Post-Employment Conflict of Interest Restrictions, 36168-36210 [E8-13394]

Agencies

• Office of Government Ethics
• Government Ethics Office

[Federal Register Volume 73, Number 123 (Wednesday, June 25, 2008)]
[Rules and Regulations]
[Pages 36168-36210]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-13394]



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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

Federal Register / Vol. 73 , No. 123 / Wednesday, June 25, 2008 / 
Rules and Regulations

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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.

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    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 https://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 https://
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

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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

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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, https://
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 t