ities assigned to the deputies by their position descriptions, by any formal delegations to them, or by an other legally effective

means.

(c) "Personal involvement". "Personally involved" is short for the following statutory language:

"Participated personally and substantially as an officer or employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise".

In other words:

(1) You may have "participated" and so have been "personally involved" even though you actually made none of the important decisions. You “participated" if you made recommendations, rendered advice, conducted an investigation, or otherwise contributed. Moreover, "approval" is specifically covered. Giving a required approval, however perfunctorily, is covered if the action could not have been taken over your objection.

(2) On the other hand, there is a distinction between personal involvement and official responsibility. If you could have intervened in the matter because of your position, but in fact did not, you were not "personally involved".

(3) You must have participated "personally". You participated personally if you gave directions or instructions about the matter to a subordinate who participated directly. If a subordinate participated without any direction or instruction from you about that particular matter, and you did not otherwise participate, you did not participate personally.

(4) You must have participated "substantially". That requires more than knowledge of what was going on, perfunctory involvement, or involvement on an administrative or peripheral issue. Your participation was "substantial" if it was significant to the outcome or would have seemed so to a reasonable outside observer, considering not only the effort you devoted to the matter but the influence of your effort on the outcome. A single act of a critical step, such as an approval, may be substantial. A series of timeconsuming peripheral involvements, such as review solely for compliance with administrative or budgetary controls, may be insubstantial.

§ 682.12 Representation covered.

(a) Representational dealings. All four of the basic representational restrictions are restrictions on representing private parties in dealing with NSF officials or other Federal officials. The dealings covered are encompassing. They include any formal appearance before an official; any meeting with an official; and any letter, phone call, or other communication with an official. (b) Intent to influence and potential controversy required. Contacts as a representative without intent to influence the officials contracted are not prohibited. Nor are contacts as a representative in connection with a routine request not involving a potential controversy. For example, you may ask a question about the status of a particular matter, as long as there is no implicit attempt to influence the outcome. You may request publicly available documents. You may communicate with an official to impart purely factual information as long as the communication has no connection with an adversary proceeding.

Example: While an NSF employee you helped write the current contract for the Kitt Peak National Observatory, with which you are now a staff scientist. You are asked to make a scientific presentation to NSF officials at the annual review of the Kitt Peak program. You may do so. You may not, however, participate in or support any appeal for more funds for Kitt Peak during the review. Indeed, it would be better for you to not be present at all when funding and other contractual subjects are discussed. If you were not a staff scientist at Kitt Peak, but only a user, that would not change things for this purpose.

(c) Assisting without appearing or communicating with officials. You are not prohibited from helping those who are representing a private party with Federal officials, as long as you do not yourself make an appearance or otherwise communicate with the officials. You may advise officials or representatives of the party, may make suggestions about whom they should contact and what they should say, and may even draft documents and letters, as long as you do not personally sign or transmit them. CAUTION: What is permitted under Federal law may be

prohibited by rules of professional ethics, particularly if you are a lawyer.

(d) Assisting by personal presence at an appearance or meeting. A former high-ranking employee (SES, GS-17, or above) who had official responsibility for a matter or was personally involved while a Federal employee may violate the criminal statutes by being present to assist others at a meeting with Federal officials or an appearance before them, even though the former employee never speaks with the Federal officials. The NSF goes further and asks that (whether highranking or not) if you would be barred from directly representing anyone in connection with any matter, you refrain from being personally present while others are meeting with NSF officials. In rare cases where there are special circumstances the General Counsel or the Director may waive this restriction to the extent consistent with the Government-wide law and regulations.

(e) Dealings with officials of the legislative branch not covered. Where the basic representational restrictions refer to dealings with "Federal officials", that covers officials of a Federal Executive-branch or administrative agency and officials of Federal courts or administrative tribunals. It does not, however, encompass Members of Congress, their staffs, or other officials of the legislative branch.

(f) Representing the United States. During your Government service, you may naturally represent your office, the NSF, or the Government (or anyone else, for that matter) with other Federal officials if the representation is part of your official duties. After your Government service, moreover, you may represent an office or agency of the Government in dealings with officials of another office or agency any time you are asked to do

So.

(g) Representing yourself. The "official responsibility" two-year restriction and the "personal involvement" permanent restriction do not apply if you represent only yourself. They would apply, however, if you were to represent yourself and another person, such as an institution or organization with which you are employed

or affiliated. The current-employee representational restriction and the one-year NSF restriction would apply even if you were to represent only yourself. Even they, however, would not apply to:

(1) Any expression of your views on policy issues, where the circumstances make obvious that you are only speaking as an informed and interested citizen, not representing any financial or other interests of your own or of any other person or institution with whom you are associated;

(2) Any appearance or communication concerning matters of a personal and individual nature, such as your income taxes; your salary, benefits, or rights as a Federal employee; or the application of conflict-of-interests rules to something you propose to do;

or

(3) Any appearance on your own behalf in any litigation or administrative proceeding.

They do apply, though, to contacts seeking grants or business, except for discussions about employment with an agency as a consultant or otherwise and to scientific or technical proposals, presentations, or communications. See § 682.20.

§ 682.13 "Matters" covered.

(a) Matters involving specific parties. The "official responsibility" twoyear restriction an the "personal involvement" permanent restriction both cover only a "matter involving specific parties". Generally, such a matter is a specific proceeding affecting the legal rights of the parties to the proceeding or an isolatable transaction or related set of transactions between identifiable parties. A “party” may be either a person or an institution, and one such party other than the Government is enough.

(1) In the context of the NSF a "matter involving specific parties" will usually consist of a proposal or bid, the award-or-declination decision process with respect to it, any award that results, and any subsequent administrative action related to the project. Such "matters" are covered in Subpart B of this part.

(2) Otherwise, typical "matters involving specific parties" include other kinds of contracts or agreements; applications for permits, licenses, or the like; requests for rulings or similar official determinations; claims; investigations or audits; charges or accusations against individuals or firms; adjudicatory hearings; and court cases. These are relatively uncommon at the NSF, but when current or former NSF employees have been officially responsible for such matters or personally involved in them, the representational restrictions may apply. If in doubt consult an ethics counselor in the Office of the General Counsel.

(b) Same or different matter. The "official responsibility" two-year restriction and the "personal involvement" permanent restriction cover such a matter only if during your NSF service the same matter was under your official responsibility or you were personally involved in it. Except where guidance is provided in Subpart B of this part, you should not decide for yourself whether a "matter involving specific parties" is the same as one for which you had “official responsibility" or with which you were "personally involved" while at the NSF. Consult an ethics counselor in the Office of the General Counsel.

(c) Other "matters". The current-employee restriction and the one-year NSF restriction both cover matters that do not "involve specific parties" as well as those that do. Such broader "matters" include:

(1) Determinations to establish or disestablish a particular program or set its budget level for a particular fiscal year;

(2) Decisions to undertake or terminate a particular project;

(3) Decisions to open or not open a contract to competitive bidding;

(4) Decisions on particular NSF rules or formal policy, such as adoption or amendment of a resolution by the National Science Board, promulgation or amendment of an NSF regulation or circular, amendment of standard grant or contract terms, or changes to such NSF policy documents as Grants for Scientific Research and the Grants Policy Manual; and

(5) Agency positions on particular legislative or regulatory proposals. On the other hand, the statutory term is really not just "matter", but "particular matter". The word "particular" is intended to exclude broad technical areas, policy issues, and conceptual work done before a program has become particularized into one or more specific projects. You should not, however, rely on this hazy distinction alone to take you out from under either of the representational restrictions that cover matters not involving specific parties without checking with an ethics counselor in the Office of the General Counsel.

(d) Boundaries of matters not involving specific parties. In connection with the current-employee restriction and the one-year NSF restriction, you need not consider whether a "matter" is the same as or separate from any other matter. Those two restrictions cover any "matter", whether or not you have previously had any responsibility for or involvement with it.

§ 682.14 Restriction on your partners.

While you are a Federal official no person who is legally your partner in a business or professional partnership may act as agent or attorney for anyone in dealings with any other Federal official on any matter under your official responsibility or with which you are or have been personally involved as a Federal official. A partner who violates this rule commits a Federal crime punishable by a fine of up to $5000 or imprisonment for up to one year or both. In general, your partners may safely steer clear of this restriction by using the definitions and guidance in the earlier sections of this Subpart A, treating "act as agent or attorney" as equivalent to “represent" (it may actually be slightly less encompassing). They may consult on this restriction with attorneys in the Office of the NSF General Counsel. If they prefer to consult other counsel, the counsel should be directed to 18 U.S.C. 207(g).

Subpart B-Involvement With Proposals and NSF-Supported Projects During and After NSF Service

§ 682.20 General; restricted representational activities vs. permitted research or educational activities.

(a) Basic representational restrictions. The same four representational restrictions described in Subpart A of this part apply to representational activities involving proposals or projects.

(1) Current-employee restriction. During your Federal employment you must not represent anyone (including yourself) in dealings with any Federal official on any proposal or project.

(2) One-year NSF restriction. For one year after you leave NSF employment you must not represent anyone (including yourself) in dealing with any NSF official on any proposal or project.

(3) "Official responsibility" two-year restriction. For two years after you leave NSF employment you must not represent anyone else in dealing with any Federal official on any proposal or project if the same proposal or project was active under your official responsibility during your last year at the NSF.

(4) "Personal involvement" permanent restriction. You must never represent anyone else in dealings with any Federal official on any proposal or project if you were personally involved with the same proposal or project as an NSF employee.

(b) Examples. Examples 1 through 4 in § 682.10(b) illustrate the application of these restrictions.

(c) General effect. These representational restrictions do not preclude you from being involved as a researcher or educator with proposals submitted to the Government or projects supported by the Government. They do preclude you from negotiating with NSF officials or other Federal officials and from engaging in other representational activities intended to influence their decisions on certain proposals and projects.

(d) Restricted representational dealings. If you write, call, visit, or otherwise communicate with an official you have "dealt" with the official. Those dealings are representational if you

try to influence the official to suggest, recommend, or approve:

(1) An award;

(2) An award amount, a budget, or particular budget items;

(3) Particular award terms or conditions;

(4) An award amendment, increase, or extension;

(5) An administrative approval; or (6) Any other action affecting a proposal or project.

(e) Permitted research and educational activities. You do not engage in representational dealings, and so you violate none of the representational restrictions, by:

(1) Participating in research or other work supported under an award from the NSF or another Federal agency;

(2) Being listed as an investigator in a proposal or award;

(3) Preparing a proposal that will be submitted to the NSF or another Federal agency (but if you prepare it during your NSF tenure, you must do so entirely on your own time);

(4) Making a scientific or technical presentation to officials of the NSF or another Federal agency (at a site visit, for example) or otherwise communicating scientific or technical information to them on the work being proposed or conducted; or

(5) Communicating with officials of the NSF or another Federal agency, with no intent to influence them, to request routinely available and noncontroversial information, such as the status of the decision process on a proposal.

Be very careful with these last two activities particularly; it would be easy to fall into trying to influence actions of the officials involved. If you can, let someone else make the presentation or request. If in any doubt, consult an ethics counselor in the Office of the General Counsel.

(f) Specifics on proposals. You may prepare a proposal for submission to the NSF or another Federal agency even though you would be precluded by one of the three post-employment restrictions from any representational dealings with agency officials about it. You may sign the cover sheet to signify your agreement to assume responsi

bility for the scientific and technical direction of the project and for the preparation of required technical reports. You may not, however, sign the cover sheet as "authorized official" or sign any cover letter submitting the proposal for the institution. Nor may you call, write, or visit the agency program officer who is handling the proposal to urge an award, haggle over budgets, or the like. You may respond to requests from the program officer or another NSF official for scientific and technical information relating to the proposal, such as might be needed to respond to reviewer comments. You must not, however, couple the information you supply with any attempt to influence the decision on the proposal other than what inheres in the provision of the information itself. (If possible, have someone else respond.) At the NSF the proposal will receive special scrutiny and may require special handling to avoid conflict of interests, but you have no special responsibility in that connection.

(g) Other issues related to representation. Section 682.12 covers a number of other issues related to representation. Among these are assisting in representation without appearing or communicating with official (generally permitted); assisting by personal presence at an appearance or meeting (generally prohibited); representating the Government (generally permitted); and representing yourself along (depends). The rules and explanations given there apply to proposals or projects just as to other matters. If any confusion persists after you read them, consult an ethics counselor in the Office of the General Counsel.

§ 682.21 Proposals and projects over which you had official responsibility or with which you were personally involved.

(a) The "official responsibility" twoyear restriction applies only if you had official responsibility for the proposal or project in question during your last year at the NSF. The "personal involvement" permanent restriction applies only if you were personally involved with the proposal or project while at the NSF. You will therefore need to know: (1) When a project is

the same as one proposed or active while you were at the NSF, and (2) whether you had official responsibility for the project or were personally involved with it.

(b) When is a project the same project? All usual aspects of handling a particular proposal and any award based on it relate to the same "project". These include:

(1) The initial peer review and award-or-declination decision process; (2) Review and approvals of an award recommendation;

(3) Negotiation of budget and award terms;

(4) Negotiation of award amendments; (5)

of continuing

Consideration grant increments; and (6) Consideration of any extensions or administrative approvals.

(c) Exceptions. (1) A negotiation or determination on disposition of rights in any invention or publication that arises out of an award normally is a separate matter from the processing and monitoring of the award, but not from discussions or negotiations about disposition of rights that took place before the invention was made or the publication written.

(2) Separate task orders under a continuing order agreement or the like constitute separate "matters" if the tasks and the negotiations are actually separate.

(3) An ethics counselor may determine that other matters arising from a particular proposal or award constitute separate "matters" if the circumstances warrant.

(d) Renewals. An application that involves a continuation or outgrowth of work that the investigators have been doing under a previous NSF and award is part of the same "project" as the original proposal and project unless:

(1) A complete new proposal and a new budget are submitted;

(2) They are subjected to a complete new competitive peer review or evaluation; and

(3) The review or evaluation involves a new group of reviewers, a substantial fraction of whom did not review the earlier proposal.

(e) "Official responsibility". You had "official responsibility" for a pro