Please find enclosed pages of records, which consist of all responsive documents of the following type: waivers issued under 5 U.S.C. § 208 received pursuant to PA-17-02. Under 18 U.S.C. § 208(d)(1), certain information in these documents may be exempted from release pursuant to the Freedom of Information Act (FOIA). Please note that the responsive records all originated at other agencies and were provided to OGE with FOIA redactions already made in order to expedite release to the public, due to the high volume of interest. If you disagree with any redactions made on the documents produced, you may request the documents directly from the originating agency or consult with that agency directly about the redactions. DEPARTMENT OF HEALTH HUMAN SERVICES Office at the Smetatv Washington. 20201 October 28, 2016 MEMORANDUM FOR KATE HEINZELMAN FROM: Mary K. Wake?eld/?yc/M/MY/ Acting Deputy Secretary SUBJECT: Limited Waiver under Title l8, Section 208(b)(1) of the United States Code The criminal con?ict of interest statute, 18 U.S.C. 208(a), prohibits a federal executive branch employee from participating personally and substantially in any particular matter that will have a direct and predictable effect on the employee?s ?nancial interest or on the ?nancial interests of the employee?s spouse, among others. Under 18 U.S.C. however, the employee?s appointing authority, or his or her delegate, may permit an employee to participate in a matter in which he or she has an otherwise disqualifying ?nancial interest, if a waiver is issued based on a determination that the ?nancial interest is not so substantial as to be deemed likely to affect the integrity of the services which the Govemment may expect from the employee. Out of an abundance of caution, you have requested this limited waiver so that it is clear that your participation in litigation involving The Patient Protection and Affordable Care Act?s (Pub. L. 111-148) (the ?Affordable Care Act? or Risk Corridor Program, and other particular matters related to the premium stabilization programs where similar legal determinations are at issue, is permissible. Natureo i ualif in Financial Interest The nature of the disqualifying financial interest at issue here arises from your spouse?s employment. Your husband is a salaried associate attorney at the ?rm of Quinn Emanuel Urquhart Sullivan, LLP (?Quinn?). You have also reported that your spouse does expect to receive the annual bonus that the ?rm awards to associates who bill a speci?ed number of hours in a given year. Quinn represents a Quali?ed Health Plan issuer that has ?led suit against the government in one of eight cases in the US. Court of Federal Claims concerning the Risk Corridor Program under the ACA. Your spouse is not working on and has been walled from participation in that litigation through the ?rm?s con?icts check procedures. As a salaried associate at Quinn, your spouse's annual salary is ?xed by his class year at the ?rm and, unlike an equity partner, is therefore not dependent on the ?rm?s revenues. The resolution of the litigation noted above would not have a direct and predictable effect on his ?xed salary, meaning that it would not affect the ability and willingness of the firm to pay his salary, and therefore it would not be a disqualifying ?nancial interest under 18 U.S.C 208. Quinn associates also participate in a bonus structure that is based again on class year but also takes into account the associate?s performance as primarily measured by the hours billed by that associate. Each year the bonus amounts are set by the ?rm and are then applied to all associates who qualify for a bonus across the ?rm. The pool of available funds to award for bonuses, however, may be affected in some way by the ?rm?s total revenue, of which revenue the Risk Conidor Program case that Quinn is handling may be a part. Accordingly, there is a possibility that you may have a disqualifying ?nancial interest in your spouse?s bonus if it is tied to the overall revenue of the ?rm. From publicly-available records, Quinn and other similarly situated national law ?rms commonly set their annual bonus structures in keeping with certain law ?rm market leaders, establishing a ?market rate? structure apportiOned by associate class year, providing an associate achieves the minimal billable hour requirement. Quinn differs from its peers by using a ?bonus matrix? that, in addition to the ?market rate? bonus structure, provides additional bonus amounts should the associates meet certain higher levels of billable hours. In 2015, the most recent year for which associate bonus information is publicly available (2016 rates have not yet been announced), the ?market rate? bonus at Quinn and its peer ?rms for your spouse?s class year was $90,000. Quinn?s ?above market? bonus for the billable hours . - It is ?iis difference between the ?market rate? bonus and the ?above market? bonus, . that could potentially be a??ected by the ?rm? 3 total revenue. Nature of the P?'culg Matters The ACA created three premium stabilization programs intended to moderate the risk to insurers as a result of the newly mandated health insurance marketplaces. One of these programs was the Risk Corridor Program. The Risk Corridor Program provided that a QHP: I) would receive compensation if its losses exceeded a certain defined amount due to high utilization and high medical costs in the newly established marketplace; and 2) would be required to pay a percentage of any pro?ts it made over certain de?ned amounts into a Government ?Risk Corridor? fund. The Risk Corridor litigation arose when the amount paid to the Government by QHP issuers that posted a pro?t was not sufficient to offset the compensation owed to QHP issuers operating at a loss. As appropriated funds were also not available, HHS was only able to pay a percentage of the losses to the QHP issuers in the ?rst year of the program. Eight QHPs have therefore ?led separate lawsuits against HHS seeking to recover the full amount owed to them in the United States Court of Federal Claims, where they claim monetary relief can be ordered. Quinn is presently representing Health Republic Insurance Company in one of the eight Risk Corridor Program cases ?led in the Court of Federal Claims. To date, you have not participated in the case being handled by Quinn and have also not participated in any of the other seven Risk Corridor Program cases in the Court of Federal Claims. Your decision to recuse has been based on your understanding that the legal issues in each of these currently pending cases are almost identical and that there is some risk that they could be consolidated or handled jointly because they are in the same circuit at the same time.1 Employee?s Position, Dung Role You are serving as a Deputy General Counsel in the Of?ce of the General Counsel (OGC). In this capacity, your duties include providing legal guidance on issues related to the ACA and the Health Care and Education Reconciliation Act (Pub. L. 11 1-152). These duties would normally encompass serving as the senior attorney for HHS OGC in litigation involving the Risk Corridor Program and litigation where similar legal determinations are at issue. The litigation involving the Risk Con-idor Program raises highly complex legal issues and is receiving close public scrutiny. While the Department of Justice is representing the federal Government in all of these cases, HHS expertise is, however, needed to advise DOJ on interpretation of the complex statutory provisions under consideration in these Risk Corridor cases. elevant ors Consider er U. 0 In determining whether a waiver may be issued to allow your of?cial participation in these pending ACA Risk Corridor cases and other particular matters related to the premium stabilization programs where similar legal determinations are at issue, [have considered each of the factors described in 5 C.F.R. including the nature of the disqualifying ?nancial interest as described above and the fact that the interest is imputed to you from your spouse?s employment. I have also carefully considered the following additional factors: Dollar value of the potential gain or loss due to the resolution of the matter - Quinn?s gross reported revenue in 2015 was $1,042,500,000. Although the speci?c compensation arrangement Quinn has with Health Republic is con?dential, we do know that Health Republic claims it is owed approximately $22 million under the Risk Corridor Program. Even if Health Republic were to receive the total amount of its claimed loss, Quinn would likely only receive a fraction of that amount for its legal services. That fraction, even if based on a 40% contingency rather than The seven cases are: First Priority Life Insurance Co. v. United States, Mada Health Plan, Inc. v. United States, Blue Cross Blue Shield of N. C. v. United States, Land of Lincoln Mutual Health Insurance Co. v. United States, Me. Cmty. Health Options v. United States, MM. Health Connections v. United States, Blue Cross Blue Shield of Minn. v. United States (hereinafter ?Risk Corridor cases?). 3 hourly fee, would be less than of the ?rm?s reported 2015 revenue. Although the Health Republic complaint has been ?led as a class action, requesting the full amount, $2.5 billion owed to all QHP issuers under the Risk Corridor Program, the case has not received class certi?cation at this point. Further analysis of this waiver would be required if the class action receives certi?cation. Additionally, this limited waiver does not permit your participation in the government?s response to the class certi?cation issue in the Health Republic case or any other Risk Corridor case. If the class is certi?ed, you must consult with me and the Office of the General Counsel Ethics Division to determine if a revision is needed to this document. It is not possible to determine, in advance, how the ?rm?s gross revenue potentially could affect the bonus structure for the above market bonuses. Likewise, there are too many variables to speculate what actual effect, if any, the Health Republic case would have on the bonus structure for associates in the next bonus cycle. It is also unlikely that the litigation will be decided this year. Moreover, it is highly unlikely that this single case will have a signi?cant effect on the law ?rm?s revenue pool for associate bonuses. The ?rm has almost 700 attorneys, handles litigation in at least 34 general practice areas, and has 11 of?ces worldwide. Finally, the ?rm has indicated to your spouse that his compensation will not be affected by revenue generated by this one case. Value of the ?nancial instrument or holding from which the disqualifying interest arises and relationship to your assets - As stated above, your spouse?s salary is not a disqualifying ?nancial interest as it is ?xed based on his associate year. While his annual bonus is potentially variable, we ?nd no reasonable basis on which to conclude that its variability would be based on the ?rm? revenues from this particular case In any event, under Quinn? 2015 bonus structure and the billable hours he expects to work this year, . The 2015 ?market rate? bonus for his class year was $90,000. Even if the difference between the market rate and the ?above market? bonus for additional billable hours were conceivably in?uenced by the ?nn?s total revenue, it is highly unlikely that this single case will have a signi?cant e?'ect on a law ?rm whose gross revenue exceeds $1 billion. You have indicated that the increase in the ?market rate? and ?above market rate? bonus, if the 2016 bonus rates (which have not vet been announced) are comparable to the prior year, would constitute approximately Even if the full. expected bonus amount is considered, it would only constitute approximater The small relative value of the bonus, along with the other factors we considered, supports the issuance of this limited waiver. The nature and importance of your participation - As noted earlier you anticipate that you would play a role in advising HHS clients on their policy options related to the Risk Corridor cases. Your role would include shaping the complex legal arguments at issue in the litigation, reviewing the briefs, and preparing DOJ litigators for oral argument, as well as representing interests in litigation strategy-related decisions. You would also serve as the senior HHS attorney on the case and a liaison between the DOJ, senior HHS leaders, and other substantive experts at HHS. Your work would be behind-the-scenes and DOJ attorneys will represent the government in court. Given your leadership role in OGC and expertise in ACA issues, it is critical that you participate in what is likely to be precedent-setting litigation that will be litigated by DOJ . The sensitivity of the matter - As indicated in the discussion of the facts, the litigation concerns the ACA and the Risk Corridor Program, which is a core ACA premium stabilization program. Eight cases have been ?led, thus far, with different plaintiffs represented by di??erent law ?rms, only one of which implicates your spouse. The cases as a whole, and the potential impact that resolution of them could have on the ACA insurers, have received national press coverage. The policy and legal principles at issue in the pending litigation are among the ?rst opportunities courts will have to interpret these ACA provisions. The sensitivity of these cases centers on legal principles that may have an impact on the ?nancial interests of the plaintiffs in these cases, as well as all other issuers that have not yet received ?ll] Risk Corridor Program receivables. As explaincd above, the litigation will have a minimal to negligible effect on the overall ?nancial interests of your spouse?s ?rm and any bonus awarded to your spouse. The Need for the Employee ?s Services on the Matter ?You are one of only four DGCs under the Acting General Counsel. Due to recusal obligations that have arisen for other members of your immediate of?ce, it is critical that you be able to provide oversight, coordination with DOJ and senior HHS leaders, and policy guidance to the CMS attorneys who are working on these eight cases and other litigation raising similar legal determinations. At this point, the need for your service is heightened by the fact that one DGC position is vacant and the workload for each remaining DGC is, accordingly, heavier than usual. Each DGC has a portfolio of work areas and has primary expertise in those assigned substantive areas. In addition, given the time constraints and your familiarity with the facts and legal issues in this case, because of your other work on ACA issues, it would be extremely dif?cult for another DGC to assume responsibility for this litigation. Adjustments to be made to duties that would reduce or eliminate the likelihood that a reasonable person would raise appearance concerns ?You have indicated that your role will be behind-the- scenes on these cases, and that acts as the government?s litigator in these matters (serving as the attorneys that represent the federal Government in litigation or settlement related matters). Because of your litigation management responsibilities as a DGC, your specialized experience in ACA marketplace issues and litigation, the workload and expertise of available other DGCs to handle these cases, it would be both dif?cult and impractical to continue to adjust your job duties. The determination and waiver provisions of the ethics regulations and the criminal con?ict of interest statute were written in recognition of the reality that we cannot have unreasonably restrictive requirements of disquali?cation that prevent the use of the most quali?ed employees and managers when the con?icting ?nancial interest is not so substantial that it is likely to affect the integrity of your services. Limitations and Matters Coyged This waiver is limited in scope. lt permits you to participate in the litigation involving the Risk Conidor Program and other particular matters related to the premium stabilization programs where similar legal determinations are at issue, provided that your spouse is not involved in any such particular matter. Your participation in other particular matters affecting the ?nancial interest of your spouse, his law ?rm, or its clients, other than those covered by this limited waiver, as described above, are prohibited by 18 U.S.C. 208 or the impartiality standard at 5 C.F.R 2635.502, and accordingly, you must continue to recuse from any such matters. For instance, this limited waiver would not allow you to participate personally and substantially in matters in which Quinn represented a client in FDA drug-approval litigation, a false claims act litigation, or other matters unrelated to these Risk Corridor cases and other associated premium stabilization cases. This waiver also does not allow you to participate in the government?s response to the class certification issue in the Health Republic case or any other Risk Corridor case. As noted above, you must consult with the OGC Ethics Division and receive the appropriate waiver or authorization prior to participating in any such other matters or if the facts outlined above change. In particular, as noted above, if the class action certi?cation requested in the Health Republic?s case is granted, you must inform the OGC Ethics Division so that this limited waiver may be reviewed in light of the change in circumstances. Determination Given all of the above information, and the speculative link between the resolution of the Health Republic Insurance Company suit being handled by Quinn and a potential effect on your spouse?s employment compensation, an authorization under 5 C.F.R. 2635.502(d) may have been appropriate in this situation. However, because there is some remote risk that the particular matters may have a ?nancial effect, however limited, on your spouse?s bonus that we cannot de?nitively rule out, I am proceeding with this limited waiver in an abundance of caution. Based on my evaluation of the factors in 5 i have determined that your imputed ?nancial interest arising from your spouse?s employment as an associate attorney with Quinn is not so substantial as to be deemed likely to affect the integrity of the services that the federal Government may expect from you. For the speci?c reasons detailed above, I am granting you a limited waiver under 18 U.S.C. 208(b)(1) to permit you to participate in the litigation involving the Risk Corridor Program and, speci?cally, other particular matters related to the premimn stabilization programs where similar legal determinations are at issue, provided that your spouse is not involved in any such particular matter. This waiver is based upon your full disclosure of your ?nancial interests and consideration of the nature and circumstances of matters that you may be involved in as a Deputy General Counsel. The Of?ce of Government Ethics has been consulted concerning the issuance of this limited waiver, as speci?ed in 5 C.F.R. 2640.303, and the HHS Designated Agency Ethics Of?cial has reviewed this document, as required by the Delegation of Authority by the Secretary to the Heads of Operating and Staff Divisions to Grant Con?ict of Interest Waivers under 18 U.S.C. 203(d), 205(e), and 208(b), dated January 16, 2009, and has concluded that this waiver adequately addresses the requirements for such waivers as set forth in DOE regulations at 5 C.F.R. 2640.301. Please sign below indicating your agreement to the terms of this limited waiver, please return the signed original to the OGC Ethics Division, a copy to me, and retain a copy for your own records. 9 Kt einzel From: To: Cc: Subject: Date: Rodgers, Janice (JMD) Francisco, Noel (OSG) Shaw, Cynthia K. (JMD) FW: Recommendation for waiver under 18 USC 208 Tuesday, February 07, 2017 11:28:53 AM Noel,   Waiver granted.   Thanks  From: Schools, Scott (ODAG) Sent: Tuesday, February 07, 2017 11:26 AM To: Rodgers, Janice (JMD) Subject: RE: Recommendation for waiver under 18 USC 208   I concur in your recommendation and grant the waiver.  Thank you for the excellent analysis.    Scott   From: Rodgers, Janice (JMD) Sent: Tuesday, February 7, 2017 9:40 AM To: Schools, Scott (ODAG) Cc: Shaw, Cynthia K. (JMD) ; Rodgers, Janice (JMD) Subject: Recommendation for waiver under 18 USC 208 Importance: High   Scott, I am recommending that you grant a waiver, pursuant to the authority provided by the financial conflict of interest statute, 18 USC § 208(a)(1), to Acting Solicitor General Noel Francisco, in order for him to continue to participate in States of Washington and Minnesota v. Trump and related cases defending the Executive Order 13769 (the Order) on immigration. The waiver is necessary because we have concluded that the outcome of the immigration cases is likely to have a direct and predictable effect on the financial interests of at least four companies in which Mr. Francisco holds stock. Mr. Francisco anticipates divesting of the conflicting stocks, but because time is of the essence—an oral argument is scheduled tonight, which will be argued by another Department attorney—he is seeking a waiver so that he may participate in the matter today. Mr. Francisco, a former partner with the Jones Day law firm, is now the Acting Solicitor General and in that capacity has been leading the government’s work on the immigration litigation. Yesterday, February 6, 2017, Jones Day filed an amicus brief in the Ninth Circuit on behalf of 97 technology companies and others. Mr. Francisco was authorized by you to continue working on the immigration litigation case under an authorization pursuant to 5 CFR 2635.502(d). Later in the evening, Mr. Francisco became aware that he owned stock exceeding $25,000 in companies included in the amicus brief. As a result, his holdings exceed the amount allowed in the regulatory exemption (non-parties in a particular matter with specific parties) for participation in a particular matter than will have a direct and predictable effect on his financial interests, which is otherwise prohibited under 18 USC 208. A “particular matter” includes matters that involve deliberation, decision, or action that is focused upon the interests of specific persons, or a discrete and identifiable class of persons. It does not cover consideration or adoption of broad policy options directed to the interest of a large and diverse group of persons. Particular matters include judicial proceedings. 5 CFR § 2640.103(a)(1). Under the relevant regulations, a particular matter “… will have a “direct” effect on a financial interest if there is a close causal link between any decision or action to be taken in the matter and any expected effect of the matter on the financial interest. An effect may be direct even though it does not occur immediately. A particular matter will not have a direct effect on a financial interest, however, if the chain of causation is attenuated or is contingent upon the occurrence of events that are speculative or that are independent of, and unrelated to, the matter. A particular matter that has an effect on a financial interest only as a consequence of its effect on the general economy does not have a direct effect within the meaning of this part… (ii). A particular matter will have a “predictable” effect if there is a real, as opposed to a speculative, possibility that the matter will affect the financial interest. It is not necessary, however, that the magnitude of the gain or loss be known, and the dollar amount of the gain or loss is immaterial.” 5 CFR § 2640.103(a)(3). The amici argue that the Order is having an immediate effect on the conduct of their businesses. We therefore assume, for the purposes of this waiver, that the litigation will have a direct and predictable effect on the companies’ financial interests. Under the applicable regulations, it is not necessary that the size of the gain or loss be known, and the dollar amount of the gain or loss is immaterial. The standard for granting a waiver of the conflicting interest is that the interest “is not so substantial as to be deemed likely to affect the integrity of employee’s services to the Government.” 5 CFR § 2635.301(a). Under the Department’s Ethics Order, DOJ Order 1200.1 Chapter 11, and delegated authority, you have the authority to grant the waiver, with a recommendation of an ethics official. Mr. Francisco has stock valued at approximately $ in Alphabet (Google), Apple, Facebook, and Microsoft combined. He estimates his total non-real estate assets at . He estimates the total of his individual stock holdings at approximately $ $ . He estimates that his individual stock holdings represent 3.8 percent of his total non-real estate assets, and the stock in the conflicting assets is half a percent of his non real estate holdings. As a result, the percentage that the conflicting stock holdings represent of his total non-real estate assets is extremely small. We typically use 2% as a general benchmark, and for interests below that we will often recommend a waiver, assuming the actual dollar value of the holding is relatively modest. The value of Mr. Francisco’s holdings is extremely modest. From that perspective, we believe that you may determine the interest is not so substantial as to be deemed likely to affect the integrity of his services to the Government in this case. For all of these reasons, we recommend that you grant a waiver under 18 USC 208(b)(1) of the financial conflict of interest statute. Your response to this email will serve as your decision. If you have any questions please let me know. Cynthia K. Shaw Director Departmental Ethics Office U.S. Department of Justice 145 N Street, NE Washington, DC 20530 (202) 514-8196   United States Department of State Washington. D. C. 20520 UNCLASSIFIED To: Senior Adviser for MEK Resettlement and Special Envoy for Libya Jonathan Winer l8 208(b)(1) LIMITED WAIVER The federal con?ict of interest statute, 18 U.S.C. 208, generally prohibits a government employee from acting on matters in which the employee or an organization with which he or she is negotiating or has an arrangement conceming prospective employment has a ?nancial interest. This statute, however, permits an employee to participate in such a matter upon a prior written determination that ?the [?nancial] interest is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from such officer or employee." 18 U.S.C. 208(b)(l By Delegation of Authority 175-6 dated November 15, 2012, the Designated Agency Ethics Of?cial is authorized to issue such a determination. have been advised of the various matters on which you work as Senior Adviser for MEK Resettlement and Special Envoy for Libya. In light of these matters, I have reviewed the roposal that you negotiate for, in your of?cial capacity, appointment with while continuing to work on certain matters involving that are related to -. When you begin negotiating for employment for the - position, and if you ultimately have an arrangement for ?Jture employment, under 18 U.S.C. 208(a) you will have potentially two types of disqualifying ?nancial interests. First, all the ?nancial interests of your prospective employer are imputed to you. Second, you have disqualifying ?nancial interests because of any potential future salary and bene?ts from the -. Therefore, in the absence of a waiver, you are prohibited from participating personally and substantially in any particular matter that, to your knowledge, has a direct and predictable e?ect on the ?nancial interests of the or on your own ?nancial interests, while you remain at the Department of State. At the Department of State, you currently serve as Senior Adviser for MEK Resettlement and Special Envoy for Libya. As Senior Adviser for MEK Resettlement, your reSponsibility has been to secure the resettlement of 3.000 MEK members from Iraq. Throu hout that work, ou have been in chose touch with the which received funding from the Department of State, secured in part by your involvement, for the purpose of facilitating the resettlement. As Special Envoy for Libya, you are the Department of State?s lead for the development and implementation of US. policy towards Libya. In this role, you have regular contact with similarly situated of?cials from a range of countries and international groupings and organizations. . 'Ihis waiver only extends to your current work related to that involves as your current work with does not give rise to any con?icts under 18 U.S.C. 208, but you should discuss with your supervisor and appropriate ethics of?cials should the potential for con?icts arise in the future. have reviewed the information regarding the proposal that you continue to work on while you pursue this employment opportunity, whether at the stage of negotiating or having an arrangement for employment. Pursuant to 18 .S.C . 208(b)(l), have determined that, with respect to working on matters related to while negotiating and potentially having an arrangement for the position, your financial interests are not so substantial as to be deemed likely to affect the integrity of the services which the US. Government may expect from you in your capacity as Senior Adviser or Special Envoy. This determination is based on a number of factors, including the following: 0 Your ne otiation for the position is strongly supported by the Department of State. 0 The Assistant Secretary ofState for Near Eastern Affairs believes that your ?nancial interest and the financial interests imputed to you as you negotiate employment for the - position are not likely to affect the integrity of the services that you are currently providing to the Department of State within the Bureau of Near Eastern Affairs, and that your continued engagement with on critical given your eXperience and expertise in policy matters involving longstanding knowledge of US. interests in the region. is and your 0 In your positions at the Department of State, you do not control funding, logistical, administrative or other operational matters relating to activities and in particular, you have no involvement in the decisions of the Department of State regarding funding allocations to 0 In your positions at the Department of State, you do not have any contact with the personnel at that you know to be involved in hiring decisions for the position. 0 The vast majority of policy matters regarding - in which you are currently involved at the Department of State are either broad policy matters aimed at the interests of a large and diverse group of persons, or particular policy matters that are unlikely to have a direct and predictable effect on financial interests 0 To the extent that you might work on particular matters that could have a direct and predictable effect on ?nancial interests both the scope of any potential conflict and your role are likely to be limited, given that you are one among many of?cials in the Department of State who contribute to, and do not have ?nal decision-making authority over, Department of State policy towards Because I ?nd that your personal and imputed ?nancial interests as described above are not so substantial as to be deemed likely to affect the integrity of the services you will provide to the Government, I hereby grant you a limited waiver under 18 U.S.C. 208(b)(1) to continue to work on matters related to - that involve while participating in negotiations in your of?cial capacity for employment as This limited waiver will remain in effect if you ultimately have an arrangement for future employment for this position. I further ?nd that it is unlikely that a reasonable person would have cause to uestion the impartiality of your work on the matters concerning - that involve_ in which you are permitted to participate under this waiver. Notwithstanding the terms of this waiver, you must recusc yourself from: 0 Any discussions within the Department of State relating to US. funding for- and Any discussions with employees or representatives 0 speci?cally regarding funding levels for current programs or policies or requests for future U.S. assistance to I - Any other matters that involve or concern that are not part of your current work as Senior Adviser for MEK Resettlement or Special Envoy for Libya. If any question arises as to whether your conduct in this particular matter or any other is permitted under this limited waiver, you should consult with your supervisor and agency ethics olTrcial, as appropriate. In accordance with 5 C.F.R. 2640.303, I have consulted with the US. Of?ce of Government Ethics prior to granting this waiver and a signed, ?nal copy of this waiver will be forwarded to that Of?ce. Pursuant to 5 C.F.R. 2640.304, a copy of this waiver will be made available upon request to the public in accordance with the procedures described in 5 C.F.R. 2634.603. In making this waiver publicly available, certain information may be withheld in accordance with 5 C.F.R. Date avid P. Huitema Alternate Designated Agency Ethics Of?cial THE WHITE HOUSE Washington, D.C. June 15,2016 This is a technical amendment to the 18 U.S.C. 208(b)(l) waiver issued to you in 2009 after your con?rmation as U.S. Ambassador to the United Nations, which was rati?ed in 2013 when you became National Security Advisor. That waiver permitted you to participate in matters that could have an effect on the underlying holdings of the RBC Private International Equity Pool, notwithstanding your otherwise disqualifying ?nancial interest arising from such investments. I have been advised of the following facts: 0 Effective November 27', 2015, the RBC Private International Equity Pool merged with the RBC International Equity Fund, a diversi?ed investment fund registered in Canada. I The RBC Private International Equity Pool no longer exists, and your investment units were automatically converted to units in the REC International Equity Fund on a dollar- per?dollar basis. 0 The old fund and new fund are substantially similar in their investments and investment objectives. As the otherwise disqualifying ?nancial interest arising from this investment, and your of?cial duties, are substantially unchanged from the date of rati?cation, the basis for the waiver remains the same. Out of an abundance of caution, and to ensure the continued application of the 2009 waiver to your interests in the RBC Private International Equity Fund, I am providing the following technical amendment: all references to the REC Private International Equity Pool in the 2009 waiver, as rati?ed, will be deemed to refer to the RBC International Equity Fund. The U.S. Of?ce of Government Ethics has been consulted with prior to my granting this technical amendment and a signed, ?nal copy will be forwarded to that Of?ce. W. Neil Eggleston Counsel to the President THE WHITE HOUSE Washington, DC. October 29, 2013 MEMORANDUM FOR: SUSAN RICE NATIONAL SECURITY ADVISOR FROM: RUEMMLER COUNSEL To THE PRESIDENT SUBJECT: Limited Waiver Under 13 U.S.C. 208(b)(l) This memorandum provides you with a waiver, pursuant to 18 U.S.C. 208(b)(l), that, subject to limitations stated below, allows you to participate in your position as Assistant to the President and National Security Advisor in certain particular matters of general applicability affecting your ?nancial interests listed in Attachment A to this waiver. This waiver is being issued based on full disclosure of your ?nancial interests and consideration of the nature and circumstances of matters in which you may be involved as the President?s National Security Advisor. An executive branch employee is prohibited by 18 U.S.C. 208(a) from participating personally and substantially in an official capacity in any particular matter that has a direct and predictable effect on either the employee?s ?nancial interests or the interests of certain other persons whose interests are imputed to the employee. The term ?particular matter? includes only matters that involve deliberation, decision, or action that is focused on the interests of speci?c persons or a discrete and identi?able class of persons. The term may include matters that do not involve formal parties and may extend to legislation or policymaking that is narrowly focused on the interests of a discrete and identi?able class of persons. The term does not, however, include consideration or adoption of broad policy options directed to the interests of a large and diverse group of persons. The term does not include any matter that is not focused on the interests of speci?c persons or a discrete and identi?able class of persons. As Assistant to the President and National Security Advisor, you will participate in a variety of policy matters, which often will not meet the de?nition of a ?particular matter.? I am issuing this waiver, however, because the nature of your position requires that you be available to participate personally and substantially in all matters related to the nation?s security that may arise. These matters could conceivably include ?particular matters.? The National Security Advisor is the President?s chief White House advisor on national security matters, and your ability to participate fully and without delay in matters of national and international importance is critical. In your most recent public ?nancial disclosure report you disclosed that you, or others whose ?nancial interests are imputed to you, hold a variety of ?nancial interests in entities that Operate in a number of different economic sectors. Many of these assets have been placed in discretionary trusts and are neither covered by the prohibition at 18 U.S.C. 208(a) nor subject to disclosure in the ?nancial disclosure reports you will ?le while serving as National Security Advisor. Your remaining ?nancial interests include some holdings that do not pose likely con?icts of interest, as well as some registered mutual funds that qualify for an exemption to the prohibition at 18 U.S.C. 208(a), under 18 U.S.C. 208(b)(2) and 5 C.F.R. 2640.201. Your remaining ?nancial interests also include certain publicly traded securities in the following sectors: ?nancial services, energy and transportation. Attachment A lists speci?c holdings in these three sectors. You have agreed to reduce the potential for con?icts of interest between your duties as National Security Advisor and your remaining ?nancial interests by taking a number of steps. Because 18 U.S.C. 208(a) imputes the holdings of a trust to a government employee who serves as the trustee of the trust, you have agreed to terminate your position as trustee of a family trust. You have agreed to divest your stocks in the entities listed in Attachment because these stocks are not currently covered by either your existing individual waiver under 18 U.S.C. 208(b)(1) or a regulatory exemption under 18 U.S.C. 208(b)(2). You have agreed that, for the duration of your appointment as National Security Advisor, neither you nor your spouse will purchase additional shares of stocks in any company that operates primarily in the ?nancial services, energy or transportation sectors or in any entity listed in Attachment A or Attachment B, except to the extent that such stocks are held in a diversi?ed mutual fund or exchange-traded fund that is exempt from the prohibition at 18 U.S.C. 208(a), under 18 U.S.C. 208(b)(2) and 5 C.F.R. 2640.201. Though your work on national security matters will not necessarily trigger the prohibition at 18 U.S.C. 208(a), inasmuch as you may not need to participate in a ?particular matter,? these measures, including your divestiture of the assets listed in Attachment B, and the issuance of this waiver are precautionary measures to ensure that you are free of con?icts of interests. The prohibition established in 18 U.S.C. 208(a) may be waived under 18 U.S.C. 208(b)(1) where a determination is made that an employee?s ?nancial interest is not so substantial as to be deemed likely to affect the integrity of the services that the government may expect from the employee. Based on the totality of the circumstances, 1 have determined that the ?nancial interests subject to this waiver are not so substantial as to be deemed likely to affect the integrity of your services to the government. In making this determination, I have considered several factors. Given that the nature of your position is primarily focused on policy matters, it appears unlikely that any particular matters that do arise would have a signi?cant direct and predictable effect on the ?nancial interests covered by this waiver. The limitations set forth below will serve to further mitigate any potential for a signi?cant direct and predictable effect on these ?nancial interests. Moreover, it is highly unlikely that any matter narrow enough to qualify as a ?particular matter? would have a direct and predictable effect on entities in all three sectors identi?ed in Attaclunent A. In addition to the assets that are the subject of this waiver, you, your spouse and your children are bene?ciaries of substantial holdings 1n discretionary trusts, which are exempt from 18 U. S. C. 208(a) 1n circumstances, as here, in which a government employee has no control over transactions involving the trusts? underlying assets or the timing or amount of payments from the discretionary trusts. With regard to your ?nancial interests outside these trusts, you have committed to taking reasonable measures to mitigate your potential for con?icts of interest by divesting a number of stocks, by resigning from your trustee position, and by agreeing not to purchase additional shares of stocks of companies operating primarily in the financial services, energy or transportation sectors or in any entity listed in Attachments A or B. Finally, your ability to participate fully and without delay in matters of national and international importance is critical to the vital security interests of the nation. As noted above, I am imposing limitations on the scope of this waiver that will serve to diminish the effect of any particular matter on your ?nancial interests. You may not participate personally and substantially in a particular matter when the particular matter will directly and predictably have a special or distinct effect on any entity listed in Attachment A speci?cally as a member of a class of Canadian ?nancial services companies, Canadian energy companies, or Canadian transportation companies. You also may not participate personally and substantially in?a particular matter involving speci?c parties in which any company listed in Attachment A is a party or represents a party. In addition, this waiver does not allow you or your spouse to purchase additional shares of stocks of companies operating primarily in the ?nancial services, energy, or transportation sectors or in any entity listed in Attachments A or B, except to the extent that such stocks are held in a diversified mutual fund or exchange-traded fund that is exempt from the prohibition at 18 U.S.C. 208(a), under 18 U.S.C. 208(b)(2) and 5 C.F.R. 2640.201. The U.S. Office of Government Ethics has been consulted regarding this waiver. ATTACHMENT A SELECT SECTOR FINANCIAL HOLDINGS Financial Services 0 Bank of Montreal 0 Bank of Nova Scotin 0 Canadian Imperial Bank of Commerce 0 Great-West Life a Royal Bank of Canada 0 Toronto Dominion Bank a A RC Resources 0 Cenovus - Emcra Enbridge - Bncana 0 Gibson Energy 0 Imperial Oil 0 Transalta 1? TransCanada Transportation 0 Canadian Paci?c Railwayr 0 Canadian Tire Toromonl Industries ATTACHMENT Abbot: Labs Baxter BCE Bristol Myers Squibb Catu'pillat Coca-Cola Dell Johnson 6: Johnson Pfizer Rogers Communication Verizon THE WHITE HOUSE WASHINGTON January 23, 2009 TO: Susan E. Rice SUBJECT: 18 U.S.C. Section 208(b)( 1) Determination The federal con?ict of interest statute (18 U.S.C. Section 208) generally prohibits a government employee from acting on matters in which that employee has a ?nancial interest, including any interest imputed to the employee. This statute, however, permits an employee to participate in such a matter upon a prior written determination that ?the [?nancial] interest is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from such of?cer or employee.? 18 U.S.C. 208(b)(l). You were con?rmed as the US. Ambassador to the United Nations on January 22, 2009 and assumed duties of the of?ce on January 23, 2009. In that capacity, you will be serving as personal representative of the President of the United States before the United Nations. In addition, you will serve as a senior adviser to the President relating to national security matters and as a member of the Principal?s Committee of the National Security Council. In these capacities, it is likely that your recommendations and other of?cial actions may have a direct and predictable effect on the ?nancial interests of certain US. and foreign companies in conducting business in the national security arena. In light of these matters, I have reviewed the information provided on your ?nancial disclosure form, including your holdings in the Royal Bank of Canada (RBC) Private Canadian Mid Cap Equity Pool, RBC Private Income Pool, RBC Private US Mid Cap Equity Pool, RBC Private US Equity Pool, RBC Private International Equity Pool, RBC Select Balanced Portfolio, and IShares 60 Index. RBC Private Canadian Mid Cap Equity Pool invests primarily in equity securities of mid-sized and smaller Canadian companies; with a minimum of40 holdings to a maximum of 80. A minimum of 80% ofthe equity holdings, by market value, is invested in stocks whose market ?oat falls within the range of the 10'h largest and 58?h largest company of the Mid Cap Index, with the remainder invested in North American equities. It has over $75 million in assets. RBC Private Income Pool invests in higher yielding Canadian ?xed income securities such as corporate bonds, debentures, notes and preferred shares. The actual holdings will vary but individual equity holdings will not exceed 30 in number and individually not exceed 5% of the Fund?s value (except ?nancial services companies cannot exceed 7% of the Fund?s value). In a similar fashion, the rules of the Pool limit the number of holdings of debentures, notes and preferred shares; the actual percentages of asset allocation can range from 20% to 70% for bonds and from 0% to 10% for cash and short-term equivalents. It has over $232 million in assets. RBC Private US Mid Cap Equity Pool invests in shares of between 50-70 medium sized US companies. It generally seeks to achieve its long- tenm objectives by capital appreciation. The maximum investment of any one holding is limited to maximum of 8% of the marked value of the Fund, and the Pool can invest in no more than 10% of the voting shares of any one corporation. The Fund is broadly diversi?ed across industry sectors, with a minimum of six sectors. It has over $58 million in assets. RBC Private US Equity Pool seeks to provide long-term returns by investing in shares of approximately 30-70 major US companies, with core holdings selected from the largest 50 companies in the 500 Index. No one holding of the Pool may exceed 8% of the market value of the Fund, and the Pool may invest in no more than 10% of the voting shares of any one corporation. The Fund is broadly diversi?ed across industry sectors, with a minimum of six sectors. The Fund has over $435 million in assets. RBC Private International Equity Pool seeks to provide long-term total return by investing in shares of established companies in developed countries outside of North America. The Fund Manager seeks to invest in approximately 70-100 companies. Not more than 5% of the market value of the Fund may be in country funds. No one holding of the Pool may exceed 8% of the market value of the Fund, and the Pool may invest in no more than 10% of the voting shares of any one corporation. The minimum number of sectors is six. The Fund has over $7l million in assets. RBC Select Balanced Portfolio is diversi?ed between fixed income, Canadian equities, North American equities, US. equities and International equities. The underlying investments in each category are invested in other RBC diversified bond funds or equity funds, with a range of 22% for the RBC Bond Fund to 3.8% for the RBC Asian Equity. Fund. The Fund has over $4.1 billion in assets. IShares 60 Index seeks to provide long-term capital growth by replicating, to the extent possible, the performance of the 60 Index. The Index consists of 60 of the largest and most liquid securities listed on the Toronto Stock Exchange. It has a market capitalization of approximately $7 billion. RBC Private Canadian Mid Cap Equity Pool, RBC Private Income Pool, RBC Private US Mid Cap Equity Pool, RBC Private US Equity Pool, RBC Private International Equity Pool, RBC Select Balanced Portfolio, and IShares 60 Index are each excepted investment funds, but none is a mutual fund or unit investment trust, as de?ned by 5 C.F.R. 2640.102(k) or (11), respectively. As of December 2008, your interest in RBC Private Canadian Mid Cap Equity Pool represents approximately 0.04% of your total investment portfolio; RBC Private Income Pool is approximately 0.048% of your total investment portfolio; RBC Private US Mid Cap Equity Pool is approximately 0.07787% of your total investment portfolio; RBC Private US Equity Pool is approximately 0.0997 1 of your total investment portfolio; RBC Private International Equity Pool is approximately 0.23254% of your total investment portfolio; RBC Select Balanced Portfolio is approximately 0.54843% of your total investment portfolio; and [Shares 60 Index is approximately 0.19251% of your total investment portfolio. Your investment in these funds range from approximately four- hundredths of one percent of your total investment portfolio for the RBC Private Canadian Mid Cap Equity Pool to approximately half of one percent of your total investment portfolio for the RBC Select Balanced Portfolio. Moreover, your interest in any one underlying holding of the RBC Private Canadian Mid Cap Equity Pool, RBC Private Income Pool, RBC Private US Mid Cap Equity Pool, RBC Private US Equity Pool, RBC Private International Equity Pool, RBC Select Balanced Portfolio, or the [Shares 60 Index represents an even smaller percentage of your net investment portfolio. .4- In accordance with 18 U.S.C. section 208(b)(1), I have determined that, with respect to any particular matter affecting the RBC Private Canadian Mid Cap Equity Pool, RBC Private Income Pool, RBC Private US Mid Cap Equity Pool, RBC Private US Equity Pool, RBC Private International Equity Pool, RBC Select Balanced Portfolio, or IShares 60 Index Funds or their holdings, your ?nancial interests in any such matter are not so substantial as to be deemed likely to affect the integrity of the services that the Government may expect from you in any such matter. I reach this detennination based upon a number of factors, including the following: 0 RBC Private Canadian Mid Cap Equity Pool, RBC Private Income Pool, RBC Private US Mid Cap Equity Pool, RBC Private US Equity Pool, RBC Private International Equity Pool, RBC Select Balanced Portfolio, and IShares 60 Index have independent fund managers, and neither you nor your spouse exercise control or have the ability to exercise control over the ?nancial interests held by these Funds. 0 Because none of the Funds meet the legal de?nition of a mutual fund or unit investment trust as provided for in 5 C.F.R. 2640.102(k) and they are not registered as management companies or as investment companies under the US. securities laws, the Funds cannot qualify for a regulatory exemption from 18 U.S.C. 208 that would permit an employee to participate in a particular matter despite a ?nancial interest held through . such a mutual fund or trust, 5 C.F.R. However, RBC Private Canadian Mid Cap Equity Pool, RBC Private Income Pool, RBC Private US Mid Cap Equity Pool, RBC Private US Equity Pool, RBC Private International Equity Pool, RBC Select Balanced Portfolio, and [Shares 60 Index are invested generally in a wide range of investment vehicles and across a wide range of markets, in a wide variety of industries and, in some cases in a number of countries. None of these funds has a stated objective of concentrating in an industry or a commodity. 0 Your overall interest in these seven Funds is a small percentage of your own financial portfolio. Your interest in any one of the underlying assets is only a small portion of the Funds? respective holdings. Moreover, your ?nancial interest in any speci?c underlying holding of the Funds affected by a particular matter would likely be much smaller than half of one percent of the value of your overall investment portfolio. In fact, the value of your interest in any such underlying holding would likely be below the dollar thresholds for the de minimis exemptions at 5 C.F.R. 2640.202. Although any underlying holding that is not publicly traded on a national exchange in the United States would not qualify for the de minimr's exemptions, these thresholds serve as a useful point of reference for evaluating the substantiality of your interests in both the publicly traded and the non-publicly traded underlying holdings of these seven Funds. For these reasons, it is unlikely that your of?cial actions that would impact any one of their underlying holdings would have any signi?cant direct and predictable effect on your ?nancial interests. 0 You have agreed that you will discuss with Department of State ethics of?cials if matters come before you that may affect companies in which you know you have a ?nancial interest. 0 You have also agreed that neither you nor your husband will invest additional money, either through speci?c contribution or through dividend reinvestment, in these seven Funds during your appointment to the position of US. Ambassador. was-a9 ?ag m4; Date Gregofy B.?Craig Counsel to the President