revised accordingly.
[[Page 36169]]
The proposed rule provided a 90-day comment period. Timely comments
were received from 17 sources. After carefully considering all comments
and making appropriate modifications, the Office of Government Ethics
is publishing this final rule after consulting with the Office of
Personnel Management and the Department of Justice in accordance with
section 402(b) of the Ethics in Government Act, and further, pursuant
to section 201(c) of Executive Order 12674, as modified by E.O. 12731,
after obtaining the concurrence of the Department of Justice.
II. Summary of Comments and Changes to Proposed Rule
OGE received comments from 17 entities, all Federal executive
branch offices. Most of these comments were from agency ethics offices.
Two agency inspector general offices commented, as did the Office of
the Vice President. Five different Department of Defense components
commented, although these comments were substantially similar or
identical in many respects.
General Comments
A number of commenters stated that the proposed rule generally was
helpful, thorough and well-organized. Many of these commenters remarked
that the examples included in the proposed rule were particularly
useful.
The Use of Examples
With respect to the subject of examples, one agency thought that
OGE generally needed to include more explanatory information in its
examples. The same agency also recommended that OGE address, either in
the preamble or the text of the rule, ``the way in which examples are
to be used as illustrative guidance.'' Given the limits of the
regulatory format, OGE has attempted to provide examples that contain
sufficient explanatory information to illustrate the particular
provision of the rule that is at issue. OGE's practice has been to
include examples in most of its rules, e.g., 5 CFR parts 2634, 2635,
2637, and 2640, for the purpose of providing factual scenarios that
demonstrate the operation of the substantive provisions articulated in
the rules. These examples illustrate how OGE would apply the rule in
certain contexts.
Three agencies raised related questions about why various examples
in the proposed regulation do not contain facts satisfying each element
of the relevant statutory prohibition. OGE has organized its treatment
of each of the prohibitions in section 207 by treating each element
separately and then providing examples to illustrate that particular
element. OGE believes that it would be unnecessarily discursive to
reiterate each statutory element in each example and that the lack of
focus would render the examples less convenient for readers to use in
analyzing the particular element in the accompanying regulatory text.
In a similar vein, one agency also commented on the absence of facts in
one particular example to illustrate a knowledge element in the
statute. See proposed Sec. 2641.201(f) (example 3). The example to
which this commenter referred is intended to illustrate the element
that the post-employment contact must be ``to or before'' a Federal
employee, not the scope of the statutory term ``knowingly.''
Additionally, it is important to note that OGE has not attempted to
provide comprehensive guidance as to the scope of the knowledge
requirement in the various prohibitions in section 207. In OGE's
experience, knowledge questions more typically arise after the post-
employment conduct has already occurred, and legal analysis of such
issues is not always well-suited to a regulation that provides general,
prospective guidance.
Coordination With the Department of Justice
One commenter recommended that part 2641 be issued ``jointly'' by
the Director of OGE and the Attorney General. The commenter stated
that, because ``the Attorney General is the officer charged by law to
enforce the criminal statutes, including section 207, the Attorney
General's issuance of part 2641 along with the Director of OGE
increases the likelihood that the Federal Courts, in construing section
207, will give the interpretive guidance in part 2641 judicial
deference.''
OGE has not followed this recommendation. Section 201(c) of
Executive Order 12731 states that is the responsibility of OGE to
promulgate regulations interpreting sections 207, 208, and 209 of title
18, United States Code. The Executive Order provides that OGE obtain
the concurrence of the Attorney General, which OGE has done (and also
did with the prior post-employment regulations, see 5 CFR 2637.101(b)).
Compare E.O. 12731, section 201(c) (concurrence); with id., section
301(a) (joint promulgation). OGE also has its own statutory rulemaking
authority with respect to conflicts of interest in the executive
branch, which is exercised in consultation with the Attorney General.
See 5 U.S.C. app. section 402. Furthermore, it may be debatable whether
joint promulgation of part 2641 with the Attorney General would
necessarily entail judicial deference. See Crandon v. United States,
494 U.S. 152, 177 (1990) (Scalia, J., concurring). In any event, there
is already a history of judicial recognition and reliance on OGE's
section 207 regulations. E.g., EEOC v. Exxon Corp., 202 F.3d 755 (5th
Cir. 2000); United States v. Nofziger, 878 F.2d 442 (D.C. Cir. 1989);
U.S. v. Clark, 333 F.Supp.2d 789 (E.D. Wisc. 2004); U.S. v. Martin, 39
F.Supp.2d 1333 (D. Utah 1999); Conrad v. United Instruments, Inc., 988
F. Supp. 1223 (W.D. Wisc. 1997); Robert E. Derecktor of R. I., Inc. v.
U.S., 762 F. Supp. 1019 (D.R.I. 1991); U.S. v. Dorfman, 542 F.Supp. 402
(N.D. Ill. 1982).
Legislative Recommendations
Several agencies did not confine their comments to the proposed
rule, but asked OGE to consider proposing legislative changes to the
post-employment statute. Subsequently, OGE completed a review of the
criminal conflict of interest statutes, pursuant to section 8403(d) of
the Intelligence Reform and Terrorism Prevention Act of 2004, Public
Law 108-458. See OGE, Report to the President and to Congressional
Committees on the Conflict of Interest Laws Relating to Executive
Branch Employment (January 2006), at http://www.usoge.gov/pages/forms_
pubs_otherdocs/fpo_files/reports_plans/rpt_title18.pdf. In
connection with this review, OGE solicited the views of the public with
respect to possible changes to the criminal conflict of interest
statutes, including 18 U.S.C. 207. See 70 FR 22661 (May 2, 2005); 67
Federal Register 43321 (June 27, 2002). OGE's evaluation of the need
for legislation must be viewed as a separate undertaking from the
present rulemaking, which is limited by the text of section 207 as it
is currently written.
OMB Circular A-76
Seven agencies, including four DOD components, submitted comments
about the application of 18 U.S.C. 207 in the context of public-private
competitions under Office of Management and Budget Circular A-76. See
OMB Circular A-76, May 29, 2003, available at http://
www.whitehouse.gov/omb/circulars/a076/a76_rev2003.pdf. In A-76
proceedings, an agency determines whether to contract out certain
``commercial'' (i.e., not inherently governmental) functions, after a
competition between private bids and an agency tender offer based on
the agency's cost estimate for performing
[[Page 36170]]
the same function internally. The commenting agencies focused on a
number of different elements of section 207(a) as they apply to A-76
proceedings: particular matter involving specific parties, see Sec.
2641.201(h); same particular matter involving specific parties, see
Sec. 2641.201(h)(5); personal and substantial participation, see Sec.
2641.201(i); and intent to influence, see Sec. 2641.201(e).
The central thrust of the arguments advanced by most of these
agencies is that OGE should propound a ``workable'' interpretation of
section 207 that does not interfere with the operation of the A-76
process. In particular, most of the commenting agencies were especially
concerned that the interpretation of section 207 not unduly restrict
affected employees, whose Government jobs may be contracted out, from
going to work for a winning private bidder after those employees
participated in some part of the A-76 process. Many affected employees
are provided a ``right of first refusal'' to perform their privatized
functions for the winning private bidder, see OMB Circular A-76,
Attachment B, Sec. D.3.a(2), and these agencies fear that this right
may be eroded if significant numbers of affected employees are
disqualified from performing private jobs involving communications or
appearances that are deemed to be prohibited representational contacts
under section 207. A related concern expressed by some of the
commenters is that directly affected employees may be reluctant to
participate in the A-76 process--whether by serving on the Most
Efficient Organization or Performance Work Statement teams or simply by
providing relevant job-related information to those teams--for fear of
jeopardizing their ability to work for the winning bidder in the event
that their Federal positions are eliminated.
The final rule does not address issues pertaining to A-76
proceedings. For one thing, OGE did not raise this subject in the
proposed rule. Moreover, the subjects are sufficiently complex and
novel that OGE finds it prudent to defer any treatment, for example, to
a later rulemaking or other guidance.
Subpart A--General Provisions
Section 2641.101--Purpose
One agency commented on the note following proposed section
2641.101, now designated as paragraph (b) of the section in this final
rule, which indicates that part 2641 is not intended to address post-
employment restrictions in statutes or authorities other than 18 U.S.C.
207. This agency asked that OGE maintain a list of post-employment
restrictions, other than section 207, somewhere in part 2641. OGE
expressly declined to propose such a list, as explained more fully in
the preamble to the proposed rule. 68 Federal Register 7845. The
commenter has not persuaded OGE that the reasons for so declining are
no longer valid. OGE foresees a burden in maintaining such a list in
the regulation and ensuring that it is accurate and up-to-date, which
burden is not outweighed by the potential value. The commenter's
suggestion that OGE could include a disclaimer in the regulation
indicating that the list is not intended to be exhaustive simply
underscores the risks and limitations inherent in promulgating such a
list in the Code of Federal Regulations, especially in view of OGE's
experience that post-employment restrictions are a relatively frequent
subject of legislative action. However, OGE will consider compiling
such a list and making it available to agencies and the public through
the DAEOgram process.
On a related topic, another agency recommended that OGE include, in
example 1 following proposed Sec. 2641.204(d), a cross-reference to
the restrictions on the representational activities of current
employees, under 18 U.S.C. 203 and 205. OGE has not followed this
recommendation. The purpose of part 2641, and OGE's responsibility
under section 201(c) of Executive Order 12731, is to provide guidance
with respect to 18 U.S.C. 207, not guidance with respect to 18 U.S.C.
203 and 205. The rule cannot reasonably identify every restriction,
other than section 207, that might apply to a hypothetical set of
circumstances. Moreover, OGE believes that agency ethics officials may
be relied upon to provide comprehensive training and counseling with
respect to the entire range of ethical restrictions that may be
applicable in a given situation.
Section 2641.104--Definitions
Employee
OGE has made one change to the definition of ``employee'' as
proposed in section 2641.104. In order to clarify that employees
serving without compensation from the Government are subject to the
post-employment law, OGE has added the phrase ``employees serving
without compensation'' to the final sentence (before the parenthetical)
in the definition.
Former Employee
Three agencies commented on the definition of ``former employee''
in proposed section 2641.104. OGE also received one comment concerning
the treatment of the Vice President under this definition, which is
discussed separately below, under ``Applicability of Certain Provisions
to the Vice President.''
One of the agencies recommended that OGE amend example 4, in order
to clarify when a special Government employee (SGE) serving on an
advisory committee becomes a former employee. Consistent with this
comment, OGE is revising the example to make clear that the SGE in that
example becomes a former employee when his appointment terminates,
provided that there is no reappointment without a break in service.
However, OGE is not adopting the commenter's suggestion that the SGE
necessarily becomes a former employee immediately upon the expiration
of the term of the advisory committee. Personnel appointments for SGEs
could outlast the term of the committee on which they serve, and
agencies sometimes may use SGEs for other expert or consultant services
beyond the work of a particular advisory committee.
Another agency recommended that OGE add a new example to illustrate
the post-employment implications of what the agency stated was a common
practice of appointing retired Foreign Service officers in civil
service positions without any break in service. We have adopted this
recommendation and have added a new example 6 to the definition of
former employee. Additionally, we have amended the definition of
``Government service'' to emphasize that a period of Government service
is not completed, and the individual does not therefore become a former
employee, unless there is a break in service.
A third agency recommended that examples 3 and 4 be amended to
indicate that current Federal employees remain subject to the
representational restrictions of 18 U.S.C. 203 and 205 even though they
may not be former employees subject to the restrictions of 18 U.S.C.
207. We have not adopted this recommendation. Presumably, agencies
already advise current employees, as appropriate, concerning their
restrictions under sections 203 and 205, as well as any other
applicable conflict of interest statutes or rules, and it is not the
purpose of this post-employment rule to explain those requirements.
Person
One agency recommended that the definition of ``person'' be amended
specifically to include Indian tribal governments. We have not made the
recommended change. The definition of
[[Page 36171]]
person in section 2641.104 emphasizes that it is ``all-inclusive,'' and
it includes, among other things, ``any other organization.'' We believe
that this definition is sufficiently broad to include tribal
governments. Moreover, we note that similar definitions of person in
other OGE regulations do not expressly address tribal governments, and
we are not aware that this has created any particular difficulties. See
5 CFR 2635.102(k); 2638.104; 2640.102(o).
Senior Employee
OGE received two substantive comments concerning the definition of
``senior employee,'' which governs the application of the one-year
cooling-off restriction of 18 U.S.C. 207(c) (described in Sec.
2641.204). One comment was from an agency Inspector General office,
which requested that OGE provide a new example addressing the effect of
``Law Enforcement Availability Pay'' (LEAP) on the rate of basic pay of
certain criminal investigators, for purposes of determining whether
such investigators would be senior employees under 18 U.S.C.
207(c)(2)(A)(ii) and paragraph (2) of the definition of senior employee
in Sec. 2641.104 as proposed. The commenter stated that ``LEAP is not
meant to `elevate' a GS-14 or GS-15 supervisor into the `senior
employee' category'' and urged OGE to determine that LEAP is not to be
considered part of basic pay. We agree with the commenter that LEAP
should not be viewed as part of basic pay for purposes of section
207(c)(2)(A)(ii). The statutory and regulatory provisions governing
LEAP make clear that it is to be treated as part of basic pay only for
certain specified purposes, which do not include the post-employment
restrictions. See 5 U.S.C. 554a(h)(2); 5 CFR 550.186(b). We have
confirmed this conclusion with the Office of Personnel Management. In
view of the number of Federal investigators who may receive LEAP, we
are adding a new example 3 following the definition of senior employee
to provide guidance on this subject.
A second agency commented that example 2 following the definition
of senior employee does not adequately illustrate the fact that step
increases, or their equivalent, must be considered in determining
whether an employee's basic rate of pay equals or exceeds the threshold
rate of basic pay for senior employee status. See 68 FR 7848. OGE has
made no change to the rule as proposed in adopting it as final. Example
2 illustrates the point that basic pay, for pay systems employing pay
bands, is the actual pay of the employee, including any periodic
adjustments, not the minimum possible pay that employees in the system
might receive. See OGE Informal Advisory Letters 98 x 2; 92 x 20.
Finally, OGE has made two conforming amendments to the definition
of senior employee to reflect statutory amendments to 18 U.S.C. 207(c)
since the proposed rule was developed. First, a new paragraph (6) has
been added, to reflect section 209(d)(1) of the E-Government Act,
Public Law 107-347, December 17, 2002, which became effective 120 days
after enactment. This law amended 18 U.S.C. 207(c)(2)(A) by adding a
new category of senior employee: Assignees from private sector
organizations under the new Information Technology Exchange Program
created by the Act. See 18 U.S.C. 207(c)(2)(a)(v). Second, paragraph
(2) of the proposed definition has been changed to reflect section
1125(b)(1) of the National Defense Authorization Act for Fiscal Year
2004, Public Law 108-136, November 24, 2003, which became effective on
the first day of the first pay period on or after January 1, 2004. This
law amended 18 U.S.C. 207(c)(2)(A)(ii) by replacing the former
standard--a rate of basic pay equivalent to the former level 5 of the
Senior Executive Service--with a standard based on 86.5 percent of
level II of the Executive Schedule. As reflected in paragraph (2) of
the revised definition of senior employee in the final rule, the
statutory amendment also provided that employees who had a rate of
basic pay equivalent to level 5 of the SES on the day prior to
enactment of the new law would be deemed senior employees for two years
following the date of enactment. OGE also has made conforming changes
to other parts of the rule that refer to the statutory pay threshold
for senior employee status, including the provisions in Sec.
2641.204(c) concerning the application of 18 U.S.C. 207(c) to special
Government employees and Intergovernmental Personnel Act appointees or
detailees.
Section 2641.105--Advice
Two commenters recommended that OGE amend proposed section
2641.105(e), concerning attorney-client privilege. They requested OGE
to clarify that the Government itself still may be able to claim
certain privileges, even though employees and former employees
personally may not enjoy any personal attorney-client privilege with
respect to information conveyed to ethics officials. OGE agrees that,
although employees and former employees may not enjoy any personal
attorney-client privilege with respect to their communications with
ethics officials, this does not mean that the Government itself may not
be able to claim its own privileges with respect to such
communications. At the same time, however, OGE is concerned that
nothing in the regulation should suggest that agencies may invoke
attorney-client privilege in connection with an information request
made by OGE. Therefore, we are modifying Sec. 2641.105(e) in this
final rule only so far as to emphasize that employees do not personally
benefit from an attorney-client privilege: ``A current or former
employee who discloses information to an agency ethics official, to a
Government attorney, or to an employee of the Office of Government
Ethics does not personally enjoy an attorney-client privilege with
respect to such communications.''
One of the commenters also recommended that we revise proposed
Sec. 2641.105(b), concerning advice by OGE, to specify how conflicts
of opinion between OGE and agency ethics officials will be resolved. We
do not believe this subject is amenable to any general rule and
therefore have not modified this section in the final rule. On the one
hand, OGE recognizes and respects the opinions of agency ethics
officials, and we start from the premise that those officials often are
in a better position to obtain and understand the facts pertinent to
post-employment questions involving their agencies. On the other hand,
OGE cannot ignore its oversight responsibilities under title IV of the
Ethics in Government Act. When differences of opinion arise, OGE must
handle each case as the demands of the situation require.
Section 2641.106--Applicability of Certain Provisions to the Vice
President
OGE received a set of comments from one commenter raising issues
pertaining to the treatment of the Vice President under section 207 and
the proposed rule. The commenter recommended an organizational change,
which OGE has made in the final rule. This commenter recommended that
OGE place all references to the application of section 207 to the Vice
President in one stand-alone section in the rule. The commenter noted
that the Vice President is subject only to section 207(d) and section
207(f) and recommended that a single provision governing the Vice
President state this fact, without the need for any further references
to the Vice President in the definitions of ``employee,'' ``former
employee,'' or ``very senior employee'' in Sec. 2641.104. Among other
reasons, the commenter requested this change in
[[Page 36172]]
order to avoid ``the confusion that may result from straining the
normal meaning of the words `employee' and `former employee' to reach
(for one narrow purpose) a constitutional officer.''
OGE agrees that this recommendation would add clarity.
Consequently, this final rule removes the references to the Vice
President in the various definitions from Sec. 2641.104 as proposed,
and adds a new Sec. 2641.106 to the general provisions in subpart A of
part 2641. Following the language proposed by the commenter, OGE has
added the new Sec. 2641.106, titled ``Applicability of certain
provisions to Vice President,'' which reads: ``Subsections 207(d)
(relating to restrictions on very senior personnel) and 207(f)
(restrictions with regard to foreign entities) of title 18, United
States Code, apply to a Vice President, to the same extent as they
apply to employees and former employees covered by those provisions.
See Sec. Sec. 2641.205 and 2641.206. There are no other restrictions
in 18 U.S.C. 207 applicable to a Vice President.'' Nevertheless, OGE
has omitted one recommended phrase, which would have indicated that the
Vice President is not subject to any other restriction in part 2641:
For one thing, part 2641 itself does not impose any criminal
restrictions, and, furthermore, there are other provisions in part
2641, for example, the sections dealing with certain exemptions or
exceptions, that may be applicable to the Vice President.
The same commenter also recommended a new section governing certain
communications made by former employees at the request of the President
or the Vice President. The recommended new section would state that
whenever the President, in the performance of constitutional, statutory
or ceremonial duties, requests information or advice from a former
employee, the provision of such information or advice is made on behalf
of the United States or on behalf of the former employee himself or
herself and therefore is not prohibited by section 207. The recommended
provision would apply this same standard to requests from the Vice
President for information or advice, in aid of the President's
functions. In support of this proposal, the commenter cited the
President's ``constitutionally-based right to gather information to aid
the President in the performance of Presidential functions,'' including
the gathering of such information ``through the Vice President.''
OGE does not dispute the importance of the authority of the
President and the Vice President to gather information in the
performance of their constitutional duties. OGE also recognizes that
constitutional considerations may have a bearing on post-employment
issues in certain circumstances, including circumstances beyond those
described by the commenter. See, e.g., Conrad v. United Instruments,
988 F. Supp. 1223, 1226 (W.D. Wisc. 1997) (first amendment); U.S. v.
Martin, 39 F.Supp. 2d 1333 (D. Utah 1999) (sixth amendment). However,
OGE does not believe that anything in the post-employment regulations
should be viewed as determining, limiting, or otherwise addressing the
scope of the constitutional authority of the President or Vice
President. Such questions are beyond OGE's jurisdiction and the scope
of this rule, and OGE would have to leave such questions to the
guidance of the Department of Justice.
Subpart B--Prohibitions
Section 2641.201--Permanent Restriction
Section 2641.201(d)--Communication or Appearance
Five agencies raised concerns about the guidance in proposed Sec.
2641.201(d) concerning the meaning of the statutory term
``communication.'' Specifically, these agencies raised questions about
the concept, illustrated in example 5 to Sec. 2641.201(d) as proposed,
that a former employee can make a prohibited communication to the
Government through a third party intermediary, provided that the former
employee intends that the information be attributed to himself or
herself. Several of these agencies also raised similar concerns about
example 7 to proposed Sec. 2641.201(f), as well as the note following
proposed Sec. 2641.205(g) and the related example 5 to proposed Sec.
2641.205. Most of the commenters objected on the ground that these
proposed provisions blurred the distinction between permissible behind-
the-scenes assistance and prohibited contact with Government officials.
Some also objected on the ground that the analysis, particularly in
example 5 to proposed Sec. 2641.201(d), depended too much on
circumstantial evidence of the intent of the former employee that the
information be attributed to himself or herself. Two agencies
recommended that, if OGE were to retain any version of this third party
intermediary concept, it should at least adopt a simpler standard, such
as actual attribution by the third party (e.g., ``Mr. A told me to tell
you this''). Two other agencies also commented that the facts set out
in example 4 to Sec. 2641.201(d) as proposed--which deals with
circumstances in which a former employee prepares a grant application
and is listed as principal investigator--is difficult to reconcile with
the result in example 5.
As OGE pointed out in the preamble to the proposed rule, 68 FR
7850, 7852, 7860, the provisions cited above are based on an opinion
issued by the Office of Legal Counsel, Department of Justice,
Memorandum for Amy L. Comstock, Director, OGE, from Joseph R. Guerra,
Deputy Assistant Attorney General, OLC, January 19, 2001 (OLC Opinion),
available under ``Other Ethics Guidance, Conflict of Interest
Prosecution Surveys and OLC Opinions'' on OGE's Web site, http://
www.usoge.gov. Indeed, the facts of example 5 to proposed section
2641.201(d) are taken directly from the OLC Opinion, which several of
the commenters acknowledged. Although we do not doubt that the OLC
Opinion may make it somewhat more difficult to distinguish between
permissible behind-the-scenes assistance and prohibited communications,
we also think that it is more consistent with the purposes of section
207 to prohibit former employees from using third party intermediaries
to make their contacts for them under circumstances in which the former
employees intend to be recognized as the source of the information
conveyed. See OLC Opinion at 5 (``any attempt to draw bright line rules
would inevitably create artificial distinctions between equally
pernicious types of conduct''). With respect to the concern that the
circumstances in example 5 cannot sufficiently be distinguished from
example 4 or other common situations in which we have said that former
employees may engage in behind-the-scene activities, we believe that
example 5 to section 2641.201(d) contains enough significant facts to
make it clear that the former employee in that scenario does not intend
to limit herself to behind-the-scenes assistance but rather intends to
be identified as the real source of the communication. Accordingly, OGE
has not revised the cited examples in this final rule.
Finally, one agency proposed that the basic definition of
``communication'' in proposed Sec. 2641.201(d)(1) should not itself
contain any references to the former employee's intent that the
information be attributed to himself or herself, but that additional
numbered paragraphs be added to explain in more detail the relevance of
attribution under different circumstances. This agency was concerned
that the significance of the attribution principle might be lost
[[Page 36173]]
on readers if it were simply folded into the basic definition of
communication.
OGE has not changed the definition in the final rule. For one
thing, attribution is clearly part of the basic definition of
communication found in the OLC Opinion. See OLC Opinion at 4 (``we
conclude that a `communication' is the act of imparting or transmitting
information with the intent that the information be attributed to the
former official''). Moreover, we believe that proposed example 5
adequately illustrates the concept of attribution without further
complicating the basic definition in Sec. 2641.201(d)(1).
Section 2641.201(e)--Intent To Influence
OGE received nine substantive comments on the proposed treatment of
the statutory element of intent to influence, including five comments
from components of the Department of Defense that made similar or
identical recommendations.
Two agencies recommended that OGE use the word ``appreciable'' in
various places in proposed Sec. 2641.201(e)(2) and the accompanying
examples--which illustrate situations in which intent to influence is
not present--in order to emphasize, as proposed Sec.
2641.201(e)(1)(ii) already does, that the representational activity
must not merely present the ``potential'' for dispute but that such
potential must be appreciable. Along similar lines, another agency
recommended that OGE add the word ``reasonably'' before the proposed
phrase ``involves an appreciable element of actual or potential dispute
or controversy'' in Sec. 2641.201(e)(1)(ii), which describes the basic
concept of intent to influence. OGE has not adopted either
recommendation in this final rule. The word ``appreciable'' already
appears in the provision that defines the basic concept of intent to
influence, Sec. 2641.201(e)(1)(ii), and we think it is unnecessary to
repeat the entire definition of intent to influence in every subsequent
discussion. Furthermore, we think that insertion of the word
``reasonably'' would add little to the concept of ``appreciable element
of actual or potential dispute or controversy,'' because the ordinary
meaning of ``appreciable'' sufficiently limits the intended scope of
the phrase. See Webster's Third New International Dictionary 105 (1986)
(appreciable means ``capable of being perceived and recognized'').
Two agencies commented on proposed Sec. 2641.201(e)(2)(vi), which
recognizes certain circumstances in which there is no intent to
influence during the course of a routine Government site visit to non-
Federal premises used by actual or prospective contractors or grantees.
Both agencies recommended that the provision not be limited to non-
Federal premises, in recognition of the fact that many Government
contracts are performed in Government space. OGE has not adopted this
recommendation either. Section 2641.201(e)(2)(vi), both as proposed and
in this final rule, restates a provision that has been in the prior
section 207 regulations, in virtually the same form, for over two
decades. See 5 CFR 2637.201(b)(4). This provision was intended to cover
communications ``strictly for the Government's convenience'' given the
practical realities of site visits. OGE Informal Advisory Letter 81 x
35. Government officials who have gone to the effort to conduct a
routine site visit should not have to worry about cutting short their
trip or curtailing their activities simply because they happen to
encounter a former employee at the site. Where performance of the
contract is to occur on Government premises, however, the Government's
practical interests in scheduling site visits are not implicated.
Moreover, where the former employee is present on Government premises
on an ongoing basis to perform the contract, one can envision more
potential for a wider range of communications than would be the case in
an occasional site visit. Of course, the fact that a particular set of
circumstances may not fall directly within one of the specific types of
situations identified in the regulations as involving no intent to
influence does not mean that the element of intent to influence is
necessarily present. The situations addressed in Sec. 2641.201(e)(2)
are not intended to be exclusive, and other situations must be
addressed in light of all the relevant facts.
Another agency commented on Sec. 2641.201(e)(4) of the proposed
rule, which provides guidance on when an employee's mere
``appearance,'' even in the absence of a substantive ``communication,''
can be viewed as involving an intent to influence the Government. This
commenter objected that the rule was too vague because it simply lists
a set of factors that may be considered on a case-by-case basis, rather
than a definitive set of circumstances that must be present for the
statute to be implicated. OGE does not agree that interpretive guidance
is fatally vague just because it provides factors to be considered in
light of the totality of the circumstances. With a statutory concept
such as intent to influence, any analysis unavoidably must involve the
particularized consideration of all the relevant facts. See, e.g.,
United States v. Schaltenbrand, 930 F.2d 1554, 1560-61 (11th Cir. 1991)
(reviewing entire record to determine whether former employee could be
said to have acted as agent of contractor in meeting with Government).
Therefore, this section has not been modified in the final rule OGE is
now promulgating.
Finally, six commenters, including five DOD components, commented
on the application of proposed section 2641.201(e) to communications
made by former employees during the course of performing a Government
contract. The five DOD components made substantially similar proposals
to exclude from the concept of intent to influence all communications
required in order to perform a Government contract. All of the
commenters on this subject indicated that the Government sometimes
needs to hear the expert advice of former employees with respect to
contracts in which they participated as a Government employee, even
though the former employees may have gone to work for contractors on
the same contract in which they participated personally and
substantially for the Government. (Apart from issues under the intent
to influence element, the subject of contacts made during the
performance of contracts also raises issues under the ``on behalf of
another person'' element, see Sec. 2641.201(g), and the exception for
communications on behalf of the United States, see Sec. 2641.301(a),
both of which are discussed below.) Some of the commenters specifically
mentioned the prospect of increasing privatization of Government
functions, for example, through public-private competitions under OMB
Circular A-76, which may result in increasing numbers of former
Government employees working for Government contractors on projects in
which the former employees had prior Government involvement.
OGE has dealt with similar questions many times over the years in
published letters and other informal advice. For example, in OGE
Informal Advisory Letter 99 x 19, we concluded that, although certain
routine or ministerial communications made during contract performance
may lack the requisite intent to influence, many contract performance
communications may involve the potential for improper influence because
the contractor and the Government have potentially differing views or
interests with respect to the matter being discussed. See also OGE
Informal Advisory Letter 03 x 6. The
[[Page 36174]]
fact that a particular Government contract may require certain
communications between the Government and the contractor does not
eliminate this problem, as we noted in an early OGE advisory letter:
``The very terms of the contract between [the Department] and [the
Corporation] require communications between the two entities. Their
personnel must confer on the terms of subcontracts which [the
Corporation] has authority to recommend or award depending on the size
of the subcontract. These communications, contractually appropriate,
would become legally prohibited in most instances * * * if [the former
employee] should perform these services for [the Corporation]. The
purpose of the post-employment provisions is to avoid the `revolving
door' syndrome inherent in which are the potentialities for the use of
inside information and for continuing personal influence.'' OGE
Informal Advisory Letter 81 x 35; see also OGE Informal Advisory
Article 95 x 10; 2 Op. O.L.C. 313 (1978).
We also think it is significant that two related statutes, unlike
section 207, contain express exceptions for certain representational
activity during the performance of Government contracts. Sections 203
and 205 of title 18, which were enacted originally as part of the same
legislation as section 207, expressly exempt certain representational
activity ``in the performance of work under a grant by, or a contract
with or for the benefit of, the United States.'' 18 U.S.C. 203(e),
205(f). These provisions indicate that Congress knew how to exempt,
explicitly, representational activity in the performance of contracts.
Perhaps more telling, these provisions also indicate that Congress
carefully imposed very significant limitations and safeguards when it
did choose to exempt such activity. See section 203(e) (applicable only
to special Government employees; requires certification from agency
head that activity is in national interest; requires publication of
certification in Federal Register); section 205(f) (same). It is
difficult to believe that Congress would have intended a broad
exclusion in section 207 without even mentioning the subject, let alone
without imposing any limits on the circumstances under which such
activity would be permitted.
The proposition that Government contractors may have their own
interests in recommending certain courses of action as opposed to
others should not be surprising. This concern is even illustrated by
newspaper headlines. See Ariana Eunjung Cha, Shuttle Safety vs. Profit:
Contractors Had `Potential' Conflict, Washington Post, August 27, 2003,
at A13. In some cases, for example, it may be more efficient or
economical for a contractor to develop and communicate one option for
the Government, even though the Government's interests might best be
served by a fuller development of a range of alternatives, as discussed
in example 5 following Sec. 2641.201(e)(2). In any event, as we
indicated in advisory opinion 99 x 19, this is not a subject with
respect to which OGE can or should make broad pronouncements of safe
harbor in the abstract. Therefore, we decline to include a broad
exception for all communications required in the course of performing
Government contracts and are not modifying this section in the final
rule. We note, as we did in the preamble to the proposed rule, that
some contract performance communications may well fall within other
categories described in Sec. 2641.201(e)(2), as illustrated by
examples 3 and 7. See 68 Federal Register at 7850.
Several commenters, recognizing that OGE might not be in a position
to read a broad exclusion for contract performance communications into
the statute, asked that OGE at least consider seeking legislation that
would create an exception. OGE appreciates these comments and in fact
has considered the merits of similar proposals in the context of the
agency's review of the effectiveness of the conflict of interest
statutes, which is discussed above under ``Legislative
Recommendations.''
Finally, in this final rulemaking OGE has made minor changes to
example 1 following section 2641.201(e)(3), in order to better
illustrate the concept that changes in circumstances during the course
of an originally permissible communication or appearance may render
further contact impermissible.
Section 2641.201(f)--To or Before an Employee of the United States
One agency objected to the conclusion, in example 7 following
proposed Sec. 2641.201(f), that a communication conveyed to a Federal
employee through an intermediary who is not a Federal employee would be
covered by 18 U.S.C. 207. This issue is addressed above, under
``Section 2641.201(d)--Communication or Appearance,'' in the discussion
of communications through a ``third party intermediary.'' OGE would add
only that the idea of communications conveyed by means of another
person is quite commonplace, as people routinely convey instructions or
requests through a messenger of one kind or another. Therefore, OGE has
not followed this agency's recommendation to revise example 7 in the
final rule. For similar reasons, OGE does not believe it is necessary,
as suggested by this agency and another commenter, to add a reference
to third parties in the text of Sec. 2641.201(f)(2), especially as
example 7 amply illustrates the concept. It should be remembered also
that the definition of ``communication,'' in Sec. 2641.201(d)(1),
expressly requires an intent on the part of the former employee that
the message be attributed to himself or herself, and example 5
following that provision illustrates this attribution principle in the
context of a communication through a third party.
One agency also recommended that example 7 be revised to emphasize
that the communication must not only be directed to, but also received
by, an agency employee. OGE does not believe this change is necessary
either. The basic description of the statutory element, in Sec.
2641.201(f)(2), both as proposed and now final, already uses the
language ``[d]irected to and received by,'' and the facts recited in
example 7 make clear that the information was conveyed to ``the project
supervisor, who is an agency employee.''
The same agency thought that proposed Sec. 2641.201(f), which
includes contacts with independent agencies in the legislative and
judicial branches, was inconsistent with the definition of ``agency''
in Sec. 2641.104, which does not include such legislative and judicial
agencies. OGE does not believe that the provisions are inconsistent or
should be revised. Although the definition of ``agency'' in proposed
and now final Sec. 2641.104 excludes agencies in the legislative and
judicial branches, the relevant provision in Sec. 2641.201(f)(1)
expressly covers more than an agency as defined in Sec. 2641.104: In
subparagraph (i), it includes any ``Agency,'' but in subparagraph (ii)
it also includes any ``Independent agency in the * * * legislative, or
judicial branch.'' This is necessary in order to emphasize that
representational contacts with independent agencies of the legislative
or judicial branches are covered by section 207, which is the point of
subparagraph (ii). See 5 Op. O.L.C. 194 (1981) (related statute, 18
U.S.C. 205, covers representational contact with agencies of
legislative branch).
Another agency commented that example 3 following Sec. 2641.201(f)
as proposed should state that the former employee in that scenario
knows that one of the persons to which she is directing her
communications is a Government employee. The agency stated that the
example as written does
[[Page 36175]]
not account for the knowledge element in section 207(a). OGE has not
followed this recommendation. As discussed elsewhere, it is not OGE's
intent to illustrate every element of the statute in each example in
the rule, as this would be impractical and would detract from the focus
of the examples on individual elements. Moreover, OGE has not attempted
to define the general scienter element in any of the prohibitions in
section 207. Questions about whether a particular representational
activity involves the requisite degree of scienter to warrant
prosecution are usually addressed to the Department of Justice.
Finally, in this final rule OGE has made minor modifications to two
examples following Sec. 2641.201(f) as proposed. OGE has modified
example 5 for reasons discussed below under ``Treaties and Trade
Agreements.'' OGE also has modified example 6 by coordinating it with
the facts of the previous example, which not only illustrates the
relationship among subparagraphs (i), (ii), and (iii) of Sec.
2641.201(f)(3), but also avoids extraneous issues pertaining to base
closure decisions.
Section 2641.201(g)--On Behalf of Any Other Person
One agency recommended that OGE create an ``exception'' in proposed
Sec. 2641.201(g) to permit former employees to make certain contacts
during the performance of a Government contract. According to this
agency, a former employee who is now employed by a Government
contractor should be permitted to make communications and appearances
before the Government during the performance of the contract, provided
that the contractor exerts no control over the former employee in the
making of the communication or appearance. Under such circumstances,
the commenter thought ``it is at least arguable that the communication
is not made on behalf of'' the contractor.
OGE has not followed this recommendation in the final rule. A
contractor's employee is fulfilling his or her duties as an employee
when performing the work of the contractor. Under such circumstances,
OGE cannot avoid the conclusion that the contractor's employee is
acting on behalf of his or her employer. See, e.g., Restatement of the
Law (Second) Agency section 2(2) (1958) (servant is agent employed by
master to perform service in his affairs whose physical conduct in
performance of service is controlled or is subject to right to control
by master); id., comment a (servant is species of agent).
Another agency recommended that OGE revise example 3 following
proposed section 2641.201(g) in order to emphasize that it is primarily
the element of ``control'' by another that is lacking. OGE agrees and
has amended the final sentence in the example in the final rule
accordingly.
Section 2641.201(h)--Particular Matter Involving Specific Parties
Basic Concept
OGE received seven comments on proposed Sec. 2641.201(h)(1), which
articulates the basic statutory concept of ``particular matter
involving specific parties.'' Six agencies objected to the use of the
phrase ``activity or undertaking'' in the last sentence of paragraph
(1): ``These matters involve a specific activity or undertaking
affecting the legal rights of the parties or an isolatable transaction
or related set of transactions between identified parties, such as a
specific contract, grant, license, product approval application,
enforcement action, administrative adjudication, or court case.'' These
commenters perceived this phrase as an expansion beyond the settled
understanding of the scope of the concept of particular matter
involving specific parties. As one commenter pointed out, the
corresponding provision in the old post-employment regulations lacks
this phrase and instead reads: ``Such a matter typically involves a
specific proceeding affecting the legal rights of the parties or an
isolatable transaction or related set of transactions between
identifiable parties.'' 5 CFR 2637.201(c)(1). In the view of these
commenters, the proposed rule reflects a shift in focus from specific
``proceedings'' to a more expansive, and less well-defined, category of
``activities or undertakings.''
It was not OGE's intention to expand, narrow, or otherwise alter
the accepted meaning of a statutory concept that has been fundamental
not only to section 207 but also to many other provisions in the
conflict of interest laws and ethics regulations for many years.
However, in order to dispel any possible confusion concerning the
intent of the rule, OGE is replacing the phrase, ``involve a specific
activity or undertaking,'' with the language found in the former post-
employment regulations (as well as in OGE's current financial conflict
of interest regulations at 5 CFR 2640.102(l)): ``typically involves a
specific proceeding.'' Nevertheless, in making this change, OGE
emphasizes that it does not necessarily agree with several commenters
who argued that the statutory definition of ``particular matter,'' in
18 U.S.C. 207(i)(3), was intended to limit the application of section
207(a) to those types of matters that are specifically enumerated in
that statutory definition. Nothing in the legislative history of the
Ethics Reform Act of 1989, which added the definition, suggests any
intent to contract the scope of section 207(a). More important, the
definition starts with the phrase ``the term `particular matter'
includes * * *'' 18 U.S.C. 207(i)(3) (emphasis added). The word
``includes,'' in a statutory definition, is usually a term of
enlargement, rather than limitation, and indicates that other items are
includable even if not specifically enumerated. See Norman J. Singer,
Sutherland on Statutory Construction 231 (2000).
Four commenters also raised issues concerning the relationship
between the concept of particular matter involving specific parties and
the broader concept of ``particular matter.'' These commenters made
several related points: The treatment of particular matter involving
specific parties should not be more expansive than the statutory
definition of particular matter in 18 U.S.C. 207(i)(3); OGE should not
mix the concept of particular matter with the narrower category of
particular matters involving specific parties; and the rule should make
clear that general policy matters are not covered by the concept of
particular matters involving specific parties.
Although OGE understands these concerns, some of the commenters'
proposals appear mutually inconsistent. For example, if OGE is to
ensure that the description of particular matters involving specific
parties is no broader than the statutory definition of ``particular
matter'' in section 207(i)(3), it must somehow incorporate that
statutory definition into the regulatory definition of particular
matter involving specific parties. That is why the second sentence in
paragraph (h)(1) begins with the definition of particular matter found
in section 207(i)(3). However, in order to emphasize that this
statutory category of particular matters is further narrowed by the
addition of the phrase ``involving a specific party or parties'' in
section 207(a), the second sentence of Sec. 2641.201(h)(1), goes on to
state that ``such particular matters also must involve a specific party
or parties in order to fall within the prohibition'' (emphasis added).
By drafting the rule in this way, it was OGE's intent to remain
faithful to the statutory definition of ``particular matter'' while at
the same time pointing out that the phrase is further limited when used
in section 207(a) because of the additional requirement that the
particular matter
[[Page 36176]]
involve specific parties. Furthermore, OGE thinks it unlikely that
readers might be misled to think that policy matters of general
applicability would be covered by section 207(a), because the very next
paragraph is pointedly titled ``Matters of general applicability not
covered,'' and it expressly excludes ``[l]egislation or rulemaking of
general applicability and the formulation of general policies,
standards or objectives, or other matters of general applicability.''
Sec. 2641.201(h)(2). In response to one comment specifically objecting
to the use of the term ``rulemaking'' in paragraph (h)(1), OGE notes,
first, that the statutory definition in 18 U.S.C. 207(i)(3) itself uses
this word, and, second, that it has long been accepted that certain
rulemakings, although rare, may be so focused on the rights of
specifically identified parties as to fall within the ambit of section
207(a), even though most rulemaking proceedings are matters of general
applicability beyond the scope of section 207(a). See OGE Informal
Advisory Letter 96 x 7, n. 1. In response to all of the comments noted
above, however, OGE has made one change in the final rule in order to
emphasize the ``specific party'' limitation: the second sentence of
paragraph (h)(1), while still starting with the broader statutory
definition of ``particular matter,'' goes on to specify that ``only''
those particular matters that involve specific parties are covered by
section 207(a)(1).
Treaties and Trade Agreements
One agency, whose comment was expressly endorsed by another agency,
commented on proposed example 3 following Sec. 2641.201(h)(1), which
concludes that a treaty between the United States and a foreign
government is a particular matter involving specific parties. See also
proposed example 5 to Sec. 2641.201(f); proposed example 1 to Sec.
2641.202(j) (official responsibility for a class of treaty
negotiations). The commenter objected that example 3 as proposed
implies that all treaties are particular matters involving specific
parties, even though treaties may involve the adoption of broad
national policies that do not focus on the rights of any specific
individual or non-sovereign organization. The basic argument is that
treaties often are more analogous to legislation and rulemaking of
general applicability, which are not particular matters involving
specific parties, than to contracts, which are. Although not the focus
of this comment, international trade agreements also raise similar
concerns, and OGE did receive one comment from another agency, after
the close of the comment period, recommending that OGE change the
analysis in proposed example 3 as it would apply to international trade
agreements.
The conclusion in proposed example 3 is based largely on a 1979
opinion issued to the Department of State by the Office of Legal
Counsel. See 3 Op. O.L.C. 373 (1979). This opinion, which held that the
Panama Canal Treaty was a particular matter involving specific parties,
expressly rejected the argument that treaties are more analogous to
legislation and general rulemaking than to contracts: ``Unlike general
legislation or rulemaking, treaties are intended to affect specific
participating parties, namely their signatories. In form, treaties
closely resemble contracts, which are expressly covered by the statute.
They are signed after the type of quasi-adversarial proceedings or
negotiations that precede or surround the other types of `particular
matters' enumerated in section 207(a). The phrase `involving a specific
party or parties' has been read to limit the section's concern to
`discrete and isolatable transactions between identifiable parties.' *
* * Such a characterization aptly describes the treaty negotiation
process.'' Id. at 375. Relying on this same analysis, OGE later
published an opinion concluding that ``bilateral trade agreements,''
like bilateral treaties, normally are to be viewed as particular
matters involving specific parties. See OGE Informal Advisory Letter 90
x 7.
The commenting agency, however, adduces arguments which it suggests
may not have been considered in the 1979 OLC opinion. The agency
contends that treaties have a status under international law akin to
the status of domestic legislation, in that treaties are the ``primary
way of creating international legal regimes,'' in the absence of any
international legislative body comparable to the U.S. Congress that
could create international legislation. The agency also points out that
the U.S. Constitution expressly recognizes the status of treaties as a
source of law equivalent to Federal legislation: ``This Constitution,
and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the Supreme Law of the Land *
* *.'' United States Constitution, Art. VI, cl. 2. In this connection,
OGE's own examination indicates that courts have long held that
treaties are on the same footing with Federal legislation and in fact
supersede prior acts of Congress. See Foster v. Neilson, 27 U.S. 253
(1829); Whitney v. Robertson, 124 U.S. 190 (1888); Alvarez y Sanchez v.
U.S., 216 U.S. 167 (1910). Finally, the agency cites a more recent
unpublished OLC opinion, which concluded that certain deliberations,
decisions and actions (including discussions with foreign governments)
in response to the 1990 invasion of Kuwait by Iraq were not
``particular matters.'' Based on these arguments, the agency maintains
that treaties should at least be evaluated on a case-by-case basis to
determine whether they are particular matters involving specific
parties.
Although this commenter did not suggest specific criteria for
making such determinations, OGE believes it is possible to articulate
criteria that could be applied on a case-by-case basis. For example,
one might argue that treaties that are narrowly focused on specific
properties or territories are more closely akin to contractual
exchanges of property. Cf. OGE 96 x 7 (although rulemaking usually does
not involve parties, rule establishing health and safety standards for
operations at a specific site was party matter). Arguably, this was the
case with the Panama Canal treaty itself. By contrast, treaties
addressing more general sovereign requirements, such as extradition
procedures, might be viewed as more akin to general legislation.
In the case of trade agreements, we believe that similar
considerations can apply. Some trade agreements, such as the Uruguay
Round Agreements under the auspices of the General Agreement on Tariffs
and Trade, may be ``adopted by the passage of implementing legislation
by both Houses of Congress, together with signing by the President.''
Opinion of Walter Dellinger, Assistant Attorney General, Office of
Legal Counsel, November 22, 1994, available at http://www.usdoj.gov/
olc/gatt.htm. In determining whether trade agreements are more akin to
legislation of general application than to contracts, OGE thinks that
relevant criteria could include such factors as whether the agreement
addresses a wide range of economic sectors and issues. In this
connection, OGE notes the difficulties that some agency ethics
officials have experienced in the past in determining whether such
matters as the various phases of World Trade Organization negotiations
over a wide range of subjects are particular matters involving specific
parties and, if so, how to define the scope or limits of any such
matters. These matters often involve multi-faceted discussions among
representatives of numerous countries in a decision-making process that
more
[[Page 36177]]
closely resembles legislative policymaking than contracting.
Therefore, OGE is adding a new sentence, at the end of Sec.
2641.201(h)(2) of the final rule, to provide guidance with respect to
international agreements between sovereigns, such as treaties and trade
agreements. In this final rule, OGE has moved proposed example 3
following Sec. 2641.201(h)(1) to be a new example 7 following Sec.
2641.201(h)(2), and the example text has been revised to follow more
closely the facts in the OLC Panama Canal opinion. OGE also has added
new example 8 following Sec. 2641.201(h)(2) and has made related
revisions to example 5 following Sec. 2641.201(f) and example 1
following Sec. 2641.202(j).
Parties During Preliminary or Informal Stages
Three agencies commented on the proposed guidance in Sec.
2641.201(h)(4) concerning when a particular matter first may be said to
involve specific parties. The comments particularly concerned the
discussion of contracts in the last sentence of proposed paragraph
(h)(4), as well as examples 4 and 5. The proposed rule stated that
matters such as contracts ``ordinarily'' involve specific parties when
expressions of interest are first received by the Government, but that,
``in unusual circumstances,'' a prospective contract may involve
specific parties even earlier ``if there are sufficient indicia that
the Government has specifically identified a party.'' Two agencies
objected that this provision and the accompanying examples do not
provide adequate guidance as to what might constitute ``sufficient
indicia'' that the Government has identified parties prior to the
expression of interest by those parties. These agencies believed that
ethics officials and others would be led to conclude that a potential
contract involves specific parties virtually any time the Government
has conducted purely internal discussions about the possibility that a
particular potential contractor might be particularly qualified to
perform the work. In the view of these commenters, it will often be the
case that the Government can identify potential contractors who might
bid and who might be particularly well-qualified, and thus the
``ordinary'' rule that the Government must receive expressions of
interest would be swallowed by the exception. Another agency indicated
that sole source procurements are a good example of a contract that
might be said to involve specific parties even before an expression of
interest is received. Along the same lines, another agency suggested
that internal discussions about a potential sole source procurement
would be a clearer example than proposed example 5 of a situation where
specific parties have been identified prior to any expression of
interest by a prospective contractor.
OGE did not mean to suggest in the proposed rule that parties are
involved in a potential contract merely because the Government might be
able to identify potentially qualified bidders in advance. OGE
intended, in proposed example 5, to provide a number of factors
indicating that a particular potential contractor was more directly
involved because of work on a prior contract that is ``intimately
related'' to the potential new contract. OGE recognizes, nonetheless,
that the provision may be difficult to apply. Consequently, OGE is
making two changes to the proposed rule in this final rulemaking.
First, OGE is replacing proposed example 5 with a new example that
deals specifically with a sole source procurement, which is determined
to be a matter involving specific parties even prior to any expression
of interest on the part of the prospective sole source contractor being
considered internally by the Government. Second, OGE is making minor
revisions to the last sentence of Sec. 2641.201(h)(4) as proposed, in
order to refer to sole source procurements, as well as other
procurements (and prospective grants and agreements) in which the
Government explicitly may identify a specific party prior to the
receipt of a proposal or expression of interest. By making these
changes, OGE does not mean to suggest that a sole source procurement is
necessarily the only set of circumstances in which specific parties may
be identified prior to an expression of interest in the contract, but
it is probably the one most often encountered.
Same Particular Matter Involving Specific Parties
Eight agencies commented on proposed Sec. 2641.201(h)(5), which
provides guidance on determining whether two particular matters
involving specific parties are the same.
Five DOD agencies raised related questions concerning the treatment
of multi-contract programs. By ``multi-contract program,'' the
commenters appear to mean a large Government program, such as the
development of a new generation of military aircraft, that is supported
by a number of contracts to develop discrete aspects of the project,
such as separate contracts to develop the engine, body, electronics,
etc. In the view of these agencies, each of the separate contracts
should be viewed as a separate particular matter involving specific
parties, rather than simply as parts of the same project, viewed as one
comprehensive particular matter involving specific parties.
Depending on how the project is structured, OGE agrees with this
point. OGE does not necessarily equate ``Government program'' with
``particular matter involving specific parties.'' For one thing, some
Government programs are not even, in and of themselves, particular
matters involving specific parties. For example, a Government program
to understand the causes of a particular disease is not, in and of
itself, a particular matter involving specific parties, even though the
program may involve several grants, contracts or cooperative agreements
all designed to support or implement different aspects of the overall
program. See, e.g., OGE Informal Advisory Letter 80 x 9; 5 CFR
2637.201(c)(1) (example 4). Furthermore, OGE generally views separate
contracts as being separate particular matters involving specific
parties, absent either some indication that one contract directly
contemplated the other contract or other circumstances indicating that
both contracts are really part of the same proceeding involving
specific parties. See id.; 5 CFR 2637.201(c)(4) (example 1). Although a
number of commenters raised questions about whether OGE's 2002 Yucca
Mountain opinion has opened the door to a general ``doctrine of
convergence,'' whereby multiple contracts in support of a Government
project can be viewed as being merged into a single ``super contract,''
OGE does not agree with that interpretation of the opinion: We
concluded there that all of the contracts in that case were in support
of one adjudicatory proceeding, and work produced under those contracts
was directly involved in the ensuing adjudication, such that former
employees who participated personally and substantially in the support
contracts could not be permitted to represent private parties in the
adjudication. See OGE Informal Advisory Letter 02 x 5, at 9 and n. 7.
Not only did Yucca Mountain involve a very unique set of circumstances,
but nothing in that opinion indicates that separate contracts must be
viewed as being part of the same particular matter involving specific
parties where those contracts are not directly in support of the same
proceeding involving specific parties.
Nevertheless, it is not clear from the examples proffered by the
commenters exactly what the relationship is between the separate
contracts involved in the particular Government programs. If, for
[[Page 36178]]
example, the so-called ``super contract'' is a prime contract involving
oversight of several subcontracts, it could be problematic to view the
subcontracts as being separate particular matters from the prime
contract, depending on the circumstances. Cf. OGE Informal Advisory
Letter 82 x 2. Because the exact scenarios are not specified, and the
same particular matter determination would have to depend on an
examination of the circumstances of each situation, OGE does not
believe this area is ripe for any general standard in the post-
employment regulations at this time.
However, in response to a related comment from another agency, OGE
is making one change in the final rule. This commenter recommended that
OGE add a new sentence at the end of proposed Sec. 2641.201(h)(5)
indicating that new contracts generally will be viewed as being
separate particular matters from each other. The same agency also
recommended the addition of an example illustrating that a new
contract, even if awarded to an existing contractor with no major
changes to the prior contract, is a new particular matter. OGE
generally agrees with this recommendation. Therefore, OGE has
reorganized Sec. 2641.201(h)(5) in this final rule by designating the
first part of the text as proposed, dealing with the same particular
matter generally, as new subparagraph (i) and by creating a new
subparagraph (ii), emphasizing several considerations especially
relevant in the case of contracts and other agreements. The new
subparagraph adds, among other things, the following: ``Generally,
successive or otherwise separate contracts (or other agreements) will
be viewed as different matters from each other, absent some indication
that one contract (or other agreement) contemplated the other or that
both are in support of the same specific proceeding.'' OGE thought it
necessary to include the qualifying clause at the end of the latter
sentence because OGE has encountered various situations in which an
initial contract contemplated additional contracts, see OGE 80 x 9, one
contract was in support of agency operations in connection with another
contract, see OGE 99 x 19, or successive support contracts were deemed
inseparable from the same underlying adjudication, see OGE 02 x 5. We
also agree that a new example 2 illustrating the more typical
``successive contract'' question would be helpful, and we are including
the recommended example in the final rule, with certain modifications.
The new subparagraph (ii) also addresses another related issue that
was raised by several commenters: The treatment of what some have
called ``umbrella'' contracts, which involve multiple task orders or
delivery orders placed against an existing contract. Several DOD
agencies referred to the procurement mechanism for indefinite delivery
contracts, outlined in the Federal Acquisition Regulation at 48 CFR
16.500-16.506, as one example. As described by these agencies, such
contracts often involve a ``broad scope of work encompassing a wide
geographical area.'' Under such contracts, according to these agencies,
``the general nature of the work (e.g., environmental remediation) and
contract terms will remain the same,'' while ``the precise timing,
quantity, location, and specific performance of the work may vary from
delivery order to delivery order.'' In at least some cases, the actual
scope of work under the task or delivery orders is separately
negotiated by different agency offices with different needs, sometimes
even with multiple contractors competing for work under the same task
or delivery order.
In response to these comments, OGE has added subparagraph (ii)(c)
to the final version of Sec. 2641.201(h)(5). This provision states
OGE's general view that a contract is almost always a single particular
matter involving specific parties. However, the provision recognizes
that, in compelling circumstances, an umbrella contract may be of such
magnitude and cover such a large scope of work that it could be divided
into individual particular matters involving specific parties.
Accordingly, the provision acknowledges that agencies may determine
that such a contract is divisible into separate particular matters
involving specific parties where articulated lines of division exist.
The regulation lists various considerations for agencies to take into
account when applying the previously described factors in determining
whether two particular matters involving specific parties are the same.
These agency determinations may be made in consultation with OGE and,
if more than one agency is involved, other affected agencies.
OGE wants to emphasize that the treatment of certain large umbrella
contracts under this rule is a special case, owing to the use of
distinct task or delivery orders that sometimes can involve very
different circumstances. In this connection, it is also relevant that
individual task or delivery orders sometimes are viewed as having the
attributes of contracts in and of themselves. See, e.g., Comptroller
General Decisions B-278404.2 (1998) (task orders are ``contracts''
within the overall contract, under the FAR definition of contract at 48
CFR 2.101); B-277979 (1998) (delivery order is a ``contract'' under FAR
definition of contract). Therefore, nothing in this provision should be
taken as authority for dividing contracts generally, or for dividing
other kinds of particular matters involving specific parties, such as
lawsuits or enforcement actions.
New examples 7 and 8 have been added to Sec. 2641.201(h)(5) of the
final rule to illustrate situations in which it would be justifiable
for an agency to make the determination that an umbrella contract
should be divided into individual particular matters involving specific
parties. Example 7, the substance of which was taken from submitted
comments, also includes a caution that anyone participating personally
and substantially in the overall contract will be deemed to have also
participated personally and substantially in all particular matters
involving specific parties that result from an agency determination to
divide such contract. The basis for this conclusion is that each task
or delivery order is subject to the terms and conditions of the overall
contract. See, e.g., 48 CFR 52.216-18.
Three agencies proposed identical language for a new example to
illustrate that a contract ``may become a different particular matter
involving specific parties as a result of changes in the work to be
performed under the contract, not as a result of a specific milestone,
such as a contract modification.'' OGE has not made the recommended
change in the final rule. OGE already has provided several
``contracting'' examples following Sec. 2641.201(h)(5). The examples
cannot illustrate every type of contract issue that may arise under
that section, nor are those examples that are included intended to be
exhaustive. Another agency proposed a fact-specific and agency-specific
example to illustrate when two proceedings related to antitrust issues
are to be viewed as the same particular matter. Again, OGE believes
that an additional example is unnecessary at this time, in view of the
relatively large number of examples already included.
One agency recommended that re-numbered example 6 (proposed example
5), which concerns the relationship between certain wiretap
applications and subsequent prosecutions, be rewritten with the
assistance of the Department of Justice in order to make the example
more clear and detailed. OGE has not changed the example. This example,
in its present
[[Page 36179]]
form, has been in the prior post-employment regulations for over two
decades, and we are not aware that it has created any particular
difficulties during that time. See 5 CFR 2637.201(c)(4) (example 2).
Moreover, the prior post-employment regulations, like the present
regulations in part 2641, were developed in consultation with the
Department of Justice. See 5 U.S.C. app. section 402(b)(2); Executive
Order 12731, section 201(c) (1990); 5 CFR 2637.101(b). Also in
connection with example 6, we note that another agency recommended that
OGE provide a new example following proposed Sec. 2641.201(h)(3) to
illustrate that the same parties need not always be present for a
matter to be deemed the same particular matter involving specific
parties. We believe that example 6 to Sec. 2641.201(h)(5) already
illustrates this point, and, in fact, the example recommended by this
agency is very similar to example 6. Therefore, we are not including
the recommended new example in the final rule.
Section 2641.201(i)--Personal and Substantial Participation
OGE received several comments on aspects of the proposed provision
dealing with personal and substantial participation. One agency thought
it was potentially confusing to include the phrase, ``to purposefully
forbear in order to affect the outcome of a matter,'' in the definition
of participation. See proposed Sec. 2641.201(i)(1). The agency thought
that this language might suggest that every act of forbearance,
including recusal from a matter, could constitute personal and
substantial participation in a matter. OGE has not changed the text of
proposed Sec. 2641.201(i)(1) in adopting it as final. For one thing,
the prior post-employment rule had similar language concerning the
subject of inaction, and we are not aware that this language created
any particular confusion over the last two decades. See 5 CFR
2637.201(d)(3). Moreover, the proposed rule makes clear that definition
includes only ``purposeful'' forbearance with the object to ``affect
the outcome of the matter,'' which plainly does not include every kind
of inaction. OGE also does not believe that such purposeful forbearance
reasonably can be confused with recusal, as the latter constitutes the
removal of the employee from a matter, whereas the former involves
intentional inaction in order to affect a matter to which an employee
remains assigned. At the recommendation of this agency, however, OGE
has provided a new example to this section in the final rule to
illustrate what is meant by purposeful forbearance to affect the
outcome of a matter. New example 7 pertains to the director of an
office who must personally sign off on every application for a certain
type of agency assistance. A particular application comes across her
desk, but she intentionally takes no action on it because of her belief
that the application may raise difficult policy concerns for her agency
at this time. As a consequence of her inaction, resolution of the
application is deferred indefinitely. The example concludes that the
employee has participated personally and substantially in the matter.
Another agency commented that example 2 following proposed Sec.
2641.201(i) did not contain sufficient facts to support the conclusion
that the attorney in that scenario, who provided advice concerning
discovery strategy in a lawsuit, participated substantially in that
matter. OGE does not believe that further detail is needed and has not
modified the text of the example in this final rule. Advice concerning
discovery strategy requires the exercise of discretion and professional
judgment and does not concern an aspect that is merely peripheral to a
lawsuit, but rather pertains to an integral and important part of the
litigation process.
One agency commented on example 4, which concludes that a
supervisor did not participate in any particular matter merely by
checking on the status of a subordinate's work on all matters of a
certain type without commenting on any particular matter. The agency
recommended that OGE state more specifically that the supervisor did
not participate ``substantially'' in any particular matter. OGE agrees
that the agency's recommendation more fully describes the application
of the statutory element and has revised the wording of the example
accordingly.
Section 2641.201(j)--U.S. Is Party or Has Direct and Substantial
Interest
One agency commented on OGE's proposed treatment of what it means
for the United States to have a direct and substantial interest. This
agency stated that it frequently must advise former employees
concerning representational activity in various antitrust proceedings
and that it has found the example dealing with antitrust proceedings in
the prior post-employment regulations to be particularly helpful. See 5
CFR 2637.201(c)(5) (example 1). The agency noted that the proposed rule
did not include this example and requested that OGE restore the example
to Sec. 2641.201(j). OGE agrees that the particular example from the
old post-employment regulations is useful, not only for the reasons
stated by the commenter, but also because it illustrates circumstances
in which an agency can be said to have a direct and substantial
interest in a matter involving purely private parties, which is a
question that arises periodically. See OGE Informal Advisory Letter 94
x 7 (relying on example 1 to 5 CFR 2637.201(c)(5)). Therefore, OGE is
adding this example to the final rule.
Section 2641.202--Two-Year Restriction Concerning Matters Under
Official Responsibility
Four agencies commented on proposed Sec. 2641.202, interpreting 18
U.S.C. 207(a)(2), the two-year restriction on representation of others
in connection with a particular matter involving specific parties with
respect to which the former employee had official responsibility.
One agency commented on example 7 following proposed Sec.
2641.202(j), which illustrates when an employee temporarily acting as
head of an office does not acquire official responsibility for all
matters pending in the office. This commenter recommended that OGE add
an additional scenario to the example, positing that the acting
official actually assigned a matter to a subordinate during this period
of temporary service. OGE has not made this change in the final rule,
as it would raise complicated questions, extraneous to the purpose of
the example, concerning whether, or under what factual circumstances,
the assignment of work might constitute personal and substantial
participation, not just official responsibility.
Another agency objected that example 4 following proposed Sec.
2641.202(j) is not a good illustration of the knowledge requirement in
section 207(a)(2), which is set out in proposed Sec. 2641.202(j)(7).
The same agency also recommended that the basic definition of
``official responsibility'' in proposed Sec. 2641.202(j)(1) should
specify that nonsupervisory employees have no official responsibility
for their own work. Example 4 was not intended to address the issue of
knowledge of one's official responsibility, and, in fact, makes no
reference to this subject. Moreover, Sec. 2641.202(j)(1) already does
state that ``[a] nonsupervisory employee does not have official
responsibility for his own assignments within the meaning of section
207(a)(2).''
A different agency objected to the latter provision and found it
illogical to say that a nonsupervisory employee does not have official
responsibility for his or her own assignments. OGE does not agree with
this comment. As described by the Senate Judiciary
[[Page 36180]]
Committee in connection with the 1962 act, the rationale for the
restriction is that there is ``a distinct possibility of harm to the
Government when a supervisory employee may sever his connection with it
one day and come back the next seeking an advantage for a private
interest in the very area where he has just had supervisory
functions.'' S. Rep. 2213, 87th Cong., 2d Sess., 1962 U.S.C.C.A.N. 3861
(emphasis added). The proposed rule, by limiting ``official
responsibility'' to persons with supervisory functions, is consistent
with the legislative purpose.
The same agency also objected to two other aspects of the treatment
of official responsibility. First, the agency argued that the list of
sources that ordinarily determine the scope of an employee's official
responsibility--i.e., ``those functions assigned by statute,
regulation, Executive order, job description, or delegation of
authority''--is too limited and ignores the reality of the workplace.
See Sec. 2641.202(j)(1). The commenter, however, did not suggest any
additional or alternative sources of official authority, or any other
method for determining the scope of official authority. More important,
the language in question is virtually identical to the language that
has been used in the prior post-employment regulation for over two
decades, and OGE is not aware that this provision has proven
inadequate. See 5 CFR 2637.202(b)(2). Therefore, as noted, OGE is not
changing Sec. 2641.202(j)(1) in this final rule.
Second, the agency objected to proposed Sec. 2641.202(j)(5), which
indicates that an employee's self-disqualification or avoidance of
personal participation in a matter is not sufficient to remove the
matter from his or her official responsibility. The agency recommended,
instead, a kind of totality-of-the-circumstances test that would
recognize recusal as an appropriate means to limit official
responsibility in some cases. OGE has not made the recommended change
to this section of the final rule. A very similar provision concerning
self-disqualification has been a part of the post-employment rules
since 1979, and OGE has seen no indication during that time that this
approach has, as the commenter predicted with respect to the proposed
rule, done ``serious harm to the Executive Branch's continuing problems
in recruiting and retaining talented individuals from outside of
Government to serve in managerial positions.'' See 5 CFR
2637.202(b)(5). Moreover, the court in United States v. Dorfman
specifically endorsed OGE's approach with respect to self-
disqualification and added that a contrary rule would mean that
employees ``could selectively recuse themselves from particular matters
actually pending under their official responsibility enabling them to
participate directly in those matters a year hence,'' thus evading the
intent of Congress `` `to avoid even the appearance of a public office
being used for personal or private gain.' '' 542 F. Supp. 402, 409-410
(N.D. Ill. 1982) (quoting S. Rep. 170, 95th Cong., 2d Sess. 32 (1977)).
One agency acknowledged that example 9 following proposed Sec.
2641.202(j) was intended to illustrate the effect of a break in
Government service on the application of 18 U.S.C. 207(a)(2), as
discussed in the preamble to the proposed rule at 68 FR 7857. However,
this agency recommended that the effect of a break in service be
discussed in the regulatory text of this provision as well. The agency
made a similar comment in connection with proposed Sec. 2641.204,
concerning the effect of a break in service on the application of 18
U.S.C. 207(c), as illustrated by example 3 following proposed section
2641.204(g). OGE has not made the recommended changes to these sections
in the final rule. The effect of a break in service is a subject
relevant to all of the prohibitions discussed in the rule, not just the
prohibitions discussed in Sec. Sec. 2641.202 and 2641.204.
Consequently, the requirement that an individual must have ``completed
a period of service as an employee'' is already treated generally in
the definition of ``former employee'' in Sec. 2641.104 and is
illustrated in example 3 following that definition, which discusses
``break in service.'' In any event, we believe that the examples cited
by the agency adequately illustrate the application of 18 U.S.C. 207 in
situations involving a break in service. Moreover, as noted above, OGE
has revised the definition of ``Government service'' in Sec. 2641.104
of the final rule to illustrate the effect of a break in service.
Finally, OGE has modified example 1 following Sec. 2641.202(j),
for reasons discussed above under ``Treaties and Trade Agreements.''
Section 2641.203--One-Year Restriction Concerning Trade or Treaty
Negotiations
One agency commented that it was not immediately clear, from the
language of proposed Sec. 2641.203(a), whether ``on the basis of
covered information'' modifies only ``advise'' or also modifies
``represent'' and ``aid.'' This commenter recommended that the rule be
revised to track the language of the statute more closely by placing
the phrase ``on the basis of covered information'' before ``represent,
aid, or advise,'' thus clarifying that the phrase modifies all three
verbs. It was not OGE's intention, in proposed Sec. 2641.203(a), to go
beyond a recitation of the basic statutory prohibition. As discussed in
the preamble to the proposed rule, 68 FR 7857, the present rule is
intended only to provide a brief introductory summary of the statute,
and paragraphs have been reserved for additional guidance in the
future. Therefore, OGE is making the recommended change to Sec.
2641.203(a) of the final rule, in order to follow the statutory
language more closely.
Section 2641.204--One-Year Restriction for Senior Employees
Proposed section 2641.204 interprets various elements of the so-
called ``one-year cooling-off period'' for senior employees. OGE
received comments on several parts of this provision, discussed below.
As noted above, in connection with the definition of ``senior
employee'' in Sec. 2641.104, 18 U.S.C. 207(c) has been amended twice
since the proposed rule was developed, and those amendments are
implemented in the final definition of ``senior employee.''
Section 2641.204(c)--SGEs and IPAs
Five agencies, including four DOD components, commented on proposed
Sec. 2641.204(c), which concerns special issues arising in the
application of section 207(c) to special Government employees (SGEs)
and persons assigned to the Federal Government under the
Intergovernmental Personnel Act (IPAs).
With respect to SGEs, one agency commented on the statement in the
preamble to the proposed rule that ``certain de minimis activities
performed by an SGE on a given day might not be sufficient to count
that day, under limited circumstances.'' 68 FR 7858. The commenter
agreed with this statement, but recommended that it be incorporated
into the text of Sec. 2641.204(c)(1). OGE has not changed the text of
this section in the final rule. Delineation of the circumstances in
which certain de minimis activities would not be sufficient to count as
a day of service would require an extended explication that is not
well-suited to the text of this provision. Moreover, the question of
when to count a particular day of service for an SGE is not peculiar to
section 207(c), and we believe this issue is better addressed in more
general guidance concerning the ethical requirements applicable to
SGEs. See
[[Page 36181]]
OGE DAEOgram DO-07-002, available on OGE's Web site at http://
www.usoge.gov/pages/daeograms/dgr_files/2007/do07002.pdf.
With respect to IPAs, four DOD components made essentially the same
point concerning proposed Sec. 2641.204(c)(2). These commenters
objected to the fact that the proposed rule makes the applicability of
section 207(c) turn on the amount of pay received by IPA detailees and
appointees, without sufficient regard for either the source of pay
(i.e., Federal or non-Federal) or the level of responsibility
associated with the particular position. OGE has not changed the rule
in response to these comments. As explained in the preamble to the
proposed rule, 68 FR 7858, Sec. 2641.204(c)(2) merely implements an
opinion on this subject issued by the Office of Legal Counsel,
Department of Justice. See ``Applicability of the Post-Employment
Restrictions of 18 U.S.C. 207(c) to Assignees Under the
Intergovernmental Personnel Act,'' Memorandum of Daniel L. Koffsky,
Acting Deputy Assistant Attorney General, Office of Legal Counsel,
Department of Justice, to Susan F. Beard, Acting Assistant General
Counsel, Department of Energy, June 26, 2000, available at http://
www.usdoj.gov/olc/doe207.htm.
One commenter also objected that the focus on an individual's pay,
for purposes of applying section 207(c) to IPA personnel, appears to be
at odds with OGE's recent guidance concerning the circumstances in
which IPA detailees are required to file a public financial disclosure
statement, under section 101 of the Ethics in Government Act of 1978
(EIGA), as amended. See OGE Informal Advisory Memorandum 02 x 11. As
OGE has explained on other occasions, the language and legislative
history of the financial disclosure provisions in EIGA differ from
those of 18 U.S.C. 207(c), and different approaches to coverage are
warranted. See OGE Informal Advisory Letter 98 x 2.
Section 2641.204(g)--To or Before an Employee of Former Agency
One commenter suggested that proposed Sec. 2641.204(g)(1)(iii),
which states that a former senior employee may not contact ``an
individual detailed to the former senior employee's former agency from
another agency,'' is inconsistent with a provision in proposed Sec.
2641.201(f), which states that the permanent restriction of section
207(a)(1) applies to contacts with any employee who is detailed to the
various entities listed in proposed Sec. 2641.201(f). The reference to
detailees in proposed Sec. 2641.204(g)(1)(iii) was intended to
implement a statutory provision that has particular significance in
connection with the senior employee restriction. Specifically, Sec.
2641.204(g)(1)(iii) implements 18 U.S.C. 207(g), which states that ``a
person who is detailed from one department, agency, or other entity to
another department, agency, or other entity shall, during the period
such person is detailed, be deemed to be an officer or employee of both
departments, agencies, or such entities.'' Proposed Sec.
2641.204(g)(1)(iii) therefore emphasized that a detailee from another
agency is also deemed to be an employee of the former senior employee's
former agency. However, to clarify that the rule is intended to
implement section 207(g), OGE is revising the provision in this final
rule to track the language of the statute more closely. The revised
final rule provision also indicates that detailees from the legislative
and judicial branches are included.
For similar reasons, OGE is making a minor change to Sec.
2641.204(g)(3)(ii). As proposed, this provision stated that a
communication or appearance is to or before an employee of the former
senior employee's former agency if, inter alia, it is directed to and
received by ``an employee in his capacity as an employee of a former
senior employee's former agency'' (emphasis added). OGE is concerned
that the highlighted language could be interpreted as indicating that
an employee of the former senior employee's agency may be contacted if
that employee is serving on a detail to a different agency and is
acting in his capacity as a detailee to that agency. Such an
interpretation would be inconsistent with 18 U.S.C. 207(g), as
explained in OGE Informal Advisory Letter 03 x 9, which concluded that
the representational bar applies to contacts with current employees of
the former senior employee's former agency, even if those employees
happen to be on a detail to another agency in which the former senior
employee did not serve. Therefore, the final rule simply uses the
phrase, ``in his official capacity,'' without the further limitation
that the contact be made with an employee specifically in his capacity
as an employee of the former senior employee's former agency.
Another commenter asked why proposed Sec. 2641.204(g)(4) repeated
the ``public commentary'' provision from proposed Sec. 2641.201(f)(3),
even though other elements common to the senior employee restriction
and the permanent restriction are handled simply by cross-references to
Sec. 2641.201. The treatment in Sec. 2641.204(g)(4) actually differs
from the provision in 2641.201(f)(3) in an important respect. Whereas
the permanent restriction covers contacts with employees of a broad
range of Federal entities, the senior employee cooling-off period
applies only to contacts with the individual's own former agency.
Therefore, the provisions in Sec. 2641.204(g)(4) contain references to
the former agency, in place of the broader language found in Sec.
2641.201(f)(3).
Section 2641.205--Two-Year Restriction for Very Senior Employees
Two agencies commented on proposed Sec. 2641.205(g), specifically
the conclusion, which is reflected in the proposed explanatory note to
paragraph (g) and in proposed example 5 to Sec. 2641.205, that a
former very senior employee is considered to be communicating with an
official described in 5 U.S.C. 5312-5316 if the communication is made
to a subordinate of such official with the intent that the information
be conveyed directly to the official and attributed to the former very
senior employee. Both commenters objected to this conclusion on the
same grounds on which they objected to similar provisions in proposed
Sec. 2641.201(d) and (f), i.e., they disagreed that a prohibited
communication could include a communication conveyed through a third
party to an officer or employee of the United States. As discussed in
the preamble to the proposed rule, 68 FR 7860, the principle that
section 207 may cover certain communications conveyed through a third
party is supported by a 2001 opinion issued by the Office of Legal
Counsel. Memorandum for Amy L. Comstock, Director, OGE, from Joseph R.
Guerra, Deputy Assistant Attorney General, OLC, January 19, 2001,
available under ``Other Ethics Guidance, Conflict of Interest
Prosecution Surveys and OLC Opinions'' on OGE's Web site, http://
www.usoge.gov.
The rationale is further discussed above, under ``Section
2641.201(d)--Communication or Appearance'' and ``Section 2641.201(f)--
To or Before an Employee of the United States.'' For these reasons, OGE
has retained the explanatory note to paragraph (g) of Sec. 2641.205
and example 5 to that section in this final rule. OGE has, however,
made minor changes to example 5, including an additional sentence at
the end of the example, to emphasize that the circumstances indicate
the former very senior employee intends that the information he
provides to the subordinate will be conveyed directly to
[[Page 36182]]
the Secretary of Labor and attributed to the former senior employee;
these changes are consistent with the language of the explanatory note.
Finally, subsequent to the publication of the proposed rule,
Congress amended 18 U.S.C. 207(d) to extend the cooling-off period for
very senior employees from one year to two years. See Public Law 110-
81, Sec. 101(a), September 14, 2007. Therefore, Sec. 2641.205 has
been modified in the final rule to replace all references to a one-year
cooling-off period with references to a two-year period. The two-year
restriction provided in the amendments to 18 U.S.C. 207(d) is
applicable to very senior employees who ``who leave Federal office or
employment to which such amendments apply on or after * * * December
31, 2007.'' Public Law 110-81, section 105(a). Very senior employees
who left office or employment prior to this effective date remain
subject to the previous one-year restriction.
Section 2641.206--Foreign Entity Restriction
Three DOD components submitted virtually identical comments on
proposed Sec. 2641.206, pertaining to the foreign entity restriction
found in 18 U.S.C. 207(f). They pointed out that recitation of the
basic prohibition, in proposed Sec. 2641.201(a), does not reproduce
the statutory language limiting the restriction on representation of
foreign entities to representation before ``an officer or employee of
any department or agency of the United States.'' The omission of the
language cited by these commenters was inadvertent, and OGE agrees that
the rule as proposed should be changed and has done so in this final
rule to reflect more clearly the statutory language. It should be
noted, however, that this change will not affect the final rule's
treatment of the separate prohibition on aiding and advising foreign
entities.
Additionally, OGE has modified proposed Sec. 2641.206(a) in this
final rule to reflect subsequent guidance provided by the Office of
Legal Counsel in a 2004 opinion issued to OGE. Memorandum of
Ren[eacute]e Lettow Lerner, Deputy Assistant Attorney General, for
Marilyn L. Glynn, Acting Director, OGE, June 22, 2004, available at
http://www.usoge.gov/pages/laws_regs_fedreg_stats/lrfs_files/othr_
gdnc/olc_06_22_04.pf.
This opinion concludes that 18 U.S.C. 207(f) prohibits covered
former employees from representing a foreign entity before Members of
Congress. The opinion cites the language in section 207(i)(1)(B), which
indicates that Members of Congress are included in the term ``officer
or employee'' for purposes of describing the persons to whom
representational contacts may not be made under section 207(f). In this
connection, the opinion also concludes that the term ``department,'' as
included in the language of section 207(f) prohibiting representational
contact with an ``officer or employee of any department or agency,''
includes the legislative department, i.e., the legislative branch of
the Federal Government. OGE has reworked the final rule consistent with
the OLC opinion.
Section 2641.207--Information Technology Exchange Program Assignee
Restriction
The final rule includes a new section, Sec. 2641.207, which
provides a brief description of a new restriction in 18 U.S.C. 207(l)
that became effective after the proposed rule was published. Section
209(c) of the E-Government Act of 2002, Public Law 107-347, December
17, 2002, created the Information Technology Exchange Program. Under
this new program, an agency and a ``private sector organization'' may
agree to the assignment of certain information technology personnel
from the private sector organization to the agency for a period of
time. Section 209(d)(3) of the Act amended 18 U.S.C. 207 by adding a
new section (l), which applies to former assignees to an agency under
the program. Specifically, section 207(l) prohibits these former
assignees, for one year after the termination of their assignment, from
representing or aiding, counseling or assisting in representing any
other person in connection with any contract with their former agency.
Section 2641.207 is not intended to provide comprehensive guidance
with respect to 18 U.S.C. 207(l). Rather, it is intended to provide a
basic description of the restriction, and consequently paragraphs (d)
and (e) are reserved. As OGE and other officials in the executive
branch acquire more experience with the operation of the Information
Technology Exchange Program and the post-employment issues related to
former private sector assignees under the program, it is expected that
OGE will revisit the reserved provisions.
Subpart C--Exceptions, Waivers and Separate Components
Section 2641.301--Statutory Exceptions and Waivers
Section 2641.301(a)--Action on Behalf of United States
Section 2641.301(a) interprets both the exemption in 18 U.S.C.
207(j)(1) for acts done in carrying out official duties on behalf of
the United States and the parenthetical exemption, found in sections
207(a), (b), (c), and (d), for communications and appearances on behalf
of the United States. One agency recommended that the rule as proposed
be revised to permit certain communications and appearances made by a
former employee during the performance of a contract with the
Government. Specifically, this agency argued that communications made
to perform contracts pertaining to ``internal agency operations'' would
be analogous to the other types of activities recognized to be on
behalf the United States in proposed Sec. 2641.301(a)(2).
For the reasons discussed above, under ``Section 2641.201(e)--
Intent to Influence,'' we do not view contacts made during the
performance of a Government contract to be free from the concerns at
which section 207 is directed. As we indicated in that earlier
discussion, the Government and its contractors have their own interests
in the performance of a contract, which are not necessarily identical.
Moreover, as we discussed in the preamble to the proposed rule, not all
contractors agree to represent or act on behalf of the Government. See
68 Federal Register at 7862. Accordingly, with the exception of the one
change discussed in the next paragraph, OGE has not modified the text
of Sec. 2641.301(a) in adopting it as final in this rulemaking
document.
We have made one change, however, to the language of Sec.
2641.301(a)(2)(ii)(1). As proposed, this provision required that the
activity be undertaken as a ``representative of the United States
pursuant to a specific agreement with the United States to provide
representational services involving a fiduciary duty to the United
States'' (emphasis added). The final rule omits the phrase pertaining
to fiduciary services. OGE has made this change so that this provision
will more closely parallel the provision in the rule in which OGE
states what it means for a former employee to act ``on behalf of''
another person, Sec. 2641.201(g)(1). Although the latter provision
describes a number of circumstances that no doubt involve fiduciary
duties, the rule does not require a showing that a former employee has
fiduciary duties in order to be acting on behalf of another person.
Since the same statutory language is at issue in Sec. 2641.301(a)(2),
OGE has concluded that it is unnecessary to include the fiduciary duty
phrase in this provision. The practical effect of this change may not
be great, as we would expect that most instances in which there is a
specific agreement to provide
[[Page 36183]]
representational services to the United States will involve some kind
of fiduciary relationship, such as a contract to provide legal services
to the Government.
Another agency proposed that OGE add a new example following Sec.
2641.301(a) to illustrate that the representation of a ``co-party,''
such as a co-defendant in a lawsuit in which the United States also is
a defendant, does not constitute acting on behalf of the United States.
This agency reported that former employees frequently assume,
erroneously, that they may represent a co-party with the United States
because they do not see this as switching sides. OGE certainly agrees
that the representation of a co-party does not constitute acting on
behalf of the United States. OGE is not sure, however, how frequently
this is misunderstood. Moreover, the potential for misunderstanding is
diminished by Sec. 2641.301(a)(2)(B), which states that a ``former
employee will not be deemed to engage in an activity on behalf of the
United States merely because * * * he or the person on whose behalf he
is acting may share the same objective as the Government.'' OGE also
notes that there are already seven examples following paragraph (a) of
Sec. 2641.301. Therefore, OGE has determined that the proposed new
example is not necessary and has not made the recommended change in
this final rule.
Section 2641.301(b)--Acting as Elected Official of State or Local
Government
One agency commented on proposed Sec. 2641.301(b), which
interprets the part of 18 U.S.C. 207(j)(1) that excepts acts done in
carrying out official duties as an elected official of a State or local
government. The commenter objected to example 2 following the proposed
provision. Example 2 states that a former employee who serves in a non-
elective position with a State government is not eligible for this
exception. The commenter stated that the proposed communication in that
example is otherwise permissible under a different exception--18 U.S.C.
207(j)(2)(A), as implemented by proposed 5 CFR 2641.301(c)--and
recommended that OGE use a different scenario that is not covered by
some other exception. OGE does not agree that the scenario in proposed
example 2 would be covered by the exception in section 207(j)(2)(A)
and, therefore, is not changing this example in the final rule. In this
example, the individual had participated personally and substantially
as a Federal employee in the decision to award a grant to a state for a
particular construction project. The exception in section 207(j)(2)(A)
does not apply to the permanent restriction on representation of others
in connection with particular matters involving specific parties in
which the former employee participated personally and substantially.
Section 2641.301(c)--Representation of Specified Entities
Two agencies commented on proposed section 2641.301(c), which
interprets 18 U.S.C. 207(j)(2), the exception to the prohibitions of
section 207(c) and (d) for representation of certain specified
entities. One agency requested that OGE provide an additional example
to illustrate the scope of the exception for representation as an
employee of an ``accredited, degree-granting institution of higher
education, as defined in section 101 of the Higher Education Act of
1965 [20 U.S.C. 1001].'' Section 207(j)(2)(B). Specifically, this
commenter requested a new example ``clarifying'' that private colleges
are included in the definition. OGE does not believe that an additional
example is necessary and has not added one in the final rule. The
definition of institution of higher education, which is referenced in
both the rule and the statute, makes clear that both ``public'' and
``other nonprofit'' institutions are covered. 20 U.S.C. 1001(a)(4).
Moreover, if only public institutions, and not private colleges, were
included in section 207(j)(2)(B), the provision would be surplusage, as
section 207(j)(2)(A) already covers ``an agency or instrumentality of a
State or local government.''
As discussed above, under ``Section 2641.301(b)--Acting as Elected
Official of State or Local Government,'' another agency suggested that
the exception in section 207(j)(2)(A) would cover activity otherwise
prohibited by the permanent restriction in section 207(a)(1). It bears
repeating that section 207(j)(2)(A)--unlike the exception for actions
as an elected State or local government official in section 207(j)(1)--
is not an exception to the permanent restriction or any other
prohibition applicable to executive branch personnel besides the
cooling-off provisions in section 207(c) and (d).
Section 2641.301(d)--Uncompensated Statements Based on Special
Knowledge
Two agencies commented on Sec. 2641.301(d) as proposed,
interpreting the exception in 18 U.S.C. 207(j)(4). One agency objected
that the proposed definition of ``statement'' is too narrow. Proposed
Sec. 2641.301(d) provides that a ``statement for purposes of this
paragraph is a communication of facts directly observed by the former
employee.'' The commenter asserted that this definition would preclude
certain ``innocent'' communications that are not, strictly speaking,
facts that the former employee observed, ``such as a statement defining
a technical principle or asserting that the principle is widely
interpreted a certain way.''
OGE acknowledges that its interpretation of the exception for
statements based on special knowledge is relatively narrow, but this is
consistent with the history of the provision. As discussed more fully
in the preamble to the proposed rule, this exception was originally
provided in the 1978 Act to mitigate the impact of the new senior
employee cooling-off restriction, which then prohibited even self-
representation. 68 Federal Register 7863. After section 207(c) was
amended in 1989 to remove the ban on self-representation, the need for
reliance on the special knowledge exception was greatly reduced, and
OGE believes it would undermine the purposes of section 207(c) to take
an expansive view of the exception that would allow a wide range of
representational activity solely on the ground that the former employee
has personal familiarity with certain ``principles.'' Moreover, OGE
notes that its definition of ``statement'' is not unusual. See Black's
Law Dictionary 1263 (1979) (``a declaration of matters of fact''). That
is not to say that a statement of fact would fall outside the scope of
the exception simply because the former employee made incidental
references to certain principles necessary to understand the
significance of the facts conveyed. Nevertheless, in view of the fact
that the statute already contains other exceptions allowing ``expert''
communications under carefully limited circumstances--e.g., 18 U.S.C.
207(j)(5), (6)(A)--OGE cannot read section 207(j)(4) as a broad license
for former employees to engage in communications focusing on general
principles with which they may claim some particular expertise.
However, recognizing that statements based on inferences from facts
observed by a former employee may be permissible, OGE has revised the
text of Sec. 2641.301(d)(2) by removing the word ``directly.''
A second agency proposed that OGE include an express statement,
either in a note or in the text of section 2641.301(d), to the effect
that ``statements and opinions made on one's own behalf are not
prohibited.'' OGE has not followed this recommendation in the final
rule. The provisions stating the basic prohibitions to which this
[[Page 36184]]
exception applies are quite clear in excluding self-representation. See
Sec. 2641.201(g)(2), as referenced in Sec. Sec. 2641.204(h) and
2641.205(h).
Section 2641.301(e)--Scientific or Technological Information
Two agencies commented on proposed Sec. 2641.301(e), which
implements the exception in 18 U.S.C. 207(j)(5) for communicating
scientific or technological information. One agency recommended that
OGE remove a parenthetical reference in proposed Sec.
2641.301(e)(5)(iii)(E) to a deputy or acting head of an agency, since
there are no other references to deputy or acting agency heads in the
provision. By technical correction published in the Federal Register on
March 31, 2003, 68 FR 15385, OGE already removed this phrase from the
proposed rule as ``unintended text.''
Another agency commented on the list of possible considerations for
agency procedures in Sec. 2641.301(e)(4)(i) as proposed. The agency
recommended that OGE specify, in Sec. 2641.301(e)(4)(i)(B), when a
former employee must give notice that he or she is invoking the
exemption pursuant to agency procedures. OGE does not agree with this
recommendation and is adopting this section as final without change. It
is not OGE's intent to mandate any particular procedures for agencies
that wish to implement section 207(j)(5) through agency procedures. The
statute itself specifies that the procedures must be ``acceptable to
the department or agency concerned.'' Agencies may well have different
preferences with respect to the timing of any notices or the need for
any such notices at all.
Section 2641.301(f)--Testimony Under Oath and Statements Under Penalty
of Perjury
One agency commented on proposed Sec. 2641.301(f), which
interprets the exception in 18 U.S.C. 207(j)(6) for testimony under
oath and statements required to be made under the penalty of perjury.
The agency referenced Sec. 2641.301(f)(2)(ii), which deals with the
limitation, found in section 207(j)(6)(A), on service as an expert
witness in matters covered by the permanent ban in section 207(a)(1).
This provision states that the limitation on expert testimony may be
lifted by court order and then specifies that neither a subpoena nor a
court order qualifying an individual as an expert satisfies the court
order requirement in section 207(j)(6)(A). The commenter asked that OGE
address specifically whether experts appointed by a court itself,
pursuant to Rule 706 of the Federal Rules of Evidence, would be covered
by the ``pursuant to court order'' language in the exception.
In adopting Sec. 2641.301(f) as final, OGE has not changed the
rule text as proposed to address this subject. By its own terms, Rule
706 does not displace authorities permitting parties to call ``expert
witnesses of their own selection.'' Rule 706(d). Under Rule 706, court-
appointed experts may be appointed by the court either upon the motion
of the parties or upon the court's own motion, and the latter may be
either with or without nominations by the parties. Rule 706 also
contemplates that the parties may agree upon an expert to be appointed
by the court. Furthermore, Rule 706 provides that the appointed expert
then may be called to testify by either party, or by the court itself,
and that either party may cross-examine the expert, including that
party that called the expert as a witness. Under some or all of these
possible scenarios, there may be questions as to whether 18 U.S.C.
207(a)(1) even applies in the first place, as it may not be clear
whether the court-appointed experts are acting ``on