ly to industry. The employee proposes to act as C Company's representative in connection with its anticipated proposals for the contract. He may do so. The satellite contract became a particular matter when the rfp was being formulated; it would ordinarily not become one involving a specific party or parties until initial proposals by contractors were first received. Moreover, if the employee's work for C Company were limited to the formulation and communication of a proposal in response to the rfp, it would not be prohibited to the extent it involved a communications for the purpose of furnishing scientific or technological information to the Government, exempt under 18 U.S.C. 207(f). See § 737.15 of this part. (See paragraph (c)(3) of this section, as to a case where the employee's own participation may cause a different result).

(3) Relationship of personal participation to specificity. In certain cases, whether a matter should be treated as a "particular matter" involving specific ies may depend on the employee's own participation in events which give particularity and specificity to the matter in question. For example, if a Government employee personally participated in that stage of the formulation of a proposed contract where significant requirements were discussed and one or more persons was identified to perform services thereunder, but the contract was actually awarded only after the employee left, it may nevertheless be a particular matter as to such former Government employee.

Example 1: A Government employee advises her agency that it needs certain work done and meets with private firm X to discuss and develop requirements and operating procedures. Thereafter, the employee meets with agency officials and persuades them of the need for a project along the lines discussed with X. She leaves the Government and the project is awarded by other employees to firm X. The employee is asked by X to represent it on the contract. She may not do so.

(4) The same particular matter must be involved. The requirement of a "particular matter involving a specific party" applies both at the time that the Government employee acts in an official capacity and at the time in question after Government service. The same particular matter may continue in another form or in part. In determining whether two particular matters are the same, the agency

should consider the extent to which the matters involve the same basic facts, related issues, the same or related parties, time elapsed, the same confidential information, and the continuing existence of an important Federal interest.

Example 1: A government employee was substantially involved in the award of a long-term contract to Z Company for the development of alternative energy sources. Six years after he terminates Government employment, the contract is still in effect, but much of the technology has changed as have many of the personnel. The Government proposes to award a "follow on" contract, involving the same objective, after competitive bidding. The employee may represent Q Company in its proposals for the follow-on contract, since Q Company's proposed contract is a different matter from the contract with Z Company. He may also represent Z Company in its efforts to continue as contractor, if the agency determines on the basis of facts referred to above, that the new contract is significantly different in its particulars from the old: The former employee should first consult his agency.

Example 2: A Government employee reviewed and approved certain wiretap applications. The prosecution of a person overheard during the wiretap, although not originally targeted, must be regarded as part of the same particular matter as the initial wiretap application. The validity of the wiretap may be put in issue and many of the facts giving rise to the wiretap application would be involved.

Other examples: See § 737.5(b)(1), Example 1, and (c), Example 2.

(5) United States must be a party or have an interest. The particular matter must be one in which the United States is a party, such as in a judicial or administrative proceeding or a contract, or in which it has a direct and substantial interest. The importance of the Federal interest in a matter can play a role in determining whether two matters are the same particular matter.

Example 1: An attorney participated in preparing the Government's antitrust action against Z Company. After leaving the Government, she may not represent Z Company in a private antitrust action brought against it by X Company on the same facts involved in the Government action. The interest of the United States preventing inconsistent results and the appearance of impropriety in the same factual matter involving the same party, Z Company, is direct

and substantial. However, if the Government's antitrust investigation or case is closed, the United States no longer has a direct and substantial interest in the case.

Example 2: A member of a Government team providing technical assistance to a foreign country leaves and seeks to represent a private contractor in securing a contract to perform the same service. The proposed new contract may or may not be considered a separate matter, depending upon whether the United States has a national interest in maintaining the original contract. The agency involved must be consulted by the former employee before the representation can be undertaken.

(d) "Participate personally and substantially”—(1) Basic requirements. The restrictions of section 207(a) apply only to those matters in which a former Government employee had "personal and substantial participation", exercised "through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise." To participate "personally" means directly, and includes the participation of a subordinate when actually directed by the former Government employee in the matter. "Substantially," means that the employee's involvement must be of significance to the matter, or form a basis for a reasonable appearance of such significance. It requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality should be based not only on the effort devoted to a matter, but on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participating in a critical step may be substantial. It is essential that the participation be related to a "particular matter involving a specific party." (See paragraph (c) of this section.)

Example 1: If an officer personally approves the departmental budget, he does not participate substantially in the approval of all items contained in the budget. His participation is substantial only in those cases where a budget item is actually put in issue. Even then, the former Government employee is not disqualified with respect to an item if it is a general program rather than a particular matter involving a specific party. The former Government employee

may, however, have official responsibility for such matters. (See § 737.7(b))

Example 2: A Government lawyer is not in charge of, nor has official responsibility for a particular case, but is frequently consulted as to filings, discovery, and strategy. Such an individual has personally and substantially participated in the matter.

(2) Participation on ancillary matters. An employee's participation on subjects not directly involving the substantive merits of a matter may not be "substantial", even if it is time-consuming. An employee whose responsibility is the review of a matter solely for compliance with administrative control or budgetary considerations and who reviews a particular matter for such a purpose should not be regarded as having participated substantially in the matter, except when such considerations also are the subject of the employee's proposed representation. (See § 737.7(b)(3) of this part.) Such an employee could theoretically cause a halt in a program for noncompliance with standards under his or her jurisdiction, but lacks authority to initiate a program or to disapprove it on the basis of its substance.

(3) Role of official responsibility in determining substantial participation. Although "personal and substantial participation" is different from "official responsibility," the latter may play a role in determining the "substantiality" of the employee's participation. For example, mere forbearance is not ordinarily substantial participation. But, if an agency's procedures require that an officer review certain matters and action cannot be taken if the officer objects, then if the officer actually receives proposal documents on the particular matters, his participation may be regarded as "substantial", even if he claims merely to have engaged in inaction.

(e) Agency responsibility in complex cases. In certain complex factual cases, the agency with which the former Government employee was associated is likely to be in the best position to make a determination as to certain issues, for example, the identity or existence of a particular matter. Designated agency ethics officials should provide advice promptly to former Government employees who make in

former government employee's acting as representative as to a particular matter for which the employee had official responsibility.

(a) Basic Prohibition of 18 U.S.C. 207(b)(i). No former Government employee, within two years after terminating employment by the United States, shall knowingly act as agent or attorney for, or otherwise represent any other person in any formal or informal appearance before, or with the intent to influence, make any oral or written communication on behalf of any person to (1) the United States, (2) in connection with any particular Government matter involving a specific party (3) if such matter was actually pending under the employee's responsibility as an officer or employee within a period of one year prior to the termination of such responsibility.

(b) “Official responsibility.” (1) Definition. "Official responsibility" is defined in 18 U.S.C. 202 as, "the direct administrative or operating authority, whether intermediate or final, either exercisable alone or with others, and either personally or through subordinates, to approve, disapprove, or otherwise direct Government actions."

(2) Determining official responsibility. Ordinarily, the scope of an employee's "official responsibility" is determined by those areas assigned by statute, regulation, Executive Order, job description or delegation of authority. Any particular matter under consideration in an agency is under the "official responsibility" of the agency head, as well as that of each intermediate supervisor having responsibility for an employee who actually participates in the matter within the scope of his duties.

(3) Ancillary matters and official responsibility. "Administrative" authority as used in the foregoing definition means authority for planning, organizing and controlling matters rather than authority to review or make decisions on ancillary aspects of a matter such as the regularity of budgeting procedures, public or community relations aspects, or equal employment op

portunity considerations. Responsibility for such an ancillary consideration does not constitute responsibility for the particular matter, except when such a consideration is also the subject of the employee's proposed representation.

Example 1: An agency's comptroller would not have official responsibility for all programs in the agency, even though she must review the budget, and all such programs are contained in the budget.

Example 2: Within two years after terminating employment, an agency's former comptroller is asked to represent Q Company in a dispute arising under a contract which was in effect during the comptroller's tenure. The dispute concerns an accounting formula, under the contract, a matter as to which a subordinate department of the comptroller's office was consulted. She may not represent Q Company on this matter.

(4) Knowledge of matter pending required. In order for a former employee to be barred from representing another as to a particular matter, he need not have known, while employed by the Government, that the matter was pending under his official responsibility. However, he is not subject to the restriction unless at the time of the proposed representation of another, he knows or learns that the matter had been under his responsibility. Ordinarily, a former employee who is asked to represent another on a matter will become aware of facts sufficient to suggest the relationship of the prior matter to his former agency, and if so, he is under a duty to make further inquiry, including direct contact with an agency's designated ethics official where the matter is in doubt.

(5) Self-disqualification. A former employee cannot avoid the restrictions of this section by disqualifying himself with respect to a matter for which he otherwise has official responsibility, but may avoid personal and substantial participation by doing so.

(c) “Actually pending". "Actually pending" means that the matter was in fact referred to or under consideration by persons within the employee's area of responsibility, not that it merely could have been.

Example 1: A staff lawyer in a department's Office of General Counsel is consulted by procurement officers on the correct resolution of a contractual matter involving

Q Company. The lawyer renders an opinion resolving the question. The same legal question arises later in several contracts with other companies, but none of the disputes with such companies are referred to the Office of the General Counsel. The General Counsel has official responsibility for the determination of the Q Company matter. The other matters were never "actually pending" under that responsibility, although as a theoretical matter, such responsibility extended to all legal matters within the department.

(d) Other essential requirements. All other requirements of the statute must be met before the restriction on representation applies. The same considerations apply in determining the existence of a "particular matter involving a specific party", a representation in an "appearance", or "intent to influence", and so forth as set forth under § 737.5 of this part.

Example 1: During her tenure as head of an agency, an officer's subordinates undertook major changes in agency enforcement standards involving occupational safety. Eighteen months after terminating Government employment, she is asked to represent Z Company which believes it is being unfairly treated under the enforcement program. The Z Company matter first arose on a complaint filed after the agency head terminated her employment. She may represent Z Company because the matter pending under her official responsibility was not one involving "a specific party." (Moreover, the time-period covered by 18 U.S.C. 207(c) has elapsed.)

(e) Measurement of two-year restriction period. The statutory two-year period is measured from the date when the employee's responsibility in a particular area ends, not from the termination of Government service, unless the two occur simultaneously. The prohibition applies to all particular matters subject to such responsibility in the one-year period before termination of such responsibility.

Example 1: An employee transfers from a position in A Agency to a position in B Agency, and she leaves B Agency for private employment 18 months later. She will be free of restriction insofar as matters under her responsibility at A Agency are concerned. She will be restricted for two years in respect of B Agency matters, which were pending in the year before her departure.

§ 737.9 Two-year restriction on a former senior employee's assisting in representing as to a matter in which the employee participated personally and substantially or for which the employee had official responsibility.

(a) Basic Prohibition of 18 U.S.C. 207(b)(ii). No former Senior Employee, within two years after terminating Government employment shall knowingly represent or aid, counsel, advise, consult, or assist in representing any other person in any formal or informal appearance before, (1) the United States, (2) in connection with any particular Government matter involving a specific party, (3) if such matter was actually pending under the employee's official responsibility within one year prior to the termination of such employment or was one in which he or she participated personally and substantially.

[NOTE: The regulations and examples in this section will be revised if certain technical amendments to the statute are adopted.]

(b) Limitation to "representational" assistance in an appearance. Section 207(b)(ii) is limited to assistance "in representing" another person concerning an "appearance" before the United States. Different in scope from sections 207(a) and 207(b)(i), it does not bar assistance in connection with an oral or written communication made with an intent to influence. Instead the prohibition relates solely to assistance in preparation for, or performance of, either a formal or informal personal appearance or a written submission in a formal proceeding.

(c) Managemental Assistance. The statute does not prohibit a former Senior Employee's assistance to representatives which can reasonably be viewed as customary managemental activity; that is, assistance given by a former Senior Employee to associates or subordinates, in the performance of customary executive, administrative or supervisory duties, as to the content of a program or project under his responsibility, for or funded by the Government, is lawful. Such duties customarily require a manager to make or approve decisions and suggestions as to how, and on what terms, any of the physical or human resources of his or

ganization will be utilized in its performance under any current or proposed Government contract or grant, and to communicate such matters to coworkers, including representatives. The content of a program or project, comprised of the results of such decisions, in turn must be, and may properly be, communicated to the Government by an organization through its representatives. While the former employee should not actually draft documents to be submitted in any appearance if the documents contain argumentative material (except that he may furnish scientific and technological information), he has the right to insure that such documents accurately present information and reflect such decisions made by him or others in the organization. Former Senior Employees may not undertake activities which are prohibited as set forth in paragraph (d) of this section.

(d) Representational Assistance. The statute prohibits a former Senior Employee from making unfair use of his prior governmental position by assisting in the representation of another by (1) giving specific advice directly to or intended for use by a representative as to how the representation in an appearance should be conducted utilizing specific knowledge which came to him as a government employee,' or (2) supplying inside information as to the Government's position on a specific, potentially controverted matter; (3) directly participating in drafting briefs and similar formal documents to be submitted to the Government to obtain a benefit or favorable decision, except that he may give technical and managerial advice and supervision in the preparation of substantive material for, and in the review of, applications and proposals; or (4) preparing forensic or argumentative material (such as testimony, methods of persuasion, or strategy of presentation) to be included in formal documents to be submitted to the Government or to be

'Given the literal language of the statute, the Attorney General believes it cannot be restricted to "specific knowledge which came to him as a government employee". But in the exercise of his prosecutorial discretion, the Attorney General will use the interpretation in this regulation.

used in connection with such a submission or an appearance.

(e) Degree of prior participation or responsibility required. Section 207(b)(ii) applies to a particular matter in which the employee participated personally and substantially, or which was actually pending under his official responsibility.

[Provisional (e). Will replace paragraph (e) of this section, upon technical amendment of the statute: 2

(e) Personal and substantial participation required. This section applies only in cases where the former Senior Employee had personal and substantial participation in the particular matter involved.]

(f) Measurement of restriction period. The statutory two-year period is measured from the date when the individual's responsibility as a Senior Employee in a particular area ends, not from the termination of Government service, unless the two occur simultaneously. The prohibition applies to all particular matters subject to such responsibility in the one-year period before termination and to particular matters in which the individual was personally and substantially involved. (See § 737.7(e).)

(g) Other Essential Requirements. All conditions of the statutory prohibition must be met. Specifically, (1) the former employee must have been a "Senior Employee"; (2) who was involved (see § 737.5(c) of this part) in (3) a "particular matter involving a specific party." (See § 737.5(c) of this part.) The assistance in representing (4) must be representational aid directly concerning a formal or informal appearance before the United States, and (5) involve something more than the furnishing of mere information (not including forensic argument) which is not based on a prior Governmental relationship and unavailable to others.

(h) General Examples:

Example 1: A Senior Justice Department lawyer personally works on an antitrust case against Z Company. After leaving the

2 EDITORIAL NOTE: Upon passage of the technical amendment to the statute, Provisional (e) will be issued as a final regulation in the FEDERAL REGISTER and will replace paragraph (e).