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(b) Examples. The following examples illustrate the application of these rules.
Example 1: You have been on the Physics faculty at the University of Wyoming and have been principal investigator on grants from the NSF and from the Department of Defense. You come to the NSF for a twoyear stint as a section head. While you are away a colleague acts as principal investigator on both your grants. During your stint at the NSF the Department of Defense grant is about to expire. The substitute principal investigator files a new proposal with DOD. She asks you to call the DOD program officer, with whom you have great credibility from past dealings, to vouch for her excellence and to urge that he continue to fund the Wyoming work. The currentemployee restriction prohibits you from doing so.
Example 2: Same underlying facts as Example 1. After your stint at the NSF you return to Wyoming and want again to become principal investigator on the NSF. supported work. You may do so, but the one-year NSF restriction prohibits you from calling, writing, or visiting NSF officials to represent yourself or your institution on the award.
Example 3: Same facts as Examples 1 and 2. A few months after your return it comes time to file a new proposal for another NSF award so that you can continue the line of investigation you have been pursuing with the NSF support. You may prepare a proposal for your institution and may be listed as principal investigator, but the one-year NSF restriction prohibits you from calling, writing, or visiting NSF officials to represent yourself or your institution on the proposal.
Example 4: Same underlying facts as Example 1. During the last year of your tenure as section head another physics proposal came in from the University of Wyoming.
Though the program officer who handled the peer review and submitted a recommendation was in your section, you disqualified yourself from any participation in handling the proposal. A three year continuing grant was awarded. Within two years after you return to Wyoming a problem comes up with the last increment of the continuing grant. You have meanwhile become department chairman. As department chairman you would normally confer with NSF officials about the problem and try to resolve it. The "official responsibility” two-year restriction prohibits you from doing so. If the problem came up more than two years after you left the NSF, however, you would be free to confer with NSF officials. The “official responsibility” two-year restriction would no longer apply, and the “personal involvement” permanent restriction would not apply because you had no personal involvement in handling the proposal while at the NSF.
Example 5: While you were Director of the Division of Grants and Contracts at the NSF you personally approved the terms of a contract to the Solar Equipment Company for development of solar heating equipment. Subsequently, responsibility for this contract was transferred to the Department of Energy. After you retire from your NSF position, you accept a position with the Solar Equipment Company. A problem comes up under the same contract, and you would normally be responsible for resolving it in discussions with DOE officials. The “personal involvement” permanent restriction prohibits you from doing so. That you would be dealing with DOE officials, not NSF officials, makes no difference: the restriction applies to dealings with any Federal official.
(c) Proposals and projects. Subpart B ($$ 682.20-682.23) is devoted entirely to the application of the representational restrictions in relation to pro(h) Consultation. If in doubt about any of the rules in this part, consult an ethics counselor in the Office of the General Counsel. You are welcome to consult an ethics counselor for this purpose even after you leave the NSF.
posals and projects. In relation to proposals and projects you may rely entirely on Subpart B.
(d) Other matters. For most current and former NSF employees the representational restrictions will rarely apply except in relation to proposals and projects. You are nonetheless responsible for making yourself familiar with the restrictions and abiding by them in relation to all covered matters.
(e) Terms and effect. The wording of the restrictions as presented in this section and $ 682.20 has been simplified substantially from the wording of the underlying statutes, so that they will be easier to understand. In the process, they have also been deliberately overstated, with exceptions and "escape hatches" left out, so that your initial reaction will be to interpret them conservatively. The next three sections fill in critical concepts: what it means to have “official responsibility” or to be “personally involved” ($ 682.11); what is and is not representation subject to the restrictions (8 682.12); and which are the matters on which representation is restricted (§ 682.13). In the process they explain the exceptions and refinements left out in this section.
(f) Partners. During your Federal service only, there is a further restriction that applies to any partner of a business or professional partnership to which you belong. If you belong to any such partnership, see § 682.14.
(g) Source statutes and penalties for violation. For the most part these restrictions derive from Federal criminal statutes and apply to officials of all Federal agencies. In one respect the NSF rules are stricter. At other agencies the one-year agency restriction applies only to former high-ranking officials; the one-year NSF restriction applies to all former NSF employees. Violation of the statutory provisions can lead to criminal prosecution (the penalties are a fine of up to $10,000 or imprisonment for up to two years of both) or to civil debarment from dealings with the NSF (for up to five years). A violation of the NSF's current-employee restriction can lead to disciplinary personnel action against an employee.
8 682.11 "Official responsibility”; “person
ally involved". (a) The “official responsibility” twoyear restriction applies only if you had official responsibility for the matter in question during your last year at the NSF. The “personal involvement” permanent restriction applies only if you were personally involved with the matter in question while at the NSF. This section elaborates the concepts of “official responsibility” and “personal involvement”.
(b) “Official responsibility”. You had “official responsibility” for matter if you had direct authority to approve, disapprove, or otherwise direct Government actions regarding that matter, and it was actually pending during your tenure. It does not matter whether your authority was intermediate or final, whether it was exercisable alone or with others, or whether it was exercisable personally or through subordinates. Specifically:
(1) The scope of your “official responsibility” is ordinarily determined by the responsibilities of position you filled or the organization you headed.
(2) Any matter under consideration in the NSF is under the “official responsibility" of the Director and of each intermediate supervisor who has responsibility for any employee who actually participates in the matter within the scope of his or her duties.
Example: A proposal under consideration within a particular program is under the "official jurisdiction" of the program officer who actually handles it, of the program director for the program, of the responsible section head, of the responsible division director, of the responsible assistant director, and of the Director of the NSF. Whether it is under the “official responsibility” of any of their deputies depends on the responsibil. 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”. “Person- strictions are restrictions on representally involved” is short for the follow- ing private parties in dealing with NSF ing statutory language:
officials or other Federal officials. The "Participated personally and substantially
dealings covered are encompassing. as an officer or employee through decision,
They include any formal appearance approval, disapproval, recommendation, the before an official; any meeting with an rendering of advice, investigation or other- official; and any letter, phone call, or wise".
other communication with an official. In other words:
(b) Intent to influence and potential (1) You may have “participated” and controversy required. Contacts as a so have been “personally involved” representative without intent to influeven though you actually made none ence the officials contracted are not of the important decisions. You “par- prohibited. Nor are contacts as a repticipated” if you made recommenda- resentative in connection with a routions, rendered advice, conducted an
tine request not involving a potential investigation, or otherwise contribut
controversy. For example, you may ed. Moreover, "approval” is specifical
ask a question about the status of a ly covered. Giving a required approval,
particular matter, as long as there is however perfunctorily, is covered if
no implicit attempt to influence the the action could not have been taken
outcome. You may request publicly over your objection.
available documents. You may com(2) On the other hand, there is a dis
municate with an official to impart tinction between personal involvement
purely factual information as long as and official responsibility. If you could
the communication has no connection have intervened in the matter because
with an adversary proceeding. of your position, but in fact did not, you were not “personally involved”. Example: While an NSF employee you (3) You must have participated “per
helped write the current contract for the sonally". You participated personally
Kitt Peak National Observatory, with which if you gave directions or instructions
you are now a staff scientist. You are asked
to make a scientific presentation to NSF ofabout the matter to a subordinate who
ficials at the annual review of the Kitt Peak participated directly. If a subordinate
program. You may do so. You may not, participated without any direction or
however, participate in or support any instruction from you about that par- appeal for more funds for Kitt Peak during ticular matter, and you did not other- the review. Indeed, it would be better for wise participate, you did not partici- you to not be present at all when funding pate personally.
and other contractual subjects are dis(4) You must have participated “sub
cussed. If you were not a staff scientist at
Kitt Peak, but only a user, that would not stantially”. That requires more than
change things for this purpose. knowledge of what was going on, perfunctory involvement, or involvement (c) Assisting without appearing or on an administrative or peripheral communicating with officials. You are issue. Your participation was “sub- not prohibited from helping those who stantial” if it was significant to the are representing a private party with outcome or would have seemed so to a Federal officials, as long as you do not reasonable outside observer, consider- yourself make an appearance or othering not only the effort you devoted to wise communicate with the officials. the matter but the influence of your You may advise officials or representaeffort on the outcome. A single act of tives of the party, may make suggesa critical step, such as an approval, tions about whom they should contact may be substantial. A series of time- and what they should say, and may consuming peripheral involvements, even draft documents and letters, as such as review solely for compliance long as you do not personally sign or with administrative or budgetary con- transmit them. CAUTION: What is trols, may be insubstantial.
permitted under Federal law may be
prohibited by rules of professional 8 682.12 Representation covered.
ethics, particularly if you are a lawyer. (a) Representational dealings. All (d) Assisting by personal presence at four of the basic representational re- an appearance or meeting. A former
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.
high-ranking employee (SES, GS-17, or above) who had official responsibili. ty for a matter or was personally in volved 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 of. ficials. 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
8 682.13 “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 of
ficial 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
areas, policy issues, and conceptual work done before
program has become particularized into one 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.
8 682.14 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).
(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
Subpart B-Involvement With Pro
posals and NSF-Supported Projects During and After NSF Service
8 682.20 General; restricted representa
tional activities vs. permitted research
or educational activities. (a) Basic representational restrictions. The same four representational