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OFFICE OF GOVERNMENT ETHICS

Veterans Employment and Training Service

CFR Citation: 5 CFR Parts 2637 and 2641

RIN ID: RIN 3209-AA14

NOTICE: Part II

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY: Post-Employment Conflict of Interest Restrictions

DATES: July 25, 2008.

DOCUMENT 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 highlevel Government positions) since that date are subject to substantially revised postemployment 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.

SUMMARY: Government Ethics Office,

SUPPLEMENTAL 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 postemployment conflict of interest statute, 18 U.S.C. 207, as applied to former officers and employees of the executive branch. See 68 FR 78447892 (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 postemployment 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 78447845. 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 oneyear coolingoff restriction applicable to former senior employees of an agency or department, under 18 U.S.C. 207(c). See 69 FR 6805368056 (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 oneyear restriction applicable to former senior employees. See 72 FR 1033910342 (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 1200712009 (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 EGovernment Act of 2002, Public Law 107347, 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 108136, 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 coolingoff period for very senior employees to two years, which is addressed in revised section 2641.205. See Public Law 11081, sec. 101(a), September 14, 2007. Section 104 of the same Act also added a crossreference, 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 90day 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 wellorganized. 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 postemployment 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 wellsuited 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 postemployment 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 postemployment 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 108458. See OGE, Report to the President and to Congressional Committees on the Conflict of Interest Laws Relating to Executive Branch Employment (January 2006), at http://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 A76

Seven agencies, including four DOD components, submitted comments about the application of 18 U.S.C. 207 in the context of publicprivate competitions under Office of Management and Budget Circular A76. See OMB Circular A76, May 29, 2003, available at http:// www.whitehouse.gov/omb/circulars/a076/a76_rev2003.pdf. In A76 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 A76 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 A76 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 A76 process. Many affected employees are provided a ``right of first refusal'' to perform their privatized functions for the winning private bidder, see OMB Circular A76, 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 A76 processwhether by serving on the Most Efficient Organization or Performance Work Statement teams or simply by providing relevant jobrelated information to those teamsfor 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 A76 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 AGeneral Provisions

Section 2641.101Purpose

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 postemployment 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 uptodate, 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 postemployment 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 crossreference 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 2641.104Definitions

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 postemployment 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 postemployment 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 postemployment 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 ``allinclusive,'' 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 oneyear coolingoff 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 GS14 or GS15 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 postemployment 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 EGovernment Act, Public Law 107347, 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 108136, 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 standarda rate of basic pay equivalent to the former level 5 of the Senior Executive Servicewith 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 2641.105Advice

Two commenters recommended that OGE amend proposed section 2641.105(e), concerning attorneyclient 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 attorneyclient privilege with respect to information conveyed to ethics officials. OGE agrees that, although employees and former employees may not enjoy any personal attorneyclient 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 attorneyclient 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 attorneyclient 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 attorneyclient 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 postemployment 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 2641.106Applicability 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 standalone 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
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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 ``constitutionallybased 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 postemployment 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 postemployment 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 BProhibitions
Section 2641.201Permanent 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 thescenes 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 proposedwhich deals with circumstances in which a former employee prepares a grant application and is listed as principal investigatoris 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, http:// 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 behindthescenes 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 behindthescene 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 behindthescenes 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 exampleswhich illustrate situations in which intent to influence is not presentin 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 casebycase 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, 156061 (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 publicprivate competitions under OMB Circular A76, 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
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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 postemployment 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
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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 postemployment 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 welldefined, 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
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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 nonsovereign 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 quasiadversarial 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 treaties are the ``primary way of creating international legal regimes,'' in the absence of any international legislative body comparable to the U.S. Congress that could create international legislation. The agency also points out that the U.S. Constitution expressly recognizes the status of treaties as a source of law equivalent to Federal legislation: ``This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land * * *.'' United States Constitution, Art. VI, cl. 2. In this connection, OGE's own examination indicates that courts have long held that treaties are on the same footing with Federal legislation and in fact supersede prior acts of Congress. See Foster v. Neilson, 27 U.S. 253 (1829); Whitney v. Robertson, 124 U.S. 190 (1888); Alvarez y Sanchez v. U.S., 216 U.S. 167 (1910). Finally, the agency cites a more recent unpublished OLC opinion, which concluded that certain deliberations, decisions and actions (including discussions with foreign governments) in response to the 1990 invasion of Kuwait by Iraq were not ``particular matters.'' Based on these arguments, the agency maintains that treaties should at least be evaluated on a casebycase basis to determine whether they are particular matters involving specific parties.

Although this commenter did not suggest specific criteria for making such determinations, OGE believes it is possible to articulate criteria that could be applied on a casebycase basis. For example, one might argue that treaties that are narrowly focused on specific properties or territories are more closely akin to contractual exchanges of property. Cf. OGE 96 x 7 (although rulemaking usually does not involve parties, rule establishing health and safety standards for operations at a specific site was party matter). Arguably, this was the case with the Panama Canal treaty itself. By contrast, treaties addressing more general sovereign requirements, such as extradition procedures, might be viewed as more akin to general legislation.

In the case of trade agreements, we believe that similar consideration

FOR FURTHER INFORMATION CONTACT Richard M. Thomas, Associate General Counsel, Office of Government Ethics; Telephone: 2024829300: TDD: 2024829293; FAX: 2024829237.