(f) [Reserved]

(g) Disclosure of information relevant to a proceeding. (1) Under section 505(d)(1) of the Act, any information to which this section applies may be released by EPA because of the relevance of the information to a proceeding under Title V, Part A of the Act, notwithstanding the fact that the information otherwise might be entitled to confidential treatment under this subpart. Release of information to which this section applies because of its relevance to a proceeding shall be made only in accordance with this paragraph (g).

(2) The provisions of § 2.301(g)(2) are to be used as paragraph (g)(2) of this section.

(3) The provisions of § 2.301(g)(3) are to be used as paragraph (g)(3) of this section.

(4) The provisions of § 2.301(g)(4) are to be used as paragraph (g)(3) of this section.

[50 FR 51663, Dec. 18, 1985]

Subpart C-Testimony by Employees and Production of Documents in Civil Legal Proceedings Where the United States Is Not a Party

AUTHORITY: 5 U.S.C. 301; Reorganization Plan No. 3 of 1970, 5 U.S.C. App.; 33 U.S.C. 361(a); 42 U.S.C. 300j-9; 42 U.S.C. 6911a, 42 U.S.C. 7601(a).

SOURCE: 50 FR 32387, Aug. 9, 1985, unless otherwise noted.

§ 2.401 Scope and purpose.

This subpart sets forth procedures to be followed when an EPA employee is requested or subpoenaed to provide testimony concerning information acquired in the course of performing official duties or because of the employee's official status. (In such cases, employees must state for the record that their testimony does not necessarily represent the official position of EPA. If they are called to state the official position of EPA, they should ascertain that position before appearing.) These procedures also apply to subpoenas duces tecum for any document in the possession of EPA and to requests for certification of copies of documents.

(a) These procedures apply to: (1) State court proceedings (including grand jury proceedings);

(2) Federal civil proceedings, except where the United States, EPA or another Federal agency is a party; and

(3) State and local legislative and administrative proceedings.

(b) These procedures do not apply: (1) To matters which are not related to EPA;

(2) To Congressional requests or subpoenas for testimony or documents;

(3) Where employees provide expert witness services as approved outside activities in accordance with 40 CFR part 3, subpart E (in such cases, employees must state for the record that the testimony represents their own views and does not necessarily represent the official position of EPA);

(4) Where employees voluntarily testify as private citizens with respect to environmental matters (in such cases, employees must state for the record that the testimony represents their own views and does not necessarily represent the official position of EPA).

(c) The purpose of this subpart is to ensure that employees' official time is used only for official purposes, to maintain the impartiality of EPA among private litigants, to ensure that public funds are not used for private purposes and to establish procedures for approving testimony or production of documents when clearly in the interests of EPA.

§ 2.402 Policy on presentation of testimony and production of documents.

(a) With the approval of the cognizant Assistant Administrator, Office Director, Staff Office Director or Regional Administrator or his designee, EPA employees (as defined in 40 CFR 3.102 (a) and (b)) may testify at the request of another Federal agency, or, where it is in the interests of EPA, at the request of a State or local government or State legislative committee.

(b) Except as permitted by paragraph (a) of this section, no EPA employee may provide testimony or produce documents in any proceeding to which this subpart applies concerning information acquired in the course of performing official duties or because of the employee's official relationship with EPA, unless authorized by the General Counsel or his designee under §§ 2.403 through 2.406.

§ 2.403 Procedures when voluntary testimony is requested.

A request for testimony by an EPA employee under § 2.402(b) must be in writing and must state the nature of the requested testimony and the reasons why the testimony would be in the interests of EPA. Such requests are immediately sent to the General Counsel or his designee (or, in the case of employees in the Office of Inspector General, the Inspector General or his designee) with the recommendations of the employee's supervisors. The General Counsel or his designee, in consultation with the appropriate Assistant Administrator, Regional Administrator, or Staff Office Director (or, in the case of employees in the Office of Inspector General, the Inspector General or his designee), determines whether compliance with the request would clearly be in the inter

ests of EPA and responds as soon as practicable.

§ 2.404 Procedures when an employee is subpoenaed.

(a) Copies of subpoenas must immediately be sent to the General Counsel or his designee with the recommendations of the employee's supervisors. The General Counsel or his designee, in consultation with the appropriate Assistant Administrator, Regional Administrator or Staff Office Director, determines whether compliance with the subpoena would clearly be in the interests of EPA and responds as soon as practicable.

(b) If the General Counsel or his designee denies approval to comply with the subpoena, or if he has not acted by the return date, the employee must appear at the stated time and place (unless advised by the General Counsel or his designee that the subpoena was not validly issued or served or that the subpoena has been withdrawn), produce a copy of these regulations and respectfully refuse to provide any testimony or produce any documents. United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

(c) Where employees in the Office of Inspector General are subpoenaed, the Inspector General or his designee makes the determination under paragraphs (a) and (b) of this section in consultation with the General Coun

sel.

(d) The General Counsel will request the assistance of the Department of Justice or a U.S. Attorney where necessary to represent the interests of the Agency and the employee.

§ 2.405 Subpoenas duces tecum.

Subpoenas duces tecum for documents or other materials are treated the same as subpoenas for testimony. Unless the General Counsel or his designee, in consultation with the appropriate Assistant Administrator, Regional Administrator or Staff Office Director (or, as to employees in the Office of Inspector General, the Inspector General) determines that compliance with the subpoena is clearly in the interests of EPA, the employee must appear at the stated time and

place (unless advised by the General Counsel or his designee that the subpoena was not validly issued or served or that the subpoena has been withdrawn) and respectfully refuse to produce the subpoenaed materials. However, where a subpoena duces tecum is essentially a written request for documents, the requested documents will be provided or denied in accordance with subparts A and B of this part where approval to respond to the subpoena has not been granted.

§ 2.406

Requests for authenticated copies of EPA documents. Requests for authenticated copies of EPA documents for purposes of admissibility under 28 U.S.C. 1733 and Rule 44 of the Federal Rules of Civil Procedure will be granted for documents which would otherwise be released pursuant to subpart A. For purposes of Rule 44 the “person having legal custody of the record” is the cognizant Assistant Administrator, Regional Administrator, Staff Office Director or Office Director or his designee. The advice of the Office of General Counsel should be obtained concerning the proper form of authentication.

is or was such a Member, Commissioner, officer, or employee

Shall be fined not more than $10,000, or imprisoned for not more than 2 years, or both; and shall be incapable of holding any office of honor, trust, or profit under the United States.

(c) A special Government employee shall be subject to subsection (a) only in relation to a particular matter involving a specific party or parties (1) in which he has at any time participated personally and substantially as a Government employee or as a special Government employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, or (2) which is pending in the department or agency of the Government in which he is serving: Provided, that clause (2) shall not apply in the case of a special Government employee who has served in such department or agency no more than 60 days during the immediately preceding period of 365 consecutive days.

Discussion

This provision prohibits employees from accepting fees for representing any outside party in any administrative proceeding before a Federal agency and from sharing in fees earned by others for such activities. For example, an attorney could not share in the partnership income of a law firm to the extent such income is attributable to representational activities before Federal agencies. It does not prohibit receipt of compensation for other than actual appearances as an agent or attorney for outside parties; a fee for actual work, such as drafting a brief, is not prohibited. (But see the appearance standards of §§ 3.103 and 3.503). The prohibition covers agreements to receive prohibited fees and requests for such fees. Moreover, the restriction applies even after the employee leaves the Government in that a former employee may not share in fees attributable to representational work before administrative agencies which was performed while the former employee was with the Government.

18 U.S.C. 205

Activities of officers and employees in claims against and other matters affecting the Government.

Whoever, being an officer or employee of the United States in the executive, legislative, or judicial branch of the Government or in any agency of the United States, including the District of Columbia, otherwise than in the proper discharge of his official duties

(1) Acts as agent or attorney for prosecuting any claim against the United States, or receives any gratuity, or any share of or in

rest in any such claim in consideration of

assistance in the prosecution of such claim,

or

(2) Acts as agent or attorney for anyone before any department, agency, court, court-martial, officer, or any civil military, or naval commission in connection with any proceeding, application, request for a ruling or other determination, contract, claim, controversy, change, accusation, arrest, or other particular matter in which the United States is a party or has a direct and substantial interest

Shall be fined not more than $10,000, or imprisoned for not more than 2 years, or both.

A special Government employee shall be subject to the preceding paragraphs only in relation to a particular matter involving a specific party or parties (1) in which he has at any time participated personally and substantially as a Government employee or as a special Government employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise, or (2) which is pending in the department or agency of the Government in which he is serving: Provided, That clause (2) shall not apply in the case of a special Government employee who has served in such department or agency no more than 60 days during the immediately preceding period of 365 consecutive days.

Nothing herein prevents an officer or employee, if not inconsistent with the faithful performance of his duties, from acting without compensation as agent or attorney for any person who is the subject of disciplinary, loyalty, or other personnel administration proceedings in connection with those proceedings.

Nothing herein or in section 203 prevents an officer or employee, including a special Government employee, from acting, with or without compensation, as agent or attorney for his parents, spouse, child, or any person for whom, or for any estate for which, he is serving as guardian, executor, administrator, trustee, or other personal fiduciary except in those matters in which he has participated personally and substantially as a Government employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, or which are the subject of his official responsibility provided that the Government official responsible for appointment to his position approves.

Nothing herein or in section 203 prevents a special Government employee from acting as agent or attorney for another person in the performance of work under a grant by, or a contract with or for the benefit of, the United States provided that the head of the department or agency concerned with the contract shall certify in writing that the national interest so requires.

Such certification shall be published in the FEDERAL REGISTER.

Nothing herein prevents an officer or employee from giving testimony under oath or from making statements required to be made under penalty for perjury or contempt.

Discussion

This provision generally forbids employees to act as agent or attorney (that is, communicate with intent to influence) on behalf of outside parties before Federal agencies or courts in matters in which the United States is a party or has a direct and substantial interest. The prohibition applies to both paid and unpaid representation.

Examples

1. An EPA employee has received permission to work as a consultant to a firm which has been awarded a contract by the Department of Defense. A controversy arises concerning the scope of work of the contract, and the firm asks the EPA employee to discuss the matter with the contracting officer to seek additional compensation for an alleged change in the scope of work.

Answer: The employee may not do so, since he would be acting as agent for an outside party in a claim or controversy to which the Government is a party. (Moreover, under the appearance standards of § 3.502(c) the employee should not assist the firm in preparing its claim.)

2. An employee is an officer in an environmental organization and has been asked to present testimony on behalf of the organization at an EPA rulemaking proceeding.

Answer: Although the statute does not apply to testimony under oath, the activity nonetheless violates the appearance standards of §§ 3.103 and 3.503. However, it would be proper for the employee to appear as a concerned individual rather than as a representative of an outside group.

3. Several years ago, an employee received approval for outside employment as a consultant to an architect/engineer firm which is now competing for a subagreement under an EPA construction grant. The firm has asked the employee to present its proposal to EPA's grantee.

Answer: The statutory restriction does not apply, since the representational activity would not be before EPA or any other Federal agency. Such activity would nonetheless violate the appearance standards of §§ 3.103 and 3.502. Moreover, under the appearance standards, Deputy Ethics Officials would be justified in refusing to approve outside employment involving work projects funded by EPA.

on

Exceptions

1. With the approval of the appropriate Deputy Ethics Official, an employee may act as agent or attorney before a Federal court or agency, for his or her parents, spouse, child or any person for whom, or for any estate for which, the employee is serving as guardian, executor, administrator, trustee or other personal fiduciary except where the employee has participated in the same matter on behalf of the Government or where the matter is the subject of the employee's official responsibility.

2. Nothing in the statute prevents an employee from giving testimony under oath or from making statements required to be made under penalty for perjury or contempt. However, this exception does not apply to acting as an expert witness for an outside party in a Government matter.

3. Employees may act without compensation as agent or attorney for anyone who is the subject of disciplinary, loyalty or other personnel proceedings, provided the employee's official duties do not conflict with such representation. Employees are encouraged to seek the advice of the Designated Agency Ethics Official or Deputy Ethics Official before engaging in such representation.

4. The restriction does not apply to special Government employees to the same extent as to employees. Restrictions applicable to such employees are discussed in § 3.604.

18 U.S.C. 207

Disqualification of former officers and employees; disqualification of partners of current officers and employees.

(a) Whoever, having been an officer or employee of the executive branch of the United States Government, of any independent agency of the United States, or of the District of Columbia, including a special Government employee, after his employment has ceased, knowingly acts as agent or attorney for, or otherwise represents, any other person (except the United States), in any formal or informal appearance before, or, with the intent to influence, makes any oral or written communication on behalf of any other person (except the United States) to

(1) Any department, agency, court, courtmartial, or any civil, military, or naval commission of the United States or the District of Columbia, or any officer or employee thereof, and

(2) In connection with any judicial or other preceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties in which the United States or the District of Colum