Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fed/cfr2637a.asc

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PART 2637 -- REGULATIONS CONCERNING POST EMPLOYMENT CONFLICT OF
INTEREST Subpart A -- General Provisions
Sec.
2637.101 Purpose and policy.
2637.102 Definitions.
Subpart B -- Substantive Provisions
2637.201 Restrictions on any former Government employee's acting
as representative as to a particular matter in which the employee
personally and substantially participated.
2637.202 Two-year restriction on any former Government employee's
acting as representative as to a particular matter for which the
employee had official responsibility.
2637.203 Two-year restriction on a former senior employee's
assisting in representing as to a matter in which the employee
participated personally and substantially.
2637.204 One-year restriction on a former senior employee's
transactions with former agency on a particular matter,
regardless of prior involvement.  2637.205 Limitation of
restrictions of 18 U.S.C. 207(c) to less than the whole of a
department or agency.
2637.206 Exemption for scientific and technological information.
2637.207 Exemption for persons with special qualification in a
technical discipline.
2637.208 Testimony and statements under oath or subject to
penalty of perjury.
2637.209 Partners of present or former Government employees.
2637.210 Officials of a State; officials of corporations created
by an Act of Congress and public international organizations.
2637.211 Standards and procedures for designating senior employee
positions pursuant to 18 U.S.C. 207(d).
2637.212 Administrative enforcement proceedings.
2637.213 Effective date of restrictions.
2637.214 Separate statutory agencies: Designations.
2637.215 Separate components of agencies or bureaus:
Designations.
2637.216 ``Senior Employee'' designations.
 Authority: 5 U.S.C. appendixes; 18 U.S.C. 207 (1988).
 Source: 45 FR 7406, Feb. 1, 1980; 45 FR 9253, Feb. 12,
1980, unless otherwise noted. Redesignated at 54 FR 50231, Dec.
5, 1989.
 Note: The post-employment conflict of interest
restrictions of 18 U.S.C. 207 were substantially revised
effective January 1, 1991, by the Ethics Reform Act of 1989, Pub.
L. 101 - 194, 103 Stat. 1716, with technical amendments enacted
by Pub. L. 101 - 280, 104 Stat. 149 (1990). The Office of
Government Ethics has published substantive guidance for the
executive branch concerning the amended version of 18 U.S.C. 207
in part 2641 of this subchapter. This part 2637 will continue to
provide guidance concerning the previous version of section 207,
which will continue to apply to individuals terminating
Government service prior to January 1, 1991.
 Editorial Note: The following index of paragraphs is
provided for the convenience of the reader:
Subpart A -- General Provisions
Sec.

2637.101 Purpose and policy.
(a) Authority.
(b) Consultation with the Attorney General.
(c) Policy and limitations.
2637.102 Definitions.
(a) Statutory definitions.
(b) Interpretative definitions.
Subpart B -- Substantive Provisions
2637.201 Restrictions on any former government employee's acting
as representative as to a particular matter in which the employee
personally and substantially participated.
(a) 18 U.S.C. 207(a).
(b) Representation.
(1) Attorneys and agents.
(2) Others.
(3) Appearances; communications made with intent to influence.
(4) Government visits to other premises.
(5) Elements of ``influence'' and potential controversy required.
(6) Assistance.
(7) Project responses not included.
(c) ``Particular matter involving a specific party or parties''.
(1) Specific matters vs. policy matters.
(2) Technical matters.
(3) Relationship of personal participation to specificity.
(4) The same particular matter must be involved.
(5) United States must be a party or have an interest.
(d) ``Participate personally and substantially''.
(1) Basic requirements.
(2) Participation on ancillary matters.
(3) Role of official responsibility in determining substantial
participation.
(e) Agency responsibility in complex cases.
2637.202 Two-year restriction on any former government employee's
acting as representative as to a particular matter for which the
employee had official responsibility.
(a) 18 U.S.C. 207(b)(i).
(b) Official responsibility.
(1) Definition.
(2) Determining official responsibility.
(3) Ancillary matters and official responsibility.
(4) Knowledge of matter pending required.
(5) Self-disqualification.
(c) ``Actually pending.''
(d) Other essential requirements.
(e) Measurement of two-year restriction period.
2637.203 Two-year restriction on a former senior employee's
assisting in representing as to a matter in which the employee
participated personally and substantially.
(a) 18 U.S.C. 207(b)(ii).
(b) Limitation to ``representational'' assistance by ``personal
presence'' at an appearance.
(c) Managerial and other off-scene assistance.
(d) Representational assistance.
(e) Measurement of restriction period.
(f) Other essential requirements.
(g) General examples.
2637.204 One-year restriction on a former senior employee's
transactions with former agency on a particular matter,
regardless of prior involvement.
(a) 18 U.S.C. 207(c).
(b) Transactions exempted from 18 U.S.C. 207(c).
(c) No prior involvement required.
(d) Specific parties unnecessary.
(e) Element of controversy or influence required.
(f) Agency activity or interest in matter.
(g) Application or proposals for funding of research.
(h) Personal matters.
(i) Statements based on special knowledge.
(j) Measurement of one-year restriction period.
2637.205 Limitation of restrictions of 18 U.S.C. 207(c) to less
than the
whole of a department or agency.
(a) Authority.
(b) Distinctions between 18 U.S.C. 207(e) and 207(d)(1)(C).
(c) Separate Statutory Components.
(1) Procedure.
(2) Standards.
(3) Effect of designation.
(d) Separate nonstatutory components.
(1) Procedure.
(2) Standards.
(3) Effect of determination.
2637.206 Exemption for scientific and technological information.
(a) Exemption.
(b) Necessary information.
(c) Intent to influence.
(d) Expert testimony.
(e) Agency responsibility for procedures.
2637.207 Exemption for persons with special qualifications in a
technical
discipline.
(a) Applicability.
(b) When appropriate.
(c) Certification authority.
(d) Agency registry.
2637.208 Testimony and statements under oath or subject to
penalty of
perjury.
(a) Statutory basis.
(b) Applicability.
(c) Statements under penalty of perjury.
2637.209 Partners of present or former government employees.
(a) Scope.
(b) Imputation.
2637.210 Officials of a state; officials of corporations created
by an act of
Congress and public international organizations.
2637.211 Senior employee designations.
(a) Definitions.
(b) Designation procedures.
(1) Positions at GS - 17 and 18 level, SES and pay grades 0 - 7
and 0 - 8.
(2) Standards for designation and exemption.
(3) Senior Executive Service.
(4) ``Rate of pay''.
(c) Differential designation.
(d) Fair notice of designation.
(e) ``Acting'' or temporary positions.
(f) Special Government Employee.
(g) Publication.
(h) Computation of time.
(i) Position Shifting.
(j) Revocation of designations.
2637.212 Administrative enforcement proceedings.
(a) Basic Procedures.
(1) Delegation.
(2) Initiation of administative disciplinary hearing.
(3) Adequate notice.
(4) Presiding official.
(5) Time, date and place.
(6) Hearing rights.
(7) Burden of proof.
(8) Hearing decision
(9) Administrative sanctions.
(10) Judicial review.
(11) Consultation and review.
2637.213 Effective date of restrictions.
(a) Persons affected.
(b) Fair notice of substantive changes.
2637.214 Separate statutory agencies: Designations.
2637.215 Separate components of agencies or bureaus:
Designations.
2637.216 ``Senior Employee'' designations.
Subpart A -- General Provisions
2637.101 Purpose and policy.
 (a) Authority. Section 401(a) of the Ethics in Government
Act of 1978 (the ``Act''), as amended by Public Law 100 - 598
(Nov. 3, 1988), established the Office of Government Ethics
(``OGE'') as a separate agency in the executive branch, effective
October 1, 1989. (OGE was formerly a part of the Office of
Personnel Management (``OPM'')). Sections 402 (a) and (b) of the
Act, as amended, provide that the Director of the Office of
Goverment Ethics (``the Director'') shall provide, in
consultation with OPM, overall direction of executive branch
policies related to preventing conflicts of interest on the part
of officers and employees of any executive agency as defined in
section 105 of title 5, United State Code, and shall propose, in
consultation with the Attorney General and OPM, rules and
regulations to be promulgated by the President or by OGE
pertaining to conflicts of interest and ethics in the executive
branch. The purpose of this part is to issue regulations prepared
by the Director which give content to the restrictions on post
employment activity established by title V of the Act (18 U.S.C.
207) for administrative enforcement with respect to former
officers and employees of the executive branch; generally to
guide agencies in exercising the administrative enforcement
authority reflected in section 18 U.S.C. 207(j); to set forth the
procedures to be employed in making certain determinations and
designations pursuant to the Act; and to provide guidance to
individuals who must conform to the law. Criminal enforcement of
the provisions of 18 U.S.C. 207 remains the exclusive
responsibility of the Attorney General.
 (b) Consultation with the Attorney General. In proposing
these regulations, the Director consulted with the Attorney
General as to the content of regulations governing substantive
prohibitions as well as other matters. The Attorney General has
advised that such regulations are consistent with his opinion as
to the interpretation of the Act.
 (c) Policy and limitations. These regulations bar certain
acts by former Government employees which may reasonably give the
appearance of making unfair use of prior Government employment
and affiliations.
 (1) When a former Government employee who has been
involved with a particular matter decides to act as the
representative for another person on that matter, such
``switching of sides'' undermines confidence in the fairness of
proceedings and creates the impression that personal influence,
gained by Government affiliation, is decisive.
 (2) Similarly, when a former high-level employee assists
in representing another by personal presence at an appearance
before the Government regarding a matter which is in dispute,
such assistance suggests an attempt to use personal influence and
the possible unfair use of information unavailable to others.
Different considerations are involved, however, with respect to
assistance given as part of customary supervisory participation
in a project funded by a Government contract or grant, since a
former employee's knowledge may benefit the project and thus the
Government, and regular communications with associates may
properly be regarded as inherent in managerial responsibility.
Such assistance, when not rendered by personal presence during an
appearance, is not covered by the statute.
 (3) When a former Senior Employee returns to argue a
particular matter to the employee's former agency in the period
immediately following the termination of official employment, it
appears that Government-based relationships are being used for
private ends.
 (4) Former officers and employees may fairly be required
to avoid such activities in the circumstances specified by
statute and in these regulations.
 (5) The provisions of 18 U.S.C. 207 do not, however, bar
any former Government employee, regardless of rank, from
employment with any private or public employer after Government
service. Nor do they effectively bar employment even on a
particular matter in which the former Government employee had
major official involvement except in certain circumstances
involving persons engaged in professional advocacy. Former
Government employees may be fully active in high-level
supervisory positions whether or not the work is funded by the
United States and includes matters in which the employee was
involved while employed by the Government. The statutory
provisions are not intended to discourage the movement of skilled
professionals in Government, to and from positions in industry,
research institutions, law and accounting firms, universities and
other major sources of expertise. Such a flow of skills can
promote efficiency and communication between the Government and
private activities, and it is essential to the success of many
Government programs. Instead, only certain acts which are
detrimental to public confidence in the Government are
prohibited.
 (6) Departments and agencies have primary responsibility
for the administrative enforcement of the post employment
restrictions found in the Act. The Department of Justice may
initiate criminal enforcement in cases involving aggravated
circumstances; agency heads are required to report substantiated
allegations of violations of 18 U.S.C. 207 to the Department of
Justice and the Director, OGE. It is essential that title V of
the Act be enforced so as to advance its objectives, which
include improvement in government efficiency, equal treatment for
equal claims, greater public confidence in the integrity of their
government, elimination of the use of public office for private
gain, and securing the integrity of the government's
policy-making processes. Departments and agencies should avoid
enforcement actions that do not advance these objectives but
instead frustrate the Government's ability to employ the skilled
persons who are needed to make the programs of the Federal
Government succeed. Special attention should be given to the need
to preserve the free flow of expertise, especially in scientific,
technological and other technical areas, from private activities
to the government.
 (7) The examples contained in these regulations are
intended to give guidance, but are illustrative, not
comprehensive. Each agency may provide additional illustration
and guidance in its own regulations, consistent with that
contained herein, in order to address specific problems arising
in the context of a particular agency's operations.
 (8) Agencies have the responsibility to provide assistance
promptly to former Government employees who seek advice on
specific problems. The Office of Government Ethics will provide
advice, promptly, upon request, to designated agency ethics
officials in such situations, but will first coordinate with the
Department of Justice on unresolved or difficult issues.
 (9) These regulations do not supplant restrictions that
may be contained in laws other than 18 U.S.C. 207 and do not
incorporate restrictions contained in the code of conduct of a
profession of which an employee may be a member.
[45 FR 7406, Feb. 1, 1980; 45 FR 9253, Feb. 12, 1980, as amended
at 49 FR 33118, Aug. 21, 1984; 50 FR 1203, Jan. 10, 1985.
Redesignated at 54 FR 50230, Dec. 5, 1989; 55 FR 27179, July 2,
1990; 55 FR 27933, July 6, 1990] 2637.102 Definitions.
 (a) Statutory definitions. The following are defined terms
which largely repeat portions of the text of the statute. They
are set out here to permit a simplified presentation of statutory
requirements in the regulations which follow. Other definitions,
which supplement the statutory language, are listed in paragraph
(b) of this section and are set forth in detail in the
substantive regulations.
 (1) United States or Government means any department,
agency, court, court-martial, or any civil, military or naval
commission of the United States, the District of Columbia, or any
officer or employee thereof.
 (2) Agency includes an Executive Department, a Government
corporation and an independent establishment of the executive
branch, which includes an independent commission. (See 18 U.S.C.
6.)
 (3) Government Employee includes any officer or employee
of the Executive Branch (as defined in 18 U.S.C. 202 and, e.g., 5
U.S.C. 2104 and 2105); those appointed or detailed under 5 U.S.C.
3374, and a Special Government Employee, but shall not include an
individual performing services for the United States as an
independent contractor under a personal service contract.
 (4) Former Government Employee means one who was, and is
no longer, a Government employee.
 (5) Special Government Employee means an officer or
employee of an agency who is retained, designated, appointed, or
employed to perform, with or without compensation, for not to
exceed 130 days during any period of three hundred and sixty five
consecutive days, temporary duties either on a full time or
intermittent basis (18 U.S.C. 202).
 (6) Senior Employee means an officer or employee named in,
or designated by the Director pursuant to, section 207(d) of
title 18 U.S.C. to whom 207(b)(ii) and (c) shall apply (See
2637.211 of this part.)
 (7) Particular Government matter involving a specific
party means any judicial or other proceeding, application,
request for a ruling or other determination, contract, claim,
controversy, investigation, charge, accusation, arrest or other
particular matter involving a specific party or parties in which
the United States is a party or has a direct and substantial
interest.
 (b) Interpretative definitions.T1 Other terms defined and
interpreted in the substantive regulations are:
 (1) Acting as Agent or Attorney: (See 2637.201(b).)
 (2) Actually Pending: (See 2637.202(c).)
 (3) Communicating with Intent to Influence: (See
2637.201(b).)
 (4) Direct and Substantial Interest: (See 2637.204(f).)
 (5) Participate Personally and Substantially: (See
2637.201(d).)
 (6) Particular Matter Involving a Specific Party or
Parties: (See 2637.201(c).)
 (7) Particular Matter (without parties): (See
2637.204(d).)
 (8) Official Responsibility: (See 2637.202(b).)
 (9) Rate of Pay: (See 2637.211(b)(4).)
Subpart B -- Substantive Provisions
2637.201 Restrictions on any former Government employee's acting
as representative as to a particular matter in which the employee
personally and substantially participated.
 (a) Basic prohibition of 18 U.S.C. 207(a). No former
Government employee, after terminating Government employment,
shall knowingly act as agent or attorney for, or otherwise
represent any other person in any formal or informal appearance
before, or with the intent to influence, make any oral or written
communication on behalf of any other person (1) to the United
States, (2) in connection with any particular Government matter
involving a specific party, (3) in which matter such employee
participated personally and substantially as a Government
employee.
 (b) Representation: Acting as agent or attorney, or other
representative in an appearance, or communicating with intent to
influence --
(1) Attorneys and agents. The target of this provision is the
former employee who participates in a particular matter while
employed by the Government and later ``switches sides'' by
representing another person on the same matter.
 [NOTE: The examples in these regulations do not
incorporate the special statutory restrictions on Senior
Employees, except where the terms ``Senior Employee'' or
``Senior'' are expressly used.]
 Example 1: A lawyer in the Department of Justice
personally works on an antitrust case involving Q Company. After
leaving the Department, he is asked by Q Company to represent it
in that case. He may not do so.
 (2) Others. The statutory prohibition covers any other
former employee, including managerial and technical personnel,
who represents another person in an appearance or, by other
communication, attempts to influence the Government concerning a
particular matter in which he or she was involved. For example, a
former technical employee may not act as a manufacturer's
promotional or contract representative to the Government on a
particular matter in which he or she participated. Nor could such
employee appear as an expert witness against the Government in
connection with such a matter. (See 2637.208 for specific rules
relating to expert witnesses.)
 (3) Appearances; communications made with intent to
influence. An appearance occurs when an individual is physically
present before the United States in either a formal or informal
setting or conveys material to the United States in connection
with a formal proceeding or application. A communication is
broader than an appearance and includes for example,
correspondence, or telephone calls.
 Example 1: An appearance occurs when a former employee
meets with an agency employee personally to discuss a matter; or
when he submits a brief in an agency administrative proceeding in
his own name.
 Example 2: A former employee makes a telephone call to a
present employee to discuss a particular matter that is not the
subject of a formal proceeding. She has made a communication.
 (4) Government visits to others premises. Neither a
prohibited appearance nor communication occurs when a former
Government employee communicates with a Government employee who,
at the instance of the United States, visits or is assigned to
premises leased to, or owned or occupied by, a person other than
the United States which are or may be used for performance under
an actual or proposed contract or grant, when such communication
concerns work performed or to be performed and occurs in the
ordinary course of evaluation, administration, or performance of
the actual or proposed contract or grant.
 (5) Elements of ``influence'' and potential controversy
required.  Communications which do not include an ``intent to
influence'' are not prohibited. Moreover, acting as agent or
attorney in connection with a routine request not involving a
potential controversy is not prohibited. For example, the
following are not prohibited: a question by an attorney as to the
status of a particular matter; a request for publicly available
documents; or a communication by a former employee, not in
connection with an adversary proceeding, imparting purely factual
information. (See also 2637.204(d) of this part.)
 Example 1: A Government employee, who participated in
writing the specifications of a contract awarded to Q Company for
the design of certain education testing programs, joins Q Company
and does work under the contract.  She is asked to accompany a
company vice-president to a meeting to state the results of a
series of trial tests, and does so. No violation occurs when she
provides the information to her former agency. During the meeting
a dispute arises as to some terms of the contract, and she is
called upon to support Q Company's position. She may not do so.
If she had reason to believe that the contractual dispute would
be a subject of the meeting, she should not have attended.
 (6) Assistance. A former employee is not prohibited from
providing in-house assistance in connection with the
representation of another person.
 Example 1: A Government employee administered a
particular contract for agricultural research with Q Company.
Upon termination of her Government employment, she is hired by Q
Company. She works on the matter covered by the contract, but has
no direct contact with the Government. At the request of a
company vice-president, she prepares a paper describing the
persons at her former agency who should be contacted and what
should be said to them in an effort in increase the scope of
funding of the contract and to resolve favorably a dispute over a
contract clause. She may do so.
 (7) Project responses not included. In a context not
involving a potential controversy involving the United States no
finding of a ``intent to influence'' shall be based upon whatever
influential effect inheres in an attempt to formulate a
meritorious proposal or program.
 Example 1: The employee of Q Company in the previous
example is asked to design an educational testing program, which
she does and transmits it to the Government. This is not
prohibited despite the fact that her well-designed program may be
inherently influential on a question of additional funding under
the contract. She may not argue for its acceptance.
 (c) ``Particular matter involving a specific party or
parties'' --
(1) Specific matters vs. policy matters. The prohibitions of
subsections (a) and (b) of 18 U.S.C. 207, are based on the former
Government employee's prior participation in or responsibility
for a ``judicial or other proceeding, application, request for a
ruling or other determination, contract, claim, controversy,
investigation, charge, accusation, arrest, or other particular
matter involving a specific party or parties'' in which the
United States is a party or has a direct and substantial
interest. 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. Rulemaking, legislation, the formulation of general
policy, standards or objectives, or other action of general
application is not such a matter. Therefore, a former Government
employee may represent another person in connection with a
particular matter involving a specific party even if rules or
policies which he or she had a role in establishing are involved
in the proceeding.
 Example 1: A Government employee formulated the policy
objectives of an energy conservation program. He is not
restricted from later representing a university which seeks a
grant or contract for work emerging from such a program.
 Example 2: A Government employee reviews and approves a
specific city's application for Federal assistance for a renewal
project. After leaving Government service, she may not represent
the city in relation to that project.
 Example 3: An employee is regularly involved in the
formulation of policy, procedures and regulations governing
departmental procurement and acquisition functions. Participation
in such activities does not restrict the employee after leaving
the Government as to particular cases involving the application
of such policies, procedures, or regulations.
 Example 4: An employee of the Office of Management and
Budget participates substantially on the merits of a decision to
reduce the funding level of a program, which has the effect of
reducing the amount of money which certain cities receive to
conduct youth work programs. After leaving the Government she may
represent any of the cities in securing funds for its youth
program, since her participation was in connection with a
program, not a particular matter involving specific parties.
 Example 5: An agency attorney participates in drafting a
standard form contract and certain ``standard terms and clauses''
for use in future contracts. He is not thereafter barred from
representing a person in a dispute involving the application of
such a ``standard term or clause'' in a particular contract in
which he did not participate as a Government employee.
 (2) Technical matters. In connection with technical work,
participation in projects generally involving one or more
scientific or engineering concepts, in feasibility studies, or in
proposed programs prior to the formulation of a contract will not
restrict former Government employees with respect to a contract
or specific programs entered into at a later date.
 Example 1: A Government employee participates
significantly in formulating the ``mission need'' of a project
pursuant to OMB Circular No. A
- 109, and the award of a contract to Z Company, the purpose of
which is to propose alternative technical approaches. He is not
barred, after leaving Government service, from representing Q
Company which later seeks a contract to manufacture one of the
systems suggested by the Z Company.
 Example 2: A Government employee, who has worked for
years on the design of a new satellite communications system,
joins C Company. Later, the Government issues a ``request for
proposals'' (``rfp'') to construct the new system, which is
circulated generally to industry. The employee proposes to act as
C Company's representative in connection with its anticipated
proposals for the contract. He may do so. The satellite contract
became a particular matter when the rfp was being formulated; it
would ordinarily not become one involving a specific party or
parties until initial proposals or indications of interest
therein by contractors were first received. Moreover, if the
employee's work for C Company were limited to the formulation and
communication of a proposal in response to the rfp, it would not
be prohibited to the extent it involved a communication for the
purpose of furnishing scientific or technological information to
the Government, exempt under 18 U.S.C. 207(f). See 2637.206
below. (See paragraph (3) below as to a case where the employee's
own participation may cause a different result.)
 (3) Relationship of personal participation to specificity.
In certain cases, whether a matter should be treated as a
``particular matter involving specific parties'' may depend on
the employee's own participation in events which give
particularity and specificity to the matter in question.  For
example, if a Government employee (i) personally participated in
that stage of the formulation of a proposed contract where
significant requirements were discussed and one or more persons
was identified to perform services thereunder and (ii) actively
urged that such a contract be awarded, but the contract was
actually awarded only after the employee left, the contract may
nevertheless be a particular matter involving a specific party as
to such former Government employee.
 Example 1: A Government employee advises her agency that
it needs certain work done and meets with private firm X to
discuss and develop requirements and operating procedures.
Thereafter, the employee meets with agency officials and
persuades them of the need for a project along the lines
discussed with X. She leaves the Government and the project is
awarded by other employees to firm X. The employee is asked by X
to represent it on the contract. She may not do so.
 (4) The same particular matter must be involved. The
requirement of a ``particular matter involving a specific party''
applies both at the time that the Government employee acts in an
official capacity and at the time in question after Government
service. The same particular matter may continue in another form
or in part. In determining whether two particular matters are the
same, the agency should consider the extent to which the matters
involve the same basic facts, related issues, the same or related
parties, time elapsed, the same confidential information, and the
continuing existence of an important Federal interest.
 Example 1: A Government employee was substantially
involved in the award of a long-term contract to Z Company for
the development of alternative energy sources. Six years after he
terminates Government employment, the contract is still in
effect, but much of the technology has changed as have many of
the personnel. The Government proposes to award a ``follow on''
contract, involving the same objective, after competitive
bidding. The employee may represent Q Company in its proposals
for the follow-on contract, since Q Company's proposed contract
is a different matter from the contract with Z Company. He may
also represent Z Company in its efforts to continue as
contractor, if the agency determines on the basis of facts
referred to above, that the new contract is significantly
different in its particulars from the old. The former employee
should first consult his agency and request a written
determination before undertaking any representation in the
matter.
 Example 2: A Government employee reviewed and approved
certain wiretap applications. The prosecution of a person
overheard during the wiretap, although not originally targeted,
must be regarded as part of the same particular matter as the
initial wiretap application. The reason is that the validity of
the wiretap may be put in issue and many of the facts giving rise
to the wiretap application would be involved. Other examples: See
2637.201(b)(1), Example 1, and (c), Example 2.
 (5) United States must be a party or have an interest. The
particular matter must be one in which the United States is a
party, such as in a judicial or administrative proceeding or a
contract, or in which it has a direct and substantial interest.
The importance of the Federal interest in a matter can play a
role in determining whether two matters are the same particular
matter.
 Example 1: An attorney participated in preparing the
Government's antitrust action against Z Company. After leaving
the Government, she may not represent Z Company in a private
antitrust action brought against it by X Company on the same
facts involved in the Government action. Nor may she represent X
Company in that matter. The interest of the United States in
preventing both inconsistent results and the appearance of
impropriety in the same factual matter involving the same party,
Z Company, is direct and substantial. However, if the
Government's antitrust investigation or case is closed, the
United States no longer has a direct and substantial interest in
the case.
 Example 2: A member of a Government team providing
technical assistance to a foreign country leaves and seeks to
represent a private contractor in making arrangements with the
Government to perform the same service. The proposed new contract
may or may not be considered a separate matter, depending upon
whether the United States has a national interest in maintaining
the original contract. The agency involved must be consulted by
the former employee before the representation can be undertaken.
 (d) ``Participate personally and substantially'' -- (1)
Basic requirements. The restrictions of section 207(a) apply only
to those matters in which a former Government employee had
``personal and substantial participation,'' exercised ``through
decision, approval, disapproval, recommendation, the rendering of
advice, investigation or otherwise.'' To participate
``personally'' means directly, and includes the participation of
a subordinate when actually directed by the former Government
employee in the matter. ``Substantially,'' means that the
employee's involvement must be of significance to the matter, or
form a basis for a reasonable appearance of such significance. It
requires more than official responsibility, knowledge,
perfunctory involvement, or involvement on an administrative or
peripheral issue. A finding of substantiality should be based not
only on the effort devoted to a matter, but on the importance of
the effort. While a series of peripheral involvements may be
insubstantial, the single act of approving or participation in a
critical step may be substantial. It is essential that the
participation be related to a ``particular matter involving a
specific party.'' (See paragraph (c) of this section.) (See also
2637.203(f) of this part.)
 Example 1: If an officer personally approves the
departmental budget, he does not participate substantially in the
approval of all items contained in the budget. His participation
is substantial only in those cases where a budget item is
actually put in issue. Even then, the former Government employee
is not disqualified with respect to an item if it is a general
program rather than a particular matter involving a specific
party.  The former Government employee may, however, have
official responsibility for such matters. (See 2637.202(b).)
 Example 2: A Government lawyer is not in charge of, nor
has official responsibility for a particular case, but is
frequently consulted as to filings, discovery, and strategy. Such
an individual has personally and substantially participated in
the matter.
 (2) Participation on ancillary matters. An employee's
participation on subjects not directly involving the substantive
merits of a matter may not be ``substantial,'' even if it is
time-consuming. An employee whose responsibility is the review of
a matter solely for compliance with administrative control or
budgetary considerations and who reviews a particular matter for
such a purpose should not be regarded as having participated
substantially in the matter, except when such considerations also
are the subject of the employee's proposed representation. (See
2637.202(b)(3) of this part.) Such an employee could
theoretically cause a halt in a program for noncompliance with
standards under his or her jurisdiction, but lacks authority to
initiate a program or to disapprove it on the basis of its
substance.
 (3) Role of official responsibility in determining
substantial participation. ``Official responsibility'' is defined
in 2637.202(b)(1).  ``Personal and substantial participation'' is
different from ``official responsibility.'' One's responsibility
may, however, play a role in determining the ``substantiality''
of an employee's participation. For example, ordinarily an
employee's forbearance on a matter is not substantial
participation. If, however, an employee is charged with
responsibility for review of a matter and action cannot be
undertaken over his or her objection, the result may be
different. If the employee reviews a matter and passes it on, his
or her participation may be regarded as ``substantial'' even if
he or she claims merely to have engaged in inaction.
 (e) Agency responsibility in complex cases. In certain
complex factual cases, the agency with which the former
Government employee was associated is likely to be in the best
position to make a determination as to certain issues, for
example, the identity or existence of a particular matter.
Designated agency ethics officials should provide advice promptly
to former Government employees who make inquiry on any matter
arising under these regulations.
2637.202 Two-year restriction on any former Government employee's
acting as representative as to a particular matter for which the
employee had official responsibility.
 (a) Basic prohibition of 18 U.S.C. 207(b)(i). No former
Government employee, within two years after terminating
employment by the United States, shall knowingly act as agent or
attorney for, or otherwise represent any other person in any
formal or informal appearance before, or with the intent to
influence, make any oral or written communication on behalf of
any other person (1) to the United States, (2) in connection with
any particular Government matter involving a specific party (3)
if such matter was actually pending under the employee's
responsibility as an officer or employee within period of one
year prior to the termination of such responsibility.
 (b) ``Official responsibility'' -- (1) Definition.
``Official responsibility'' is defined in 18 U.S.C. 202 as, ``the
direct administrative or operating authority, whether
intermediate or final, and either exercisable alone or with
others, and either personally or through subordinates, to
approve, disapprove, or otherwise direct Government actions.''
 (2) Determining official responsibility. Ordinarily, the
scope of an employee's ``official responsibility'' is determined
by those areas assigned by statute, regulation, Executive Order,
job description or delegation of authority. All particular
matters under consideration in an agency are under the ``official
responsibility'' of the agency head, and each is under that of
any intermediate supervisor having responsibility for an employee
who actually participates in the matter within the scope of his
or her duties.
 (3) Ancillary matters and official responsibility.
``Administrative'' authority as used in the foregoing definition
means authority for planning, organizing and controlling matters
rather than authority to review or make decisions on ancillary
aspects of a matter such as the regularity of budgeting
procedures, public or community relations aspects, or equal
employment opportunity considerations. Responsibility for such an
ancillary consideration does not constitute responsibility for
the particular matter, except when such a consideration is also
the subject of the employee's proposed representation.
 Example 1: An agency's comptroller would not have
official responsibility for all programs in the agency, even
though she must review the budget, and all such programs are
contained in the budget.
 Example 2: Within two years after terminating employment,
an agency's former comptroller is asked to represent Q Company in
a dispute arising under a contract which was in effect during the
comptroller's tenure.  The dispute concerns an accounting
formula, under the contract, a matter as to which a subordinate
division of the comptroller's office was consulted.  She may not
represent Q Company on this matter.
 (4) Knowledge of matter pending required. In order for a
former employee to be barred from representing another as to a
particular matter, he or she need not have known, while employed
by the Government, that the matter was pending under his or her
official responsibility. However, the former employee is not
subject to the restriction unless at the time of the proposed
representation of another, he or she knows or learns that the
matter had been under his or her responsibility. Ordinarily, a
former employee who is asked to represent another on a matter
will become aware of facts sufficient to suggest the relationship
of the prior matter to his or her former agency. If so, he or she
is under a duty to make further inquiry, including direct contact
with an agency's designated ethics official where the matter is
in doubt.
 (5) Self-disqualification. A former employee cannot avoid
the restrictions of this section on the ground by
self-disqualification with respect to a matter for which he or
she otherwise had official responsibility. However,
self-disqualification is effective to eliminate the restriction
of section 207(a).
 (c) ``Actually pending.'' ``Actually pending'' means that
the matter was in fact referred to or under consideration by
persons within the employee's area of responsibility, not that it
merely could have been.
 Example 1: A staff lawyer in a department's Office of
General Counsel is consulted by procurement officers on the
correct resolution of a contractual matter involving Q Company.
The lawyer renders an opinion resolving the question. The same
legal question arises later in several contracts with other
companies, but none of the disputes with such companies is
referred to the Office of the General Counsel. The General
Counsel has official responsibility for the determination of the
Q Company matter. The other matters were never ``actually
pending'' under that responsibility, although as a theoretical
matter, such responsibility extended to all legal matters within
the department.
 (d) Other essential requirements. All other requirements
of the statute must be met before the restriction on
representation applies. The same considerations apply in
determining the existence of a ``particular matter involving a
specific party,'' a representation in an ``appearance,'' or
``intent to influence,'' and so forth as set forth under 2637.201
of this part.
 Example 1: During her tenure as head of an agency, an
officer's subordinates undertook major changes in agency
enforcement standards involving occupational safety. Eighteen
months after terminating Government employment, she is asked to
represent Z Company which believes it is being unfairly treated
under the enforcement program. The Z Company matter first arose
on a complaint filed after the agency head terminated her
employment.  She may represent Z Company because the matter
pending under her official responsibility was not one involving
``a specific party.'' (Moreover, the time-period covered by 18
U.S.C. 207(c) has elapsed.)
 (e) Measurement of two-year restriction period. The
statutory two-year period is measured from the date when the
employee's responsibility in a particular area ends, not from the
termination of Government service, unless the two occur
simultaneously. The prohibition applies to all particular matters
subject to such responsibility in the one-year period before
termination of such responsibility.
 Example 1: The Director, Import/Export Division of A
Agency retires after 26 years of service and enters private
industry as a consultant. He will be restricted for two years
with respect to all matters which were actually pending under his
official responsibility in the year before his retirement.
 Example 2: An employee transfers from a position in A
Agency to a position in B Agency, and she leaves B Agency for
private employment 9 months later. In 15 months she will be free
of restriction insofar as matters which were pending under her
responsibility in A Agency in the year before her transfer. She
will be restricted for two years in respect of B Agency matters
which were pending in the year before her departure for private
employment.  2637.203 Two-year restriction on a former senior
employee's assisting in representing as to a matter in which the
employee participated personally and substantially.
 (a) Basic prohibition of 18 U.S.C. 207(b)(ii). No former
Senior Employee (see 2637.102(a)(6)), within two years after
terminating employment by the United States, shall knowingly
represent or aid, counsel, advise, consult, or assist in
representing any other person by personal presence at any formal
or informal appearance, (1) before the United States,
(2) in connection with any particular Government matter involving
a specific party, (3) in which matter he or she participated
personally and substantially.
 (b) Limitation to ``representational'' assistance by
``personal presence'' at an appearance. Section 207(b)(ii) is
limited to assistance ``in representing'' another person by
``personal presence'' at an ``appearance'' before the United
States. Different in scope from sections 207(a) and 207(b)(i), it
does not apply to assistance in connection with an oral or
written communication made with an intent to influence which does
not involve an appearance. Nor does it bar assistance in
preparation for either a formal or informal personal appearance
or an appearance by written submission in a formal proceeding
where the former employee is not personally present before the
Government or a Government employee. The provision is designed to
prevent the former Senior Employee from playing any auxiliary
role during a negotiation proceeding or similar transaction with
the Government so that he or she does not appear to be lending
personal influence to the resolution of a matter and cannot do so
in fact.
 Example 1: A former Senior Employee makes suggestions as
to the content of a letter to be sent to the Government on a
matter in which he had participated. No violation occurs.
 (c) Managerial and other off-scene assistance. The statute
does not prohibit a former Senior Employee's advice and
assistance to his or her organization's representatives which
does not involve his or her personal presence at an appearance
before the Government. The former Senior Employee's preparation
of documents to be presented in any formal or informal proceeding
does not constitute personal presence at an appearance, even
where submission of such a document might technically constitute
an appearance.
 Example 1: A former Senior Employee attends a hearing on
a matter in which she had participated personally and
substantially while in the Government. She speaks with the
representative of a private party during the hearing. A violation
occurs if the former Senior Employee lends assistance to the
representative in that conversation.
 Example 2: A Senior Justice Department lawyer personally
works on an antitrust case against Z Company. After leaving the
Department, she is asked to discuss legal strategy with lawyers
representing Z Company on that same antitrust case, to write
portions of a brief and to direct the research of the staff
working on the case. Any such aid would not be prohibited by the
statute, but would likely be prohibited by professional
disciplinary rules.
 (d) Representational assistance. The statute seeks to
prevent a former Senior Employee from making unfair use of his or
her prior governmental position by prohibiting all forms of
assistance in the representation of another when personally
present at an appearance, including giving advice as to how the
representation in an appearance should be conducted, supplying
information, participating in drafting materials, or dealing with
forensic or argumentative matters (such as testimony, methods of
persuasion, or strategy of presentation).
 (e) Measurement of restriction period. The statutory
two-year period is measured from the date of termination of
employment in the Senior Employee position held by the former
employee when he or she participated personally and substantially
in the matter involved. (cf. 2637.202(e))
 (f) Other Essential Requirements. All conditions of the
statutory prohibition must be met. Specifically, the former
employee, (1) must have been a ``Senior Employee,'' (2) who
``participated personally and substantially'' (See 2637.201(d) of
this part) in (3) a ``particular matter involving a specific
party.'' (See subpart 2637.201(c) of this part.)
 (g) General Examples:
 Example 1: A Senior Federal Trade Commission Employee, an
economist by profession, participates in an investigation
involving X Company, and a proceeding is commenced against X
Company based on the investigation. After leaving the Commission,
he offers to serve as a consultant to the lawyers for X Company
on certain economic matters involved in the proceeding. He
attends the proceeding and at the close of each day, meets in the
lawyers' office to advise them. Such conduct violates the
statute.