submitted by the following special Government employees:

(1) Consultants, experts, or advisers (hereafter referred to in this subpart as consultants) described in § 73.735-1205;

(2) Such special Government employees (other than consultants) as the heads of operating agencies so determine (in accordance with § 73.735-1206).

§ 73.735–1205

Coverage-consultants.

(a) As used in this subpart, the term consultant refers to a person whose advice the Department obtains on a temporary (either full or part-time) or intermittent basis because of his individual qualifications, and who serves as an officer or employee of the Government for the periods during which his advice is obtained. Where this definition is met, the consultant (except for any excluded in paragraph (b) of this section) is subject to this subpart irrespective of:

(1) The title by which he is designated;

(2) The statutory authority under which his services are obtained;

(3) The duration of the period for which his services are obtained (and whether or not limited to 130 days within the period of employment);

(4) Whether his services are obtained by appointment or invitation and acceptance. (A consultant whose services are obtained by contract is also subject to this subpart if his relationship to the Department is that of an employee. Such condition will exist only through error or misunderstanding, as Department instructions require that a person whose relationship to the Department is that of an employee shall be appointed. Only where there is not to be such relationship shall a formal contract processed.)

be

(5) Whether services are compensated or rendered without compensation;

(6) Whether or not services are obtained pursuant to a statute exempting persons rendering services from conflict of interest statutes.

(b) This subpart need not be applied to:

(1) Doctors, dentists, and allied medical specialists performing services for, or consulted as to the diagnosis or treatment of, individual patients;

(2) Veterinarians performing services for or consulted as to care and service to animals.

§ 73.735-1206

Coverage-special Government employees other than consultants.

(a) Coverage by § 73.735-1203 requiring the submission of a statement of financial interests is waived for special Government employees (other than consultants) except those identified by the heads of operating agencies. Such identification shall be published in Appendix C to this part. The identification may be made because of the nature of the duties, or because of the nature of the principal employment, which is non-governmental. For example, a special Government employee, even though not a consultant, may be made subject to § 73.7351203 if:

(1) The performance of his Department duties could directly and predictably affect a person or organization that is known to: Have a grant from this Department or contract with it; be seeking or negotiating such grant or contract; conduct an operation that is subject to regulation by the Department (as, for example, drug manufacture is subject to regulation under the Federal Food Drug and Cosmetic Act).

(2) His principal occupation or employment is not his Government employment and is of such nature that being made subject to § 73.735-1203 is desirable to protect him and the Department from possible conflict-of-interest situations: Viz, those whose principal nonGovernment occupation is: On or concerned with work for the Government or supported in whole or in part by the Government under grant or contract; on or concerned with work for which Government support is being sought; in any category of work which the head of the operating agency, or official he designates, determines should be subject to § 73.735-1203.

§ 73.735-1207 Restrictions-conflict-ofinterest statutes.

(a) Each consultant and special Government employee covered by this subpart should acquaint himself in particular with sections of Title 18 numbered 203, 205, 207, and 208, all of which carry criminal penalties. The restraints imposed by the four criminal sections are summarized in paragraph (b) through (d) of this section.

(b) 18 U.S.C. 203 and 205.

(1) These two sections in general operate to preclude a regular Government employee, except in the discharge of his official duties, from representing another person before a department, agency or court, whether with or without compensation, in a matter in which the United States is a party or has a direct and substantial interest. However, the two sections impose only the following major restrictions upon a special Government employee:

(i) He may not, except in the discharge of his official duties, represent anyone else before a court or Government agency in a matter involving a specific party or parties in which the United States is a party or has a direct and substantial interest and in which he has at any time participated personally and substantially in the course of his Government employment.

(ii) He may not, except in the discharge of his official duties, represent anyone else in a matter involving a specific party or parties in which the United States is a party or has a direct and substantial interest and which is pending before the agency he serves. However, this restraint is not applicable if he has served the agency no more than 60 days during the past 365. He is bound by the restraint, if applicable, regardless of whether the matter is one in which he has ever participated personally and substantially. These restrictions prohibit both paid and unpaid representation and apply to a special Government employee when he does not serve the Government as well as on the days when he does.

(2) To a considerable extent the prohibitions of sections 203 and 205 are aimed at the sale of influence to gain special favors for private businesses and other organizations and at the misuse of governmental position or information. In accordance with these aims, it is desirable that a consultant or adviser or other individual who is a special Government employee, even when not compelled to do so by sections 203 and 205, should make every effort in his private work to avoid any personal contact with respect to negotiations for contracts or grants with the department or agency which he is serving if the subject matter is related to the subject matter of his consultancy or other service. This will not always be possible to achieve where, for example, a consultant or adviser has an executive position and responsibility with

his regular employer which requires him to participate personally in contract negotiations with the department or agency he is advising. Whenever this is the case the consultant or adviser should participate in the negotiations for his employer only with the knowledge of a responsible Government official. In other instances an occasional consultant or adviser may have technical knowledge which is indispensable to his regular employer in his efforts to formulate a research and development contract or a research grant and for the same reason, it is in the interest of the Government that he should take part in negotiations for his private employer. Again, he should participate only with the knowledge of a responsible Government official.

(3) Section 205 contains an exemptive provision dealing with a similar situation which may arise after a Government grant or contract has been negotiated. This provision in certain cases permits both the Government and the private employer of a special Government employee to benefit from his performance of work under a grant or contract for which he would otherwise be disqualified because he had participated in the matter for the Government or it is pending in an agency he had served more than 60 days in the past year. The provision gives the head of a department or agency the power, notwithstanding any prohibition in either section 203 or 205, to allow a special Government employee to represent before such department or agency either his regular employer or another person or organization in the performance of work under a grant or contract. As a basis for this action, the Secretary must first make a certification in writing, published in the FEDERAL REGISTER, that it is required by the national interest.

(4) Section 205 contains three other exemptive provisions, all of which apply to both special and regular Government employees. The first permits one Government employee to represent another without compensation, in a disciplinary, loyalty or other personnel matter. The second permits a Government employee to represent, with or without compensation, a parent, spouse, child, or person or estate he serves as a fiduciary, but only if he has the approval of the official responsible for appointments to his position and the matter involved is neither

one in which he has participated personally or substantially, nor one under his official responsibility. The term "official responsibility" is defined in 18 U.S.C. 202 to mean, in substance, the direct administrative or operating authority to control Government action. The third provision removes any obstacle in section 205 to a Government employee's giving testimony under oath or making statements required to be made under penalty for perjury or contempt.

(c) 18 U.S.C. 207. Section 207 applies to individuals who have left Government service, including former special government employees. It prevents a former employee from representing another person in connection with certain matters in which he participated personally and substantially on behalf of the Government. The matters are those involving a specific party or parties in which the United States is also a party or has a direct and substantial interest. In addition, section 207 prevents a former employee, for a period of 1 year after his employment has ceased, from appearing personally for another person in such matters before a court, department or agency if the matters were within the area of his official responsibility (note that a consultant or adviser usually does not have "official responsibility") at any time during the last year of this Government service. The employment of a special Government employee ceases on the day his appointment expires or is otherwise terminated, as distinguished from the day on which he last performs service.

(d) 18 U.S.C. 208. This section bears on the activities of Government personnel, including special Government employees, in the course of their official duties. In general, it prevents a Government employee from participating as such in a particular matter in which, to his knowledge, he, his spouse, minor child, partner, or a profit or nonprofit enterprise with which he is connected has a financial interest. However, the section permits an employee's agency to grant him an ad hoc exemption if the interest is not so substantial as to affect the integrity of his services. Insignificant interests may also be waived by a general rule or regulation. The matters in which special Government employees are disqualified by section 208 are not limited to those involving a specific party or parties in which the United States is a party or

has an interest, as in the case of sections 203, 205, and 207. Section 208 therefore undoubtedly extends to matters in addition to contracts, grants, judicial and quasi-judicial proceedings, and other matters of an adversary nature. Accordingly, a special Government employee should in general be disqualified from participating as such in a matter of any type the outcome of which will have a direct and predictable effect upon the financial interests covered by the section. However, the power of exemption may be exercised in this situation if the special Government employee renders advice of a general nature from which no preference or advantage over others might be gained by any particular person or oganization. The power of exemption may of course be exercised also where the financial interests involved are minimal in value.

§ 73.735-1208 Requesting waivers or exemptions.

(a) A consultant or special Government employee may present in writing to the official who assigns his work requests for the waivers or exemptions discussed in §§ 73.735-1207(b), (c), and (d). That offcial will take, or refer the request for, action as appropriate, and will see that the employee receives advice or decision on his request.

(b) A file of all waivers or exemptions granted shall be maintained in such manner that information can be given promptly on individual cases or statistics provided upon request. Unless the head of the agency specifically provides for maintenance elsewhere, these records, together with written advice given in connection with less formal requests concerning questions of ethical standards, are kept with the employee's statement of employment and financial interests, required to be filed in the personnel office in accordance with § 73.735-1203 (d). § 73.735-1209 Salary from two sources.

Special Government employees are not subject to 18 U.S.C. 209 which prohibits other employees from receiving any salary, or supplementation of Government salary from a private source as a compensation for services to the Government. As a matter of policy this Department will not knowingly pay per diem to a consultant who also receives per diem pay for the same day from another Government agency (in or outside the Department).

Appendix A-Index to Some Statutes and Executive Orders Related to Conflict of Interest and Other Prohibited Activities

DEPARTMENTWIDE APPLICABILITY

SUBJECT AND CITATION

A. Relating to Present Employees.

1. Code of Ethics for Government Service (H. Con. Res. 175, 85th Cong., 2d sess., 72 Stat. B12).

2. Acceptance of gift or favor made with intent of influencing decision or action on any official matter (18 U.S.C. 201).

3. Compensation from outside sources for services rendered in relation to any application, proceeding, contract, etc., in any matter in which the United States has a direct and substantial interest (18 U.S.C. 203).

4. Acting as agent or attorney (1) for prosecution or aiding in prosecution of any claim against the United States, or (2) for anyone before any Department, agency, court, etc., in connection with a particular matter in which the United States is a party or has a direct and substantial interest (18 U.S.C. 205).

5. Participating personally and substantially as a Government employee in any application, request for a ruling, contract or other particular matter in which he, to his knowledge, or his spouse, minor child, or any organization with which he is negotiating, has a financial interest, direct or indirect (18 U.S.C. 208).

6. Receipt of any salary or contribution to or supplementation of salary as compensation for services as a Government employee from any other source than the Government (18 U.S.C. 209).

7. Use of appropriated funds, services, or communciations with intent to influence any member of Congress to favor or oppose any legislation or appropriation (18 U.S.C. 1913).

8. Participation in strike against Government (5 U.S.C. 7311, 18 U.S.C. 1918).

9. Advocating the overthrow of the constitutional form of Government in the United States or being a member of an organization that so advocates (5 U.S.C. 7311).

10. Being a member of the Communist Party of the United States of America, and contributing funds or services to that party (50 U.S.C. 784).

11. Disclosing confidential information or classified information (18 U.S.C. 798, 50 U.S.C. 783, 18 U.S.C. 1905).

12. Habitual use of intoxicants to excess (5 U.S.C. 7352).

13. Using or authorizing the use of Government automobiles for other than official purposes (13 U.S.C. 635a (c)).

14. Using official envelope or label to avoid payment of postage (18 U.S.C. 1719).

15. Deceiving in an examination or personnel action in connection with Government employment (18 U.S.C. 1917).

16. Practicing fraud or making false statements in a Government matter (18 U.S.C. 1001). 17. Mutilating or destroying a public record (18 US.C. 2071).

18. Falsely making, forging, or attempting to pass a forged or altered travel request (18 U.S.C. 508).

19. Taking for own use or use of another any Government record, voucher, money, or thing of value (18 U.S.C. 641).

20. Failure to account for public money received (18 US.C. 643.).

21. Embezzling money or property of another person in the possession of an employee by reason of his employment (18 U.S.C. 654).

22. Taking or attempting to use vouchers or documents intended to be used to procure payments by the United States (18 U.S.C. 285).

23. Prohibition against certain political activities (subchapter III of Chapter 73 of title 5, U.S.C. (former Hatch Act) and 18 U.S.C. 602, 603, 607, and 608).

24. Making or soliciting gifts for official superiors, or accepting gifts from employees receiving a lower salary (5 U.S.C. 7351).

or

25. Conviction for participating in organizing or inciting a riot or civil disorder (5 U.S.C. 7313).

26. Nondiscrimination in Government employment (E.O. 11246, 30 F.R. 12319).

27. Acting as an agent of a foreign principal registered under the Foreign Agents Registration Act (18 U.S.C. 219).

B. Relating to Former Employees.

28. After having been employed by the United States, a. At any time after his employment has ceased, acting as agent or attorney for anyone other than the Government in connection with any application, contract, claim, proceeding or other matter against the United States, involving a specific party, in any matter in which the United States has an interest, and in which he participated personally and substantially as a Government employee.

b. Within 1 year after his employment has ceased, appearing personally before any agency in connection with any application, contract, claim, proceeding, or other matter against the United States, involving a specific party, which was under his official responsibility as a Government employee (18 U.S.C. 207).

29. For a period of 3 years after retirement from the Public Health Service, engaging for himself or for others in selling, or contracting, or negotiating to sell, any supplies or war materials to an agency of the Department of Defense, Coast Guard. Coast and Geodetic Survey or the Public Health Service (37 U.S.C. 801).

SINGLE OPERATING AGENCY APPLICABILITY

OFFICE OF EDUCATION

30. Prohibits any department, agency, or officer from supervision, direction, or con

trol over, the personnel and projects assisted by the Act (20 U.S.C. 757).

31. National Defense Education Act: Restricts the receipt of payment in salary by an appointee in Government service from any source other than the private employer of the appointee (20 U.S.C. 583 (a) (b)).

32. Social Security Act: Restriction regarding disclosure of information in possession of the Department of Health, Education, and Welfare (42 U.S.C. 1306).

33. Area Redevelopment Act: Regarding restriction of financial assistance and employment to expediters and administrative employees who have occupied positions involving discretion within certain period (42 US.C. 2516).

34. Officers or employees of the Office of Education owning interest in or receiving money or services from any educational institution operated for profit in which an eligible veteran is pursuing a course of education or training under the Veterans Readjustment Assistance Act of 1952 (sec. 264 of the Veterans Readjustment Assistance Act of 1952, Public Law 550, 82d Cong.). 35. [Reserved]

FOOD AND DRUG ADMINISTRATION

former spouse, child or parent of such individual; or (2) falsely represents to any person that he is an employee or agent of the United States (42 U.S.C. 1307(b)).

45. "Medicare": Makes sections 406, 408, 416(j), and subsections (a), (d), (e), (f), (h), (i), (j), (k), and (1) of sec. 405 of Title 42 applicable to Title XVIII of the Social Security Act (42 U.S.C. 139511).

46. Disclosing information obtained by any employee of the Social Security Administration in the discharge of official duties (42 U.S.C. 1306).

36. Revealing any method or process (which is a trade secret) acquired under authority of the Food, Drug and Cosmetic Act (21 U.S.C. 3311).

37. [Reserved]

PUBLIC HEALTH SERVICE

135

International Relations Series.

Foreign Agricultural Affairs Series.

Geography Series.

History Series.

40. Requires chief officer of Saint Elizabeths Hospital to devote his whole time to the welfare of the institution (24 U.S.C. 165). 41. [Reserved]

180

Psychology Series.

184

Sociology Series.

SOCIAL SECURITY ADMINISTRATION

42. Prohibits knowingly deceiving, misleading, or threatening any claimant or prospective claimant or beneficiary or knowingly charging or collecting or making any agreement to charge or collect any fee in excess of the prescribed maximum fee (42 U.S.C.406).

43. For the purpose of causing an increase in any social security payment to be made or for causing an unauthorized payment to be made, wrongfully makes or causes to be made any false statement or representation as to the amount of wages paid or received or the period during which earned or paid; or as to the amount of net earnings from SE derived or the period during which derived; or makes or causes to be made any false statement of a material fact in or in connection with any application for Social Security payments (42 U.S.C. 408).

Archeology Series.

Scientific Linguistics Series.

Microbiology Series.

Pharmacology Series.

Agricultural Extension Series.

Zoology Series.

Systematic Zoology Series.