MAR 3 1 2019

The Honorable Joe Manchin 
Ranking Member, Committee on
Energy and Natural Resources
United States Senate
Washington, DC 20510

Dear Senator Manchin:

Enclosed you will ?nd my responses to the written questions submitted following the March 28,
2019, hearing?on my nomination to be Secretary of the De artment of the Interior.

  
  
   
 
   

Please feel free to contact me if I can be of

Sincerely,

. Bernhardt 
Enclosure

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Question from Chairman Murkowski

Question: Mr. Bernhardt, as you know, the Interior Department conducted oil exploration
in the National Petroleum Reserve-Alaska (NPR-A), leaving behind well sites in need of
environmental remediation. As we discuss increased development in the NPR-A, which I
fully support, I think it?s important that the federal government complete the clean-up of
these ?legacy wells.? If you are confirmed as Secretary, will you commit to working with
me to develop a plan to expedite the cleanup of all remaining wells??

Response: Yes, I look forward to working closely with you to identify the resources necessary
to expedite the clean-up of these legacy wells. The Bureau of Land Management will complete
an update to the 2013 Legacy Well Strategic Plan during this ?scal year, and the BLM is also
actively coordinating with the US. Army Corps of Engineers to determine whether the NPR-A
or speci?c well sites are eligible for environmental remediation by the USACE as Formerly Used
Defense Sites.

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Questions from Ranking Member Manchin

Question 1: Hardrock Mining Fees.

The General Mining Law of 1872 continues to mandate the existing patent-claim structure
for hard rock mining on Federal lands in the west. Because of this, the Federal government
does not collect a royalty for hardrock mining. This just doesn?t make sense to

me. Furthermore, the way hardrock mining is done today has changed significantly
compared to when the law was enacted. I understand coal mining is much different from
hardrock mining, but the Federal government has collected a royalty for taxpayers from
coal production on Federal lands for decades. For the most part, these funds are shared
evenly between the state where the operation took place and the Federal government. It
strikes me as fair that taxpayers get a share of the profits in exchange for the privilege of
being granted access to conduct operations on Federal lands.

Do you agree it is time to reform the Mining Law? What are your thoughts and
concerns?

Response: I believe that most programs, including the General Mining Law of 1872, could be
modernized and improved. If con?rmed I would look forward to assisting Congress in any effort
that ensures that the American public receives an appropriate return for resource development
that takes place on federal lands.

. Do you support instituting a royalty on hardrock mining?

Response: I support ensuring that the American public receives an appropriate return for
resource development that takes place on federal lands. What form that takes in the context of
hardrock mining has been the subject of debate for several decades in Congress. I stand ready to
assist you and the Committee as you explore changes to the General Mining Law of 1872.

Question 2: Land and Water Conservation Fund.

Both the Senate and the House recently voted to permanently reauthorize the Land and
Water Conservation Fund by huge bipartisan majorities in the public lands bill that
President Trump signed into law earlier this month. Yet for the past two years, and again
in the FY2020 budget proposal, the Administration has proposed drastic cuts in spending
for the LWCF program. This year?s budget proposal proposes to spend only $8 million on
federal land acquisition and no appropriated funds for the LWCF state grant

program. These levels are recommended despite the $900 million permanent authorization
for the federal and state LWCF programs.

Will you commit to support use of the 

Response: Yes, I am a supporter of the LWCF and will continue to work with Congress to move
this important program forward.

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Will you support legislation to make the LWCF available for spending without annual
appropriation?

Response: I would be happy to engage in discussions with the Committee on different and
creative ways to implement the LWCF.

Will you support some form of permanent funding?

Response: This is a matter for Congress. I stand ready to assist your deliberations in any way I
can. The recently achieved permanent reauthorization was a step forward. I would be happy to
engage in discussions with the Committee on different and creative ways to implement the
LWCF.

Question 3: Conservation in Parks.

The National Park Service Organic Act states that the ?fundamental purpose? of the
national parks ?is to conserve the scenery and the natural and historic objects and the
wildlife,? and to provide for their enjoyment ?in such manner and by such means as will
leave them unimpaired for the enjoyment of future generations.? In its Management
Policies, the National Park Service has said that ?when there is a con?ict between
conserving resources and values and providing for enjoyment of them, conservation is to be

predominant.?

I have concerns that the appropriate balance was not struck during the shutdown. By
keeping the national parks open during the recent government shutdown without adequate
staff to protect park resources, it seems public access was prioritized over conservation of
park resources. You kindly discussed the shutdown with me during our meetings.

Can you please elaborate on those decisions for the committee as well? And share with
us some lessons learned?

Response: As you note, the National Park Service has a dual mission, to conserve park
resources and provide for their enjoyment. As we discussed during the lapse in appropriation on
the phone, I took action to strike an appropriate balance between these two objectives. In my
opinion, the National Park Service?s initial contingency plan was not achieving those dual
purposes in a period of lapse.

Using retained fees collected under the Federal Lands Recreation Enhancement Act (FLREA),
the NPS, in accordance with law, was able to address issues with restrooms and sanitation, trash
collection, road maintenance, campground operations, law enforcement and emergency
operations, and basic visitor services. Excepted staff that worked on Speci?ed allowable
activities under FLREA were paid. While many of the smaller sites around the country remained
closed, use of these funds allowed the American public to safely visit many of our national parks
while providing these treasures additional protection and allowing NPS to meet its dual
mandate. Importantly, the use of FLREA funds allowed continued visitor access to some park

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

units, contributing to the economies of the respective gateway communities. It also meant that
those employees who were providing these services were assured that they would receive a
timely paycheck, an assurance that was comforting to some.

Congress, in the Fiscal Year 2019 Further Additional Continuing Appropriations Act (Public
Law 116-5) that extended appropriations through February 15, 2019, explicitly made such funds
cover the prior period during the lapse. Pursuant to this direction, the NPS was able to move
obligations incurred during the appropriations lapse from the FLREA fee account to the account
for which the charges were originally planned, including the NPS operating account, where most
of these obligations would have been charged. The actions taken under these provisions, which
were con?rmed by the Of?ce of Management and Budget, allowed NPS to fully restore FLREA
balances to pre-lapse levels.

I hope that we will not be faced with another lapse of appropriations. However, I believe that
this action provides critical direction for similar situations in the future. First, our national parks
should not be made the public face of another lapse in funding, and we will be prepared to use
these fees, as available, immediately for appropriate staf?ng, basic services, and other bureau
needs in accordance with the authorities provided by law. In addition, we have modi?ed our
contingency plans for the NPS and for the other relevant bureaus to ensure that in the event of a
?1t11re lapse, we are prepared to use these fees for these allowable purposes.

Do you believe that where there is a con?ict between public enjoyment and
conservation of park resources, the law requires the National Park Service to give priority
to resource conservation?

Response: I believe that the law requires that the National Park Service meet its dual mandate,
and that it cannot be arbitrary in its actions in a way that ignores either mandate.

Question 4: Public Engagement at BLM.

I believe we can and should be taking a hard look at simplifying, streamlining, and making
improvements to the permitting processes for oil and gas leasing on public landsway that provides for robust public engagement on these important

decisions. The Bureau of Land Management issued an instruction memorandum in
February 2018 that changed the way the agency conducts land use planning and lease
parcel reviews. The changes give BLM the option of soliciting public comments in the
NEPA review process, where before it was required. It also reduced the protest period
from 30 days and instead imposed a 10-day deadline for public protests of proposed lease
sales. Furthermore, BLM issued this memo without any public notice. I understand the
courts have prevented the implementation of the memo in parts of the country with sage
grouse habitat; however, it is the guidance used by federal land managers in other regions.

This 10-day period strikes me as a bit short especially for those rural areas where BLM
operates. It is harder for citizens to access have the same level of resources, such as high
speed internet, in order to actually weigh in with their concerns.

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

What was the reason for reducing the protest period while you also accelerated oil and
gas lease parcel reviews?

Do you agree that robust public input is an important part of the BLM decision making
process that ensures fairness for those most closely affected who deserve to have an honest
chance of airing their grievances?

Response to a and b: The Department values meaningful public participation and an ef?cient
environmental review process in the implementation of its onshore oil and gas program. The
BLM observed a trend regarding protests over the past several years in which the percentage of
parcels protested from the original sale notice had increased dramatically. This 10 day period is
in addition to multiple opportunities for public participation and engagement through the BLM
planning process under FLPMA and NEPA processes.

Question 5: Sportsmen and Recreation.

As avid sportsmen, you and I both know the value of hunting and fishing in terms of a way
of life but also in terms of dollars to the economies of rural towns. Hunting contributes
$270 million to the economy in West Virginia and supports 5,000 jobs. Last month,
Senator Murkowksi and I were able to get several long awaited sportsmen provisions
included in the Public Lands package, and these were enacted into law two weeks ago. And
just last week, you signed Secretarial Order 3733?directing the Bureau of Land
Management to consider public access for outdoor recreation, which includes hunting,
fishing, and target shooting, in any Federal land transactions. These are important
victories that have been long sought by our sportsmen and sportswomen, and [want to do
more and would like to discuss with you what you think should be next.

Will you work with us to develop and enact additional legislation that would make it
easier for outfitters and the public to access our Federal lands, in addition to securing full
funding for the Land and Water Conservation Fund?

Response: As discussed at my hearing, increasing access to outdoor recreation opportunities is a
priority for me and for the Department. Outdoor recreation opportunities provide physical and
mental health bene?ts and allow Americans to more fully experience our public lands and
waterways. Recreation also creates jobs and economic bene?ts for local communities. The
LWCF has been a powerful tool in increasing recreation opportunities, particularly for states and
local communities. If con?rmed, I will stand ready to assist Congress in efforts to work on
legislation that provides for easier access for out?tters and the public to our federal lands, and I
would be happy to engage in discussions with the Committee on different and creative ways to
implement the LWCF.

Do you have specific ideas on what should be done regarding outdoor recreation in
order to create new jobs, particularly in rural communities?

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Response: Outdoor recreation access and facilities are often insuf?cient to support recreation
based tourism in our public land locked rural communities. We should work with state and
private partners to develop and maintain recreation access facilities and infrastructure such as
multi-use trails, roads, parking lots, boat ramps, entrance stations, and other forms of
infrastructure associated with access to recreation sites. For example, the Bureau of Reclamation
has an excellent track record in that regard as it seeks out and maintains partnerships with non-
Federal government entities such as states, counties, cities, and irrigation districts for recreation
opportunities associated with lands and waterways under its jurisdiction. More can and will be
done to streamline the processes relating to recreation permitting activities. We want these public
recreation resources to be accessible and to present economic opportunities to the gateway
communities that surround them.

Question 6: Outer Continental Shelf Production.

The U.S. is producing 11.9 million barrels per day as of February 2019. The Energy
Information Administration (EIA) is now predicting that U.S. crude oil production
continues to set annual records through 2027 and remains greater than 14 million barrels
per day through 2040. The EIA states that Lower 48 onshore production continues to be
the ?main source of growth in total US crude oil production.? Not offshore. About 6% of
the Outer Continental Shelf is currently available for leasing. The Bureau of Ocean
Energy Management is proposing to open approximately 90% of the OCS. This is an
extraordinary increase in access for oil production. And it seems out of alignment with the
large amounts of production and the opportunities already available.

Given the administration?s push to increase oil and gas production in the OCS, can you tell
me today if you anticipate the crude oil that will be produced will be primarily produced
for domestic use or for export?

Response: I have no anticipation in either direction. It would be my hope that we are never
dependent on foreign sources of oil from unstable regimes in the ?lture. Petroleum production
resulting from OCS leasing under the Bureau of Ocean Energy Management?s 2019-2024 plan
would likely not begin to be realized for several years, given the approximately 7 to 10-year
timeframe from leasing to development. Between now and then many onshore reservoirs
currently under production will become depleted. Accordingly, other discoveries of oil,
including in the OCS, could be needed to offset the loss in production from current oil and gas
operations in order to prevent a reduction in overall U.S. production levels.

Question 7: Solicitor?s Opinion on Migratory Birds.
On March 28, 2019, Senator Van Hollen sent you a follow-up letter (attached) about your
role in Solicitor?s Opinion (M-37050) on the Migratory Bird Treaty Act (MBTA). The

Solicitor?s Opinion, or M-Opinion, on the MBTA was released on December 22, 2017,
without any public or scientific input or environmental analysis, abruptly removing

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

longstanding protections for migratory birds. Please clarify in writing your role in the M-
Opinion and the relationship with the Independent Petroleum Association of America
(IPAA), and explain how you intend to ensure industry operators implement best practices
so that migratory birds do not suffer unnecessary harm.

Response: On December 22, 2017, a?er reviewing the text, history, and purpose of the MBTA,
the Solicitor issued M-37050, which takes into account the positions of various Federal Courts of
Appeals.

M-Opinions are issued by the Solicitor and they are some of the most important and serious work
undertaken by the Of?ce of the Solicitor. This important legal guidance is to be based on the
law, not outside in?uence. The work to develop an opinion is a thoughtful and studious exercise.

I did not personally review the research or the prior case law before M-3 7050 was
issued. However, I reviewed a draft and possibly drafts of this legal opinion, that would become
the legal guidance for the entire Department.

I certainly informed the drafters that I thought they had done a good job analyzing an important
legal question.

It is my personal opinion that the direction and need for the Of?ce of the Solicitor to issue an M-
Opinion on the Migratory Bird Treaty Act and its application was the direct result of an M-
opinion issued on January 10, 2017, which was suspended very early in the Trump
Administration. It is my View that the opinion should not have been issued as the Solicitor was
walking out the door, a Solicitor who would not be burdened by the responsibility of
implementation and defense of that position, particularly in light of contrary case law in multiple
Federal Courts of Appeals. Obviously, a broad and diverse set of interests care about the scope
of lawful authority of the Migratory Bird Treaty Act and its overall application. Many have
views on it, and Congress can impose any liability standard it would like to af?rmatively impose.

I was unaware of meetings IPAA had at the Department of the Interior on the MBTA issue until I
saw references to such meetings in the media. I have neither a personal or professional
relationship with the IPAA or its employees.

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Questions from Senator WVden

Question 1: Public lands are truly one of America?s shining features -- they provide
multiple uses for the American public and are economic engines, particularly in the rural
west. The Department of the Interior is the nation?s largest land management agency, and
is a critical agency for timber towns and ranching communities in every corner of Oregon.
However, there has been talk of privatizing these public lands.

Will you commit to not selling off public lands in the United States, and to work to expand
recreational access to lands managed by the Department of the Interior?

Response: I have previously indicated my opposition to the sale or wide scale transfer of federal
lands. My views have not changed. There are some situations in which commitments have
previously been made, inholdings need to be swapped or exchanged, or land banks are well
situated to address the needs of growing urban areas. These decisions should be reviewed on a
case by case basis. With regard to public access, as I indicated at my hearing last week I believe
that access to our public lands for hunting, ?shing, and recreating, is critically important. I
recently issued a Secretarial Order that requires that before the Bureau of Land Management
exchanges or disposes of any land, they must ?rst consider what impact the disposal or exchange
of land will have on public access.

Question 2: Please outline your views on the recreation economy in the US, and explain
your views on the economic potential recreation holds for rural communities.

Response: I have said before that the Department manages about 1 of every 5 acres of land in
the United States, supporting almost every aspect of the American economy. Millions of
Americans access the lands we manage every year, to hunt, ?sh, camp, ride and carry out other
recreational activities. The Department of Commerce Bureau of Economic Analysis has
reported that the outdoor recreation economy accounted for 2.2 percent, $412 billion, of current-
dollar GDP in 2016. Recreation visits to Bureau of Land Management and National Park
Service lands alone support more than 350,000 jobs. These are numbers that have a signi?cant
economic impact many rural communities.

Under President Trump?s leadership, the Department has made signi?cant progress to improve
the management of our public lands in a way that grows the economy. I talked about several of
these things at my hearing. This Administration has opened access to previously unavailable or
restricted public lands for all types of recreation; added hundreds of miles to the national
recreation trails system; increased access to hundreds of thousands of acres of National Wildlife
Refuge land for hunting and ?shing; added new NPS sites; and is exploring public/private
partnerships to identify new recreation opportunities on public lands so more Americans can
enjoy our land. I am also making implementation of the recently enacted bipartisan public lands
package a priority.

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Question 3: I know how well-versed you are in the laws and policies governing the
Department?s responsibilities to protect wildlife species. In that context, I was surprised by
your comment during our meeting that the revisions of critically important sage-
grouse plans in six states amounted to nothing more than a ?sanding of rough edges.? I am
pleased to see the Department work with Governor Brown of Oregon to uphold the hard
work and collaborative efforts of farmers and ranchers in Oregon, and keep the Obama-
era plans largely intact in my state.

However, it deeply concerns me that your rollback of protections elsewhere may well spur a
need to list the species as threatened or endangered everywhere. And whether or not you
recognize and agree with that concern, I want to make sure the Department under your
leadership will meet its responsibilities to manage the sagebrush ecosystem for more than
just oil and gas development; to keep the sage-grouse off the endangered species list, to
protect the traditional way of life in rural states, and to be transparent with this
Committee.

As we consider your nomination, how can we be assured that the BLM will
comprehensively monitor impacts of federal-lands oil and gas activity on the sage-grouse
and the sagebrush ecosystem, and that Congress will be kept informed of those impacts?

Response: Protecting sage-grouse habitat remains a priority for the Department of the Interior.
BLM budgeted approximately $60 million for sage-grouse habitat in 2018 and remains
committed to similar funding levels. In each sage-grouse state, governors committed to the goals
of either ?no net loss? or ?net conservation gain? which are re?ected in our land use

plans. States continue to invest signi?cant resources for sage-grouse conservation. Each
Resource Management Planning Amendment was narrowly tailored to align with state plans and
contains extensive restrictions and requirements for oil and gas activity. Our goal is to maintain a
healthy, working landscape for wildlife and for people. The Department will continue to work in
cooperation with western governors and state wildlife agencies to achieve these conservation
goals.

Question 4: Can you assure us that the Fish and Wildlife Service will complete a full and
unbiased sage-grouse status review in 2020, on time and with all the resources the Service
requires, so we can know whether listing becomes necessary as the revised land-use
plans are implemented?

Response: Our state ?sh and wildlife agency partners are taking the lead in assessing the range-
wide status of greater sage-grouse. We are assisting them in their efforts and remain committed
to the success of the species.

Question 5: A year ago, Secretary Zinke sat before this Committee for a hearing on the
Department?s 2019 budget, and I pointed out that promises your former boss made to this
Committee during his confirmation hearing were immediately and consistently broken as

9

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

evidenced by the budgets he brought us. The issue I highlighted then was the Land and
Water Conservation Fund, a vital program that secures outdoor recreation lands and
access, wildlife habitat, historic sites, and other irreplaceable assets for the American
people which Mr. Zinke promised us he would fully support before basically zeroing it
out in his budgets. Now, we recently passed, and the President just three weeks ago signed,
landmark legislation permanently reauthorizing LWCF. At the time you noted your own
and the administration?s support for this popular program even though I see that the
budget you submitted the very next week contained even LESS than zero for LWCF, with
proposed spending and rescissions that would cut the program by a net 105 percent.

What would you do as Secretary to provide actual support for LWCF instead of lip
service?

Response: I support the Land and Water Conservation Fund, and applaud Congress for
permanently reauthorizing this fund as part of the John D. Dingell Jr. Conservation, Management
and Recreation Act, which became law just three weeks ago. It is my understanding that LWCF
has only been fully funded by Congress twice since its enactment in 1965. Whatever funding
level Congress chooses for this program, the Department under my leadership will faithfully
execute the goals of LWCF.

Question 6: The Bureau of Reclamation is a key player in the Klamath Basin and for
decades has worked to help stakeholders negotiate a Basin-wide solution to ongoing water
challenges. Are you familiar with the water-related challenges of Klamath, and the current
state-of-play in the Basin?

Response: I have a general familiarity with the Klamath issues.

Question 7: Will you commit to working with me and the other members of the Oregon
delegation, and to support the Bureau of Reclamation and their efforts to help solve this
complex problem in the Klamath Basin?

Response: It is my general understanding that the Bureau of Reclamation is already working
with the Congressional delegation.

Question 8: Controlling the 10-year average cost of ?res by freezing it at a certain level,
like Congress did when they passed my legislation last year -- the Wildfire Disaster
Funding Act - will result in savings for the Department of the Interior that can then be
used to accomplish additional hazardous fuels treatments, forest resiliency work, and
increasing the timber program.

Will you commit to using the savings created by the implementation of the Wild?re
Disaster Funding Act to accomplish forest restoration and fuels treatments?

10

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Response: I am committed to supporting active forest management, and I am working to
implement Secretarial Order 3372, titled ?Reducing Wild?re Risks on Department of the Interior
Lands through Active Management.? Active management is critical to reducing the intensity and
number of wild?res, to supporting healthy forests and rangelands, and to protecting homes and
important infrastructure. The Administration submitted its FY 2020 budget request and the
targeted forest management reform proposals that accompany that request.

Question 9: I?m sure you?re aware of the situation that unfolded at the Malheur National
Wildlife Refuge in Harney County, Oregon, in 2016. Federal of?cials coordinated closely
with county and state of?cials to ensure that the community was safe, and the rule of law
preserved. However, incidents like this, led by extremists, compromise our public lands and
terrify both the public and land managers responsible for maintaining access to these
public lands.

If you are confirmed as the Secretary of Interior, you will be in charge of managing
National Wildlife Refuges, Wilderness Areas, and recreation lands, in an era where
hostility toward federal lands and federal of?cials is rampant, particularly in rural areas.

What will you do to ensure the protection of not only our incredible public lands that have
been set aside by Republican and Democratic Presidents and Congresses, but also the
protection of your employees, like the employees at the Malheur Refuge, who are not just
federal employees, but Oregonians?

Response: As we ful?ll our mission to conserve and manage the Nation?s natural resources and
cultural heritage, the safety of our employees and our visitors is of paramount importance. The
Department is home to over 4,000 federal law enforcement of?cers. Their duties are as varied as
our bureaus? missions. To ensure the continued protection of employees and visitors, the FY
2020 budget increases funding for law enforcement and health and safety programs across the
board.

Question 10: Oregonians and all West Coast residents are becoming increasingly
concerned about the next major earthquake, which has become a matter of ?when? and not
Preparation is key, and even just a few seconds of warning is enough to take steps to
prevent casualties and mitigate destruction. In a few seconds, supplies of oil, natural gas,
and chemicals can be turned off, trains and cars can be slowed or stopped, sensitive data
can be secured, and people can get to safe places. This is a bipartisan priority and we need
to get warning systems finished. Failing to prepare for these events is not an option, and
could have dire consequences for West Coast populations. Given the importance of this
technology to provide the kind of warning that exists for hurricane, winter storms, and
other extreme events, how would you, if confirmed, work with USGS to ensure ShakeAlert
becomes fully operational for the west coast?

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Response: Should I be con?rmed, I will work to ensure the U.S. Geological Survey continues to
prioritize making science and technology available to protect communities from natural hazards,
including earthquakes. I appreciate the importance of and the role in providing reliable
early warning systems in protecting people and property from these and other natural hazards.
The USGS has committed to improving the fundamental earthquake monitoring infrastructure to
ensure that early warning will eventually be possible where it is needed. In the FY 2020 budget
the Earthquake Hazards program is funded at $64.3 million and prioritizes ?mding to maintain
robust national earthquake monitoring and reporting capabilities, including $8.2 million for
operations and maintenance of existing ShakeAlert Earthquake Early Warning systems in
conjunction with State and local partners.

Question 11: Can you assure us that the annual budgets you would propose would back up
your stated commitments with actual conservation and maintenance dollars?

Response: You have my commitment that the annual bUdgets that I will propose, should I be
con?rmed, will ?irther the President?s priorities and, in that context, will comprise ?nding and
programs consistent with the best interests of the Department and its missions.

Question 12: Originally established in 2000 and recently reauthorized in 2016, the Fisheries
Restoration and Irrigation Mitigation Act (FRIMA) provides funding in the Pacific
Northwest (Oregon, Washington, Idaho, Montana and now California) to carry out ?sh
passage projects and screen irrigation channels to reduce fish mortality. This program was
recently reauthorized, but authorized funding was drastically reduced. In fact, since its
inception, the program has only received $13.1 million in appropriations, with the last
round of funding occurring in ?scal year 2017. Are you familiar with this program, and
would you support funding for the implementation of this critical program that bene?ts
farmers and ?sh?

Response: The Department of the Interior values the role of FRIMA to directly support
irrigation districts in addressing ?sh screening and passage. This aids in securing water delivery
in association with aquatic conservation, to bene?t multiple interests. I would be glad to work
with Congress on this program as we weigh multiple demands on the Federal budget.

Question 13: I value science-based decisions in determining land management outcomes.
Recent news reports suggest you may feel otherwise. If con?rmed, how will you ensure
Interior uses the best science in making transparent land management and policy
decisions?

Response: Science plays a critical role in our decision making process as does the law. Within
the Department of the Interior over the last two years, the number of formal complaints of breach
of scienti?c integrity have decreased. In addition, to further our application of well-grounded
science, I have appointed a career scientist to serve as the Science Advisor to the Acting

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Secretary/Deputy Secretary, and if I am con?rmed, he will continue to serve in the Immediate
Of?ce of the Secretary. There is no question that scienti?c integrity should underpin agency
actions. As I have stated, my view is that an agency?s decisions should be predicated on the best
information, including an evaluation of science and application of the law.

I believe when scienti?c data is evaluated on its merits and used as a basis to make legal and
policy decisions that incorporate the science, con?icts will be reduced and those decisions will
be reliable and legally sound. I believe when the Department picks and chooses between data, it
is obligated to articulate a reason why it has done so, and it must be able to connect its
conclusions to the facts it ?nds in a rational manner.Secretary Order 3369 last September
promotes open science. This Order is intended to ensure that the Department of the Interior
bases its decisions on the best available science and provides the American people with enough
information to thoughtfully and substantively evaluate the data, methodology, and analysis used
by the Department to inform its decisions.

Question 14: Explain your views on how the Department of the Interior can do more to
advance clean energy development on public lands?

Response: I recognize the role renewable energy can play in US. energy security and economic
growth. For instance, in December, the Department shattered the record for offshore wind
leasing, garnering a total of $405 million for wind leasing areas off the coast of

Massachusetts. By streamlining our processes and reducing paperwork, all within our statutory
responsibilities and without compromising important environmental standards, renewable energy
projects will enjoy greater permitting ef?ciency. This is how we have advanced clean energy
development on public lands in the past two years and how I believe we can continue to do so.

Question 15: The state of Oregon is vehemently opposed to offshore drilling occurring off
the coast of Oregon. If confirmed, how do you intend to incorporate state input when
determining where to site offshore oil and gas exploration?

Response: The Outer Continental Shelf Lands Act prescribes the major steps involved in
developing the program, including extensive opportunities for public comment and speci?c
opportunities for input from states. The Department, through the Bureau of Ocean Energy
Management, seeks a wide array of input during this process from all stakeholders, including
affected states, in the process to determine the size, timing and location of leasing activity on the
OCS. Additional public meetings will occur after the publication of the Proposed Program and
Draft Programmatic Environmental Impact Statement. If con?rmed, I will ensure the states and
the public have every opportunity to have their views heard and considered as the Department
moves forward with developing the National OCS Program.

13

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

16: Do you believe American taxpayers should get a fair return on all natural resources
development on public lands?

Response: I believe that American taxpayers should receive fair market value for public
resources.

Question 17: Reports show that natural gas companies are venting and ?aring hundreds of
millions of dollars of methane. The former Methane Rule was designed to reduce the need
for ?aring, and ensure royalties are paid for gas otherwise vented into the atmosphere or
burned off.

Do you believe that the Department?s rollback of the methane rule is fair to taxpayers?

Response: Yes, it is my opinion and belief that the government should not issue an unlawful
rule. The former Bureau of Land Management Methane Rule imposed many requirements that
overlapped with the regulatory authority and state authorities under the Clean Air Act. Of
note, 99% of federal oil and gas production in 10 states is subject to state regulatory provisions
regarding venting and ?aring of methane.

Question 18: There are a number of tribes in Oregon, and around the country, that were
terminated and then subsequently restored who now face significant challenges in securing
law enforcement funding through self-determination contracts. They are not currently
eligible for funding for basic operations, and yet in many cases are spending significant
Tribal resources to provide law enforcement services on their reservations as well as for the
larger community. In both the FY18 and FY19 Appropriations bills there was language
requiring BIA to work with affected Tribes to assess their law enforcement needs and to
submit a report detailing the amounts necessary to provide sufficient law enforcement
capacity for these Tribes. Congress has still not received this report.

Will you ensure that BIA completes a comprehensive report detailing the tribes affected, as
well as their needs, in a timely manner?

Response: If con?rmed, I expect the Bureau of Indian Affairs to comply with its statutory
requirements, including completing reports required by Congress. Ensuring adequate law
enforcement resources and training in Indian Country is an important responsibility for the
Department met by the Of?ce of Justice Services. They have the lead for the Department
on the Opioid Reduction Task Force and in training tribal police and ?rst responders.

Question 19: The Oregon congressional delegation is increasingly concerned about the
management of the Chemawa Indian School in Salem, Oregon. Responses to our inquiries
have been near impossible to extract from the Department, and incomplete when delivered.
School staff, who are also my constituents, have been directed not to communicate with

14

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

congressional of?ces. If confirmed, what steps will you personally take to provide
transparency to the issues facing Chemawa?

Will you commit to developing a Chemawa-specific plan to improve the school?s
performance, its treatment of students and staff, and management of the land surrounding
the school?

Response: I am committed to achieving the mission of the Bureau of Indian Education (BIE) to
provide a culturally relevant, high-quality education that prepares Indian students with the
knowledge, skills, and behaviors needed to ?ourish in the opportunities of tomorrow, become
healthy and successful individuals, and lead their communities and sovereign nations to a
thriving ?lture that preserves their unique cultural identities. I also sincerely appreciate your
same commitment to our students attending Chemawa Indian School.

It should not have taken until March 15*h to receive a formal written reply to the Oregon
Delegation?s letter dated June 8, 2018. I assure you that DOI as a whole, and Indian Affairs
speci?cally, is committed to reducing internal bureaucratic review processes that inhibit our
ability to communicate with all of our stakeholders in a timely manner. Both myself and the
entire Indian Affairs senior leadership team are actively working to address the challenges
highlighted in the Oregon Delegation?s letter.

With regard to school staff communicating with congressional of?ces, we are working to insure
our school staff understand the appropriate internal procedures to respond to inquiries from
Congress. This is done to make sure that we can provide fulsome, accurate information to
Congress, while at the same time making sure that children under our care do not inadvertently
have personal, private information disclosed.

With regard to school improvement, we recently provided the entire Oregon Delegation with a
copy of Chemawa?s School Improvement Plan which speci?cally outlines the strategies
currently being undertaken by school leadership to ensure students receive a quality education.
As additional evidence of our commitment to addressing the challenges faced by Chemawa, in
the month of March alone Ms. Tara Sweeney, Assistant Secretary for Indian Affairs, Mr. Mark
Cruz, Deputy Assistant Secretary for Policy and Economic Development for Indian Affairs and
Mr. Tony Dearman, Director of the Bureau of Indian Education, have made onsite visits to
Chemawa, meeting with school leaders, students, and staff. Additionally in March, Mr. John
Tahsuda, Principal Deputy Assistant Secretary for Indian Affairs, met with Senator Merkley,
Congressman Schrader and Congresswoman Bonamici, and your staff at Chemawa pursuant to
your request.

The Department remains committed to increasing the ability of the BIE to improve its services to

Indian students, including those attending Chemawa, and I look forward to working with you to
ensure that the important mission of the BIE is successfully achieved.

15

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Question 20. I am concerned about the recent reassignment of significant numbers of BIA
staff and positions from Washington, DC to New Mexico. Will you confirm how many
federal positions within the BIA have been reassigned from the Washington, DC area to
other regions within the last two years?

How does this compare to other agencies within the Department?

Response: The Of?ce of Trust Services (OTS) relocation plan is part of the Bureau of Indian
Affairs (BIA) commitment to streamline processes and delivery of services in pursuit of
ef?ciency, while maintaining a focus on cost-savings efforts and ful?lling the BIA mission. This
plan is in line with the President?s Reorganization Executive Order 13781 (E0) and the Director
of Management and Budget Memorandum dated April 12, 2017, but is not associated with the
Departmental reorganization. By redirecting staff and funding to its ?eld of?ces where the
technical knowledge and experience is located relative to tribal and individual trust assets, 
work can best be supported and its mission achieved.

16

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Questions from Senator Cantwell
Question 1: Impact of Arctic Drilling on Endangered Polar Bears

I am very concerned that in the apparent rush to jam through Arctic drilling while
President Trump is still in office, the Department has ignored its legal obligations to
conduct a meaningful analysis of the impacts polar bears will suffer due to industrial
development in the pristine Arctic Refuge.

Mr. Bernhardt, do you believe the Endangered Species Act (ESA), the Alaska National
Interest Land Conservation Act (ANILCA), and National Wildlife Refuge System
Administration Act (Refuge Act) apply to the National Arctic Wildlife Refuge?

Mr. Bernhardt, since polar bears are listed as a threatened species under the ESA,
ANILCA and the Refuge Act both require the Secretary to manage the Arctic Refuge
primarily to conserve habitat, does the Department of Interior have a legal obligation to
provide for conservation of polar bear species within the Refuge?

Mr. Bernhardt, a memo written by Dr. Patrick Lemons, Chief of Marine Mammals
Management at the U.S. Fish and Wildlife Service office in Anchorage Alaska details
numerous areas where the Interior Department does not have enough information about
polar bears to determine whether or not Arctic Refuge drilling will harm or kill polar
bears or destroy designated critical habitat. Can you confirm that the analysis conducted
by these Department scientists were incorporated into the Draft 

Mr. Bernhardt, will you commit to sharing with the Committee all relevant correspondence
that can document the use of this scientific information, how it was incorporated into the
Department?s deliberations, and any directive Interior Department agencies received from
the Secretary or Deputy Secretary of the Interior?

Mr. Bernhardt, last month, the BLM said that they will forgo new seismic studies in Arctic
Refuge this winter due to questions raised about the impacts of testing on local polar bear
populations. I understand that the firm that was supposed to do the seismic testing,
SAExploration, also believed their activities would likely harm arctic refuge polar bears,
because they petitioned the U.S. Fish and Wildlife Service for a takings permit. Are you
aware that seismic drilling was likely to kill polar bears, primarily through heavy
machinery crushing mother bears and their cubs in undetected dens? Is the Department of
Interior, at any level, considering authorizing the lethal taking of polar bears during any
phase of Arctic Refuge Drilling?

Mr. Bernhardt, the Interior Department seems to be in such a rush to start drilling they
are overriding the concerns of their career scientists. You are ignoring the promises made
by Senate boosters of arctic drilling that it would be conducted under strict environmental
reviews.

17

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

You are increasing the likelihood that the Department will not pr0perly follow appropriate
environmental laws and just end up tying up this effort in the courts. D01 is even going so
far as declaring they will proceed with leasing this year, even without seismic testing,
despite the fact that this lack of data will lower lease sales and force successful bidders to
conduct their own exploration work before drilling, further delaying oil production in the
Refuge. Have you personally directed in any way how the lease sale NEPA process has
proceeded, including the schedule, public review, and comment period for the Draft 

Mr. Bernhardt, are you okay with proceeding with Arctic Refuge drilling even if it could
seriously harm endangered polar bear populations in the area that are already in alarming
decline and facing the perils of melting ice they depend on for their food and life cycle?

Response: I disagree with the factual premises of your question, and I will not approve any
leasing program which the Department?s environmental analysis determines is inconsistent with
the signi?cant legal protections that exist for the polar bear. As I indicated in my response to you
on this matter at my con?rmation hearing, I will bring to our meeting the information we
discussed. In general, however, the Department and the Bureau of Land Management are
complying with the requirements of the authorizing legislation, the Tax Cuts and Jobs Act of
2017, the National Environmental Policy Act, and other relevant statutes, as we move toward
conducting lease sales and providing for responsible development of these important resources.

The Bureau of Land Management has been successfully managing polar bear impacts over the
course of the last four decades in implementing the oil and gas leasing program for the nearby
National Petroleum Reserve in Alaska, and is applying that experience to the AN WR Coastal
Plain in coordination with biologists from the Fish and Wildlife Service and U.S. Geological
Survey. The analysis in the Draft Coastal Plain Leasing EIS incorporates the substantial body of
known and relevant scienti?c literature on the polar bear, including literature published by
Department biologists and Dr. Lemons.

Question 2: Climate Science

On November 23, 2018, thirteen federal agencies, including the Department of Interior,
with input from hundreds of government and non-governmental experts, jointly issued the
Congressionally- mandated quadrennial National Climate Report.

Mr. Bernhardt, do you agree or disagree with the ?nding from the National Climate
Report that ?Climate change is transforming where and how we live and presents growing
challenges to human health and quality of life, the economy, and the natural systems that
support us. 

Mr. Bernhardt, do you agree or disagree with the ?nding from the National Climate

Report that ?There are no credible alternative human or natural explanations supported by
the observational evidence. 

18

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Mr. Bernhardt, do you agree or disagree with the finding from the National Climate
Report that ?Future impacts and risks from climate change are directly tied to decisions made
in the present. 

Mr. Bernhardt, as the Energy and Natural Resources Committee grapples with how to best
undertake our responsibility to respond to this pending crisis, how do you think the
Interior Department can help us craft these urgently needed policies?

Mr. Bernhardt, as someone very familiar with the fossil fuel industry, how soon do you
think we need to wean ourselves from fossil fuels before we really start getting hit with the
effects of climate change and the extreme weather it brings?

Response: As I indicated at my hearing in response to a similar question, I recognize that the
climate is changing, man is contributing to that change, and the science indicates there is
uncertainty in projecting future climate conditions. The Department of the Interior?s role is to
follow the law in carrying out our responsibilities using the best science. Congress has not
directed us to regulate carbon emissions. The laws governing Interior - such as the Federal Land
Policy and Management Act - require us to manage our onshore federal resources on the basis of
multiple use and sustained yield, which includes energy development. We are carrying out that
statutory mission and will do so until Congress directs us differently.

Question 3: Interior Department?s Climate Policy

Mr. Bernhardt, you signed Secretarial Order 3360, which deleted the Department?s 2012
climate policy. What is the current climate policy of the Interior that has taken the place of
Secretarial Order 3360?

Mr. Bernhardt, do you agree or disagree with the requirement in Order 3360 that the
Department should ?use the best available science to increase understanding of climate
change impacts [and] inform decision-making??

Mr. Bernhardt, do you agree or disagree with the requirement in Order 3360 that the
Department should ?integrate climate change adaptation strategies into its policies,
planning, programs and operations??

Mr. Bernhardt, with the deletion of the Department?s 2012 climate policy, what ensures
can you provide that the Department is using the best available science to coordinate
appropriate responses to climate change impacts we are increasingly seeing on the public
lands that the Interior Department is responsible for?

Mr. Bernhardt, did your personal views on climate change and the role of human activity
in causing it in?uence your decision to delete the Department?s 2012 climate policy?

19

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Response: Secretary?s Order 3360, which I signed on December 22, 2017, rescinded several
policies and documents that were based on authorities revoked by the President, as a result of
Executive Order 13783, and the Secretary, through Secretary?s Order 3349. I agree that the
climate is changing and that man has an effect, and that the Department?s role is to follow the
law in carrying out our responsibilities using the best science. We do evaluate the climate
impacts of proposed actions. The USGS scientists have told me there is no ?best? climate model,
that each has its and weaknesses. My personal views have played no role in the
rescission of the 2012 policy.

Question 4: USGS Resource Assessment Scientist Resignations

I would like to better understand why two top scientists from the U.S. Geological Survey,
Dr. Murray Hitzman and Dr. Larry Meinert resigned a little over a year ago. In his
resignation letter, Dr. Hitzman said he was protesting USGS providing the ?nal results of
the energy assessment for the National Petroleum Reserve to Secretary Zinke several days
in advance of the information?s public release.

Mr. Bernhardt, did Secretary Zinke request to see the final results of that assessment
before its public release?

Mr. Bernhardt, did you also request to see those results before they were released?

I understand that the USGS scientific integrity policy states that these assessments are not
disclosed to anyone prior to release because they can move financial markets, resulting in
unfair advantages or the perception of an unfair advantage.

Mr. Bernhardt, do you believe that the Secretary is not covered by the scienti?c integrity
policy when it says these reports should not be shared ahead of time?

Response: The Scienti?c Integrity Of?ce for the Of?ce of the Secretary did not view the review
of data to be inconsistent with the scienti?c integrity policy. In fact, the Department?s scienti?c
integrity of?cer and a career scientist that I have subsequently appointed to serve as science
advisor to the Acting Secretary and Deputy Secretary, said:

I do not believe that current or proposed practices for the noti?cation of DOI leadership
constitutes a loss of scienti?c integrity. I do not see the issue outlined as one of scienti?c
integrity. In fact, at no time was USGS asked to change or alter any of the ?ndings for the
assessment.

The Director of the U.S. Geological Survey acts under the authority of the Secretary of the
Interior, who is ultimately responsible for the management and oversight of the Department and
its bureaus. The Department?s leadership thus has the authority to review data, draft reports, or
other publications, and a responsibility to be knowledgeable about Interior information that will
be released to the public. As a general rule, I take the longstanding position of the Of?ce of the

20

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Solicitor. It is my view then and now that employee policies included in Departmental manuals
do not restrict the Secretary of the Interior. The Secretary of the Interior can change a
departmental manual whenever he wants because he possesses the authority to do 30.. Moreover,
in regard to this particular matter, I have been informed that the USGS had also determined that
it needed to change its policy before any issue arose on this particular assessment.

Question 5: BLM Assessment of Oil and Drilling Operations

A GAO report released on March 11 found that BLM was inadequately staffed to assess oil
and gas drilling operation on federal lands during the analyzed period of 2012 to 2016.

Mr. Bernhardt, are you aware this GAO report, do you agree with its findings, and if you
do you think these inspection shortfalls resulted in any avoidable environmental
degradation on public lands?

Mr. Bernhardt, do you believe the inspection shortfalls found by GAO investigators still
exist? If so, what are you plans to address this situation? What level of funding would be
needed to fully found these staffing needs and how does that level compare to the
President?s FY 2020 Budget Request?

Response: I am aware of the GAO report, and that the report concluded that the BLM did not
conduct periodic internal control reviews of its ?eld offices in accordance with current guidance
at the time. The BLM is revising its policy regarding internal control reviews of the inspection
and enforcement program that will ensure the BLM conducts adequate internal control reviews.
Since FY 2016, the BLM has completed 100 percent of its high-priority drilling inspections and
improved how they are tracked. In FY 2019, the inspection and enforcement program is funded
at $48.4 million. The President?s FY 2020 Budget requests $48.9 million for the program.

Question 6: Reeusals From Former Lobbying Clients

Numerous public interest groups have raised concerns about your role in crafting policy
changes that may have benefited or may be benefitting former clients while you served as
counsel at Brownstein Hyatt Farber Schreck LLP.

Mr. Bernhardt, can you provide a list of those all your former clients and is this list
identical to the entities or organizations on the note card you reportedly carry with you
listed your former clients?

Mr. Bernhardt, if you are confirmed, do you plan to continue to recuse yourself from
participating in particular matters affecting any of these former clients for your entire
tenure as Secretary of Interior?

Response: Information regarding former clients is contained in the Statement for Completion by
Presidential Nominees that I completed and submitted for this nomination and my previous

21

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

nomination to be Deputy Secretary of the Department of the Interior. In addition, my 278, which
was also submitted to the committee contains a list of former clients. However, for the
Department of the Interior, my participation in certain particular matters involving speci?c
parties is limited by my existing recusals, so it is the most relevant document to address your
question. I have included my recusal along with some supplemental information from the Of?ce
of Government Ethics that may be helpful to your query. As I stated at my hearing, I am fully
committed to following all ethics laws, regulations, and the ethics pledge. I will also continue to
consult with the career ethics experts within the Department of the Interior, and seeking the
guidance of career ethics experts. In addition, I am committed to not participating in any
particular matter on which I lobbied or in the speci?c issue area in which that particular matter
falls, as determined by the ethics pledge.

22

Attachment to Response
to Sen. Cantwell

Question 6

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unless ?rst authorized to participate, pursuant to Section 3 of Exec. Order No. 13770.
Moreover, this two-year prohibition forbids my participation in any meeting or other
communication with these entities unless (I) there are ?ve or more different
stakeholders present and (2) no particular matters involving speci?c parties are
discussed.

I am aware that I am prohibited by 30 U.S.C. 1211(i) from holding a
?nancial interest in any surface or underground coal mining operation. Additionally,
I am aware that my position is subject to the prohibitions against holding any
?nancial interest in federal lands or resources administered or controlled by the
Department of the Interior extended to me by supplemental regulation 5 C.F.R. 
3501.103.

In addition to a copy of my ethics agreement, I have attached a list of my
current recusals under the Ethics Pledge and 5 C.F.R. 2635.502. This list will be
updated as necessary. Additionally, to facilitate the implementation of best ethics
practices, I have included a document entitled ?Guidance for Recusal Analysis? to
assist in screening matters before the Department to determine whether they are
subject to my recusal requirements.

Particular matters involving speci?c parties, in which an entity included in my
list of current recusals is a party or represents a party, are not to be referred to me and
are to be resolved without my participation. Such matters include, but are not limited
to, litigation, permits, grants, licenses, and agreements. Anyone having a question
about my recusal agreement should bring the matter to the attention of Assistant
Deputy Secretary Willens for a determination. In order to help ensure thatI do not
inadvertently participate in matters from which I should be recused, he will seek the
assistance of an agency ethics of?cial as appropriate. Matters from which I am
recused will be appropriately delegated for handling. If you have any questions,
please be reminded that ethics advice must come ?'om the DAEO or designee acting
on the behalf, as only a designated ethics of?cial can make ethics
determinations on which Department employees may authoritatively rely for safe
harbor.

In consultation with an agency ethics of?cial, I will revise and update this
memorandum whenever that is warranted by changed circumstances. In the event of
any changes to this screening arrangement, I will provide you a copy of the revised
screening arrangement memorandum.

Attachments

May 1, 201-7

MelindaLo?in.

Designated Agency Ethics??f?cial
and mannerisms

US. Department of-the' Interior

1849 Street, NW, MS 7346

Washington, DC 20240-

Dear Ms. Lo??in:

The pmpos?eofthis letter is to describe the steps that I will take to avoid any actual or
apparent, con?ict ofginterest in the event thatI am con?rmed for the position of Deputy Secretary.
of the Department of the: Interior.

AS required by 1'8 U.S.C. ?208(a), Iwill not participate personally and substantially in
any particular matter inwhich I know that I have a ?nancial interest directly and predictably
affected by the matter, or in which I lmow that a person whose. interests are imputed to mehas a
?nancial interest directly antl=predictahly a??ected by the matter, unless I ?rst obtain a written
waiver,-pursuant to 18- or qualify for a regulatory exemption, pursuant to.

18 U.S.C. I understand that the interests of the following persons are imputed to
me: any spouse or minor child of mine; any general partner of a partnership in which I am a
limited statue?! Partners? organizs?oninwhich 1.58m as of?cer. director; trustee. general-
partner ?employee; and any: person or organization with which I am negotiatin'glnr hays-an
arrangement concerning prospective. employment.

Upon con?rma?omj will withdraw ?om the partnership of Brownstein Hyatt Father and
Schreck, LLP, and allrelat'edentities. Pursuant to the 2012 Equityholders Agreement of
Brownstei?n Hyatt Father and Schreck, and BHFS-E PC, I will receive a pro rata 
parhrership. distribution based-on the'Value ofmy partnership?inmests for services performed in
2017 through-the date of my?withdrawal. .?I'his paymentwill bebased solely on the ?rm?s .
earnings through the date of my withdrawal from the partnership. I currently have a capital
account with the ?rm. Ifthe ?rm will not re?rnd the account before I enter into Federal service,
I will forfeit the account. For-a period of one year after my withdrawal, I also will not participate-
personally-andsubstantially in any particular matter involvingspeci?c parties in which I know-
the ??rm isa'party or'repr'esents a party, unless I am ?rst authorized to participate, pursuant to 5
C.F.R. In addition, Iwill notparticipate personally and substantially in any
particular matter involving speci?c parties in which I know a former client of mine is a party or
represents a party for a period of one year after I last provided service to that client, unless I am
?rst authorized to participate, pursuant to 5 C.F.R. 

My term with the Virginia Board of Game and Inland Fisheries has expired and I have
resigned ?'om my position with the Center for Environmental Science Accuracy and Reliability.
For a period of one year after termination of my position with each of these entities, I will not
participate personally and substantially in any particular matter involving specific parties in

which I know that entity is a party orrepresen'ts a party unless I am ?rst authorized to
participate, pursuant to 5 C.F.R. ?2635. 502(6).

I will divest my interest 1n the T. Rowe Price Virginia Tax-Free Bond Fund, within 90
days of my continuation. Until I have completed this divestiture, I will not participate
personally and substantially' 1n any particular matter that to my knowledge has a direct and
predictable e??ect on the ?nancial interests of any holding of the T. Rowe Price Tax-
Free Bond Fund that rs invested 1n the Virginia municipal bonds sector unless I ?rst obtain a
written waiver, pursuant to 18 U. ..C 208(b)(1), or qualify for a regulatory exemption,
pursuant to 18 U. S. C. 208(b)(2).

have a managed account or otherwise use the services of an investment professional
during my appointment, I will ensure that the account manager or investment professional
obtains my prior approval on a case-by-case basis for-the purchase of any assets other than cash,
cash equivalents, investment funds thatqualify for the exemption at 5 C.F. R. or
obligations of the United States.

I understand that I may be eligible to request a Certi?cate of Drvestrture for qualifying
assets and that a Certi?cate of D1vest1ture rs e?'ective only if obtained prior to=dives?ti1re.
Regardless of whether I receive a Certi?cate of D1vest1ture, I will ensure that all divestiuues
discussed 1n this agreement occur within the agreed upon timet?rames and that all proceeds are
invested in non-con?icting assets.

If I am continued as Deputy Secretary of the Department of the Interior, I atn- aware: that I
am prohibited by 30 U. S. C. 1211(t) holding; a ?nancial interest in any surface or
underground coal mining operation. Additionally, I am aware that my position is subject to the
prohibitions against holding any ?nancial interest 1n federal lands or resources administered or
controlled by the Department of the Interior extended to me by supplemental regulation
5 CIR 3501.103.

I understand that as an appointee I will be required to sign the Ethics Pledge (Exec. Order
no. 13770) and that I will be bound by the requiremants and restrictions therein 1n addition to the
commitments I have made 1n this ethics agreement.

I will meet in person with you during. the ?rst week of my service in the position of
Deputy Secretary in order to complete the initial ethics brie?ng required under 5 CER.
263 8.305. Within 90 days of my con?rmation, Iwill document my compliance with this ethics
agreement by notifying you in writing when I have. completed the steps described'in this ethics
agreement.

 I have been advised that this ethics agreement will be posted publicly, consistentwith
5 U. S. C. 552, on the website of the U. S. Of?ce of with ethiec agreements
of other Presidential. nominees who file public ?'n'aticial disclosure reports.

 

David Bernhardt

List of Recusalsl

1. Ethics Pledge Recusals

Until August 3, 2019, absent a waiver under Section 3 of Executive Order No. 13770, I am
recused from particular matters involving specific parties in which any of the following entities either is a
party or represents a party to the matter. Such matters include, but are not limited to, litigation,
permits, grants, licenses, applications, and agreements. For the purposes of the Ethics Pledge, this also
prohibits my participation in any meeting or other communication with these entities unless (1) there
are five or more different stakeholders present and (2) no particular matters involving speci?c parties
are discussed.

Active Network LLC

PC

Brownstein Hyatt Farber and Schreck, LLP

Cadiz, Inc.

Center for Environmental Science Accuracy and Reliability (CESAR)
Cobalt international Energy 7

Eni Petroleum, North America

Hailiburton Energy Services, LLC

Hudbay

independent Petroleum Association of America (IPAA)
Klees, Don (individual)

National Ocean Industry Association (NOIA)

Noble Energy Company LLC

NRG Energy inc.

Rosemont Copper Company

 

1 Note that the scopes of the recusai requirements for the Ethics Pledge and C.F.R. 2635.502 are not the same.
Accordingly, the lists of recusais for the Ethics Pledge and 5 C.F.R. 2635.502 are not identical.

August 15, 2017

Sempra Energy

Statoil Gulf Services LLC
Statoll Wind LLC

Targa Resources Company LLC
Taylor Energy Company LLC
UBE PC

U.S. Oil and Gas Association

2. 5 C.F.R. 2635.502 Recusals

Until the date indicated for the speci?c entity, unless first authorized to participate by the DAEO
under 5 C.F.R. I am recused from particular matters involving specific parties in which any
of the following entities either is a party or represents a party to the matter. For the purposes of
5 C.F.R. 2635.502, such matters include, but are not limited to, litigation, permits, grants, licenses,

applications, and agreements.
Active Network LLC
BHFS-E PC

Brownstein Hyatt Farber and
Schreck, LLP

Cadiz, Inc.

Center for Environmental Science
Accuracy and Reliability (CESAR)

Cobalt International Energy
Eni Petroleum, North America

Forest County Potawatomi
Community

Garrison Diversion Irrigation
District

Halliburton Energy Services, LLC

Hudbay

8-1-18

8-1-18

8-1-18

5-1-18

3-24-18

8-1-18

8-1-18

3-1-18

8-1-18

7-29-18

8-1-18

August 15, 2017

Klees, Don (individual)

National Ocean Industry
Association (NOIA)

Noble Energy Company LLC
NRG Energy Inc.
Rosemont Copper Company

Santa Ynez River Water
Conservation District,
Improvement District No. 1

Sempra Energy

Statoil Gulf Services LLC
Statoil Wind LLC

iarga Resources Company LLC
Taylor Energy Company LLC
UBE PC

U.S. Oil and Gas Association

Westlands Water District

8-1-18

7-29-18

12-1-17
8-1-18
8-1-18

11-1-17

4-1-18
8-1-18
8?1-18
8-1-18
7-29-18
8-1-18
7-29-18

8-1-18

August 15, 2017

Guidance for Recusal Analysis

In his ethics agreement, the Deputy Secretary agreed that, for one year after his withdrawal from
his ?rm, he would not participate personally and substantially in any particular matter involving
speci?c parties in which he knows his former ?rm is or represents a party, unless authorized to
participate, pursuant to 5 C.F.R. 2635 .502(d). He also agreed not to participate personally and
substantially in any particular matter involving speci?c parties in which he knows a former client
of his is or represents a party for a period of one year after he last provided service to that client,
unless he is ?rst authorized to participate, pursuant to 5 C.F.R. In addition, per
the Ethics Pledge, the Deputy Secretary agreed that he will not for a period of two years from the
date of his appointment participate in any particular matter involving speci?c parties in which a
former employer or client of his is or represents a party, if he served that former employer or
client during the two years prior to his appointment, absent a waiver under Section 3 of
Executive Order No. [3770. This includes recusal from any meeting or other communication
with such a former employer or client unless (I) there are ?ve or more different stakeholders
present and (2) no particular matters involving speci?c parties are discussed

To assist the Deputy Secretary in complying with his ethics agreement and the Ethics Pledge,
suf?cient information needs to be secured before the Deputy Secretary participates in a matter to
determine whether the matter meets the criteria described above.

To determine whether the Deputy Secretary may participate in a given matter, we must ?rst
determine whether that ?matter? is a broad policy directed to the interests of a large and diverse
group of persons or one of the two types of ?particular matters? -- a ?particular matter of general
applicability? or a ?particular matter involving speci?c parties.?

In the context of the ethics rules, the unmodi?ed term ?matter? refers to virtually all Government
work. It includes the consideration of broad policy options that are directed to the interests of a
large and diverse group of persons. For instance, health and safety regulations applicable to all
employers or a legislative proposal for tax reform. It also includes more narrowly de?ned
?particular matters.?

The term ?particular matter? means any matter that involves deliberation, decision, or action that
is focused on the interests of (1) speci?c persons (2) a discrete and identi?able class of
persons. These two types of particular matters are de?ned separately as ?particular matters
involving Speci?c parties? and ?particular matters of general applicability.? (See attached

diagram.)

A ?particular matter involving speci?c parties? typically involves a speci?c proceeding affecting
the legal rights of the parties, or an isolatable transaction or related set of transactions between
identi?ed parties.? Examples include contracts, grants, licenses, investigations, litigation, and
partnership agreements. This is the narrowest type of matter.

A ?particular matter of general applicability? does not involve speci?c parties but at least focuses
on the interests of a discrete and identi?able class, such as a particular industry or profession.
Examples include rulemaking, legislation, or policy-making of general applicability that affect a
particular industry or profession. For instance, a regulation prescribing safety standards for
operators of oil rigs in the Gulf of Mexico or a regulation applicable to all those who have
grazing permits on DOI public lands. On the other hand, a land use plan covering a large
geographic area and affecting a number of industries agriculture; grazing; mining; timber;
recreation; wind, solar, and/or geothermal power generation; etc.) would not constitute a
?particular matter of general applicability? but, rather, would still fall within the broader
de?nition of ?matter,? as it constitutes a broad policy directed to the interests of a large and
diverse group of persons.

To assist the Deputy Secretary in complying with his ethics recusal requirements, one must
gather suf?cient information regarding a matter before the Department to determine whether the
matter constitutes a particular matter involving speci?c parties, a particular matter of general
applicability, or falls into the category of broad policy options that are directed to the interests of
a large and diverse group of persons. In the event that a determination is made that the matter
before the Department constitutes the narrowest type of matter, a particular matter involving
speci?c parties, one must then reference the Deputy Secretary?s List of Recusals to determine
whether he is recused from participating in that matter.

Attachment

at}:



gymUnited States
Office of Government Ethics

1201 New York Avenue, NW., Suite 500
Washington, DC 200053391?

 

October 4, 2006


MEMORANDUM
TO: Designated Agency Ethics Officials
FROM: Robert I. Cusick
Director
SUBJECT: "Particular Matter Involving Specific Parties,"

"Particular Matter," and "Matter"

Perhaps no subject has generated as many questions from
ethics officials over the years as the difference between the
phrases "particular matter involving specific parties" and
"particular matter." These phrases are used in the various
criminal conflict of interest statutes to describe the kinds of
Government actions to which certain restrictions apply.
Moreover, because these phrases are terms of art with
established meanings, the Office of Government Ethics (OGE) has
found it useful to include these same terms in various ethics
rules. A third term, "matter," also has taken on importance in
recent years because certain criminal post?employment
restrictions now use that term without the modifiers
"particular" or "involving specific parties."

It is crucial that ethics officials understand the
differences among these three phrases. OGE's experience has
been that confusion and disputes can arise when these terms are
used in imprecise ways in ethics agreements, conflict of
interest waivers, and oral or written ethics advice. Therefore,
we are issuing this memorandum to provide guidance in a single
document about the meaning of these terms and the distinctions
among them.

Designated Agency Ethics Officials
Page 2

Because the three phrases are distinguished mainly in terms
of their relative breadth, the discussion below will proceed
from the narrowest phrase to the broadest.

Particular Matter Involving Specific Parties

The narrowest of these terms is "particular matter
involving specific parties." Depending on the grammar and
structure of the particular statute or regulation, the wording
may appear in different forms, but the meaning remains
the same, focusing primarily on the presence of specific
parties.

1. Where the Phrase Appears

 

This language is used in many places in the conflict of
interest laws and OGE regulations. In the post?employment

statute, the phrase "particular matter . . . which involved a
Specifit: party or parties" is used to describe the kinds of
Government matters to which the life?time and two?year

representational bans apply. 18 U.S.C. 207(a)(l), 
Occasionally, ethics officials have raised questions because
section 207 includes a definition of the term "particular
matter," section 207(i)(3), but not "particular matter involving
specific parties"; however, it is important to remember that
each time "particular matter" is used in section 207(a), it is
modified by the additional "specific party" language.1

In addition to section 207(a), similar language is used in
18 U.S.C. 205(c) and 203(c). These provisions describe the
limited restrictions on representational activities applicable
to special Government employees (SGEs) during their periods of
Government service.2

 

1For a full discussion of the post?employment restrictions, see



2These restrictions on SGEs are discussed in more detail in OGE


+Government+Employees.

 

 

Designated Agency Ethics Officials
Page 3

As explained below, 18 U.S.C. 208 generally uses the
broader phrase "particular matter" to describe the matters from
which employees must recuse themselves because of a financial
interest. However, even this statute has one provision, dealing
with certain Indian birthright interests, that refers to
particular matters involving certain Indian entities as "a
specific jparty or parties." 18 U.S.C. 208(b)(4); sgg. OGE
Informal .Advisory Letter 00 12. Moreover, OGE has issued
certain regulatory exemptions, under section 208(b)(2), that
refer to particular matters involving specific parties.

5 C.F.R. Likewise, the distinction between
particular matters involving specific parties and broader types
of particular matters those that have general
applicability to an entire class of persons) is crucial to
several other regulatory exemptions issued by OGE under
section 208(b)(2). 5 C.F.R. 


Finally, OGE has used similar language in various other
rules. Most notably, the provisions dealing with impartiality
and extraordinary payments in subpart of the Standards of
Ethical Conduct for Employees of the Executive Branch (Standards
of Conduct) refer to particular matters in which certain persons
are specific parties. 5 C.F.R. 2635.502; 2635.503. OGE also
uses the phrase to describe a restriction on the compensated
speaking, teaching and writing activities of certain SGEs.

5 C.F.R. 

2. What the Phrase Means

 

When this language is used, it reflects "a deliberate
effort to impose a more limited ban and to narrow the
circumstances in which the ban is to operate." Bayless Manning,
Federal Conflict of Interest Law 204 (1964). Therefore, OGE has
emphasized that the term "typically involves a specific

Designated Agency Ethics Officials
Page 4

proceeding affecting the legal rights of the parties, or an
isolatable transaction or related se of transactions between
identified. parties." 5 C.F.R. 3 Examples of
particular matters involving specific parties include contracts,
grants, licenses, product approval applications, investigations,
and litigation. It is important to remember that the phrase
does not cover particular matters of general applicability, such
as rulemaking, legislation, or policy-making of general
applicability.4

Ethics officials sometimes must deci de when a particular
matter first involves a specific party. Many Government matters
evolve, sometimes starting with a broad concept, developing into
a discrete program, and eventually involving specific parties.
A case-by-case analysis is required to determine at which stage
a particular matter has sufficiently progressed to involve

 

3 This definition, found in OGE's regulations implementing

l8 U.S.C. 208, differs from the definition found in
the regulations implementing a now-superseded version of

18 U.S.C. 207, although this is more a point of clarification
than substance. Specifically, the old section 207 regulations
referred to "identifiable" parties, 5 C.F.R. 
whereas the more recent section 208 rule refers to "identified"
parties. As explained in the preamble to OGE's proposed new
section 207 rule: "The use of 'identified,? rather than
?identifiable,? is intended to distinguish more clearly between
particular matters involving specific parties and mere
'particular matters,? which are described elsewhere as including
matters of general applicability that focus 'on the interests of
a discrete and identifiable class of persons' but do not involve
specific parties. [citations omitted] The use of the term
'identified,? however, does not mean that a matter will lack
specific parties just because the name of a party is not
disclosed ?to the Government, as where an agent represents an
unnamed. principal." 68 Feder al Register 7844, 7853-54
(February 18, 2003).

4 Usually, rulemaking and legislation are not covered, unless
they focus narrowly on identified parties. gee OGE Informal
Advisory Opinions 96 7 ("rare" example of rulemaking that
involved specific parties); 83 7 (private relief legislation
may involve specific parties).

Designated Agency Ethics Officials
Page 5

specific parties. The Government sometimes identifies a
specific party even at a preliminary or informal stage in the
development of a matter. OGE Informal Advisory Letters
matters involving contracts, grants and other agreements
between the Government and outside parties, the general rule is
that specific parties are first identified when the Government
first receives an expression of interest from a prospective
contractor, grantee or other party. As OGE explained recently
in Informal Advisory Letter 05 6, the Government sometimes may
receive expressions of interest from prospective bidders or
applicants in advance of a published solicitation or request for
proposals. In some cases, such matters may involve specific
parties even before the Government receives an expression of
interest, if there are sufficient indications that the
Government actually has identified a party. OGE Informal
Advisory Letter 96 21.

Particular Matter

Despite the similarity of the phrases "particular matter"
and "particular matter involving specific parties," it is
necessary to distinguish them. That is because "particular
matter" covers a broader range of Government activities than
"particular matter involving specific parties." Failure to
appreciate this distinction can lead to inadvertent violations
of law. For example, the financial conflict of interest
statute, 18 U.S.C. 208, generally refers to particular
matters, without the specific party limitation. If an employee
is advised incorrectly that section 208 applies only to
particular matters that focus on a specific person or company,
such as an enforcement action or a contract, then the employee
may conclude it is permissible to participate in other
particular matters, even t. hough the la. prohibits such
participation.

Designated Agency Ethics Officials
Page 6

1. Where the Phrase Appears

 

In addition to 18 U.S.C. 208, several other statutes and
regulations use the term "particular matter." 5 The
representational restrictions applicable to current employees
(other than SGEs), under 18 U.S.C. 203 and 205, apply to
particular matters.6 As mentioned above, section 207 also
contains a definition of "particular matter." 7 However, where
the phrase is used in the post-employment prohibitions in

 

5 The relevant language in 18 U.S.C. 208(a) is "a judicial or
other' proceeding, application, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, or other particular matter" (emphasis added).

6 The prohibition in 18 U.S.C. 205(a)(2) actually uses the
phrase "covered matter," but that term is in turn defined as
"any judicial or other proceeding, application, request for a
ruling or other determination, contract, claim, controversy,
investigation, charge, accusation, arrest or other particular

 

matter," 18 U.S.C. 205(h)(emphasis added).

7 The definition in 18 U.S.C. 207(i)(3) provides: "the term
'particular matter' includes any investigation, application,
request for a ruling or determination, rulemaking, contract,
controversy, claim, charge, accusation, arrest, or judicial or
other proceeding." This language differs from other
references to "particular matter" in sections 203, 205 and 208,
in part because the list of matters is not followed by the
residual phrase "or other particular matter." However, OGE does
not believe that the absence of such a general catch-all phrase
means that the list of enumerated matters exhausts the meaning
of "particular matter" under section 207(i)(3). The list is
preceded by the word "includes," which is generally a term of
enlargement rather than limitation and indicates that, matters
other than those enumerated are covered. See Norman J. Singer,
2A Sutherland on Statutory Construction 231-232 (2000).

 

Designated Agency Ethics Officials
Page 7

section 207(a)(1) and it is modified by the "specific
parties" limitation.8

The phrase "particular matter" is used pervasively in OGE's
regulations. Of course, the term appears throughout 5 C.F.R.
part 2640, the primary OGE rule interpreting and implementing
18 U.S.C. 208. Similarly, it is used in 5 C.F.R. 2635.402,
which is the provision in the Standards of Conduct that
generally deals with section 208. The phrase also is used
throughout subpart of the Standards of Conduct, which contains
the rules governing recusal from pa.rticular' matters affecting
the financial interest of a person with whom an employee is
seeking non?Federal employment. 5 C.F.R. 2635.601-2635.606.
Moreover, the phrase appears in the "catch-all" provision of

 

OGE's impartiality rule, 5 C.F.R. See also
5 C.F.R. Various other regulations refer to
"particular matter" for miscellaneous purposes. 5 C.F.R.

on expert witness activities of 
5 C.F.R. rec usals jpursuant to ethics
agreements).

2. What the Phrase Means

 

Although different conflict of interest statutes use
different wording, such as different lists of examples
of particular matters, the same standards apply for determining
what is a particular matter under each of the relevant statutes

 

8 At one time, the post-employment "cooling?off" restriction for
senior employees in 18 U.S.C. 207(c) applied to particular
matters, but the language was amended (and broadened) in 1989
when Congress removed the adjective "particular" that had
modified "matter." See 17 Op. O.L.C. 37, 41-42 (1993).

9 Generally, section 2635.502 focuses on particular matters
involving specific parties, as noted above. However,

section provides a mechanism for employees to
determine whether they should recuse from other "particular
matters" that are not described elsewhere in the rule. In
appropriate cases, therefore, an agency may require an employee
to recuse from particular matters that do not involve specific
parties, based on the concern that the employee's impartiality
reasonably may be questioned under the circumstances.

Designated Agency Ethics Officials
Page 8

and regulations. 18 Op. O.L.C. 212, 217?20 (1994).
Particular matter means any matter that involves "deliberation,
decision, or action that is focused upon the interests of
specific persons, or a discrete and identifiable class of
persons." 5 C.F.R. added). It is
clear, then, that particular matter may include matters that do
not involve parties and is not "limited to adversarial
proceedings or formal legal relationships." Van Ee v. EPA 
202 F.3d 296, 302 (D.C. Cir. 2000).

 

 

Essentially, the term covers two categories of matters:
(1) those that involve specific part ies (described more fully
above), and (2) those that do not involve specific parties but
at least focus on the interests of a discrete and identifiable
class of persons, such as a particular industry or profession.
OGE regulations sometimes refer to the second category as
"particular matter of general applicability." 5 C.F.R.
This category can include legislation and
policymaking, as long as it is narrowly focused on a discrete
and identifiable class. Examples provided in OGE rules include
a regulation applicable only to meat packing companies or a
regulation prescribing safety standards for trucks on interstate
highways. 5 C.F.R. 
2). Other examples may be found in
various opinions of OGE and the Office of Legal Counsel,
Department of Justice. OGE Informal Advisory Letter 00 
4 (recommendations concerning specific limits on commercial use
of a particular facility); 18 Op. O.L.C. at 220 (determinations
or legislation focused on the compensation and work conditions
of the class of Assistant United States Attorneys).

Certain OGE rules recognize that particular matters of
general applicability sometimes may raise fewer conflict of
interest concerns than particular matters involving specific

Designated Agency Ethics Officials
Page 9

parties.10 Therefore, while both categories are included in the
term "particular matter," it is often necessary to distinguish
between these two kinds of particular matters. Of course, in
many instances, the relevant prohibitions apply equally to both
kinds of particular matters. This is the case, for example, in
any application of 18 U.S.C. 208 where there is no applicable
exemption or waiver that distinguishes the two.

It is important to emphasize that the term "particular
matter" is not so broad as to include every matter involving
Government action. Particular matter does not cover the
"consideration or adoption of broad policy options directed to
the interests of a large and diverse group of persons."

5 C.F.R. For example, health and safety
regulations applicable to all employers would not be a
particular matter, nor would a comprehensive legislative
proposal for health care reform. 5 C.F.R.

4), (example 8). also OGE Informal
Advisory Letter 05 (report of panel on tax reform addressing
broad range of tax policy issues). Although such actions are
too hmoadly focused to be particular matters, they still are
deemed "matters" for purposes of the restrictions described
below that use that term.

 

1? As noted above, OGE's imparti ality rule generally focuses on
particular matters involving specific parties. OGE Informal
Advisory Letter 93 25 (rulemaking "would not, except in
unusual circumstances covered under section 502(a)(2), raise an
issue 'under section Furthermore, as also discussed
above, several of the regulatory exemptions issued by OGE under
18 U.S.C. 208(b)(2) treat particular matters of general
applicability differently than those involving specific parties.
The preamble to the original proposed regulatory exemptions in

5 C.F.R. part 2640 explains: "The regulation generally contains
more expansive exemptions for participation in 'matters of
general applicability not involving specific parties' because it
is less likely that an employee's integrity would be compromised
by concern for his own financial interests when participating in
these broader matters." 60 Federal Register 47207, 47210
(September 11, 1995). Of course, Congress itself has limited
certain conflict of interest restrictions to the core area of
particular matters that involve specific parties. 
18 U.S.C. 207(a)(l), 

Designated Agency Ethics Officials
Page 10

A. question that sometimes arises is when a matter first
becomes a "particular matter." Some matters begin as broad
policy deliberations and actions pertaining to diverse
interests, but, later, more focused actions may follow.
Usually, a particular matter arises when the deliberations turn
to specific actions that focus on a certain person or a discrete
and identifiable class of persons. For example, although a
legislative plan for broad health care reform would not be a
particular matter, a particular matter would arise if an agency
later issued implementing regulations focused. narrowly on the
prices that pharmaceutical companies could charge for
prescription drugs. 5 C.F.R. 8).
Similarly, the formulation and implementation of the United
States response to the military invasion of an ally would not be
a particular matter, but a particular matter would arise once
discussions turned to whether to close a particular oil pumping
station or pipeline operated by a company in the area where
hostilities are taking place. 5 C.F.R.
7).

Matter

The broadest of the three terms is "matter." However, this
term is used less frequently than the other two in the various
ethics statutes and regulations to describe the kinds of
Government actions to which restrictions apply.

1. Where the Phrase Appears

The .most important use of this term is in the one?year
post-employment restrictions applicable to "senior employees"
and "very senior employees." 18 U.S.C. 207(c), In this
context, "matter" is used to describe the kind of Government
actions that former senior and very senior employees are
prohibited from influencing through contacts with employees of
their former agencies (as well as contacts with Executive
Schedule officials at other agencies, in the case of very senior
employees). The unmodified term "matter" did not appear in
these provisions until 1989, when section 207(c) was amended to
replace "particular matter" with "matter" and section 207(d) was
first enacted. Pub. L. No. 101-194, 101(a), November 30,
1989. OGE also occasionally uses the term "matter" in ethics
regulations, for example, in the description of teaching,

Designated Agency Ethics Officials
Page 11

speaking and writing that relates to an employee's official
duties. 5 C.F.R. 

2. What the Phrase Means

 

It is clear that "matter" is broader than "particular
matter." l7 Op. O.L.C. at 41-42. Indeed, the term is
virtually all-encompassing with respect to the work of the
Government.11 Unlike "particular matter," the term "matter"
covers even the consideration or adoption of broad policy
options that are directed to the interests of a large and
diverse group of persons. Of course, the term also includes any
particular matter or particular matter involving specific
parties.

Nevertheless, it is still necessary to understand the
context in which the term "matter" is used, as the context
itself will provide some limits. In 18 U.S.C. 207(c) and 
the post-employment restrictions apply only to matters "on which
[the former employee] seeks official action." Therefore, the
only matters covered will be those in which the former employee
is seeking to induce a current employee to make a decision or
otherwise act in an official capacity.

 

11 A now?repealed statute, l8 U.S.C. 281 (the predecessor of

18 U.S.C. 203), used the phrase "any proceeding, contract,
claim, controversy, charge, accusation, arrest, or other matter"
(emphasis added). One commentator noted that the term "matter"
in section 281 was "so open-ended" that it raised questions as
to what limits there might be on the scope. Manning, at 50?51.
Manning postulated that some limits might be inferred from the
character of the matters listed before the phrase "or other
matter." Ed; at 51. Whatever the force of this reasoning with
respect to former section 281, the same could not be said with
respect to 18 U.S.C. 207(c) or as neither of these
current provisions contains an exemplary list of covered
matters.

 

 

LA-17-03: Guidance on
Executive Order 13770

U.S. Office ofGovernment Ethics
Advanced Practitioner Webinar
Thursday, April 27, 2017

Guidance on 

 

STATES OFFICE OF

GOVERNMENT ETHICS


 




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I also addresses recusal obligations
for recent lobbyists (pledge paragraph 7)

I Post-government employment restrictions

. 5?year restriction under pledge paragraph 1

- Administration?length restriction under
pledge paragraph 3

- Citations to but not interpretations of? the
Lobbying Disclosure Act (LDA)

 

 

 

4/26/2017

What is Not Covered in 

 

Section 3 ofthe new Executive Order concerning
pledge waivers

Paragraph 4 concerning post-government
restrictions and the Foreign Agents Registration
Act of 1938

Paragraph 8 concerning employment decisions

The continued applicability of EO 13490

 

 

 

Language Common to

E0. 13770 and E.O.13490

 

4/26/2017

LA-17-02: Executive Order 13770

 

?With respect to Executive Order 13770,
ethics of?cials and employees may continue
to rely on prior guidance regarding
Executive Order 13490 to the extent that
such guidance addresses language common
to both orders.?

 

 

 

Guidance on 

 

Slil?Jl-Tt?f Guxkincc Exmtuvc ?"70

Eixccunv: Order 13'70 Eucmw (ML: 13 5?10 and to up?
.1 Irv. din? Ill-.513.- urn-m EU 5x (Jan 201')
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null Lemuel In the Prceadm'somc: kili's pm! madam: I ltd-H
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(imam-m. ?ux legal Ath'iwry mm imumcs on Exccmivc ml:
13 M1 Ilul an: .?np?lmlvi; In l'x'mulir: [3"0 .nul nm'nla .uldimml madam.-

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JI mu] com-M all!? I pHimr- Dun-Lulu - \L-r

 

 

 

 

Example:

DO-og-mo: Who l'vluat Sign the Ethics F?letltie?

 

Note: All substantive legal interpretations in this advisory are applicable to Executive Order [3770. sec. 
See LA-IT-OZ and 

43??

9 United States
5?

aOffice of Government Ethics
1201 New York Avenue. NW.. Suite 500
Washington. DC 200054917

March 16. 2000
00419-0!?



TO Designated Agency Ethics 
FROM: Ruben (?usivk
Director

81 ?he Mun Sign the lithit's Pledge"

 

l'ltc Ollie: of Government (06E) has received mum-tutu quctuon? concerning 9

 

 

Example:

0009-011; Revolving fall Entering Goa'i

 

NOTE: All substantive legal interpretations in this advisory concerning Pledge paragraph 2 (ED. [3490) and the terms used
in Pledge paragraph 2 are applicable to Executive Order 13770. see. I. par. 6. All substantive legal interpretations pertaining
to waivers ofthe Ethics Pledge are n_ot applicable to Executive Order 13770. sec. 3. See LA-17-02 and 

United Sum
2 Office of Government Ethics
57 1201 New York Avenue. NW.. Suite 500
a, Washington. DC 20005491 7

March Iti. 2009

00.00.01 I

TO Designated Elhlf?s Ollictuls
FROM: Robert ('tmck
Director

1" Ethics Pledge Dom Barb-All Entering Government

 

Order requires :utv covered ":tppotntee" to an ElluL's Pledge that 1?

 

4/26/2017

4/26/2017

Example:

DO?zlo?or rvI: Hm;

 

 

 

 

Note: Please sec the embed for the ilily of legal in Ibis adviser}! to i
Executive Order See also and I
. 
i
In.

.ui-Iendum [.?ll?ll m. 2011]
ram-Employment l'ndrr ilu- lilhi-n I'Ierler: 

 

 

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'7 chum..-? u. :H'J1.m.0219612009

DO-09-010: Who Must Sign the Ethics Pledge? 

OGE Identi?es the categories of ot?ciete who must sign the Ethics Pledge required by Executive Order 13490 and
those who are not required to sign. [The guidance In this advisory was modified In 2017 by iegel advisories LA-17-

02 and mama]

 

 

Attachment to 

 

a0 .49 wan-x {mull-wanna.? 
nun-Plum IMII

no inn-nun.- t-nI?hl? ui-?n?i?uu-hnau-u-Iv-u?ui-i 1


 

 

 

 

 

 

 

13

 

 

 

E.0. 13370, sec. 1, par. 6

I will not for a period of 2
years from the date of my
appointment participate in
any particular matter
involving specific parties
that is directly and
substantially related to my
former employer or former
clients, including
regulations and contracts.

 

E.O. 13490, sec. 1, par. 2

I will not for a period of 2
years from the date of my
appointment participate in
any particular matter
involving specific parties
that is directly and
substantially related to my
former employer or former
clients, including
regulations and contracts.



 

 

4/26/2017

 

Language Common to Both

E.0. 13370, sec. 2(b)

?Appointee" means every full-time,
non-career Presidential or Vice-
Presidential appointee, non-career
appointee in the Senior Executive Service
(or other SES-type system), and
appointee to a position that has been
excepted from the competitive service by
reason of being ofa confidential 0r
policymaking character (Schedule and
other positions excepted under
comparable criteria) in an executive
agency. It does not include any person
appointed as a member of the Senior
Foreign Service or solely as a uniformed
service commissioned officer.

 

E.O. 13490, sec. 2(b)

?Appointee" shall include every full-time,
non-career Presidential orVice-

Presidential appointee, non-career

appointee in the Senior Executive Service
(or other SES-type system), and
appointee to a position that has been
excepted from the competitive service by
reason of being of a confidential or
policymaking character (Schedule and
other positions excepted under

comparable criteria) in an executive
agency. It does not include any person
appointed as a member ofthe Senior
Foreign Service or solely as a uniformed
service commissioned officer.

 

15

 

 

Attachment to 

so} emirates?

I 

 

Prior anima'wm.? a. was dimlmo

 

 


Section 1. 

Enfi. 
I 'l
mi)" -i.h~u.l or Him

I

if? ii'7r_i_ a

.

1

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I: i-?Iimr 

 

   

 

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mu: .
unit-n" .nl in 
I 'n vrm'il m- . 7, ,m ?Winn?i'uHI? 'l li-e etli- 13-. ml: 9.. 91?? 1
1 . - .- mic?'3 xii-0:21 pm. 8-11.:
i I 
- 1 . 
1.444/26/2017

4/26/2017

Particular Matter 
Specific Issue Area

 

Ifl was a registered lobbyist within the 2 years
before the date of my 

I will not for a period of 2 years after the date of
my appointment participate in any particular
matter on which I lobbied within the 2 years
before the date of my appointment or
participate in the specific issue area in which
that particular matterfalls.

 

 

 

 

 

 

was a registered lobbyist

within the 2 years before

 

the date of my appointment

. . . i will not for a period of

2 years after the date of my
appointment participate in
any particular matter on
which I lobbied within the

2 years before the date of my
appointment or participate in
the speci?c issue area in
which that particular matter
falls.

19

 

 

 

 

 

If I was a registered lobbyist
within the 2 years before

the date of my appointment

. . . I will not for a period of

2 years after the date of my
appointment participate in
any particular matter on
which i lobbied within the

2 years before the date of my
appointment or participate in
the specific issue area in
which that particular matter
falls.

20

 

 

4/26/2017

10

 

 

?Specific issue area? is not defined in LDA 0r
Executive Orders 13490 or 13770

E0 13,490 E0 13770

Also contained a two-Year I NO employment ban for
prohibition on individuals former lobbyists
seeking or accepting 
employment with executive
agencies they lobbied

 

 

As used in Executive Order 13770.,

was a registered lobbyist


the term specific issue area within the 2 years before
means a ?particular matter of the date of my appointment,
limitations of paragraph 6, i

will not for a period of
2 years after the date of my
appointment participate in
.. 4? any particular matter on
which I lobbied within the
2 years before the date of my
I appointment or participate in
the Specific issue area in
which that particular matter
falls.

 

 

 

 

4/26/2017

11

4/26/2017

 

If I was a registered

Lobbied on: Recusal: lobbyist within the 2 years
before the date of my

appointment . . . I will not
Same for a period of 2 years
Particular Matter after the date of my
appointment participate
in any particular matter on
which I lobbied within the
2 years before the date of
my appointment or
participate in the specific
issue area in which that
particular matter falls.

Particular Matter

 

 

 

 

 

was a registered

 

 

Lobbied on: Recusal: lobbyist within the 2 years
before the date of my
appointment. . . I will not

Particular Matter Same for a period of 2 years
Particular Matter after the date of my

appointment participate
in any particular matter on
Matter N0 to which I lobbied within the
that Matter 2 years before the date of
my appointment or
participate in the specific
issue area in which that
particular matter falls.

 

 

 

12

 

 

if I was a registered lobbyist
within the 2 years before
the date of my appointment,
in addition to abiding by the
,1 limitations of paragraph 6, i

will not for a period of
2 years after the date of my
appointment participate in
. any particular matter on
which I lobbied within the
2 years before the date of my
appointment or participate in
the specific issue area in
which that particular matter
falls.

 

 

25

 

 

 

Paragraph 6

Nat limited to
registered
lobbyists

Paragraph 7

Limited to
registered
lobbyists

 

I will not for a period of 2 yea rs from the date of my
appointment participate in any particular matter
involving specific parties that is directly and
substantially related to my former employer or former
clients, including regulations and contracts.

was a registered lobbyist within the 2 years before
the date of my appointment . . . I will not for a period of
2 years after the date of my appointment participate in
any particular matter on which I lobbied within the

2 years before the date of my appointment or
participate in the specific issue area in which that
particular matterfalls.

26

 

 

4/26/2017

13

 



Paragraph 1

Paragraph 2

Paragraph 3

Paragraph Post-Employment Lobbying
Activity Restrictions

 

I will not, within 5 years after the termination of my employment as an
appointee in any executive agency in which I am appointed to serve,
engage in lobbying activities with respect to that agency.

If, upon my departure from the Government, I am covered by the post-
employment restrictions on communicating with appointees of my former
executive agency set forth in section 207(c) of title 18, United States Code,
I agree that I will abide by those restrictions.

I also agree, upon leaving Government service, not to engage in lobbying
activities with respect to any covered executive branch official or non-
career Senior Executive Service appointee for the remainder of the
Administration.

1 will not, at any time after the termination of my employment in the
United States Government, engage in any activity on behalf of any foreign
government or foreign political party which, were it undertaken on

January 20, 2017, would require me to register under the Foreign Agents
Registration Act of 1938, as amended. 28

 

 

4/26/2017

14

 

Post-Employment

Lobbying Activity Restrictions

 

 

 

 

I will not, within 5 years after the termination of
my employment as an appointee in any
executive agency in which I am appointed to
serve, engage in lobbying activities with respect
to that agency.

 

 

4/26/2017

15

4/26/2017

 

I also agree, upon leaving Government service,
not to engage in lobbying activities with respect
to any covered executive branch official or non-
career Senior Executive Service appointee for
the remainder ofthe Administration.

31

 

 

 

Post-Employment

Lobbying Activity Restrictions

 

RESTRICTED Lobbying Activities
WITH RESPECTTO Former appointee?s Covered executive branch
former agency of?cials throughout the
executive branch.
MEANS:
Covered executive branch Non-career senior executive
officials _a_t former appointee's service appointees throughout
former agency the executive branch.
LENGTH OF RESTRICTION 5 years Remainder of the
Administration
COMMENCEMENT 0F Termination of employment as Termination of Government
RESTRICTION appointee Service

32

 

 

 

16

 

 

I Engage in a ?lobbying activity? as defined by
the Lobbying Disclosure Act (LDA)

 

 

 

 

You engage in a ?lobbying activity? if you:

- Make a lobbying contact
-Written or oral communications
- With covered executive or legislative branch officials
. On behalf ofa client
- Forfinancial or other compensation
- 19 exceptions

- Engage In behind -the- -scenes efforts In support of
such lobbying contact

 

 

4/26/2017

17

4/26/2017

Post-Employment

Lobbying Activity Restrictions

 

RESTRICTED ACTIVITY Lobbying Activities
WITH RESPECT TO Former appointee?s Covered executive branch
former agency of?cials throughout the
W-
MEANS:

Covered executive branch Non-career senior executive
. . . 
Off'c'als at fo a 5 semice appomtees throughout

mm the executive branch.
LENGTH OF RESTRICTION 5 years Remainder ofthe
Administration
COMMENCEMENT OF Termination of employment as Termination of GOvernment
RESTRICTION appointee Service

 

35

 

 

 

A lobbying activity occurs ?with respect to? that
agency ifthe activity involves:

A communication to a covered executive branch
official at that agency (component designations may be available)



Efforts intended, at the time of performance, to
support such a communication to a covered
executive branch official at that agency

 

 

36

 

18

4/26/2017

 

A lobbying activity occurs ?with respect to?
certain officials ifthe activity involves:

- A communication to a covered executive branch
official or non~career SES



Efforts intended, at the time of performance, to
support such a communication to a covered
executive branch official or non-career SES

 

 

37

 

Post-Employment

Lobbying Activity Restrictions

 

RESTRICTED ACTIVITY Lobbying Activities
WITH RESPECT TO Former appointee's Covered executive branch
former agency of?cials throughout the

executive branch.

executive branch Non-career senior executive
. . I I
of?cials atf rmer a omtee 5 service appomtees throughout

the executive branch.
LENGTH OF RESTRICTION 5 years Remainder of the
Administration
COMMENCEMENT OF Termination of employment as Termination of Government
RESTRICTION appointee Service

 

38

 

 

19

4/26/2017

Post?Employment

Lobbying Activity Restrictions

 

 

 

Lobbying Activities

RESTRICTED ACTIVITY
WITH RESPECT TO Former appointee?s
former agency
MEANS:
Covered executive branch
of?cials 
maxim
LENGTH OF RESTRICTION 5 years
COMMENCEMENT OF Termination of employment as
RESTRICTION appointee

Covered executive branch

of?cials throughout the
exgcgive branch.

Non-career senior executive
service appointees throughout
the executim branch.

Remainder ofthe
Administration

Termination ofGovernment
Service

39

 

 

 

Write to various exec branch officials
seek support for his client's research

Assist his client in preparing for a
meeting with one of the officials

Assist his client in understanding grant
application process and guidelines that
agency established for research projects

Request the status of an action
affecting his client.

 

lagree, upon leaving
Government service,
not to engage in
lobbying activities with
respect to any covered
executive branch
of?cial or non-career
Senior Executive
Service appointee for
the remainder of the
Administration.



 

 

20

 

 

1Write to a cave red executive branch
?dfficial at N'lH?to seek support for "his
@l'i-e research:

IiAssist his client in preparing for a
{meeting with the FDA official

ifContact covered legislative branch
official to discuss pending legislation
"that could affect research projects

 

[will not, within 5
years after the
termination of my
employment as an
appointee in any
executive agency in
which I am appointed
to serve, engage in
lobbying activities
with respect to that
agency.

 

41

 

LA-17-03: Guidance on

Executive Order 13770

US. Of?ce ofGovernment Ethics
Advanced Practitioner Webinar
Thursday, April 27, 2017

 

4/26/2017

21

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Question 7: Land and Water Conservation

For more than 50 years, the Land and Water Conservation Fund has been one of the most
powerful tools we have available to preserve and ensure access to America?s most iconic
landscapes. It is a tool that has created or expanded thousands of treasured hunting,
fishing and hiking opportunities and it has protected our cultural heritage. That?s why the
Land and Water Conservation Fund is supported by hundreds of organizations from
around the country representing sportsmen, conservationists, veterans and outdoor
enthusiasts from all backgrounds. In fact, according to a recent Western States Survey,
more than 80 percent of people supported reauthorizing the LWCF.

Mr. Bernhardt, do you think Congress should directly and fully fund the Land and Water
Conservation Fund at its authorized level so it is not subject to future appropriations?

Mr. Bernhardt, if Congress appropriated the fully authorized $900 for the Land and Water
Conservation Fund for fiscal year 2020, how would the Department of the Interior use
those funds?

Mr. Bernhardt, how would funding at the full level compare to what the LWCF would
accomplish under the President?s FY 2020 budget request?

Response: I support the Land and Water Conservation Fund, and applaud Congress for
permanently reauthorizing this fund as part of the John D. Dingell Jr. Conservation, Management
and Recreation Act, which became law just three weeks ago. I would be happy to engage in
discussions with the Committee on different and creative ways to implement the LWCF.

Question 8: Offshore Drilling

Last year, your predecessor Secretary Zinke directed the Bureau of Ocean Energy
Management to develop the National Outer Continental Shelf Oil and Gas Leasing
Program for 2019-2024. The program would attempt to allow oil and gas drilling in over 90
percent of U.S. coastal waters, including off the Washington state coastline. This is
unprecedented and along with many of my colleagues, I have heard from communities and
businesses throughout my state and they are extraordinarily concerned about the impacts
offshore drilling with have on local economies. In fact, local legislators, governors,
businesses, and others affected by these decisions told Secretary Zinke and the Department
of Interior that they do not want to expand offshore drilling activities on coasts?especially
in the Paci?c.

Mr. Bernhardt, do you support opening any or all waters off the coat of Washington state
to offshore drilling and gas exploration, development of production?

23

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Mr. Bernhardt, do you value public comment on proposed Department of the Interior
activities? How do you plan to weigh and incorporate public comments on the National
Outer Continental Shelf Oil and Gas Leasing Program for 2019-2024?

Mr. Bernhardt, if there is Congressional opposition, opposition from a state?s Governor
and the State is under a federal offshore drilling moratorium until 2022, will you commit to
removing that state from the National Outer Continental Shelf Oil and Gas Leasing
Program for 2019-2024?

Response: In formulating an Outer Continental Shelf leasing program, the Outer Continental
Shelf Lands Act (OCSLA) requires the Secretary of the Interior, through the Bureau of Ocean
Energy Management, to set a schedule of proposed lease sales that indicates the size, timing, and
location of leasing activity that ?best meets national energy needs.? The OCSLA also
Specifically requires the Secretary to invite and consider comments from the Governors of any
affected state. Comments from the public, governors, Members of Congress, tribes, and
stakeholders are an integral part of Program development. The governing statute provides
multiple opportunities for participation though public meetings, scoping meetings, and open
houses. In addition, if con?rmed, I will be happy to meet with governors, Members, and other
interested parties affected by the development of offshore energy whether it be in the form of
fossil fuels or renewable energy.

Question 9: North Cascades Grizzly Bear Recovery

Last year, former Secretary Zinke visited Washington state and on Friday March 22, 2018,
former Secretary Zinke publicly stated his support for Grizzly Bear Restoration in North
Cascades National Park and the surrounding ecosystem. A quote from former Secretary
Zinke in a U.S. Department of the Interior press release stated:

?Restoring the grizzly bear to the North Cascades ecosystem is the American conservation
ethic come to life, said Secretary Zinke. ?We are managing the land and the wildlife
according to the best science and best practices. The loss of the grizzly bear in the North
Cascades would disturb the ecosystem and rob the region of an icon. We are moving forward
with plans to restore the bear to the North Cascades, continuing our commitment to
conservation and living up to our responsibility as the premier stewards of our public land. 

According to a poll conducted by Tulchin Research, found that 81% of those who were
pulled agree that ?the State of Washington should make every effort to help grizzly nears

recover and prevent their disappearance.?

The Federal Government has invested over $1 million dollars over four years in North
Cascades Grizzly Recovery and the work is not complete.

Congressional Report language in the 2019 Consolidated Appropriations Act stated:

24

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

The Conferees direct the Service to work with ranchers, conservation groups, local
governments, and other local partners to reduce con?icts between grizzly bears and livestock.
These efforts should draw upon lessons learned with the Wolf Livestock Loss Demonstration
Program to improve conservation outcomes while limiting effects to agricultural producers.
Not less than 30 days after the date of enactment of this Act, and for a duration of not less
than 90 days, the Service and the National Park Service are directed to re-open the public
comment period regarding the draft environmental impact statement with proposed
alternatives for the restoration of grizzly bears to the North Cascades Ecosystem. Any member
of the public in attendance at any of the associated public forums and wishing to voice their
opinion must be afforded the opportunity to do so.

Mr. Bernhardt, can you describe at what stage is the current North Cascades Grizzly Bear
Environmental Impact Statement 

Response: The National Park Service and Fish and Wildlife Service held a public comment
period on the draft EIS with proposed alternatives for the restoration of grizzly bears to the North
Cascades Ecosystem in early 2017 and received over 126,000 comments. In accordance with the
Congressional Report language, the two bureaus are preparing to reopen the comment period to
allow additional opportunity for public input.

Mr. Bernhardt, when will the Department re-open the public comment period on the North
Cascades Grizzly Bear Will the Department host additional public meetings? When
and where will these public meetings occur?

Response: In accordance with the Congressional Report language, the National Park Service
and Fish and Wildlife Service are preparing to reopen the comment period to allow additional
opportunity for public input. I expect the notice to be published in the coming weeks, and for
public meetings to be held shortly thereafter.

Mr. Bernhardt, following the additional public comment period, will the Department
finalize the North Cascades Grizzly Bear What is the timeline for ?nalizing the 

Response: Following the additional public comment period, the next steps for the National Park
Service and Fish and Wildlife Service include review of comments received; preparation of a
?nal BIS (which will include written responses to public comments); issuance of the ?nal 
and issuance of a ?nal Record of Decision. The timeline for that process will depend on the
number of public comments received and the scope of those cements.

Mr. Bernhardt, do you support your predecessor?s statement on the need to restore the
grizzly bear in the North Cascades ecosystem?

Response: I believe that we all bene?t from the conservation of the grizzly bear. In addition,

any effort to introduce bears must fully address the impacts to people and communities from
such efforts, including public safety.

25

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Question 10: Goat Mountain Mining Project

On December 3, 2018, the Bureau of Land Management released the Finding of No
Signi?cant Impact (FONSI) and Decision Record (DR) on the Goat Mountain Hard Rock
Prospecting Permit Applications. This decision awards a mining company, Ascot USA, two
hard rock prospecting permits within the Gifford Pinchot National Forest, about 12 miles
northeast of Mount St. Helens and adjacent to and extending from the boundary of the
Mount St. Helens National Volcanic Monument.

The Green River valley is a very popular recreation destination for hunting, fishing,
backcountry horse riding, hiking, and camping due to its scenic beauty, healthy ?sh and
wildlife populations, and proximity to the Monument. In addition, the Green River has
been found by the Forest Service to be eligible for designation as a Wild and Scenic River
and has been designated by the state of Washington as a Wild Steelhead Gene Bank. The
Green River is also an important human resource, as it ?ows into the Cowlitz River, which
supplies municipal drinking water for hundreds of people that live in 
communities.

The Forest Service purchased the land on which the Goat Mountain Project is proposed in
1986 with funding from the Land and Water Conservation Fund. As such, mineral
development can only be authorized by the Secretary of the Interior, when advised by the
Secretary of Agriculture, that ?such development will not interfere with the primary
purposes for which the land was acquired and only in accordance with such conditions as
may be specified by the Secretary of Agriculture to protect such purposes.? 5 U.S.C App. 1,
402. Before purchasing this land, the Forest Service sent a letter to Washington?s
Congressional delegation stating that the Forest Service?s acquisition of the property would
be to ?aid in the preservation of the integrity of the Green River prior to its entering the
National Volcanic Monument, and will also aid in the preservation of the scenic beauty of
this area which is to become an important Monument portal.?

I believe hard rock mining does not meet the intention of conserving the land for recreation
purposes. The uses are inconsistent and commercial extraction of non-renewable natural
resources seems completely at odds with the core principle of the Land and Water
Conservation Fund.

Mr. Bernhardt, do you believe hard rock mining, including exploratory drilling, should
occur on lands purchased through the Land and Water Conservation Fund?

Response: As you note, Congress speci?cally addressed the conditions where it is appropriate to
consider such activities by adding the condition you referenced. If that is the case, it would seem
the agency?s decision would depend on whether or not ?such development will not interfere with
the primary purposes for which the land was acquired and only in accordance with such
conditions as may be speci?ed by the Secretary of Agriculture to protect such purposes.?

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Question 11: Bureau of Indian Affairs Reorganization

At the 2019 Tribal Nation?s Policy Summit winter session of the National Congress of
American Indians, you stated the Bureau of Indian Affairs will remain intact and ?will
remain intact as we move forward with any plans to improve the Department of the
Interior.?

Mr. Bernhardt, can you con?rm the Department of the Interior?s reorganization plan does
not include any changes to the Bureau of Indian Affairs programs?

Mr. Bernhardt, can you confirm the Department of the Interior?s reorganization plan, or
any other plan, does not include moving the location of the Bureau of Indian Affairs?

Response: As a result of tribal consultations carried out by the Department, the Bureau of
Indian Affairs, the Bureau of Indian Education, and the Of?ce of the Special Trustee for
American Indians will not realign their regional structures to align with the other bureaus.

Question 12: Impact of Shutdown on National Parks

Local businesses and communities were harmed as a result of the 2018-2019 government
shutdown. One example is the closure of Hurricane Ridge Winter Sports at the top of
Hurricane Ridge in Olympic National Park because the road up to the ridge was closed
because no National Park Service (N PS) personnel were available to plow snow. Likewise,
at Olympic and Rainier National Parks, there were clear impacts to local communities and
businesses from partial closure of the parks, with closed campgrounds and restrooms and
other impacts leading to huge reductions in visits.

Mr. Bernhardt, what is the total amount of fee dollars obligated during the recent
government shutdown and how many parks elected to use fee dollars? Please provide
details on what specific activities were performed using fee revenues and in which parks?
Can you please provide the list of parks and amount of fee dollars used and projects
performed?

Mr. Bernhardt, can you detail the analysis regarding the likely impacts (contractors,
partners, etc) of using fee dollars during the shutdown?

Mr. Bernhardt, how many NPS staff were paid using fee revenues during the lapse in
appropriations?

Mr. Bernhardt, how much revenue was lost during the shutdown because no entrance or
other forms of recreation fees were being collected?

Mr. Bernhardt, what was the total cost of repair to parks as a result of visitation to parks
during the shutdown?

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Mr. Bernhardt, given your decision to replenish the lost fee dollars with the passage of the
FY19 appropriations bills, what speci?c accounts had to be decreased in your operating
budget in 

Mr. Bernhardt, it?s been reported that you have directed that all planned fee projects be
halted until you approve the use of the fee dollars? What is your rationale for that?

Response: During the lapse in appropriations, the NPS, using retained fees collected under the
Federal Lands Recreation Enhancement Act (F LREA) and in accordance with law, was able to
address issues with restrooms and sanitation, trash collection, road maintenance, campground
operations, law enforcement and emergency operations, and basic visitor services. Excepted
staff that worked on speci?ed allowable activities under FLREA were paid. Approximately 100
national parks were approved for the use of FLREA funds during this time.

While many of the smaller sites around the country remained closed, use of these funds allowed
the American public to safely visit many of our national parks while providing these treasures
additional protection and allowing NPS to meet its dual mandate. Importantly, the use of
FLREA funds allowed continued visitor access to some park units, contributing to the economies
of the respective gateway communities. It also meant that those employees who were providing
these services were assured that they would receive a timely paycheck, an assurance that was
comforting to some.

Congress, in the Fiscal Year 2019 Further Additional Continuing Appropriations Act (Public
Law 116-5) that extended appropriations through February 15, 2019, explicitly made such funds
cover the prior period during the lapse. Pursuant to this direction, the NPS was able to move
obligations incurred during the appropriations lapse from the FLREA fee account to the account
for which the charges were originally planned, including the NPS operating account, where most
of these obligations would have been charged. The actions taken under these provisions, which
were con?rmed by the Of?ce of Management and Budget, allowed NPS to fully restore FLREA
balances to pre-lapse levels.

The Department is currently evaluating impacts to natural resources and infrastructure that
occurred during the period of this lapse of appropriations from available funding. The
Department is also collecting information related to the amount of revenue obligated during this
period, and anticipates that additional information will be available early in the third quarter of
operations. FLREA projects have been reviewed to ensure consistency with the law, and are
continuing to be implemented across the country.

I hope that we will not be faced with another lapse of appropriations. However, I believe that
this action provides critical direction for similar situations in the future. First, our national parks
should not be made the public face of another lapse in ?mding, and we will be prepared to use
these fees, as available, immediately for appropriate staf?ng, basic services, and other bureau
needs in accordance with the authorities provided by law. In addition, we have modi?ed our

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

contingency plans for the NPS and for the other relevant bureaus to ensure that in the event of a
future lapse, we are prepared to use these fees for these allowable purposes.

Question 13: National Register of Historic Places

The Department of the Interior is proposing new regulations for the National Register of
Historic Places that establishes weighted objections to listings by allowing the percent of
land ownership to be a determining factor in objections.

Mr. Bernhardt, can you explain under what Congressional authority are you able to create
a rule change that effectively changes the American voting structure?

Response: The proposed rule does not change the American voting structure. The proposed
regulations you reference are intended to implement amendments to the National Historic
Preservation Act included in the National Park Service Centennial Act of 2016 and to ensure
that, if the owners of a majority of the land area in a proposed historic district object to listing,
the proposed district will not be listed over their objection. Importantly, the 60-day comment
period on these proposed regulations is open and will close on April 30, 2019, after which the
NPS will care?illy consider the comments received on this proposal.

Question 14: Disposable Plastic Water Bottle Recycling and Reduction

In August of 2017, the Department of the Interior overturned the prior Administration's
"Disposable Plastic Water Bottle Recycling and Reduction" program, which was
effectively a ban on the sale of plastic water bottles inside units of our National Park
System. I absolutely support efforts to preserve customer choice, but plastic pollution
remains one of the great environmental challenges of our time.

Mr. Bernhardt, as you prepare to more formally assume leadership of the Department of
the Interior, I ask that you make time to focus on this issue of plastic pollution. Consistent
with that request, I have a couple questions:

Following the decision in August of 2017 to overturn the prior Administration's ban on
plastic water bottle sales inside units of the National Park System, has the Department
undertaken any work on alternative approaches to mitigating or preventing plastic
pollution on our federal lands and in our federal waters?

If not, can you please commit to providing me and the committee with a plan to do so
within four months of being confirmed by the Senate?

Response: The NPS continues to promote recycling and reduce plastic waste while still

providing as many safe, healthy hydration options as possible to visitors. Many parks have
worked with partners to provide free potable water in bottle ?lling stations located at visitor

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Senate Energy and Natural Resources Committee
March 28, 2019

centers and near trailheads. At other parks, concessioners have implemented disposable water
bottle reduction programs in consultation with park management and many parks conduct an
annual clean-up, typically in partnership with the local community, and have information
available in visitor centers on the importance of reducing waste. Several coastal parks also
participate in research and monitoring projects related to marine debris and microplastics.

For FY 2018, the NPS reported that its solid waste management efforts are improving, as
measured by the waste reduction rate, which measures parks? success in diverting waste from
land?lls. The rate for FY 2018 was 41.97%, compared to 31% for FY 2017. I will continue to
support the effort to increase the diversion of waste from land?lls.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Questions from Senator Sanders
Climate Change

Question 1: The Department of the Interior?s (DOI) mission, as stated on website, is
to ?conserve and manage [our] Nation?s natural resources and cultural heritage.? The vast
majority of scientists tell us that climate change poses a number of serious risks to our
nation?s precious natural resources and cultural heritage, and that burning fossil fuels is
the primary driver of climate change. Therefore, extracting and burning fossil fuels
directly threatens our nation?s natural resources and cultural heritage.

In the hearing to consider your nomination for DOI Deputy Secretary, you stated the
following regarding your views on climate change:

?We are going to look at the science, whatever it is, but policy decisions are made. This
president ran, he won on a particular policy perspective. The perspective is not going to
change to the extent that we have the discretion under the law to follow 
absolutely going to follow the policy perspective of the president.?

a. Do you agree that climate change is the greatest threat to our nation?s natural
resources and cultural heritage? If not, why not? If so, why did you not mention the threat
of climate change at all in your testimony?

Response: As I indicated at that hearing, I recognize the climate is changing and that man is
contributing to that change and the science, including in the fourth assessment, indicates that
there is a lot of uncertainty in projecting future climate conditions.

b. Please outline your plan, including a timeline, for addressing climate change by
ending any DOI activities, such as the extraction of fossil fuels from our nation?s public
lands that contribute to climate change.

Response: As I indicated at my hearing, I recognize that the climate is changing, man is
contributing to that change, and the science indicates there is uncertainty in projecting future
climate conditions. The Department of the Interior?s role is to follow the law in carrying out our
responsibilities using the best science. The laws governing Interior - such as the Federal Land
Policy and Management Act - require us to manage our onshore federal resources on the basis of
multiple use and sustained yield, which includes energy development. We are carrying out that
statutory mission and will do so until Congress directs us differently. While I agree that the
impacts of a changing climate need to be understood and addressed, the Department?s role is to
follow the law in carrying out our responsibilities. The laws that govern our resources
management actions on public lands and offshore areas generally require us to manage these
areas for maximum sustained yield of multiple uses, including energy development.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Question 2: On March 28, 2017, the president issued an Executive Order, Promoting
Energy Independence and Economic Growth, which included several provisions that would
cause DOI to increase the extraction of fossil fuels, thereby violating its mission to conserve
and manage our nation?s natural resources and cultural heritage as well as contributing to
climate change. Those provisions include:

a. Lifting any and all moratoria on federal land coal leasing activities related to
Secretary?s Order 2228.
b. Reviewing and suspending, revising, or rescinding the rules entitled ?Oil and Gas;

Hydraulic Fracturing on Federal and Indian Lands,? ?General Provisions and Non-
Federal Oil and Gas Rights,? and ?Management of Non Federal Oil and Gas Rights,? all of
which limit fossil fuel extraction on public lands.

If con?rmed, will you carry out the mission to protect our nation?s natural resources
and cultural heritage, or will you instead carry out the policy laid out in the
aforementioned Executive Order? Are there any other policies of the President you intend
to carry out that would violate mission protect our nation?s natural resources and
cultural heritage?

Response: I do not agree with the assertion that there is an inconsistency between the Executive
Order and the Department?s mission as set out in law. As I indicated in response to the previous
question, while I agree that the impacts of a changing climate need to be understood and
addressed, the Department?s role is to follow the law in carrying out our responsibilities. The
laws that govern our resources management actions on the public lands and offshore areas
generally require us to manage these areas for maximum sustained yield of multiple uses,
including energy development.

Question 3: In a March 20, 2019 CBS interview, EPA Administrator Andrew Wheeler
stated that ?most of the threats from climate change are 50 to 75 years out.? However, the
vast majority of the world?s scientists tell us that climate change is already causing rising
sea levels, increasing hunger and illness, extinction of species, and more frequent and
intense extreme weather all around the world.

Do you agree with the vast majority of scientists, or do you agree with Administrator
Wheeler?s statement that ?most of the threats from climate change are 50 to 75 years out??

Response: I am unfamiliar with Administrator Wheeler?s comments or the context in which he
made them. My views are re?ected above in the previous response

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Question 4: Do you accept the following findings from the Fourth National Climate
Assessment on climate change-related impacts happening now?

a. Declines in surface water quality due to intensifying droughts, increasing heavy
downpours, and reduced snowpack.

b. Increased air quality and health risks from wildfire and ground-level ozone
pollution due to changes in temperature and precipitation.

c. Increased damage to America?s trillion-dollar coastal property market and
infrastructure due to increased frequency of high-tide ?ooding events driven by sea level
rise.

d. Decreasing productivity of certain fisheries and damage to the marine ecosystems
on which many of our coastal communities rely for livelihoods and recreation due to rising
water temperatures, ocean acidification, retreating arctic sea ice, coastal erosion, and
heavier precipitation.

Response: As I indicated at that hearing, I recognize the climate is changing and that man is
contributing to that change and the science, including in the fourth assessment, indicates that
there is a lot of uncertainty in projecting future climate conditions.

Public Lands

Question 5: In the hearing to consider Ryan Zinke?s nomination for DOI Secretary, he told
me that he was ?absolutely against the sale or transfer of public land.? In response to my
questions for the record for the hearing to consider your nomination for DOI Deputy
Secretary, you stated that you shared then-Secretary Zinke?s ?opposition to the sale or
wide scale transfer of federal lands.? And, in a March 6, 2019 speech to the North
American Wildlife and Natural Resources Conference, you stated that the Trump
administration opposes ?large scale transfer [of public lands].?

After he was con?rmed, then-Secretary Zinke conducted the largest rollback of federal
land protection in our nation?s history by proposing to slash the boundaries of the Bears
Ears and Grand Staircase-Escalante National Monuments by more than two million acres.
He also proposed to open the majority of U.S. coastal waters to oil and gas drilling in the
largest offshore lease sale in American history and ordered the largest ever lease sale of the
National Petroleum Reserve.

a. Do you believe it is appropriate for cabinet nominees, such as yourself, to lie to
United States Senators during their constitutionally-mandated confirmation process?

Response: I do not agree with the premise of your question that Secretary Zinke lied. I believe
it is unwise for any public of?cial, whether elected or otherwise, to be untruthful.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

b. Given that the Trump administration opposes the large scale sale or transfer of
public lands, please outline your plan, including a timeline, for reversing the decisions to
shrink the boundaries of the Bears Ears and Grand Staircase-Escalante National
Monuments, open up U.S. coastal waters and land to increased oil and gas drilling, and
conduct the largest ever lease sale of the National Petroleum Reserve.

Response: To be clear, the President?s proclamations issued under the Antiquities Act did not
sell or transfer any lands out of federal ownership. Rather, as you may be aware, the
Department, as it did before the issuance of the proclamations, continues to manage the public
lands that were included within the original boundaries of Bears Bars and Grand Staircase-
Escalante National Monument. Similarly, the authorizations of conventional or renewable
energy development do not include the sale or transfer of any lands out of federal ownership.

Oil and Gas Leases

Question 6: In January 2018, DOI issued an internal Instruction Memorandum on oil and
gas leasing rules that would make the National Environmental Policy Act review processes
optional for potential oil and gas leases, eliminate the requirement for oil and gas lease site
visits by DOI officials, and shrink the lease sale parcel protest period from 30 days to 10
days.

In response to my questions for the record for the hearing to consider your nomination for
DOI Deputy Secretary, you stated that you would ?advance Secretary Zinke?s conservation
agenda in a manner that is rooted in and supported by input from a wide array of
stakeholders, particularly those state and local communities most directly affected by the
decisions the Department makes.? Furthermore, in your testimony, you stated that you
would ?actively seek input and listen to varied views and perspectives to help ensure the
conclusions [you] draw are well informed.?

Given that the January 2018 Instruction Memorandum on oil and gas leasing rules would
severely limit input from state and local communities most impacted by decisions on
oil and gas leases, please describe your plan, including a timeline, for withdrawing the
Memorandum and replacing it with guidelines that are ?rooted in and supported by input
from a wide array of stakeholders, particularly those state and local communities most
directly affected by the decisions the Department makes.?

Response: The Department values meaningful public participation and an ef?cient
environmental review process in the implementation of its onshore oil and gas program. The
BLM observed a trend regarding protests over the past several years in which the percentage of
parcels protested from the original sale notice had increased dramatically. This 10 day period is
in addition to multiple opportunities for public participation and engagement through the BLM
planning process under FLPMA and NEPA processes.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Question 7: In my questions for the record for the hearing to consider your nomination for
DOI Deputy Interior Secretary, I asked you if you could commit to the highest
environmental protections for the Atlantic Region, Pacific Region, and Alaska Region,
including the Beaufort, Chukchi, and North Aleutian Basin Planning Areas, identical with
those provided by the Obama Administration, in your execution of President Trump?s
April 28, 2017 Executive Order to open our outer continental shelf to oil and gas drilling.
You responded by stating that you were unaware of the details regarding the ongoing
review of the Five Year Offshore Leasing Program.

Given that you have now had ample time to familiarize yourself with this plan, will you
commit to the highest environmental protections for the Atlantic Region, Paci?c Region,
and Alaska Region, including the Beaufort, Chukchi, and North Aleutian Basin Planning
Areas, identical with those provided by the Obama Administration? If so, please provide a
plan, including a timeline, for withdrawing the 2019-2024 National Outer Continental Shelf
Oil and Gas Leasing Draft Proposed Program and instead working to end all drilling in the
Outer Continental Shelf. If not, why not?

Response: The Department?s offshore energy development and safety activities are an
important component of the Administration?s policy of ensuring long term energy and economic
security. The Administration?s America First Offshore Energy Strategy calls for boosting
domestic energy production to stimulate the Nation?s economy and to ensure national security,
while providing for responsible stewardship of the environment. The process of review and
development of draft documents and proposals is currently ongoing. management of
the Nation?s OCS oil and gas, marine minerals, and renewable energy resources will continue to
be informed through environmental assessments, studies, and partnerships conducted under its
Environmental Programs. These efforts are vital to ensuring that the impacts of OCS activities on
the environment are understood and effective protective measures are put in place.

Question 8: In September 2018, DOI proposed eliminating safety rules for offshore oil and
gas drilling that were adopted following the Deepwater Horizon accident, which killed 11
people and spilled 134 million gallons of oil into the Gulf of Mexico. This spilled oil
decimated local economies and ecosystems. DOI now says that less rigid inspection and
equipment requirements would have ?negligible? safety and environmental risks.

a. Do you believe worker deaths are a negligible safety risk?

Response: No, I do not.

b. Do you consider 134 million gallons of spilled oil to be a ?negligible? environmental
risk? If not, please outline your plan, including a timeline, for withdrawing proposal

to modify these safety rules.

Response: No, I do not. The Department?s efforts, through the Bureau of Safety and
Environmental Enforcement, to review the 2016 Well Control Rule for consistency with the

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

policy set forth in Executive Order 13795, are aimed at improving the rule by codifying
longstanding internal policies; revising provisions from which requests for alternate procedures
or equipment were routinely granted; adding explanatory text to clarify existing regulations; and
revising or removing provisions that provided no additional safety bene?t, but increased
regulatory complexity. These efforts are informed by career subject matter experts as well as
independent organizations. In the wake of, and in response to, the Deepwater Horizon tragedy,
14 different organizations issued 26 separate reports. These reports contained a total of 424
recommendations to BSEE. BSEE considered the recommendations of these 14 organizations as
inputs from outside, independent experts. The effect of this input is re?ected in the draft revised
Well Control Rule in that no proposed revision con?icts with or ignores any of the 424
recommendations made by those organizations.

BSEE also solicited input from a variety of stakeholders to identify potential revisions to the
regulations promulgated through the draft revised Well Control Rule that would clarify unclear
provisions of the original rule or reduce regulatory burdens without impacting safety and
environmental protection.

Question 9: On January 22, 2019 I joined 13 of my Senate colleagues in sending you a letter
requesting information on the Bureau of Ocean Energy Management?s (BOEM) decision to
continue work on the National Outer Continental Shelf Oil and Gas Leasing Program
during the partial government shutdown. response, sent by BOEM Acting Director
Walter Cruickshank, ignored several important aspects of our letter, so I will repeat those
questions here.

In the Explanatory Statement accompanying the Consolidated Appropriations Act of 2018,
Congress provided $171,000,000 for BOEM in Fiscal Year 2018, and included full funding
for the five-year offshore leasing program through regular appropriations. At the time of
our letter, what speci?c accounts, subaccounts, and programs were DOI and BOEM
relying on to fund the continuation of the oil and gas activities referenced in our letter?
Were these funds being used for other activities under the BOEM December 2018
contingency plan following the start of the government shutdown, and if so, what were
those activities? Were these funds being used for other activities under the normal
operations of the government prior to the shutdown on December 22, 2018, and if so, what
were those activities?

a. Were essential functions of emergency response and support for Bureau of
Safety and Environmental Enforcement permitting operations short-staffed during the
ongoing shutdown? If so, could the carryover funds used to support the 40 on-call
employees working on the National OCS program have otherwise been used to support
these Shorthanded essential functions?

Response: To support activities and employees identi?ed as ?exempt? under the January 2019

contingency plan, BOEM utilized the direct appropriations and offsetting collections funds
provided by the Consolidated Appropriations Act, 2018, to the Ocean Energy Management

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

account, speci?cally the Conventional Energy, Environmental Programs, and Executive
Direction budget activities. BOEM had a limited amount of these ?mds le? over from FY 2018
(such funding is termed ?carryover?) that was therefore available to fund FY 2019 mission
functions in a manner consistent with appropriations language. Because this carryover was
appropriated in FY 2018 and not expired (direct appropriations are available for two years and
offsetting collections are available until expended), it was not subject to the FY 2019 lapse in
appropriations.

Carryover funds were not used for activities identi?ed in the Contingency Plan published
December 27, 2018. That version of the plan stated that none of the employees performing
excepted functions were funded (?Number of exempt employees whose compensation is
?nanced by a resource other than annual appropriations (carryover): None?). BOEM refers to
guidance from the Of?ce of Personnel Management on the determination and de?nition of
excepted (vice exempt) functions and how employees performing those ?inctions are paid during
a lapse in appropriations. Prior to the shutdown on December 22, 2018, carryover funds had
been used to support ongoing mission work similar to the work undertaken during the shutdown.

b. Was the scope of activities related to the Environmental Compliance Monitoring
program, which include monitoring for compliance with the Clean Air Act and Clean
Water Act, at all curtailed during the shutdown, and if so, to what extent? Please include
any reductions in personnel, inspections or other relevant activities.

Response: There was no potential of short-staf?ng. contingency plan provides for
over 60 BOEM employees to be on call to respond to BSEE requests for support in emergency
situations.

Land and Water Conservation Fund
Question 10: On February 15, 2019, you tweeted the following:

?There?s a lot to agree on in the #public lands package from the senate. The Trump
administration fully supports reauthorizing and we included it in our budget last
year.?

President Trump?s FY2020 budget request would slash the Land and Water Conservation
Fund?s (LWCF) budget by 95 percent. A 95 percent budget reduction is not consistent with
support for the LWCF. If confirmed, will you commit to submitting a FY2021 budget
request for full funding for the LWCF of $900 million?

Response: I support the Land and Water Conservation Fund, and applaud Congress for
permanently reauthorizing this fund as part of the John D. Dingell Jr. Conservation, Management
and Recreation Act, which became law just three weeks ago. LWCF has only been fully funded
by Congress twice since its enactment in 1965. Whatever funding level Congress chooses for
this program, the Department under my leadership will faithfully execute the goals of LWCF.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Questions from Senator Sanders

Question 11: If, like in FY19, Congress chooses to ignore the President?s budget request
and appropriate the LWCF budget at a higher level than the President?s budget request in
future ?scal years, will you commit to ensuring that all grant funds are awarded and
delivered to their recipients in an expeditious manner?

Response: I commit to implementing the LWCF in accordance with laws passed by Congress.

Arctic National Wildlife Refuge

Question 12: Public Employees for Environmental Responsibility recently released a
number of DOI documents which show that federal scientists believe there are signi?cant
gaps in scientific information related to fossil fuel extraction on the coastal plain of the
Arctic National Wildlife Refuge (ANWR), and that numerous additional scienti?c studies
related to vegetation, caribou, polar bears, birds, water, subsistence, cultural resources,
fish, and public health are necessary before moving forward with fossil fuel extraction-
related activities in ANWR. DOI attempted to hide these documents from the public, failed
to clearly identify them in the draft Environmental Impact Statement (EIS) to implement
an oil and gas leasing program within ANWR, and refused to release them in response to
relevant Freedom of Information Act requests.

a. If con?rmed, will you commit to publicly releasing any pertinent documents from
federal scientists regarding this draft If so, please provide a timeline for releasing
these documents.

b. Will you commit to ensuring that the draft EIS is revised and re-released to include
all areas for which federal scientists believe more scientific research is necessary? If so,
please provide a timeline for revising and re-releasing the draft EIS.

Response to a and b: DOI routinely releases scienti?c papers that have bearing on the
Department?s programs to the public, and this case is no different. The referenced documents
were considered in the development of the leasing program and Draft EIS. The Department and
the Bureau of Land Management are complying with the requirements of the authorizing
legislation, the Tax Cuts and Jobs Act of 2017, the National Environmental Policy Act, and other
relevant statutes, as we move toward conducting lease sales and providing for responsible
development of these important resources. The agencies involved determined that data from the
suggested studies were unnecessary to assure that the Draft EIS contained a robust
environmental analysis of potential impacts of leasing for each of the referenced resources.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Questions from Senator Stabenow

Question 1: It seems that I should remind you of the critical role the Interior Department
plays in preserving the health of the Great Lakes, which hold 21% of the world?s surface
freshwater, provide drinking water to more than 30 million people, and support a $6
trillion economy.

The U.S. Fish and Wildlife Service, and the U.S. Geological Survey provide key research on
water-quality and fish stocks, and conduct essential work to prevent the spread of invasive
species like Asian carp that would decimate the Great Lakes.

But either this Administration has forgotten about this vital work, or considers it
unimportant, because it has proposed a 14 percent budget cut to the USGS and a 16
percent cut to the US Fish and Wildlife Service for ?scal year 2020 including a 28 percent
cut to their efforts to combat Asian carp which as I explained during your confirmation
hearing for Deputy Secretary, are an eminent threat to the Great Lakes.

Given your and this administration?s efforts to suppress science and exploit natural
resources for mineral extraction and fossil fuel production, how can we trust you to protect
the Great Lakes, especially when it?s not even a priority for this President?

Response: I do not agree with the premise of your question. I support scienti?c integrity and
have great respect for the work that Department scientists carry out. The Department is one of
our country?s principal stewards for the Great Lakes and we recognize the connection between
the health of the Great Lakes Watershed and human health and the economy. The Department?s
budget request includes over $66 million for ecosystem work in the Great Lakes, and $107
million for invasive species work. This funding will support a number of federal and non-federal
partnerships focused on critical restoration activities, including projects for aquatic invasive
species management, including Asian Carp and habitat protection and restoration. Upon your
request, if con?rmed I would like to work with you on addressing the Asian Carp situation.

Question 2: During your confirmation hearing for Deputy Secretary, you promised me you
would be ?honest? to science that you would look at it, evaluate it, and honor it. You said
you were certain that scientists at the Interior Department were not under

attack. However, under your leadership, the DOI has gone through great to
suppress science and limit public access to information - all, I might add, in the interest of
fossil fuel projects that benefit companies you once represented as a private attorney.

You signed Secretarial Order 3360 that abolished directions to use the best available
science to increase understanding of climate change. On your watch, the DOI disbanded its
Advisory Committee on Climate Change and Natural Resource Science; and proposed a
rule restricting public access to information through the FOIA process - a proposal so
alarming that even my Republican colleagues have called foul play. The DOI has deleted
its top-level climate change web page, and has implemented a new screening process
requiring scientific grants over $50,000 to be reviewed by political appointees.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Scientists at the Interior Department and 12 other federal agencies recently reaf?rmed the
real threat of climate change in the Fourth National Climate Assessment. Isle Royale
National Park in Northern Michigan is already experiencing significant impacts from
climate change. However, as I understand, the Interior Department has removed all
mention of climate from its latest draft resource management plan for the park.

President Trump said he doesn?t believe federal scientists, and this administration has
clearly proven it has different priorities. The President?s budget for ?scal year 2020 once
again promotes fossil fuels at the expense of clean energy and conservation; and during the
Trump Shutdown, you recalled workers to make sure oil and gas permitting continued 
even while safety and environmental review personnel and national park employees
remained furloughed.

I would like to know what has changed, then, since we last spoke. Either you have
forgotten the commitments you made to me and this Committee, or thought we wouldn?t
notice your of?ce?s blatant attacks on science. Can you square with me how all of these
activities demonstrate your commitment to be fair to science, and not this administration?s
desire to promote fossil fuels over all else?

Response: I do not agree with the premise of your questions. Science plays a critical role in our
decision making process as does the law. Within the Department of the Interior over the last two
years, the number of formal complaints of breach of scienti?c integrity have decreased. In
addition, to further our application of well-grounded science, I have appointed a career scientist
to serve as the Science Advisor to the Acting Secretary/Deputy Secretary, and ifI am con?rmed,
he will continue to serve in the Immediate Of?ce of the Secretary. There is no question that
scienti?c integrity should underpin agency actions. As I have stated, my view is that an agency?s
decisions should be predicated on the best information, including an evaluation of science and
application of the law. I believe when scienti?c data is evaluated on its merits and used as a
basis to make legal and policy decisions that are honest to the science, con?icts will be reduced
and those decisions will be reliable and legally sound. I believe when the Department picks and
chooses between data, it is obligated to articulate a reason why it has done so, and it must be able
to connect its conclusions to the facts it ?nds in a rational manner.

This is why I issued Secretary Order 3369 last September promoting open science. This Order is
intended to ensure that the Department of the Interior bases its decisions on the best available
science and provides the American people with enough information to thoughtfully and
substantively evaluate the data, methodology, and analysis used by the Department to inform its
decisions.

Question 3: When Mr. Zinke testi?ed before this Committee during his con?rmation
hearing, he gave us his ?full commitment? to support the Land and Water Conservation
Fund. He recognized it as an ?important program? and pledged to work with Congress to
make it permanent. But to the disappointment of many of my colleagues, he fell short of his
commitments and instead defended a FY2019 Interior budget that proposed a 95 percent
cut to the program.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

This year, both parties in Congress came together to permanently authorize the Land and
Water Conservation Fund as part of the John D. Dingell Jr. Conservation, Management,
and Recreation Act. The Senate overwhelmingly passed this far-reaching lands bill by a
vote of 92 to 8, and the House passed seems both sides agree that
America?s most important conservation and recreation program merits permanent
authority.

LWCF has leveraged over $329 million to protect special places across Michigan. In fact,
one of the largest LWCF investments in the country is our very own Sleeping Bear Dunes
National Lakeshore, where LWCF has invested over $96 million to protect the park?s 65-
mile shoreline and 400-foot dunes for generations more of hikers, kayakers, wildlife
watchers, and ?shermen.

Mr. Bernhardt, weeks after signing a bill that permanently authorizes the LWCF,
President Trump sent Congress a budget proposal that guts its funding in fiscal year 2020.
I don?t understand how you can be a champion for the LWCF and lead a department that
has effectively called for eliminating it. Please explain.

Response: I support the Land and Water Conservation Fund, and applaud Congress for
permanently reauthorizing this fund as part of the John D. Dingell Jr. Conservation, Management
and Recreation Act, which became law just three weeks ago. LWCF has only been fully funded
by Congress twice since its enactment in 1965. Whatever funding level Congress chooses for
this program, the Department under my leadership will faithfully execute the goals of LWCF.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Questions from Senator Cassidy

Question 1: Knowing much of the current focus in the Gulf for energy development is in
deep water exploration and production, folks in my state are concerned about how we
?revive? energy development activity speci?cally in shallow water and on the Outer
Continental Shelf. Royalty rates for new leases on the Outer Continental Shelf (OCS) were
lowered from 18.75 to 12.5 percent but according to the Bureau of Safety and
Environmental Enforcement, shallow water bids decreased by 25 percent compared to
August 2018.

What are your thoughts on additional measures that can be taken to stimulate further oil
and gas exploration and production activity on the 

Response: The prudent development of our abundant offshore energy resources is an important
component of our economic prosperity. There are a number of factors that contribute to positive
market conditions for development of these resources including the economy, energy prices, and
the regulatory environment. As market conditions ?uctuate, the Department has the statutory
authority to adjust royalty rates for future offshore lease sales in accordance with federal law.
The law also requires the Secretary to conduct lease sales on the OCS that ensure fair market
value to the taxpayer. Within this legal framework, I will ensure that the Department continues
to examine ways to improve our programs.

Question 2: It is my understanding that the U.S. Coast Guard and the Bureau of
Ocean Energy Management (BOEM) have not been able to reach a satisfactory
agreement to avoid siting offshore energy project leases in recognized maritime
navigation lanes, including port access routes. Improper siting can result in collisions
between vessels and derricks.

As we continue to expand our offshore energy footprint and seek to ensure the safety
of mariners and energy project workers, will you direct BOEM to conclude a siting
agreement for offshore leases with the U.S. Coast Guard as soon as possible?

Response: Yes, I will work to ensure an appropriate agreement is in place.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Questions from Senator Martin Heinrich

Question 1: My of?ce has been in regular contact with staff from your of?ce and the
Bureau of Reclamation involved in implementing the Aamodt Indian Water Rights
Settlement. Specifically, the parties have been negotiating a path forward to resolve the
forecasted cost-overrun associated with the construction of the Pojoaque Basin Regional
Water System.

Can you confirm that the Bureau of Reclamation will allow for and move forward with
limited construction of the System once the parties agree to a project design, cost, and cost
allocation that addresses the forecasted System cost overrun, pending congressional
authorization of an agreed upon ceiling raise?

Response: The Department has been working diligently with the parties to reach agreement, we
are making progress and hope to reach an agreement soon. We are committed to working with
you on next steps once that agreement is reached.

Question 2: The Compensatory Mitigation Instruction Memorandum issued by the Bureau
of Land Management seems to contradict itself. The IM states does not explicitly
mandate or authorize the BLM to require public land users to implement compensatory
mitigation as a condition of obtaining authorization for the use of the public lands.? In the
next paragraph, the IM states ?Even if FLPMA authorizes the use of compensatory
mitigation, it does not require project proponents to implement compensatory mitigation.?

Which one is it? Does BLM have the authority or not to require compensatory mitigation?

Response: FLPMA does not provide the BLM with the authority to require compensatory
mitigation as a condition of authorization for the use of public lands or to require that project
proponents implement compensatory mitigation. Because of this, the IM referenced in your
question clari?es that the BLM will consider compensatory mitigation only as a component of
compliance with mitigation programs authorized under a state?s policy or statute, federal law
other than FLPMA, or when voluntarily offered by a project proponent.

Question 3: In 2018, the Mexican Wolf Recovery Program reported 21 wolf deaths, which
is an alarmingly high number given last year?s total population estimate for New Mexico
and Arizona combined was only 114 Mexican wolves.

What is the Fish and Wildlife Service?s plan to address and curb this high mortality rate of
endangered Mexican wolves, especially with the data revealing more than half of these wolf
mortalities were illegal kills?

Response: The Fish and Wildlife Service recorded 21 Mexican wolf mortalities in 2018, the
highest documented number of mortalities to occur in a single year. In 2018 compared to prior

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

years, more Mexican wolves were radio-collared providing improved mortality detection, which
is the likeliest explanation for the increase in documented mortalities. The Mexican wolf
population continues to expand in terms of both area occupied and number of wolves. In
addition to promoting Mexican wolf conservation through education and outreach programs, the
FWS continues to investigate and help prosecute illegal Mexican wolf killings.

Question 4: I am glad to learn that the Department of the Interior is talking with the
pueblos about conducting a pueblo-led study of tribal cultural heritage in the Greater
Chaco Area. Such a study could demonstrate how bene?cial it is for all the stakeholders in
the development process to have tribal leaders involved from the very beginning.

However, I am concerned that the initial proposed study area is entirely within the buffer
area where the pueblos (and the New Mexico Congressional Delegation) believe no
development at all should take place.

Would you be willing to work with pueblo leadership to identify a more appropriate area
for this first tribal cultural resource study outside the immediate buffer area around the
park?

Response: As I indicated to you at the hearing, I would be more than happy to visit the site and
meet with you and your constituents about potential development matters there at your request.

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Questions from Senator Hirono

Question 1: Recently in response to questions regarding the new grant review process
being implemented over at DOI Mr. Scott Cameron commented that DOI was in the midst
of finalizing the streamlining process.

When will the entire process be finalized and what will the new grant review process entail,
including the established timeline for each grant review?

Response: The Department just published a proposed rule in the Federal Register, the Financial
Assistance Interior Regulation, which addresses longstanding ethics issues identi?ed by the
Inspector General in the Department?s past administration of grants. In addition, the Department
is currently in the process of implementing a new grants management platform called
GrantSolutions, which is an HHS product. This platform will allow standardization of business
processes across the Department along with providing all of the grants information in a single
repository. This will provide increased transparency, and greater ef?ciency in processing,
accountability, and management. The complete transition to such a program will likely take
years.

Question 2: In July of last year the Department of the Interior, under your leadership, and
NCAA Fisheries proposed a set of sweeping regulatory changes to the Endangered Species
Act that would drastically undermine this law and make it harder for imperiled species to
recover.

What is the status of these proposed regulatory changes?

Response: The proposed revisions to regulations that implement portions of the ESA are in
interagency review.

Question 3: One focus of the Endangered Species Act regulatory proposals released last
summer by D01 and NCAA was the scope of impacts that could be considered when listing
a species or when evaluating actions that could affect listed species and their designated
critical habitats.

In particular, there are at least two proposed changes to the regulations that seem to
minimize or eliminate consideration of the effects of climate change on species survival. In
the proposed changes to Section 4 regulations, the definition of foreseeable future which
is used to determine whether to list a species as threatened would be limited to ?only so
far into the future as the Services can reasonably determine that the conditions potentially
posing a danger of extinction in the foreseeable future are probable.?

In the proposed changes to Section 7 regulations, a planned activity by a federal agency
would be exempt from consultation with the Services if that activity has ?effects that are

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

manifested through global processes? if those effects cannot be reliably predicted or
measured at the scale of the species? current range, or (ii) would result in very small or
insignificant impact on the species or critical habitat, or are such that the risk of harm
to a listed species or critical habitat is remote.?

These two components of the proposed regulations seem to allow the Services to
circumvent consideration of climate change when enforcing the ESA, despite the
widespread scientific consensus on the significant impacts of climate change on species and
habitats. The ESA relies on use of the best available science, and its mandate is to prevent
extinction, so is it not incumbent upon DOI to understand and incorporate information on
climate change into its enforcement of this law?

Response: As I indicated at that hearing, I recognize the climate is changing and that man is
contributing to that change and the science, including in the fourth assessment, indicates that
there is a lot of uncertainty in projecting future climate conditions. An objective of this proposed
revision to portions of the ESA implementing regulations is to clarify the meaning of certain
ambiguous terms that are in the ESA itself but not de?ned in the Act. For example, the law
allows us to list species as threatened when they are likely to become endangered in the
foreseeable future, but it does not explain what ?foreseeable future? means. We aim to provide
the public and our federal agencies with a shared terminology that will increase regulatory
certainty.

Question 4: The Department of the Interior is currently rewriting the regulations that
protect threatened and endangered species. As part of those changes, you are proposing
removing the current, comprehensive protections species receive when they are listed as
threatened and instead only granting protections under a species-specific rule. At the same
time, your Department has recommended slashing the funding appropriated to the Fish
and Wildlife Service for their listing program.

How do you reconcile requiring the agency to do more work to make sure species receive
the necessary protections and providing them with less money to do that work?

Response: The US. Fish and Wildlife Service?s (USFWS) focus on the recovery of species has
resulted in twelve species being delisted and downlisted, and nine species proposed for delisting
and downlisting in this Administration. Our FY 2020 budget request includes $95 million
dedicated to the recovery of species listed under the ESA. By recovering species and returning
them to state and tribal management, we further our commitment to being a good neighbor by
working with states and private landowners on conservation activities, and we are able to focus
our limited resources on those species of greatest conservation need. With proposed FY 2020
Recovery ?mding, the USFWS anticipates proposing or ?nalizing 36 delisting or downlisting
rules.

The request also includes $26.4 million for conservation and restoration activities that can help
keep at-risk species off the threatened and endangered species lists and under the management of

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

our state and tribal partners. The USFWS is committed to strengthening delivery of conservation
under the ESA by making it easier to work with the agency on proactive conservation efforts for
species. By investing in reducing threats to species and their habitats before they become
critically imperiled, ?iture conservation efforts are likely to be less costly, more ?exible, and
more likely to result in successful conservation over time.

Question 5: On Tuesday the 26" the NYT reported that you personally intervened in the
biological opinions for chlorpyrifos and two other pesticides and that four years of work by
career scientists that was ready for review by the public was shelved subsequent to your
intervention. The story included the newly released analysis by FWS career staff, which
included the finding that almost 1400 endangered species are being put on the path to
extinction by chlorpyrifos.

Is it true that under the Endangered Species Act a biological opinion must be based on the
best available science at the time?

In the 18 months that you have been Deputy Secretary, how many biological opinions have
you personally intervened in? How many times has the Department purposefully withheld
or delayed the sharing of scientific information with the public? Is it also true that the
Endangered Species Consultation Handbook does not contemplate Secretary level review
of any biological opinion but instead that they are to be reviewed by the director of the


Response: I serve as Deputy Secretary in an operating environment where there is no Senate
con?rmed Solicitor, Assistant Secretary for Fish and Wildlife and Parks, or a Director of the
US. Fish and Wildlife Service. As a result, over the course of the last nineteen months I have
found myself engaged in many activities that I would greatly prefer others were spending their
time and focus on.

However, my lawful ability to be engaged in a vast array of activities within the Department of
the Interior ?ows from the reality that I act with all of the Authority of the Secretary of the
Interior. I serve as his or her alter ego. Theoretically, I can exercise all of the authority of the
Secretary of the Interior.

I disagree with the factual premise of your question. Science related to the biological opinions
for the pesticide related consultations have not been ?shelved?, but are undergoing further review
and improvement.

Biological Opinions must be consistent with the law and science. They must comport with 
regulations. I am aware of no case in which the Department has purposely withheld or
improperly delayed the sharing of scienti?c information with the public, where disclosure was
appropriate during my tenure. I issued Secretary?s Order 3369 last September promoting open
science. This Order is intended to ensure that the Department of the Interior bases its decisions
on the best available science and provides the American people with enough information to

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

thoughtfully and substantively evaluate the data, methodology, and analysis used by the
Department to inform its decisions.

Under section 7 of the ESA, each federal agency involved in the consultation is required to
use the best scienti?c and commercial data available. The ESA assigns authority for
implementing the Department?s role in Section 7 to the Secretary, but that authority is also
delegated to the Assistant Secretary of Fish Wildlife and Parks, and then to the Director of the
Fish and Wildlife Service and further delegated by the Fish and Wildlife Service Manual to
career senior executives or their subordinate managers. The Consultation Handbook re?ects the
Service?s internal delegations, and decision authority for the pesticide biological opinions follow
those delegations.

Question 6: I understand you have been realigning DOI regions to create 12 unified
regions.

a. NPS has seven regions. Do you intend to hire 5 new regional directors or what is your
plan? 

Response: The uni?ed boundaries went into effect in August 2018, pursuant to a Congressional
reprograrmning. As a result, the National Park Service consists of a headquarters of?ce, twelve
regions, and multiple parks and support units. In some cases a NPS Regional Director may
oversee more than one region, or the NPS may choose to make other organizational changes over
time.

b. How is this realignment impacting career staff and morale?

Response: The realignment enables all bureaus, except for the Bureau of Indian Affairs, the
Bureau of Indian Education, and the Of?ce of the Special Trustee for American Indians, who are
not participating at this time, to operate on a common geographic framework. This structure
should have a positive impact on employees as it improves communication and increases
interaction among staff across bureaus, while also setting the stage for improving delivery of
shared services. Inter-bureau teams were formed to provide input on all aspects of
reorganization, and many participants found the interactions so use?il that they have
independently continued their regular meetings.

c. What is the opportunity cost and what impact does this realignment have on the
bureau?s budget?

Response: Establishing uni?ed regions is designed to improve service delivery to the American
public. The Department will leverage the uni?ed regional structure to improve coordination and
streamline business operations using shared services and best practices across the Department,
focusing primarily on human resources, information technology, and acquisition services. Work
is underway in 2019 to plan implementation, conduct analysis, and identify areas for

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

collaboration. The FY 2020 budget request for NPS includes $5.7 million to support the
reorganization.

(1. Will staff he asked to relocate?

Response: Currently there are no announced plans to relocate staff as part of implementing the
Uni?ed Regions.

Can you report on what precisely you are doing with the funds that were appropriated in


Response: The Department has been working with each of the relevant bureaus to ?nalize their
2019 implementation strategies since the funds became available in February 2019, and taking a
care?il and methodical approach in order to spend this money wisely. The 2019 funding will
help implement changes needed within the bureaus to align their ?eld operations to the new
uni?ed regional structure. Funds will be used to ?nalize proposals to relocate some staff out
West. This 2019 funding will also be used to identify the best strategies for implementing
smarter ways of doing business through shared services at the regional, bureau, and national
levels.

The FY20 DOI Budget in Brief gives little detail as to how the proposed $28 million would
be used. Please expand on how those funds would be used and justify how that number
was arrived at.

Response: In FY 2020, the Department will continue implementing the reorganization effort,
including standing up the uni?ed regions, relocating a small number of headquarters staff and
functions as appropriate, and improving operations through the use of technology, shared
services and consistent best practices. We are working now to redesignate the bureau?s prior
regional assignments to the new boundaries. We expect to complete revisions to the
Departmental Manual to re?ect the uni?ed regions this Spring.

We have received the ?rst of three third party reviews of the Department?s acquisition,
information technology, and human capital services, which will help us identify the best business
decisions and inform an implementation strategy that will improve the quality and ef?ciency of
?back of?ce? functions, allowing us to shift resources to public-facing work.

What agencies do you intend to move to the West?
Response: We propose to move some functions in the Bureau of Land Management closer to
?eld operations. The USGS also proposes to move some leadership functions and staff to

Colorado, phased over time.

Do you still intend to have Interior Regional Directors? What is your plan for having any
centralized command?

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Response: The current budget proposal contemplated Interior Regional Directors.

Please report on the progress to date in the four focus areas. What exactly do you mean by
?collaborative conservation?? What is your plan for recreation and permitting?

Response: The six focus areas are the 3 mission areas (Recreation, Collaborative Conservation,
and Permitting), along with three administrative areas with potential shared services in
information technology, acquisition, and human resources. Regional teams of experts in each
mission area have been working together for many months to plan and accomplish priority
activities.

. Collaborative conservation involves leveraging the bureaus? individual efforts to plan and
implement programs and activities in the areas of species and habitat conservation, such
as creating wildlife corridors and invasive species management.

. Enhanced recreation has been a Departmental priority since the beginning of the
reorganization effort. We recently launched an online portal that helps people ?nd
recreation opportunities on Department-managed lands from one web page. The plan is to
continue to increase opportunities for recreation and afford the American people greater
access to their public lands.

0 Permitting is a mission area where the bureaus have already made great strides in
improving customer service to our many permittees. Improvements include expedited,
but still legally compliant timelines and more clear and concise documents. We are
planning additional improvements as the bureaus continue to work together through the
uni?ed region structure to improve cooperation and communication at the local and
regional levels. The local bureau leaders are most familiar with the issues and the
landscape or context for those issues and the uni?ed region structure ensures better
informed decisions by focusing decision-making on the same geography and
stakeholders.

Question 7: During your last nomination hearing I also asked how you will balance fossil
fuel interests with the health of our economy and environment. You responded by saying
view is that policy decisions should be predicated on the evaluation of science and
application of the law. If confirmed, I will make decisions with an open mind, actively
seeking input and listening to varied views and perspectives.?

From whom are you seeking input? Is it from your own internal experts and career
scientists or is it from outside sources?

Response: I have a deep appreciation for the dedicated career public servants and the work that
they do at the Department. In my personal statement submitted for my con?rmation hearing, I
indicated that I seek out varied views, even when we disagree. During my tenure as Deputy
Secretary, I have had more meetings with environmental, conservation, and sporting groups than

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

any other type of external group. However, the vast majority of my information comes from
internal experts, comments submitted by the public in regulatory proceedings, and other federal
agency sources.

Question 8: In September 2018, the Bureau of Land Management made ?nal its methane
rule, which signi?cantly altered the previous rule by eliminating its most significant
requirements to reduce extensive waste of natural gas on federal lands. The 2016 rule was
?nalized after years of collecting data and stakeholder input as well as broad public
support. This 2016 rule not only would have protected public health and reduced potent
greenhouse gas emissions, it would have recouped millions of taxpayer dollars.

The Trump Administration?s rule allows operators to waste a significant amount of
taxpayer-owned methane every year during production. Adding to the waste, operators
pay royalties on a fraction of wasted methane, costing taxpayers even more money. The
BLM estimates that the new rule will cost taxpayers up to $80 million in lost royalty
revenue and decrease natural gas production on federal lands by 250 billion cubic feet (bcf)
over 10 years.

Why has the Department repealed this rule and put in place a rule that jeopardizes public
health and costs taxpayers?

Response: I disagree with your premise that the 2010 rule ?jeopardizes public health and costs
taxpayers.? The Department has provided a explanation to describe its action in the
preamble to the rule which is available to you. Essentially, the explanation is that the rule was
revised to reduce unnecessary compliance burdens; to be consistent with the Bureau of Land
Management?s existing statutory authorities; and to re-establish long-standing requirements that
had been replaced. The ?nal rule became effective on November 27, 2018. It is my personal
view that the 2016 rule was an unlaw?il assertion of authority that Congress had not provided the
Department, and if Congress wants to provide such authority it could do so at any time.

Question 9: In a recent speech at the North American Wildlife and Natural Resources
Conference, you reportedly stated that the Trump, administration ?generally? opposes
?large-scale transfer [of public lands] but later added that ?not everything is required to
stay in federal hands.?

If con?rmed as Secretary, will you commit to not selling federal lands?

Response: My views on the disposal of public lands have not changed since I was con?rmed to
be Deputy Secretary of the Department of the Interior in 2017. As I noted at that time, I oppose
the sale or wide scale transfer of federal lands. I will, however, faithfully execute the laws that
Congress has put in place, including for example the provisions of the Federal Land Policy and
Management Act. In addition the recent lands package contained a provision allowing certain
Alaska Native Veterans of Vietnam to make land selections in Alaska.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Question 10: In September 2017, you were the lead on a Secretarial order restricting
environmental reviews under the National Environmental Policy Act (NEPA). The order
reduces the time allowed for staff to conduct environmental assessments, while also limiting
the scope of the studies by setting and enforcing arbitrary page limits of 150 pages, or 300
pages for an assessment considered ?complex.?

Do you agree that many decisions that DOI makes are complex, involve many stakeholders
and require thorough scientific reviews? If so, why is the agency taking steps to limit
studies and require arbitrary page and time limits?

Response: The primary goal of the order referenced in your question is to streamline the
Department?s environmental reviews while continuing to meet or exceed the National
Environmental Policy Act requirements for informed decision making and public participation in
environmental impact statements and environmental assessments. The Department?s own NEPA
regulations at 43 CPR. 46.240 direct the bureaus to set time limits. The framework is intended
to encourage bureau and Departmental leadership to carefully scrutinize internal processes, when
warranted. The order does not set arbitrary limits. Instead, it establishes a process to secure a
waiver for any EIS that will exceed either the time completion goal or page goal. I have
approved many timeline and page limit waivers upon request.

Question 11: In response to a request from your former client the Independent Petroleum
Association of America, DOI reversed longstanding, bipartisan interpretations of the
MBTA in order to end all enforcement of incidental takes, and removing any liability by oil
and gas companies under the law. Since that time, you have received opposition from a
large bipartisan group of former DOI officials and Flyaway Councils representing most
state wildlife agencies in the country, and the Justice Department has questioned the
changes. Despite all of this, the M-Opinion stands as the Department?s current
interpretation of the law.

Does the Department have scientific data to back-up this opinion that stands at odds with
so many others who have longstanding experience on the issue?

Response: Solicitor opinions are based on the law. On December 22, 2017, after reviewing
the text, history, and purpose of the MBTA, the Solicitor issued M-37050, which takes into
account the positions of various Federal Courts of Appeals.

M-Opinions are issued by the Solicitor and they are some of the most important and serious work
undertaken by the Of?ce of the Solicitor. This important legal guidance is to be based on the
law, not outside in?uence. The work to develop an opinion is a thoughtful and studious exercise.

I did not personally review the research or the prior case law before M-3 7050 was

issued. However, I reviewed a draft and possibly drafts of this legal opinion, that would become
the legal guidance for the entire Department.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

I certainly informed the drafters that I thought they had done a good job analyzing an important
legal question.

It is my personal opinion that the direction and need for the Of?ce of the Solicitor to issue an M-
Opinion on the Migratory Bird Treaty Act and its application was the direct result of an M-
opinion issued on January 10, 2017, which was suspended very early in the Trump
Administration. It is my view that the opinion should not have been issued as the Solicitor was
walking out the door, a Solicitor who would not be burdened by the responsibility of
implementation and defense of that position, particularly in light of contrary case law in multiple
Federal Courts of Appeals. Obviously, a broad and diverse set of interests care about the scope
of lawful authority of the Migratory Bird Treaty Act and its overall application. Many have
views on it, and Congress can impose any liability standard it would like to af?rmatively impose.

I have neither a personal or professional relationship with the IPAA or its employees.

Question 12: Has the National Park Service conducted a damage assessment and report on
the total costs to park system damage to visitor centers, buildings, restrooms,
equipment, roads, forests, trails, signs, entry fee lost, etc.) due to the recent
federal government shutdown? If so, can you provide the report to the committee and if
not, can you provide to the Committee a complete accounting?

Response: The Department is currently evaluating impacts to natural resources and
infrastructure that occurred during the period of this lapse of appropriations from available
funding. The Department is also collecting information related to the amount of revenue
obligated during this period, and anticipates that additional information will be available early in
the third quarter of operations and will share this information with the Committee.

Question 13: Between 2011 and 2017, park visitation increased by 19%, but staffing has
been reduced by 11%. How does the Department justify the decrease in staffing levels with
record level visitation in our parks?

Response: There are many things that occurred during the prior administration that I ?nd need
careful review. This is certainly one of them. I do think we are too constrained on the front lines.
The staf?ng levels proposed in the FY 2020 budget are an estimate of what could be funded and
are not a speci?c target. Department-wide studies are underway looking at ways to manage
back-of?ce functions like human resources, information technology, and procurement more
ef?ciently including developing and adopting consistent best practices across bureaus and of?ces
to potentially reduce the overall personnel needs in these areas, thereby freeing up resources and
staff who interact with the public. Additionally, numerous park employees have suggested to me
that we reassess the policy of not hiring and paying for permanent employees with park fees
perhaps that is something we need to consider.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Question from Senator Hyde-Smith

Question: On July 17, 2014, the Department of the Interior U.S. Fish and Wildlife Service
Leadership Team issued a memorandum to Regional Refuge Chiefs regarding agricultural
practices for wildlife management on national wildlife refuges. Specifically, the
memorandum stated that neonicotinoid pesticides could not be a part of a farmer?s
integrated pest management plan. In addition, it directed refuge chiefs to phase out the use
of genetically modi?ed (GMO) crops unless it was determined their use is essential to
accomplishing refuge purposes. On August 2, 2018, your office issued a memorandum
withdrawing the neonicotinoid and GMO prohibition. I applaud your agency for that
decision. Please provide an update and timeline as to when farmers will be allowed to
incorporate GMOs and neonicotinoid pesticides into their integrated pest management
plans when engaged in agricultural production on wildlife refuges.

Response: The August 2, 2018, memorandum reversed the decision to ban the use of
genetically modi?ed crops and neonicotinoid pesticides on National Wildlife Refuges. Refuges
are now determining the use of those crops and pesticides on a case-by-case basis, in compliance
with all relevant laws, rules, and regulations. Interested farmers are now requesting the use of
genetically modi?ed crops and neonicotinoid pesticides with the appropriate refuge

manager. The USFWS is currently developing programmatic NEPA compliance on the use of
genetically modi?ed crops in the Southeast and anticipates completion in early 2020. In addition
to NEPA compliance approximately 30 National Wildlife Re?iges in the Southeast are initiating
determinations for the use of genetically modi?ed crops. The USFWS believes that genetically
modi?ed crops and neonicotinoids, consistent with these determinations, could be used on
National Wildlife Refuges in crop year 2020.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Questions from Senator King

Question 1: As the leader of a Department that has been fraught with ethical violations in
the past, it is imperative that the head of the Department to act with the upmost ethical
standards beyond just what is required by law.

Beyond the letter of the law, how do you plan to enforce a culture of ethical standards at
the Department of Interior?

Response: As I stated at my hearing, I believe that public trust is a public responsibility and that
maintaining an ethical culture is critical. Enforcing a culture of ethical standards begins at the
top. On a personal level, I have complied with my ethics agreement, the ethics laws, and
my ethics pledge. I will continue to do so in the future.

In addition, because I believe the Department needs to move to a culture of ethical compliance
throughout its of?ces and bureaus, I have begun to implement signi?cant changes to the
program. For years, the Department's Ethics program has been subject to a great deal of
criticism, and oversight, and a lack of funding. To address this, we have hired highly quali?ed
and experienced career leaders to lead this of?ce. Since the beginning of this administration, we
have hired a total of 42 career, professional ethics advisors, including: a new Designated Agency
Ethics Of?cial; an Alternate Designated Agency Ethics Of?cial; a Financial Disclosure
Supervisor; an Ethics Education and Training Supervisor with the Departmental Ethics Of?ce;
and new Deputy Ethics Counselors at the National Park Service, BLM, and other bureaus and
of?ces. We have elevated the Designated Agency Ethics Of?cial to directly reporting to the
Solicitor--the third-ranking person in the Department. And, by the end of Fiscal Year 2019, we
will have doubled the number of career ethics of?cials that the previous administration hired in
its entire eight years.

With these efforts, we are starting to make tremendous strides in creating a better and more
robust ethics program at the Department, but we have much ahead of us. I look forward to
working with you, if con?rmed, as we continue these efforts.

Question 2: As I mentioned during the hearing, the entire Maine state federal delegation,
Maine?s legislature and Maine?s Governor are all opposed to any activities relating to the
development or extraction of fossil fuel off the coast of New England.

Please explain in detail how the Bureau of Ocean Energy Management is legally obligated
to take the comments, opinions and laws of a coastal state and the coastal state?s elected
representatives and of?cials into account when making decisions on all geological and
geophysical surveying permits.

Response: Geological and geophysical surveying activities are conducted for a wide array of

activities on the OCS aside from locating subsurface oil and gas resources. For instance, 
activities are used to: map the sea?oor for OCS wind turbine placement, identify OCS sand

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

resources for coastal restoration and beach replenishment, and identify subsea hazards. Aside
from our permitting process, under the Coastal Zone Management Act, a state can review those
OCS permits identi?ed in its Coastal Zone Management Program for federal consistency. If a
state wants to review a permit that is not identi?ed, it follows NOAA's procedures to ask
permission to review and add the permit to its Program. The state must concur with or object to
the lessee's consistency certi?cation within a designated time period. If the state does not meet
the deadline, CZMA provisions render the permit consistent. If the state concurs, BOEM can
approve the permit, and the lessee can begin activities.

If the state objects, the bureau is prohibited from approving the permit, and the applicant can
appeal the state's decision to the Department of Commerce, or the applicant can amend the
proposed activities and associated permit application and resubmit it to BOEM for approval and
to the state for federal consistency review. There are also public commenting opportunities
during the development of the associated National Environmental Policy Act analyses.

Question 3: If the Department of Interior was directed to permit oil and gas leasing on the
Outer Continental Shelf, could these leases be permitted to go through and be acted on
over the wishes of any state governor, state legislature, congressional delegation or state
law relevant to the permitted activities?

Response: Under the OCS Lands Act, the states have several speci?c roles in the decision-
making process for OCS leasing and development. First, in deciding whether to include an area
in the leasing program, the laws goals and policies of affected states, as identi?ed by the
Governor, is one of eight factors the Secretary must consider. Governors are afforded speci?c
review and comment opportunities under the Act. For individual lease sales, the Secretary shall
accept recommendations of the Governor if he determines that they provide for a reasonable
balance between the national interest and the well-being of the citizens of the affected State.

As for development of existing leases, any activity must be consistent with the enforceable
policies of an affected state?s coastal management program, pursuant to the Coastal Zone
Management Act. In addition to review of OCS permitting for geological and geophysical
surveying as described in my previous response, under the Coastal Zone Management Act, states
can review OCS exploration and development and production plans for Federal consistency. If a
state objects to the plans, BOEM is prohibited from approving it. In this instance, the lessee can
appeal the state's decision to the Department of Commerce or the lessee can amend the proposed
activities associated permit and resubmit it to BOEM for approval and to the state for Federal
consistency review.

Question 4: In a House Appropriations Subcommittee on the Interior hearing in April
2018, Former Secretary of Interior Ryan Zinke said that ?in the state of Maine, most of the
areas, A) you don?t have the resources off of the coast, B) you don?t have infrastructure in
place and, C) most of the districts along the coast and communities are not in favor of oil
and gas.?

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

a. Given these factors as reported from the Interior Department, can you report that the
New England coastline will not be suitable for drilling or geological and geophysical
surveying?

Response: Right now, the Department continues to analyze and assess information gathered
during the comment period following the publication of the Dra? Proposed Program. The three
factors you mention are among those taken into account during the National OCS Program
development. It is the Department?s obligation to consider any and all laws, comments and
views of affected states and communities. Of the eight factors outlined in the Outer Continental
Shelf Lands Act, which include the views of each affected state, the Secretary may not ignore the
other factors and base his decision on one factor. However, it is reasonable to assume that the
three factors you reference would weigh heavily on any analyses.

I do recognize that there are certain areas where these activities are appropriate and there are
areas where they are not. As I reaf?rmed to you at my con?rmation hearing, the views of states
and Congressional delegations will be a major factor in the balancing analysis I will take, should
I be con?rmed, in making these decisions. I will further commit to you that any leasing or
permitting decision I make will be grounded squarely within the law, consistent with the
Department?s mission, informed by public engagement and supported by science.

Geological and geophysical survey permitting is a separate process with stringent requirements
and mitigation measures that ensure safe and appropriate geological and geophysical activities in
speci?c areas of the Outer Continental Shelf.

b. Are these three factors determining factors in where fossil fuel development leasing
and permitting will be done?

Response: Under Section 18 of the OCS Lands Act, the Secretary must consider eight factors
when determining the size, timing, and location of potential oil and gas lease sales:

0 Geographical, Geological, and Ecological Characteristics

- Equitable Sharing of Developmental Bene?ts and Environmental Risks

0 Location with Respect to Regional and National Energy Markets and Needs
0 Other Uses of the Sea and Seabed

- Laws, Goals, and Policies of Affected States Identi?ed by Governors

0 Interest of Potential Oil and Gas Producers

- Environmental Sensitivity and Marine Productivity

- Environmental and Predictive Information

The Secretary has the discretion to assign the weight he deems appropriate to these eight factors

when considering the timing and location of the areas to be included in the National OCS
Program.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Questions from Senator Cortez Masto

Question 1: It was recently reported that during the 35-day government shutdown earlier
this year, BLM under your supervision, approved 267 drilling permits and 16 leases
applied for by oil and gas companies two of your former lobbying clients were among the
companies that received approval for their applications. This is during a time that you
recalled some, but not all, furloughed workers who regularly review these applications. It
is also my understanding that such supporting staff that contribute to these application
reviews, such as those that review details concerning environmental and cultural resources,
remained furloughed during this time period.

On February 15, you were quoted in the Carlsbad Current-Argus that work on oil and gas
development continued the fees were still coming also safety. We
need to keep things safe. We need to keep things going. I?m very comfortable with what
we did during the lapse. We could do more next time.?

Why was this safety ethic not applied to your decision to keep the National Parks opened,
which we now know led to acts of vandalism, destruction of precious resources like we?ve
seen in Joshua Tree National Park, the safety of countless visitors travelling through the
parks without park rangers available to act in case of emergencies, or the safety of visitors?

Response: I do not agree with the premise of your question. A safety ethic was applied to
decisions involving the National Park Service. For the National Park Service, the length of the
lapse in appropriations brought signi?cant challenges. As a result, I instructed that the National
Park Service?s contingency plan be modi?ed to ensure people were safe, park resources were
protected, and at least some employees would be guaranteed to receive a paycheck on a set
date. I also directed that fees collected by the NPS under the Federal Lands Recreation
Enhancement Act (FLREA) be used to address resource protection and visitor safety concerns,
including issues with restrooms and sanitation, trash collection, road maintenance, campground
operations, law enforcement and emergency operations, and basic visitor services. Use of these
funds allowed the American public to safely visit many of our national parks while providing
these treasures additional protection and allowing NPS to meet its dual mandate of resource
protection and visitor enjoyment.

With respect to comparisons between the BLM and the NPS, the two agencies operate on
different funding regimes and have different options for dealing with a general lapse in
appropriations. I would be happy to visit about this matter in detail with you in the future if you
want to do so.

Question 2: Since you became Deputy Secretary of the Interior in August 2017, the Bureau
of Land Management has offered more than 17 million acres of public land for oil and gas
leasing. This is clearly in line with this Administration?s priority of making oil and gas
development the dominant use of our public lands, no matter the negative impact it might
have on any other value public lands yield to the American people, like recreation or
renewable energy development.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Nation-wide, only 15 percent of the acreage offered for lease at competitive sale under your
watch has been purchased. That number is even lower in Nevada where, since August 2017,
industry has purchased just 9 percent of the acreage offered for lease and, of that, 83
percent was purchased for the minimum bid of $2 per acre.

Besides re?ecting low demand, this apparent practice of indiscriminately opening lands for
leasing allows speculators to purchase leases noncompetitively for incredibly small sums of
money while preventing management for other, perhaps better uses.

What is the intention behind this Administration continuing to push to broadly open
federal public lands when it appears to be decoupled from industry demand?

A. Should you be confirmed, can you please identify the concrete steps you will take to
ensure that oil and gas leasing takes place only on lands that:

(1) Have real potential for mineral development; and
(2) are not better managed for other uses like wildlife, recreation, or wilderness?

B. Can you identify the concrete steps you will take to prevent land speculators from
obtaining oil and gas leases on public lands?

Response: This year we saw some lease sales where the bids exceeded $81,000 per acre. The
overall collections of revenue has markedly increased on our watch. As you know, the BLM is
required by law to offer eligible lands that are available for lease by competitive auction on a
quarterly basis. As part of the competitive leasing process, the BLM accepts informal
expressions of interest and noncompetitive presale offers from the public that identify potential
federal minerals for leasing.

Regarding which lands may be made available for development, the Federal Onshore Oil and
Gas Leasing Reform Act of 1987 abolished criteria requiring that lands offered be within
?Known Geologic Structures? and instead relies on the ?ee market to establish value. The BLM
is also required by law to hold quarterly lease sales wherever eligible lands are available for
leasing and for which leasing is in the public interest. In this regard, the BLM relies on current
land-use planning documents to ensure a balance between environmental protection and
opportunities for responsible resource development.

As Secretary I will ensure that all of our onshore leasing activities are carried out diligently and
in compliance with appropriate laws and BLM leasing development requirements.

Question 3: Last year, the Trump Administration issued new guidance pertaining to land

parcel reviews for oil and gas leasing, as part of their ?Energy Dominance? agenda to open
more public lands for potential leasing. Prior to the Administration?s new guidance, the

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

public was assured a 30-day comment period before parcels were included on a lease sale
list and 30-days to ?le a protest.

Under the new guidance, comment periods are optional and the protest period is 10-
days. Do you view the public input process as an impediment to leasing?

A. By reducing the public?s ability to have a say in the process, what public benefit
does this new guidance serve?

B. Would you commit to a meaningful public participation and environmental review
process for all oil and gas leasing activities, including by restoring the previous process, as
well as any other measures necessary to fully engage the public, tribes, local governments,
state wildlife agencies, and affected landowners?

Response: The Department values meaningful public participation and an ef?cient
environmental review process in the implementation of its onshore oil and gas program. The
BLM observed a trend regarding protests over the past several years in which the percentage of
parcels protested from the original sale notice had increased dramatically. This 10 day period is
in addition to multiple opportunities for public participation and engagement through the BLM
planning process under FLPMA and NEPA processes.

Question 4: I have been hearing concerns from sportsmen and women, the conservation
community, tribal communities, local state legislators, and many others about the potential
loss of bighorn sheep habitat and a loss of public recreational and conservation access that
would result from the proposed military expansion within the Desert National Wildlife
Range. The proposed expansion could cumulatively lead would lead to a loss of over 1
million acres of land directly managed or co-managed by the U.S. Fish and Wildlife
Service, much of which is habitat currently managed for the benefit of emblematic
Nevadan desert species, like bighorn sheep. While I certainly acknowledge the need for
facilities that ensure military readiness, I am concerned about how the existing 4,531
square miles of federal land already under the military?s control is supposedly no longer
sufficient, and I am concerned about the potential effects such a land withdrawal would
have on wildlife habitat.

To what extent have you been involved in these discussions, and, understanding this is
ultimately a decision to be made by Congress, what is the position of the Department of the
Interior on the military?s request to take over administrative control of one of the largest
expanses of protected wildlife habitat in the lower 48 states?

A. Are you concerned about such a large amount of land being re-purposed from
under your purview?

Response: I am advised that the current legislative withdrawal for Nellis Air Force Range,
which was overlaid upon the original Desert National Wildlife Refuge, is set to expire in 2021,

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

that efforts are underway to prepare for renewal of that withdrawal, and that some of the
alternatives evaluated include expansion of the withdrawal. This effort is led by the Department
of the Air Force, and includes coordination with the Bureau of Land Management and the Fish
and Wildlife Service. I understand that this matter will ultimately be resolved by the Congress,
and Congress would need to consider the potential bene?ts and detriments to the public in
rendering a decision.

Question 5: Ethics laws require officials to avoid even the appearance of a con?ict of
interest or partiality. Given that 20 of your former clients have actively lobbied Interior
since the beginning of 2017, how are you able to adequately meet this standard as
Secretary?

Response: I have fully complied with my ethics agreement, the ethics laws, and my ethics
pledge and I will do so in the future. I have actively sought and consulted with the Department's
designated ethics of?cials for advice on particular matters involving clients and I have
implemented a robust screening process to ensure that I do not meet with my former ?rm or
former clients to participate in particular matters involving speci?c parties that I have committed
to recuse myself from. My senior staff is well versed in matters at the Department and they
either manage such matters without any consultation with me, or re-route issues to different
offices within the Department of the Interior, as appropriate.

Question 6: I understand that you are barred from closed meetings with your former
lobbying clients. But that doesn?t stop former clients like the Petroleum Association from
lobbying Interior?instead, they are presumably meeting with your subordinates. Have
you ever had a conversation before or after they met with a Petroleum Association
representative? How do you ensure you are not in?uencing your subordinates actions with
your former clients?

Response: My subordinates are here to work on behalf of the American people. They have no
interest in bene?tting my former clients, nor do I.

Recusals are designed to ensure that the recused individual does not participate in a particular
matter involving speci?c parties where one of the parties was either a represented client or an
employer. They do not restrict the entity who had the relationship from petitioning other
employees of the United States Government. In the Immediate Of?ce of the Secretary, my entire
team is very sensitive of the need for me to not participate in any particular matter involving
speci?c parties in which my former ?rm or a former client is either a party or represents a party.

I have made clear we are here to work for the American people, no one else. Indeed, once a
subordinate is involved with a particular matter in which a former client is a party or my former
?rm represents a party there is no communication between us on that particular matter involving
speci?c parties. As a result, I do not provide any communication to them before or after
meetings, and I would likely not ever be aware of the reality that such a meeting was occurring
absent public disclosure.

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

In addition, in the unlikely event a matter is raised directly to me, I would explain that I am
recused and that they need to ensure they are going through the appropriate person on my staff
on such particular matters involving speci?c parties and, if necessary, the Department?s Ethics
Of?ce, to determine how best to handle a matter.

Question 7: A recent New York Times report suggests you effectively continued lobbying
on behalf of one of your former clients, Westlands, after you became Deputy Interior
Secretary. You participated in agency actions that advanced the same goals that you
pursued as a lobbyist, potentially in violation of your ethics pledge. You lobbied for years
to limit the application of a speci?c Endangered Species Act protections that limit water
diversion to your former lobbying client, and then you joined government and effectively
continued those efforts. Did it occur to you that advancing the same goals at Interior that
you used to promote as a lobbyist would create the appearance that you are using your
official authority to bene?t your former client?

A. Will you commit to asking for written ethics advice on any matters related to your
former lobbying clients and lobbying activities, and to instructing your subordinates to do
the same before the purposed action takes place?

B. What other mechanisms do you intend to put in place to ensure subordinates track
and avoid potential ethics violations, especially if they enter government with a long list of
former lobbying clients who conduct business in front of the agency?

C. Will you commit to recusing from matters involving your former lobbying clients
for the entirety of your tenure at Interior?

Response: I have not ?effectively continued lobbying? on behalf of any former client at any
time. I have fully complied with my ethics agreement, the ethics laws, and my ethics pledge and
I will do so in the ?lture. I have actively sought and consulted with the Department's designated
ethics of?cials for advice on particular matters involving former clients and I have implemented
a robust screening process to ensure that I do not meet with my former ?rm or former clients to
participate in particular matters involving speci?c parties that I have committed to recuse myself
from.

I have committed to securing written advice before taking any action involving former lobbying
clients, and instructing my subordinates to do the same.

When the referenced New York Times article was published, I requested that the Departmental
Ethics Of?ce examine prior ethics advice and counsel I had received involving the issues raised
in the article. The DEO carefully and extensively reviewed the matter and provided a
memorandum explaining that ?broad matters? are outside the scope of paragraph 7 of the Ethics
Pledge. Furthermore, when responding to a letter from Senator Warren and Senator Blumenthal
on this same issue and article, the Department?s Designated Agency Ethics Of?cial concluded
that my actions have complied with all applicable ethics laws, rules and other obligations,

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

including the requirements of President Trump?s Ethics Pledge. A copy of that correspondence
is included for your convenience.

63

Attachment to Response
to Sen. Cortez Masto

Question 7

United States Department of the Interior

OFFICE OF THE SOLICITOR
Washington, DC 20240

 

March 25, 2019

The Honorable Elizabeth Warren
United States Senate

317 Hart Senate Of?ce Bldg.
Washington, DC 20510

The Honorable Richard Blumenthal
United States Senate

706 Hart Senate Of?ce Bldg.
Washington, DC 20510

Dear Senator Warren and Senator Blumenthal:

Thank you for your letter of February 26, 2019 regarding your expressed concerns of the actions
of the Acting Secretary of the Department of the Interior (Department or DOI). Your letter
references an article published by the New York Times on February 12, 2019 discussing the
Acting Secretary?s legal practice prior to joining the Department as Deputy Secretary in August
2017. Speci?cally, you asked about the Acting Secretary?s involvement with the Central Valley
Project (CVP) in California and whether his actions, ?violated his ethics pledge and federal
con?ict of interest regulations by participating in decisions that directly affect a former client.?
As discussed below, we have found the Acting Secretary?s actions have complied with all
applicable ethics laws, rules and other obligations, including the requirements of President
Trump?s Executive Order 13770 entitled, ?Ethics Commitments by Executive Branch
Appointees? (Jan. 28, 2017) (Ethics Pledge).

As an initial matter, I would like to take this opportunity to inform you and your colleagues of
recent developments and improvements with the DOI ethics program that will enhance our
ability to prevent con?icts of interest at all levels of the Department. Since our arrival at the
Department in April 2018, Deputy Director Heather Gottry and have overhauled an ethics
of?ce that was previously characterized by both DOI employees and numerous Inspector
General reports as passive and ineffectual. With the strong support of the Acting Secretary, we
have spearheaded a long-overdue build-out of the Departmental Ethics Of?ce (DEO) as well as
the ethics programs of the various Bureaus and Of?ces throughout the Department.

Our top priority as non-partisan, career ethics of?cials, is to prevent con?icts of interest at the
DOI and ensure that DOI employees are aware of and comply with all applicable ethics laws and
standards. We understand the importance of our program in helping the American people have
trust and con?dence in the lawful and proper administration of the Department.

Please know that my of?ce takes all credible allegations of potential ethics violations by any
DOI employee very seriously and allegations against senior of?cials are an extremely high 
priority. Consequently, when the New York Times published its article, I immediately sought to
understand the facts and care?illy analyzed the applicable legal authorities. We note that the
Acting Secretary also immediately requested that my of?ce look into this matter and to examine
the prior ethics advice and counsel he had received.

Of critical importance, we note that the Acting Secretary does not have any ?nancial con?icts of
interest related to either his former client, Westlands Water District, or the CVP generally. As
re?ected in his Ethics Agreement, dated May 1, 2017, and his Ethics Recusal memorandum,
dated August 15, 2017, the Acting Secretary was required under 5 C.F.R. 2635.502 to recuse
for one year (until August 3, 2018) ?om participating personally and substantially in any
?particular matters involving speci?c parties? in which Westlands Water District was a party or
represented a party. Because Westlands Water District is an agency or entity of a state or local
government it is excluded from the requirements of paragraph 6 of the Ethics Pledge.
Additionally, consistent with U.S. Of?ce of Government Ethics (OGE) guidance, it was
determined that the law the Acting Secretary had lobbied on for Westlands Water District, Public
Law 114-322, should not be categorized as a ?particular matter? because the law addressed a
broad range of issues and topics. Therefore, because he did not lobby on a ?particular matter?
for Westlands Water District, he was not required to recuse himself under paragraph 7 of the
Ethics Pledge either from ?particular matters? or ?speci?c issue areas? related to Public Law
114-322. Accordingly, the Acting Secretary?s recusal related to Westlands Water District ended
on August 3, 2018, and was limited in scope to ?particular matters involving speci?c parties?
under 5 C.F.R. 2635.502.

I have enclosed the transmittal e-mail from me to the Acting Secretary with a detailed
memorandum attached wherein the DEC consolidates and memorializes prior ethics advice and
guidance on certain issues involving the CVP. Of particular importance for a legal analysis of
the scope of the Acting Secretary?s recusals related to Westlands Water District, the
memorandum analyzed and categorized certain issues involving the CVP and related State Water
Project as ?matters,? ?particular matters of general applicability,? and ?particular matters .
involving speci?c parties.? As I state in the transmittal e-mail, these legal categorizations are
critical in determining whether an of?cial complies with the various ethics rules. As re?ected in
the memorandum, we determined that both the Notice of Intent to Prepare a Draft EIS and the
development of a 2019 Biological Assessment are appropriately categorized as ?matters,? not
?particular matters.? Our determinations are supported by Federal law and OGE opinions and
though the matters involved may sound like ?particular matters? or ?speci?c issue areas,? they
are legally broad matters outside the scope of 5 C.F.R. 2635 .502. As noted above, the Acting
Secretary?s lobbying on behalf of Westlands Water District on Public Law 114-3 22 was not
categorized as a ?particular matter? and did not require an additional recusal under paragraph 7
of the Ethics Pledge. Therefore, the Acting Secretary was not required under either 5 C.F.R. 
2635.502 or the Ethics Pledge to recuse from participation in either the Notice of Intent to
Prepare a Draft EIS or the development of a 2019 Biological Assessment. Attached, for your
convenience, please ?nd the legal reference materials addressed in the memorandum I believe
our interpretation and application of the relevant legal authorities is both reasonable and prudent.

I have advised the Acting Secretary, at his request, that he and his staff should continue to
consult with the DEC prior to participating in any matter that is potentially within the scope of
his Ethics Agreement, Ethics Recusal memorandum, the Ethics Pledge, or any other ethics law or
regulation. Additionally, to eliminate any potential for miscommunication, I have instructed my
staff that all ethics guidance to the Acting Secretary be in writing prior to his participation in a
decision or action that reasonably appears to come within the purview of his legal ethics
obligations.

In closing, and to be responsive to your ?nal requests, the DEC has not issued any authorizations
or ethics waivers to the Acting Secretary or other Interior of?cials on the topics you raised, nor
have we referred any matters to the IG on these topics. It is worth noting that the Acting
Secretary meets with me and my senior sta?? frequently and that I have a standing meeting with
him once a week to discuss any signi?cant ethics issues at the DOI. Pursuant to the Acting
Secretary?s direction, my senior staff also meets with his scheduling staff and other top of?cials
twice a week, at a minimum, to ensure we are aware of who the Acting Secretary is meeting with
and the issues he will be discussing. These efforts, supported by the Acting Secretary and his
staff, are designed to ensure his compliance with applicable ethics rules and protect the integrity
of the Department?s programs and operations. My experience has been that the Acting Secretary
is very diligent about his ethics obligations and he has made ethics compliance and the creation
of an ethical culture a top priority at the Department.

. If you have any other questions or concerns, please do not hesitate to contact me.
Sincerely,



Scott A. de la Vega .
Director, Departmental Ethics Of?ce and
Designated Agency Ethics Of?cial

Enclosure

de la Vega, Scott <scott.deIavega@sol.doi.gov>

 

 

Legal Categorization of Issues

1 message

 

de la Vega, Scott <scott.delavega@sol.doi.gov> Tue, Feb 19. 2019 at 8:03 PM
To: David Bernhardt <dwbernhardt@ios.doi.gov> 

Cc: Daniel Jorjani Heather Gottry "McDonnell, Edward"
<edward.mcdonnell@sol.doi.gov>

Bcc: Scott de la Vega <scott.delavega@sol.d0i.gov>

Acting Secretary Bernhardt:

Recently, you requested that my of?ce examine prior ethics advice and counsel you had
received from the Departmental Ethics Of?ce (DEO) in regards to issues, decisions, and/or
actions pending at the DOI involving the Central Valley Project (CVP) and the State Water
Project (SWP) in California. You have also asked for my recommendations on any additional
best practices to implement to fully ensure that you are in compliance with your Ethics
Agreement, Executive Order 13770 (the "Ethics Pledge?), and all other ethics laws and
regulations.

Attached, please ?nd a detailed memorandum wherein the DEO reviews and explains the
prior guidance you have received from this of?ce and, of utmost importance, categorizes
CVP and SWP issues as ?Matters,? "Particular Matters of General Applicability,? or ?Particular
Matters Involving Speci?c Parties." These legal categorizations are critical in determining
whether an of?cial complies with the various ethics rules. Reports that conflate these
categories are sometimes confusing, however, the legal analysis and conclusion that Public
Law 114?322 is not a ?particular matter? and that both the Notice of Intent to Prepare a
Draft EIS and the development of a 2019 Biological Assessment are ?matters,? not
?particular matters" are supported by Federal law and Of?ce of Government Ethics
opinions. Consequently, these broad matters are outside the scope of paragraph 7 of the
Ethics Pledge despite colloquially sounding like a ?speci?c issue area.?

Going forward, you and your staff should continue to consult with my of?ce in advance of
your participation in any matter that is potentially within the scope of your Ethics
Agreement, the Ethics Pledge, or any other ethics laws or regulations. In addition, to
eliminate any potential for miscommunication, misunderstanding or error, I have instructed
my staff that all guidance to you be in writing before you decide to participate in a decision
or action that reasonably appears to come within the purview of your legal ethics
obligations. The implementation of these two recommendations will facilitate addressing
any future question raised by your participation in a "matter,? "particular matter of general
applicability,? or a ?particular matter involving speci?c parties.?

Finally, I am attaching reference materials that highlight many of the concepts discussed in
the memorandum. Please let me know if you have any questions or would like to discuss
any of these issues further and thank you for your conscientious approach to ethics
compliance.

Scott A. de la Vega

Director, Departmental Ethics Of?ce

 Designated Agency Ethics Of?cial
Of?ce of the Solicitor

US. Department of the Interior I MIB 5309
(O) (202) 208-3038

(0) (202) 740-0359



 

Visit us online at: 

Public service is a public trust.

 

6 attachments

Legal Categorization Memo CVP 2.19.19.pdf
1 203K

LA-17-03.pdf
1 90K

.3 Copy of LA-17-03 Webinar.pdf
1258K

DO-09-011.pdf
IE 188K

LA 05x01.pdf
26K


101K

. United States Department of the Interior 1

OFFICE OF THE SOLICITOR
Wuhington, D.C. 20240

 

MEMORANDUM

TO: Scott A. de la Vega, Director, Departmental Ethics Of?ce 
Designated Agency Ethics Of?cial

FROM: Heather C. Gottry, Deputy Director for Program Management and Compliance,
Departme Ethics Of?ce Alternate Designated Agency Ethics
Of?cial . 

Edward McDonnell, Deputy Director for Ethics Law and Policy, Departmental
Ethics Office 6M

DATE: February 19, 2019

 

RE: . Ethics Guidance on How to Cate orize Issues Decisions and/or Acti Pendin
lnvolvin the, entral Valle Pr 'ec nd State Water Pro?ectas
?Matters ?Particular Matters of General A licabili or ?Particular Ma 

Involving Speci?c Parties?

 

 

This memorandum consolidates and memorializes prior ethics advice and guidance
provided by the Department Ethics Office (DEO) about whether issues, decisions, and/or actions
pending at the US. Department of the Interior (D01) involving the Central Valley Project
(CVP), and coordination of operationswith the State Water Project (SWP) should be categorized
as ?matters,? ?particular matters of general applicability,? or ?particular matters involving
speci?c parties? pursuant to the de?nitions of those terms in ethics regulations and guidance
from the Of?ce of Government Ethics (OGE). 5 C.F.R. 5 C.F.R. 2640.201;
5 C.F.R. 0GB ?Particular Matter Involving Speci?c Parties. 
"Particular Matter, and "Matter? (Oct. 4, 2006) (OGE DO-06-029). As a general matter, 
whileit is clear that there are many broad policy determinations impacting the entire CVP and/or
SWP that would not constitute either ?particular matters of general applicabilit or ?particular
matters involving speci?c parties,? case-by-case factual analysis and ethics review will be
required in most circumstances in order to determine whether an issue, decision, or action
involving the CVP and/or SWP and pendingbefore the DOI should be categorized as a ?matter,?
?particular matter of general applicability,? or ?particular matter involving speci?c parties?.

This categorization will in turn govern whether certain D01 employees may participate in the
issue, decision, or action involving the CVP and/or SWP and pending before the D01, or whether
they are required to disqualify themselves or recuse from participation pursuant to 18 0.8.0. 
208, 5 C.F.R. 2635.502, or the requirements of paragraphs 6 and 7 of Executive Order 13770

entitled, ?Ethics Commitments by Executive Branch Appointees? (Jan. 28, 2017) (Ethics
Pledge). .

This memorandum ?rst provides background information on the CVP and the SWP.
Second, the memorandum provides a summary of the applicable and. governing legal de?nitions
of ?matters,? ?particular matters of general applicability?, or ?particular matters rnvolvmg
speci?c parties? found in the ethics regulations and other 0613 guidance. Third, this .
memorandum applies these de?nitions to the deliberations and discussions that resulted in. the .
publication of a Notice of Intent to Prepare a Draft Environmental Impact Statement, Revwrons
to the Coordinated Long-Term Operation (LTO) of the CVP and the SWP, and Related 
(Dra? EIS N01) in the Federal Register on December 29, 2017, or the D01 process that resulted
in the Reinitiation of Consultation on the Coordinated LTO of the CVP and SWP. Final
Biological AsseSSment (2019 BA), dated January 2019, in order to determine whether they should
be categorized as ?matters,? ?particular matters of general applicability,? or ?particular matters
involving speci?c parties? as de?ned in the ethics regulations. Finally, this memorandum
provides general guidance on how the BBQ categorizes issues, decisions, and/or. actions
involving the CVP and/or SWP pending before the DOI as ?matters,? ?particular matters of
general applicability,? or ?particular matters involving speci?c parties.?

I. BackgLound of the CVP and SWP

As set forth in 2019 BA, Congress authorized the US. Bureau of Reclamation
(Reclamation)' to develop the CVP for the public good of delivering water and generating
power, while providing ?ood protection to communities and protecting water
quality for water users within the system.2 2019 BA at 1.1.1., 1?3. In its authorization to
Reclamation, Congress-envisioned that the CVP would be composed of a large, complex project
integrated across multiple watersheds that Reclamation would operate to ensure the most
bene?cial use of water released into the system. Id. 

 

Reclamation?s mission is to manage, develop, and protect water and relatedresources in an
environmentally and economically sound manner in. the interest of theAmerican public. 2019 BA at l-
Reclamation is the largest wholesale water supplier in the United States, and the nation?s second
largest producer of hydroelectric power. Id. Its facilities also provide substantial ?ood control,
recreation, and ?sh and wildlife benefits. Id, In. California, Reclamation'operates the CVP in . 7
coordination with the State 5f California Department of Water Resources? (DWR) operation of the SWP.
Id. The mission of the DWR isto manage the water resources of the State of California, in cooperation
with other agencies, to bene?t the state?s people and to protect, restore, and enhance the natural and
human environment. 1d. .

2 The Rivers and Harbors Act of 1935 authorized Reclamation to take over the CVP from the-State
of California and its initial features were authorized for construction. In 1992, Public'Law 102-575
included Title 34, the Central Valley Project Improvement Act that re?ned water management
for the CVP. 2019 BA at, 1.1.1, 1-4. The CV PIA added ?sh and wildlife mitigation, protection, and
restoration as a project purpose with the same priority as water supply, and also added ?sh and wildlife
enhancement as a project purpose with the same priority as power generation. Id. In addition, the 
prescribed a number of actions to improve conditions for anadromous ?sh and provided for other ?sh and
wildlife bene?ts. The Secretary of the interior assigned the primary responsibility for carrying out the
many provisions of to Reclamation and the us. Fish and WildlifeService (USFWS).

2

 

 

Currently, Reclamation operates the CVP consistent with the federally authorized
purposes, which include: river regulation; improvement of navigation; ?ood control; water 
supply for irrigation and municipal and industrial uses; fish and wildlife mitigation, protection,
and restoration; power generation; and ?sh andwildlife enhancement. Id. at 1.1.1, 1-4. The
CVP consists of 20 dams and reservoirs that together can store nearly 12 million acre-feet
(MAP) of water. Id. at 1-1. Reclamation holds over 270 contracts and agreements for Water
supplies that depend upon CVP operations. Id. Through operation of the CVP, Reclamation
delivers water in 29 of California?s 58 counties. Id. The CVP serves farms; homes, and industry
in California?s Central Valley as well as the major urban centers in the San Francisco Bay Area;
it is also the primary source of water for much of California's wetlands. In addition to delivering
water for farms, homes, factories, and the environment, the CVP prdduces electric power and

provides ?ood protection, navigation, recreation, and 'water quality bene?ts. While the 
facilities are spread out over hundreds of miles, the CVP is ?nancially and operationally
integrated by the DOI as a single large water project. .

The SWP is a water storage and delivery system of reservoirs,.aqueducts, powerplants,
and pumping plants operated by the State of California.3 2019 BA at l-l . Its main purpose is to
store and distribute water to 29 urban and agricultural water Suppliers in Northern California, the
San Francisco Bay Area, the San Joaquin Valley, the Central Coast, and Southern California. Of
the contracted water supply, 70 percent goes to urban users and 30 percent goes to agricultural
users.

In 1986, Congress directed the Secretary of the Interior to execute the Coordinated
Operations Agreement (COA) between the CVP and SWP. 2019 BA at 1.1.1, 14. The COA 
between the US. Government and the State of California was signed by DWR and Reclamation
in 71986. The COA de?ned CVP and SWP facilities and their water supplies, coordinated .
operational procedures between the'DOl and the State of California, identi?ed formulas for 
Sharing joint responsibility betheen the D01 and the State Of California for meeting Delta
standards (such as those in D?l485), identi?ed how unstored ?ow is shared between the CVP 
and SWP, and established a framework for exchange of water and services between the projects 7
betweenthe CVP and SWP. Id. In 1999, the California State Water ReSources Control Board
issued D-1641, obligating the CVP and SWP to the 1995 Bay-Delta Water Quality Control Plan.
Revised in 2000, D-164l provided standards for?sh and wildlife protection, municipal and
industrial water quality, agricultural water quality,.and Suisun Marsh salinity. Id.

 

The Burns-Porter Act, approved by the California voters in November I960 (Water Code [Wat..
Code] 12930-12944), authorized issuance of bonds for construction of the SWP. authority to
construct state water facilities or projects?is derived from the Central Valley Project Act (CVPA) (Wat.
Code 1 1100 et seq.), the Burns-Porter Act (California Water Resources Development Bond Act) (Wat.
Code 12930?12944), the State Contract Act (Pub. Contract Code et seq.), the'Davis-Dolwig
Act (Wat. Code 1 1900?1 1925), and Special acts of the State Legislature. 2019 BA at l.1.l, l-4. In
1978, the issued Water Rights Decision 1485 (D4485). D-l485 required spring out?ow and set
salinity standards in the Delta while setting standards for the diversion of flows into the Delta during
winter and spring. Id.

 

The complex and varied activities of DOI with respect to the CVP and SWP are governed
by a variety of laws, including the Water infrastructure Improvements for the Nation Act (W IIN
Act) (Pub. L. 1 14-322, 130 Stat. 1628). Section 4001 of the WIIN directs the Secretary of
the Interior and the Secretary of Commerce to previde the maximum quantity of water supplies
practicable to CVP contractors and SWP contractors by approving, in accordance federal
- and applicable state laws, operations or temporary projects to provide additional water supplies
as quickly as possible, based'on available infomation. Consistent with authorizations and .
directions provided by Congress, the D01 routinely analyzes and takes action on a Wide variety
of both macro'and micro operational and programmatic issues, decisions, and/or actions
involving the operation of the CVP and coordination with the SWP.

ll. Applicable L_e_gal Definitions of ?Matters,? ?Particular Matters? of General
Applicability,? and ?Particular Matters Involving Smi?e Parties?

For purposes of analyzing under ethics laws, regulations, and rules whether and to what A
extent a D01 employee is required to recuse ?om participating in a policy, operational and/or
programmatic issue, decision,- andlor action involving the operation of the CVP and coordination
with the SWP depends on Whether it is categorized as a matter, particular matter of general
applicability, or particular matter involving speci?c parties. These are terms of art with
established meanings de?ned in ethics laws and regulations as Well as guidance from the OGE.
5 C.F.R. 5 C.F.R. 2640.201; 5 C.F.R. OGE DO-06-
029, "Particular Matter Involving Specific Parties, ?Particular Matter. and ?Matter (Oct. 4, .
2006). 

A. Definition of ?Matter?

In the context of the ethics statutes and regulations, the unmodi?ed term ?matter? can
refer to virtually all Government work ?'om the broadest to the most narrow issue, decision,
and/or action.~OGE DO-067029 at 10-11. The broad de?nition of ?matter? also includes any
?particular matter?, including ?particular matters of general applicability? or ?particular matters
involving Speci?c parties.? Id at 1. However, if an issue, decision, and/or action pending at the
D01 can be categorized as a ?particular matter of general applicability? or a ?particular matter
involving speci?c parties? then there are speci?c recess! and disquali?cation requirements that
will apply toa DOI employee?s participation in the issue, decision, and/or action inquestion.
Such recusal and disquali?cation requirements may arise if a DOI employee has a ?nancial
interest that could be directly and predictably effected by the issue, decision, and/or action, if the
DOI employee has a ?covered relationship? (such as former employer, former client, spousal
employer, etc.) with one of the parties involved in the issue, decision, and/or actiOn, or if the DOI
employee lobbied 0n the same particular matter prior to employment with the DOI. These
recusal and disquali?cation requirements will generally not apply if the issue, decision, and/or
action is not categorized as either a ?particularmatter of general applicability? or a ?particular
matter involving speci?c parties.?

While the term ?matter? is not af?rmatively de?ned in the ethics regulations, for

purposes of determining whether the speci?c recusal and disquali?cation requirements which
apply to ?particular matters of general applicability" or ?particular matters involving speci?c

4:

 

 

parties? are applicable to an issue, decision, and/or action pending at the a working
de?nition can be derived from examples in the ethics regulations of the types of issues,
decisions, and/or actions that OGE does not consider to be ?particular matters of general
applicability? or ?particular matters involving speci?c parties.? 5 C.F.R. 
l)(regulations changing the manner in which depreciation is calculated is not a particularmatter,
nor is the Social Security Administration's consideration of changes to its appeal procedures for
disability claimants); 5 C.F.R. 2641 .201(h)(2)(Bx. 3)(formulationof policies for a nationwide
grant program-for science education programs targeting elementary school children is not a
particular matter). . 

Therefore, we apply the generally accepted de?nition that the consideration of broad
policy options that are directed to the interests of a large and diverse group of persons, such as
health and safety regulations applicable to all employers or a legislative proposal for tax reform
- would not qualify as either ?particular matters of general applicability? or ?particular matters
involving speci?c parties.? 5 C.F.R. for purposes of the analysis 
and discussion in this memorandum, the term ?matter? is used to describe the consideration of
broad policy options that are directed to the interests of a large and diverse group of persons.

Therefore, if an issue, decision, and/or action pending at- the D01 is broad and (2)
directed to the interests of a large and diverse group of persons, then the recu'sal and 
disquali?cation requirements found in ethics laws, regulations, and rules for ?particular matters.
of general applicability? and ?particular matters involving speci?c parties? would not apply, and
a D01 employee 'will generally be able to fully participate in theissue, decision, and/or action. 4

B. De?nition of ?Particular Matter?

The term, ?particular matter? means any matter that involves ?deliberation, decision, or
action that is focused on the interests of speci?c persons or a discrete and identi?able class of
persons.? 5 C.F.R. 5 C.F.R. The term ?particular matter?,
however, ?does not extend to the consideration or adaption of broad policy options that are
directed to the interestsof a large and diverse group of persons.? 5 C.F.R. 
Based on this de?nition it is clear that ?particular matters? may include matters that do not 
involve speci?c parties and are not ?limited to adversarial proceedings, or formal legal .
relationships.? Van Be v. EPA 202 F.3d 296, 302 (D.C. Cir. 2000) an Ee .6

 

 

The term ?matter? is found in the one-year post-employment restrictions in 18 U.S.C. 207(c)
and for ?senior employees? and ?very senior employees.? Therefore, those restrictions will be
applicable even to issues, decisions, and/or actions at the D01 that are broad and (2) directed to the
interests of a large and diverse group of persons. 5 C.F.R. 

5 Please note that for purposes of the Ethics Pledge, the term ?particular matter? has the same
meaning as set forth in 18 U.S.C. 208, and 5 C.F.R. Ethics Pledge, Sec. 
ln Van Be, the D.C. Circuit construed 18 U.S.C. 205(a)(2), which bars executive branch -

employees and others from l?act[ing] as agent or attorney" for othersp"before any department, agency, [or]
court" in connection with certain ?covered matters" in which "the United States is a party or has a direct
and substantial interest." The D.C. Circuit concluded that 18 U.S.C. does not prohibit the
communications which the plaintiff in the case, a career employee. proposed to make:

The term ?particular matter? generally covers two categories of matters: those that
involve speci?c parties, and. (2) those that do not involve Speci?c parties but at least focus on the
interests of a discrete and identi?able class of persons,_such as a particular industry. or .
profession.? D0-06-029 at 8. These two types of particular matters are generally referred
to as ?particular matters involving speci?c parties? and ?particular matters of general
applicability,? and the de?nitions of each type of ?particular matter? is discussed ?mher below
starting with the broader category of ?particular matter of general applicability.?

1. De?nition of ?Pmicular Matter of Genem'Applicabili??

A ?particular matter of general applicability? is broader than a ?particular matter
involving speci?c parties.? 5 C.F.R. A"?particular matter of general
applicability? does not involve speci?c parties, but is a matter that focuses on the interests of a
discrete and identi?able class, such as a particular industry 0r profession. See 068 DOM-029
at 8. Examples of ?particular matters of general applicability? includes rulemaking, legislatiOn,
_or policy-making, as long as it is narrowly focused On a discrete and identi?able class such as a
particular industry or profession. For instance, a ?particular matter of general applicability? at
the DOI might include a regulation prescribing safety standards for operators of oil- rigs in the .
Gulf of Mexico or a regulation applicable to all those who have grazing permits public -
lands. On the other hand, a land use plan covering a large geographic area and affecting a. 
number of industries agriculture, grazing, mining, timber, recreation, wind, solar, and/or 
geothermal power generation, etc.) would not generally oOnstitute a ?particular matter of general
applicability? but, rather, would still fall within the broader de?nition of ?matter,? as it
constitutes a broad policy directed to the interests of a large and diverse group of persons.

2. De?nition ammonia; Speci?c Parties?

The narrowest type of matter under the ethics laws, regulations, and rules is a ?particular.
matter involving speci?c parties.? Depending on the grammar and structure of the particular 
statute or regulation, the wording may appear in different forms, but OGE has advised 
that the meaning remains the same, focusing primarily on the presence of speci?c parties. 7 OGE

 

. We hold that 5 205 is inapplicable to Van Ee'sguncompensated communications on behalf
of public interest groups in re'sponse to requests by an agency at which he is not
employed for" public comment on proposed environmental impact statements related to
land-use plans; these proceedings lack the particularity required by the statute, will not
result in a direct material bene?t to the public interest, groups, and do not create a real
con?ict of interest or entail an abuse of position by Van ?Ee.

202 F.3d at 298-99. In reaching this conclusion, the DC. Circuit analyzed the components
required in order for an agency issue, action, and/or decision to be categorized as a ?particular matter.?
This analysis is not limited to 18 U.S.C. 205, but rather it provides guidance on how to categorize

-- agency issues, actions, and/or decisions for other ethics statutes and regulations, including, but not limited
to l8 U.S.C. 203, IS U.S.C. 207, 18 208, and 5 C.F.R. ?2635.502.

. 7 For example, in the post-employment statute, the phrase "particular matter . . . which involved a
speci?c party or parties" is used. 18 U.S.C. 207(a)(l), Similar language is used in 18 U.S.C. 
205(c) and 203(c), which describe the limited restrictions on representational activities applicable to

6 .

 

 at 10-11. As set forth in 5 a particular matter involving

speci?c parties ?typically involves a speci?c proceeding affecting the legal rights of the parties

or an isolatable transaction or related set of transactions between identi?ed parties, such as a 
speci?c contract, grant, license, product approval application, enforcement action, administrative
adjudication, or court case.? Legislation or rulemaking of general applicability and the
formulation of general policies,standards or objectives, or other matters of general applicability
are not particular matters involving speci?c parties. 5 C.F.R. The regulations
further advise that ?[i]nternational agreements, such as treaties and trade agreements, must be 
evaluated in light of all relevant circurhstances to determine whether they should be considered 
particular matters involving speci?c parties; relevant considerations include such factors as
whether the agreement focuses on a speci?c property or territory, a speci?c claim, or addresses a

large number of diverse issues or economic interests.? 1d; see also 0613 DO-06-029 at 2-5.

Additionally, in its preamble to the ?nal rule implementing 5 C.F.R. part 2641, the 0613

stated that does not necessarily equate ?Government program? with ?particular matter

involving speci?c parties.? For one thing, some Government programs are not even, in and of
themselves, particular matters involving speci?c parties. For example, a Government program to
understand the causes of a particular disease is not, in and of itself, a particular matter involving
speci?c parties, even though the program may involve several grants, contracts or cooperative
agreements all designed to support or implement different aspects of the overall program. See,
OGE Informal Advisory Letter 80 9; 5 C.F.R. (Ex. Post-
Employmenr Con?ict of Interest Restrictions Action: Final Rule, 73 Fed. Reg. 36168, 36177
(June 25, 2008).

 

special Government employees. In contrast, l8 U.S.C. 208 generally uses the broader phrase
?particular matter" to describe the matters from which employees must recuse themselves because of a
?nancial interest. However, eventhis statute has one provision, dealing with certain Indian birthright .
interests, that refers to particular matters involving certain Indian entities as "a speci?c party or parties.?
l8 U.S.C. 208(b)(4); see 065 Informal/trinket), Letter 00 i 2. 008 has also issued certain regulatory
exemptions, under 18 U.S.C. 208(b)(2), that refer to particular matters involving speci?c parties. 5
C.F.R. Additionally, the distinction between ?particular matters involving speci?c
parties? and broader types of particular matters those that have general applicability to an entire class
of persons) is crucial?to several other regulatory exemptions issued by 008 under 18 U.S.C. 208(b)(2).
5 C.F.R. OGE has used similar language in various
other rules. Most notably, the provisions dealing with impartiality and extraordinary payments in subpart
of the Standards of Ethical Conduct for Employees of the Executive Branch refer to particular matters
in which certain persons are speci?c parties. 5 C.F.R. 2635.502; 2635.503. OGE also uses the phrase
to describe a restriction on the compensated speaking, teaching and writing activities of certain special
Government employees. 5 C.F.R. The Ethics Pledge states that for purposes of -
paragraphs 6 and 7 the term ?particular matter involving speci?c parties? will be de?ned as set forth in 5
C.F.R. 264l .201(h) ?except that it shall also include any meeting or other communication relating to the
performance of one?s of?cial duties with a former employer or former client, unless the communication
applies to a particular matter of general applicability and participation in the meeting or other event is
open to all interested parties.? Ethics Pledge, Sec. 

in. Analysis of Whether the EIS N01 or 2019 BA. Should Be Categorized as'
?Matters,? ?Particular Matters of General Applicability,? or ?Particular
. Matters Involving Speci?c Parties? 

A. The Dra? EIS rs a ?Matter?

On December 29, 2017, Reclamation published the E18 N013 which set forth
Reciamation? intent to prepare a programmatic environmental impacts?: statement for analyzing
potential modi?cations to the continued LTO of the CVP, for 115 authorized purposes, in a
coordinated manner with the SWP, for its authorized purposes. Dra? E15 N01, 82 Fed. Reg.
61789 (Dec. 29,2017). Reclamation proposed to evaluate alternatives that maximize water
deliVeries and optimize marketable power generation consistent with applicable laws, contractual
obligations, and agreements, and to augment operational ?exibility by addressing the status of
listed species. Id. Reclamation sought suggestions and information on the alternatives and
topibs to be addressed and any other important issues related to the proposed action. 1d.

A?er review, the D130 has determined that the discussions and deliberations leading up
to the decision to issue the Dra? EIS N01, and the publication of the qu? 518 N01 do not
constitute a ?particular matter? (either a ?particular matter involving specific parties? or a
?particular matter of general applicability?) and, therefore, D01 employees Would not be
required to recuse from participation in the Dra? EIS under 18 U. S. C. 208,5 C. F. R. 
2635 .,502 or the Ethics Pledge. This decision rs consistent with prior DEO analysis and

 

11 Under the National Environmental Policy Act (NEPA), codi?ed at 42 C.F.R. ?432l e! seqaa
Federal agency must prepare an environmental impact statement (818) if it is proposing a major federal
action signi?cantly affecting the quality of the human environment. In this case, Reclamation and DWR
propose to continue the long-term operation of the CV and to maximize water supply delivery and
optimize power generation congistent with applicable laws, contractual obligations, and agreement, and to
increase operational ?exibility by focusing on non-operational measures to avoid significant adverse
effects. Reclamation and DWR propose to store, divert, and convey water mm existing
water contracts and agreements, including water service and repayment contracts, settlement contracts,
exchange contracts, and re?rge deliveries, consistent with water rights and applicable laws and
regulations. The proposed action includes habitat restoration that would not otherwise occur and provides
speci?c commitments for habitat restoration. .

The BIS process begins with publication of a Notice of intent (N01), stating the agency?s intent to prepare
an EIS for a particular proposal. The rs published 1n the Federal Register, and provides some basic
information on the proposed action in preparation for the seeping process. The provides a brief
description of the proposed action and possible alternatives. It also deScribes the agency?s proposed .
scoping process, including any meetings and how the public can get involved. The willalso contain
an agency point of contact who can answer questions about the proposed action and the NEPA process.
The scoping process is the best time to identify' rssues, determine points of contact, establish project
schedules, and provide recommendations to the agency. The overall goal' rs to define the scope of rssues
to be addressed 1n depth 1n the analyses that will be included 1n the BIS.

interpretations of Environmental Impact Statements and is supported by the decision. of the
United States Court of Appeals for the District of Columbia Circuit (DC. Circuit) in Van Be.

As discussed in Van Be whether an administrative proceeding is a ?particular matter? is

determined by the nature and focus of the governmental decision to be made or action to be
taken as a result of the proceeding309. Only where the decision' 1s focused

on a probable particularized 1mpact on discrete and identi?able parties is the proceeding
considered a particular matterCircuit examined whether the public
comment phase on a proposed BIS related to land use plans was a ?particular matter,? and 
determined that because the focus of the decision to be made by the agency following the public
comment phase on the proposed BIS was not on the interests of particular groups or individuals,
the public comment phase of a proposed BIS on a land use plan did not constitute a ?particular
matter. Id. .

 

 

 

. In this instance, Section of theDra? EIS NOI identifies the following purposes: (1)
to advise other agencies, CVP and water users and power customers, and
the public of Reclamation? intention to gather information to support the preparation of an 
(2) to obtain suggestions and information from other agencies, interested parties, and the public
on the scope of altemanves and 1ssues to be addressed' 1n the and (3) to identify important

issues raised by the public related to the development and implementation of the proposed
action. Dra? EIS NOI, 82 Fed. Reg. at 6179]. Similar to the facts underlying the D. C. Circuit?s
decision 1n Van Be the deliberations and discussions leading up to the publication of the Dra?
E18 N01 and the potential impact of the EIS itself was not focused on the interests of a discrete
and identi?able class of persons and, accordingly, it should not be categorized as a ?particular
matter? but rather as a ?matte as de?ned above.

 

 

In Van Be the DC. Circuit noted the types of proposed actions generally set forth in
are focused on diverse sets of' mterests, such as how to reconcile or balance recreational,
conservation, and commercial 1nterests 1n a land use plan covering considerable territory309. Similarly, Section II of the Dra? EIS NOI, notes that Reclamation intends
to analyze potential modi?cations coordinated manner with the
SWP, to achieve the following goals:

Maximize water supply delivery, consistent with applicable law, contracts and
agreements, considering new and/or modi?ed storage and export facilities.

0 Review and consider modi?cations to regulatory requirements, including existing

Reasonable and Prudent Alternative actions identi?ed' 1n the Biological Opinions

issued by the USFWS and NMFS 1n 2008 and 2009, respectively.

0 Evaluate stressors on ?sh other than CVP and SWP operations, bene?cial non-?ow
measures to decrease stressors, and habitat restoration and other bene?cial measures
for 1mproving targeted ?sh populations.

0 Evaluate potential changes' 1n laws, regulations and infrastructure that may bene?t

. power marketability.

Dm? EIS NOI, 82 Fed. Reg. at 61790. Additionally, Section of the Dra? E18 N01 -
states: ?[tlhe purpose of the action considered in this BIS is to continue the operation of

9

the CVP in a coordinated manner with the SWP, for its authorized purposes, in a manner
that enables Reclamation and California Department of Water Resources to maximize
water deliveries and Optimize marketable power generation consistent with applicable .
laws, contractual obligations, and agreements; and to augment operational by
addressing the status of listed species.? Id.

Sections 11 and 111 of the Dra? 318 N01 establish that the discussions and deliberations
leading up to the decision to issue the Dra?' E13 N01, and the publication of the Drajl EIS N01,
focused on the broad policy option of remedying reduced availability of water for delivery south
of the Delta by continuing operation of the CVP in a coordinated manner with the in a
manner that enables Reclamation and DWR to maximize water deliveries and optimize
marketable power generation, consistent with applicable laws, contractual obligations, and .
agreements, while augmenting operational ?exibility by addressing the status of listed species.

These discussions and deliberations leading up to the decision to issue the Draft EIS N01,
and the publication of the qui 518 did not focus on the legal rights of the parties or an
isolatable transaction or related set of transactions between identi?ed parties, such as a speci?c
contract, grant, license, product approval application, enforcement action, administrative
adjudication, or court case; or on the interests of a discrete and identi?able class of persons.
Therefore, they are not appropriately categorized as ?particular matters? as de?ned in 5 C.F.R. 
5 C.F.R. 5 C.F.R. 2641201000) (?particular matters
involving speci?c parties?), or 5? C.F.R. 2641 .201(h)(2) (?particular matters of general
applicability?). Rather, they were focused on the broad policy of restoring, at least in part, water
supply, in consideration of all of the authorized purposes of the CVP as discussed in greater
detailab'ove. Accordingly, the disCussions and deliberations leading up to the decision to issue
the Dra? EIS N01, and the publication of the Dra? EIS N01, are appropriately categorized as
?matters? and do not trigger the speci?c recusal and disquali?cation requirements that are
applicable when an issue, decision, and/or action pending at the D01 is a ?particular matter of
general applicability? ?or a ?particular matter involving speci?c parties." Consistent with this,
D01 employees would not be required to recuse from participation in the Dra? E18 N01 under
18 U.S.C. 208, 5 C.F.R. 2635.502, or the Ethics Pledge. 

B. The 2019 BA is a ?Matter?

On August 2, 2016, Reclamation and DWR9 requested reinitiation of Section 7
consultation under the Endangered Species Act of 1973 (BSA), codified at 16 U.S.C. 1531 e!

 

9 While 5 C.F.R. includes ?application? as an example of a ?particular matter
involving specific parties,? in this case, DWR should not be considered an applicant as the word is

. traditionally defined. While DWR was listed as an applicant for the reinitiation of Section 7 consultation
in 2016, they are not included as an author of the 2019 BA, Indeed, based on available information, DWR
is not applying for a speci?c permit or license to carry out an activity through the consultation process.
Instead, DWR, along with BOR, requested reinitiation of formal consultation under Section 7 of the ESA
on the continued operation of the CVP and the SWP, both of which are massive water projects sewing
multiple purposes throughout a large portion of the State of California. Further, under the consultation
process set forth in Section 7 of the ESA, only federal agencies can request?consultation from the USFWS
and the NMF to review the impacts proposed signi?cant federal action. 16 U.S.C. 1536. Accordingly,

10

 

seq., with the United States Fish and Wildlife Service (USFWS) and National Marine Fisheries
Service (NMFS) on the Coordinated LTO of the CVP and 2019 BA at 1-1. The USFWS
accepted the reinitiation request .on August 3, 2016, and the NMFS accepted the reinitiation
request on August 17, 2016. Id. The 2019 BA supports Reclamation?s consultation under
Section 7 of the BSA, and documents the potential effects 0f the proposed actionsll to provide

 

identi?cation of DWR as part of the ?application? for the reinitiation request does not act to convert the
2019 BA into a ?particular matter involving speci?c parties.? . 

'0 As codi?ed in 16 l531, the purpose of the BSA is to protect and recover imperiled
species and the ecosystems upon which they depend. it is administered by the USFWS and the NivlFS: .
The USFWS has primary responsibility for terrestrial and freshwater organisms, while the responsrbilrtras
of NMFS are mainly marine wildlife such as whales and anadromous fish, such as salmon. Under the .
BSA, species may be listed as either endangered or threatened. ?Endangered? means a species is in danger
of extinction throughout all?or a signi?cant portion of its range. l6 U.S.C. 1532(6). ?Threatened? 
means a species is likely to become endangered within the foreseeable future. 16 U.S.C. [532(20). All
species of plants and animals, except pest insects, are eligible for'listing as endangered or threatened. For
the purposes of the BSA, Congress defined species to include subSpecies, varieties, and, for vertebrates,
distinct population segments. - . 

The BSA directs all Federal agencies to work to conserve endangered and threatened species and to use
their authorities to ?rrther the purposes of the BSA. Section 7 of the BSA, called ?Inter-agency
Cooperation,? is the mechanism by which Federal agencies ensure the actions they take, including those
they ?rnd or authorize, do not jeopardize the existence of any listed species or adversely modify or
destroy critical habitats. 16 U.S.C. 1536. Under Section 7, Federal agencies must consult with the .
USFWS (and/or NMFS as appropriate) when any'action the agency carries out, ?rnds, or authorizes (such
as through a permit) may a?'ect a listed endangered or threatened species; This process often begins as 
informal'consultation. Id. A Federal agency, in the early stages of project planning, approaches the -
USFWS (and/or NMF as apprOpriate) and requests informal consultation. Discussions between the
agencies may include what types of listed species may occur in the proposed action area, and what effect
the proposed actionvmay have on those species. If it appears that the agency?s action may a??ect a listed
. species, that agency may then prepare a biological assessment to assist in its determination of the
project's effect on a species. l6 U.S.C. 1536(c).

When a Federal agency determines, through a biological assessment or other review, that its action

is likely to adversely q?'ect a listed species, the agency submits to the USFWS (and/or NMFS as
appropriate) a request for formal consultation. During formal consultation, the USFWS (and/or NMFS as
appropriate) and the agency share information about the preposed project and the species likely to be,
affected. Formal consultation may last up to 90 days, after which the USFWS (and/or NMPS as
appropriate) will prepare a biological opinion on whether the proposed activity will jeopardize the 1
continued existence of a listed species. The USFWS as appropriate) has 45 days a?er
completion of formal consultation to write the opinion. Please note that thesetimeframes may be
extended upon agreement between the action agency and the services the USFWS (and/or NMFS as
appropriate). 

The proposed action analyzed in the 2019 BA centers on a Core Water Operation that provides for .
Reclamation and DWR to operate the CVP and SWP for water supply and to meet the requirements of
State Water Resources Control Board Water Right Decision 1641 (0-1641), along with other
project purposes. 2019 BA at 1-2. The Core Water Operation consists of Operational actions that do not
require subsequent concurrence or extensive coordination to define annual operation. Id. The proposed
action also includes conservation measures designed'to minimize or reduce the effects of the action on
listed species. Id. in addition, the 2019 BA and resulting consultation evaluates actions that will require

11

operational ?exibility for the and SWP, large-scale government programs that divert, store,
and convey water throughout Califomia for various purposes,.on federally listed endangered and
threatened species that have the potential to occur in the action area and critical habitat for these
species. Id. It also ful?lls consultation requirements for the. Magnuson-Stevens Fishery

. Conservation and Management Act of 976 for Essential Fish Habitat. 1d.

As set forth in the 2019 BA, several factors resulted in Reclamation requesting reinitiation
of consultation under the ESA, including the apparent decline in the status of several listed
species, new information related to recent multiple years of drought, and the evaluation of best
available science. The coordinated long-term operations
of the CVP and SWP are currently subject to 2008 and 2009 biological opinions issued pursuant
to Section 7 of the ESA. 2019 BA at 1.1.2, 1-4-5. Each of these biological opinions included
Reasonable and Prudent Alternatives to avoid the likelihood of jeopardizing the continued
ekistence of listed species, or the destruction or adverse modi?cation of critical habitat that were
the subject of consultation. Id. In the 2019 BA, Reclamation proposes to maximize water
deliveries and optimize marketable power generation consistent with applicable laws, contractual
obligations, and agreements, and to augment operational ?exibility by addressing the status of

listed species. 

After review, the DBO has determined that the 2019 BA should not be categorized as
either a ?particular matter involving speci?c parties? or a ?particular matter of general .
applicability,? but rather as a ?matter? as de?ned for purposes of this memorandum. Therefore,
DOI employees would not be" required to recuse from participation in the 2019 BA under 18
U.S.C. 208, 5 C.F.R. 2635.502, or the Ethics Pledge. This decision is consistent with prior
DEO analysis and interpretations of Biological Assessments (BAs) and Biological Opinions
issued pursuant to the, requirementsof the BSA, and is supported by the decision of the DC.
Circuit in Van Ee. 

Generally, a BA is a compilation of the prepared by or under the direction of
4 a Federal agency as part of its- Section 7 consultation concerning listed and proposed species'and
designated and proposed critical habitat that may be present in the action area and the evaluation
of potential effects of the action on such species and habitat. to U.S.C. A BA
evaluates the potential effects of the actiOn on listed and proposed species and designated and
proposed critical habitat and determines whether any such species or habitat are likely to be
adversely affected by the proposed actions and is used in determining whether formal
consultation or a conference is necessary. Id. 

The 2019 BA analyzes and includes as an environmental baseline, the past and present
impacts of all federal, state, and private actions and other human activities in the action area, the
anticipated impacts of all proposed federal projects in the action area that have already 
undergone formal or early Section 7 consultation, and the impact of certain state or private .
actions that are contemporaneous with the consultation in process, including the past and present

 

further development and may change during repeated implementation as more information becomes
available ?adaptive management?). Adaptively managed actions will require additional coordination
prior to implementation through program-speci?c teams established by Reclamation and DWR with input
and participation from partner agencies and stakeholders. Id. 

12

 

impacts of CVP and operations under 2008 and 2009 biological opinions. 2019 BA at 3-1-
21. The BA also analyzes the effects of multiple physical, hydrological, and biological
alterations that have negatively affected the species and habitat considered in the consultation
with the USFWS and NMF including past, present, and ongoing effects of the existence of the
CVP structures, as .well as disconnected ?oodplains and drained tidal wetlands, levees, gold and
gravel mining, gravel, timber production, marijuana cultivation, large woody debris, alterations
to address effects, ?sh passage, spawning and rearing habitat augmentation, tidal marsh
restoration, etc.1d. The 2019 BA also sets forth a series of proposed actions that if
implemented will work to maximize water deliveries and optimize marketable power
generation consistent with applicable laws, contractual obligations, and agreements, and to
augment operational ?exibility while minimizing impact to listed species. 2019 BA at 4-1 -62; 5-
1-498; 6-1-4. 

Additionally, applyingthe. DiC..Circuit3s magnet. .
even constitute ?particular matters,? let alone ?particular matters involving speci?c parties.? As
noted by the DC. Circuit in Van Ee: an administrative proceeding is a ?particular
matter? . . . is deterrnined?by the nature and focus of the governmental decision to be made or?
action to be taken as a result of the proceeding. Only where the decision is focused on a
probable particularized impact on discrete and identi?able parties [is it a particular matted.?
Van *Ee the is notfo?cused?on a probable 
particularized impact on discrete and identi?able parties. Instead, the 2019 BA evaluates the
potential e?'ects of the action on a number of listed and proposed species and designated and
proposed critical habitats, and determines whether any such Species or habitat are likely to be
adversely affected by the proposed actions and is used in determining whether formal

 

 

consultation or a conference is necessary. 1d. Moreover, the numerous proposed actionsthat'thet

2019 BA discusses will work together to provide additional operational ?exibility for the
continued operation of the CVP and SWP, both of which as described above in greater detail,

are federal and state government projects that are enormous in geographical extent and impact on
the people, wildlife, and environment of California. As a result, the proposed actions under
review in the 2019 BA take into account and have the potential to impact a wide and diverse sets
of interests, and the 2019' BA analyzes how to reconcile or balance recreational, conservation,
and commercial interests in the operation of the CVP and SWP.

Accordingly, even though some of the' issues, decisions, and actions undertaken by the
DOI with respect to the preparation, development, drafting, discussion, and submission of the
2019 BA may have adiscemible impact on the interests of certain identi?able parties, the overall
impact and focus of the proposed actions and decisions to be made are of a much broader nature,
including the avoidance of jeopardizing the continued existence of a listed species and the
destruction or adverse modi?cation of designated critical habitat in connection with the
continued operation of the CVP and the SWP. Consistent with this, the D01 ?5 work on the 2019
BA did not focus on the legal rightsof the parties or an isolatable transaction or related set of
transactiOns between identi?edparties, such as a speci?c contract, grant, license, product
approval application, enforcement action, administrative adjudication, or court case; or on the
classof persons: Therefore; itisnot appropriately-i 
categorized as a ?particular matter? as de?ned in 5 C.F.R. 5 
5 C.F.R. 2641 .201 (?particular matters involving speci?c parties?), or 5

13

 

 

C. F. R. 2641 .20l(h)(2) (?particular matters of general applicability?). The 2019 BA considered
a wide range of diverse 1ssues related to and the interests of the environmental, agricultural,
industrial, municipal, business, academic, and recreational sectors. As result, the work on
the 2019 BA involved multifaceted discussions among representatives of those numerous
sections and industries 1n a process that more closely resembles legislative policymaking than
contracting, litigation, or negotiations. The tssues, decisions, and actions undertaken by the D01
with respect to the preparation, development, dra?ing, discussion, and submission of the 2019
BA are therefore appropriately characterized as a ?matter? as de?ned for purposes of this
memorandum, and D01 employees would not be required to recuse from participation in the
2019 BA under 18 U. ..C {5 208, 5 C. F. R. ?2635. 502, or the Ethics Pledge.

1V. Guidance 0n Assessing Whether Issues, Decisions, and/or Actions Involving the

CVP and/or SWP Are ?Matters,? ?Particular Matters of General Applicability,?
or ?Particula; Matters Involving Sp eci?c Parties?

As set forth in greater detail above, the D130 has determined that both the Dra?? E18 N01
and the 2019 BA are appropriately categorized as ?matters? as de?ned 1n this memorandum. It is
important to note that as work on the Dra? EIS N01 and the 2019 BA continues, it is possible
that certain aspects of each, such as the implementation of certain underlying actions,
interpretation of speci?c requirements, or the application of decisions on one sector, could
develop into ?particular matters of general applicability" or ?particular matters involving speci?c
parties.? This, 1n turn, can implicate the recusal or disquali?cation requirements of 18 S. C. 
208,5 C.F. R. 2635502, or the Ethics Pledge.

Accordingly, D01 employees should not assume that the conclusions of this
- memorandum are applicable to every EIS or BA, or to the entire lifecycle of either the Dra? EIS
N01 or the at the D01. Fmther, while the CVP and SWP projects taken as a whole at 
D01 are ?matters? as de?ned in this memorandum, D01 employees should not conclude that
each issue, decision, and/or action that impacts the CVP or SWP are also ?matters.? Instead, the
D130 recommends that D01 assess whether the issues, decisions, and/or actions that
they undertake withrespect to the CVP and the SWP are best categorized as:

broad policy options that are directed to the interests of a large and diverse group
of persons;

0 an issue, decision, and/or action focused on the interests of a discrete and

identi?able class, such as a particular industry or profession; or

a speci?c proceeding affecting the legal rights of certain parties or an isolatable
transaction or related set of transactions between identi?ed parties, such as a
speci?c contract, grant, license, product approval application, enforcement
action, administrative adjudication, or court case.

In order to assist D01 employees' 1n categorizing their work on CVP and SWP issues,
decisions, and/or actions pending before the D01, the D130 has prepared the chart below as a
general reference guide. It sets forth the three general categories under the ethics laws and
regulations and includes examples of certain issues, decisions, and/or actions involving the CVP

14

 

 

and SWP that could potentially be categorized as ?matters,? ??partiCular matters of general
applicability,? or ?particular matters involving speci?c parties.?

 

 

 

 

 

 

 

 

 

CATEGORIES 

?Matters? as de?ned in this 0 Draft 1313 [as described above]

memorandum 2019 BA [as described above]

0 lie 0 tions that 0 Issue, decision, and/or action that impacts all industries
are directed to the and sectors involved with the CVP and/or SWP
interests Of a and CVP-wide operational and programmatic policy decisions
MW 

?Particular Matters of _o Issue impacting only the agricultural industry involved

General Applicability? with the CVP and/or SWP . .

185118, and/or 0 Decision limited only to hydroelectric power generators

action 0 Action focused only on municipal water issues .
Williams ofa discrete and 0 Anything that impacts an entire sector and/or industry or a 
identi?able C1385 3'40}! as subset of sectors and/or industries involved with and
a particular industry 01' impacted by the CVP and/or SWP 

. profession . 

?Particular Matters 0 CVP Water Contracts 

Involving Speci?c Parties? 0 Litigation 

Speci?c proceeding 0 Settlement Agreements
affecting the 1988-1 rights 0 Permit for a speci?c party or parties
ofcertain parties or an 0 Speci?c request from individuaKs) or entity(ies)
isolatable transaction or . -
related set of transactions 

A between identi?ed parties

In every case, the categorization of issues, decisions, and/0r actions willdependon the
speci?c facts involved, and the D130 is available to provide speci?c guidance and assistance in
making such determinations.

V. Conclusion

This memorandum re?ects the current analysis and guidance of the DEO on how the 
types of issues, decisions, and/or actions involving the CVP and the coordination of
operations with the SWP, should be categorized as ?matters,? ?particular matters of general
applicability,? or ?particular matters involving speci?c parties? pursuant'to the de?nitions of
those terms in ethics regulations and guidance from the 0013. As discussed greater detailas
above, the DBO has determined that both the Dra? E18 N01 and the 2019 BA are ?matters?
de?ned in this memorandum and, as such, DOI employees would not be required to recuse from
participation in either the Dra?? E13 N01 or the 2019 BA under 18 U. S. C. 208,5 C. F. R. 
2635 .,502 or the Ethics Pledge.

1S

 

While there are other similar broad policy determinations impacting the entire CVP
and/or SWP that would not Constitute either ?particular matters of general applicability? or
?particular matters involving speci?c parties,? the DEC notes that case-by-case factual analysis
and ethics review will be required in many, if not most, circumstances in order to determine the-
appropriate categorization of issues, decisions, and/or actions undertaken at the D01 with respect -
to the CVP and the SWP. The DEO is available to provide further ethics guidance on this and
other issues upon request. -

16

 

UNITED OF

ETHICS

 

 

March 20, 2017
7-03

LEGAL ADVISORY
TO: Designated Agency Ethics 'Of?cials

FROM: David J. Apol 
General Counsel

Guidance on Executive Order 13770

Executive Order 13770 rescinds Executive Order 13490 and requires ?appointees? to sign
a new ethics pledge comprising several commitments. See E.O. 13770, sec. 1 (Jan. 28, 2017).
Last month, the US. Of?ce of Government Ethics (OGE) issued Legal Advisory LA-17-02
(Feb. 6, 2017) to provide initial guidance on Executive Order 13770. Subsequently, OGE
discussed with the Counsel tovthe President?s of?ce prior guidance on Executive Order
13490 and the meaning of several paragraphs of Executive Order 13770. Based on these
discussions, this Legal Advisory identi?es the parts of issuances on Executive Order
13490 that are applicable to Executive Order 13770 and provides additional guidance.

1. Applicability of Prior Guidance to Executive Order 13770

As previously indicated, prior guidance on Executive Order 13490 is applicable to
Executive Order 13770 to the extent that it addresses language common to both executive orders:
Therefore, all substantive legal interpretations in the following Legal Advisories are applicable
to Executive. Order 13770: DO-09-005, DO-09-007, DO-09-010, DO-09-014, DO-09-020,
DO-10-003, and LA-12- 1.0. The following Legal Advisories remain valid in part, as Speci?ed in
annotations that now appear in the versions posted on website: DO-09-003, 
DO-10-004, and LA-16-08. For the convenience of ethics Of?cials and employees, an enclosed
table highlights certain language common to both executive orders and references prior guidance
that is applicable to Executive Order 13770.

II. Paragraph 7: ?Specific Issue Area?

EXecutive Order 13770 prohibits an appointee from participating in any particular matter
on which the appointee lobbied during the two?y'ear period before being appointed or in the
?speci?c issue area? in which that particular matter falls. See E.O. 13770, sec. 1, par. 7; .
E.O. 13490, sec. l, par. 3. The Counsel to the President?s of?ce has advised OGE that, as used in
Executive Order 13770, the term ?speci?c issue area? means a ?particular matter of general
applicability,? and OGE has accepted the Administration?s interpretation of this term. Although
?speci?c issue? and ?general issue area? are used in the context of the Lobbying Disclosure Act
(LDA), the term ?speci?c issue area? is not used in that context. See E.O. 13770, sec. 2; see also

 



1201 NEW YORK AVE 500 

I 2 U.S.C. 1602, l603(b)(5), l604(b)(2). Although the term ?speci?c issue area? appeared in
Executive Order 13490, it was not de?ned in any guidance issued during the eight years in which
that executive order remained in effect.

OGE has issued guidance distinguishing two typesof particular matters: ?particular
matters involving speci?c parties? and ?particular matters of general applicability.? See 5 C.F.R.
see also OGE Inf. Adv. Op. 06 9 (2006). The latter is broader than the
former. Id. This difference in breadth is relevant in determining the scope of the recusal, as
illustrated in the following example: 

An appointee was a registered lobbyist during the two-year period
before she entered government. In that capacity, she lobbied her
agency against a proposed regulation focused on a speci?c

. industry. Her lobbying was limited to a speci?c section of the 

. regulation affecting her client. Her recusal obligation as an 
appointee is not limited to the section of the regulation on which

she lobbied, nor is it limited to the application of the regulation to
her fdrmerClient. Instead, she must recuse for two years ?om
development and implementation of the entire regulation, 
subsequent interpretation of the regulation, and application of the
regulation in individual cases. 

Paragraphs 1 and 3: Post-Government Employment Lobbying Restrictions.

The ethics pledge under Executive Order 13770 establishes two post-Govemment

. employment lobbying restrictions. The restriction in paragraph 1 of the ethics pledge prohibits a
former appointee, for ?ve years after terminating employment with an executive agency, from
engaging in lobbying activities ?with respect to? that agency. See E.O. 13770, sec. 1, par. 1. The
restriction in paragraph 3 of the ethics pledge establishes the same restriction ?with respect to?
any covered executive branch official or non-career Senior Executive Service appointee for the .
remainder of the Administration. See id.; E.O. 13770 sec. 1, par. 3; sec. 

Executive Order 13770 relies partly on the de?nition of ?lobbying activities? in the.
Lobbying Disclosure Act (LDA). See E.O. 13770, sec. The LDA de?nes that term to
include both ?lobbying contacts? and behind-the-scenes efforts in support of such-contacts;

2 U.S.C. 1602(7). The de?nition of ?lobbying contacts? is limited to certain types of
communications and?excludes 19 types of communications. 2 U.S.C. 1602(8). Executive Order
13770 speci?cally excludes additional types of communications. See 13770, sec. 

For purposes of paragraph 1, lobbying activities are deemed to be carried out ?with
respect to? an agency only to the extent that they involve the following:

Any oral or written communication to a covered executive
branch of?cial of that agency; or

 Efforts that are intended, at the time of performance, to support
a covered lobbying contact to a covered executive branch of?cial
of that agency.

For purposes of paragraph 3, the prohibition on lobbying activities ?with respect to? a
covered executive branch official or non-career Senior Executive Service appointee extends to
non-career Senior Executive Service appointees. Therefore, lobbying activities in paragraph 3
involve the following: .

Any oral or written communication to a covered executive
branch of?cial or non-career Senior Executive Service appointee;
or - 

EffOrts that are intended, at the time of performance, to. support
a covered lobbying contact to a covered executive branch of?cial
or non-career Senior Executive Service appointee of that agency.

For the convenience of ethiCs of?cials and employees, an enclosed table compares the
post-Govemment employment lobbying restrictions in paragraphs 1 and 3.

Attachments



Wk?fthe

Section 1. Ethics Pledge. Every
appointee in every executive
agency appointed?on or after
January 20, 2017, shall sign,
and upon signing shall be
contractually committed to,
the following pledge upon
becoming an appointee:

   
   

As a condition, and in
consideration, of my

. employment in the United
States Government in an
appointee position invested

with the public trust, I commit .

myself to the following
obligations, which I
understand are binding

on me and are enforceable
under law:

Applicability of Prior Guidance to Executive Order 13770
Attachment to LA-17-03

am: .. i" - 

Signing requirement


6.0. 13770, sec. 1
ED. 13490, sec. 1

De?nition of appointee:

E.0. 13770, sec. 2(b)
E.0. 13490, Sec. 2(b)

Whether the following categories of employees are considered
?appointees" for the purpose of signing the ethics pledge:

           
 

 

   
  

wi?i?? i rt'. ?f-pv-va?zm

?1535i Illidi??e?ib?it??m??fg??-

0 Acting of?cials and detailees: 00-09-010

0 Appointees, generally: 00-09-003, 00-09-010

0 Career of?cials appointed to con?dential positions: 00-09-010
0 Career Senior Executive Service (SES) members given Presidential
appointments: 00-09-010

Excepted service, generally: 00-09-010

Foreign Service, similar positions: 00-09-010

Holdover appointees: DO- 09- 010

Individuals appointed to career positions: 00-09-003

IPA detailees: 00-09-020 

Schedule employees with no policymaking role: 00-09-010
Special Government Employees (SGEs): 00-09-005, 00-09-010
Temporary advisers/counselors pending con?rmation to
Presidentially appointed, Senate-con?rmed (PAS) positions:
00- 09-005

0 Term appointees: 00-09-010

 

Signing requirement
(?shall sign?):

E.0. 13770, sec. 1
ED. 13490, sec. 1

When the ethics pledge must be signed:

Holdover appointees: 00-09-010, 00-09-014

Nominees to PAS positions: 00-09-005

who have already been appointed: 00-09-005
who may be appointed in the future: 00-09-005
Temporary advisors/counSelors pending Senate con?rmation to
PAS positions: 00-09-005

 

Sec. 1I gar. 2: If, upon my.
departure from the

Government, I am covered by

the post-employment
restrictions on communi-
cating with employees of my
former executive agency set
forth in section 207(c) of title
18, United States Code, I
agree that I will abide by
those restrictions.

Restriction on communicating
with employees of former
agency:

E.0. 13770, sec. 1, par. 2

ED. 13490, sec. 1, par. 4

Guidance on the restriction: 00-10-004, LA-16-08

Note: Ethics o?icials and employees may continue to rely on
DO-10-004 regarding the substance of the restriction. Note,
however, that the duration of this restriction in 13770 is one .
year and commences when the individual ceases to be a senior
employee, whereas the duration of the corresponding restriction in
E. 0.13490 was two years, commencing when the appointee moves
to a position that is not subject to the Pledge.

 

 

Sec. 1I par. 5: I will not accept
gifts from registered lobbyists
or lobbying organizations for
the duration of my service as
an appointee.

Prohibition on accepting gifts
from registered lobbyists,
lobbying orgs:

E.O. 13770, sec. 1, par. 5
EC. 13490, sec. 1, par. 1

Guidance on the lobbyist gift ban: 00-09-007, 00-10-003, LA-12-10

Relationship to C.F.R. 2635, subpart 8 (Gifts from Outside Sources):
00-09-007, 00-10?003

 

De?nition of ?gift":
E.0. 13770, sec. 2(k)
5.0. 13490, sec. 2(c)

Guidance on the following terms:
0 "Gift": 00-09-007
0 ?Salicited or accepted 00-09-007

Treatment of official speeches, accompanying staff: 00-10-003

 

 

Definition of? ?registered
lobbyist or lobbying
organization?:

13770, sec. 2(w) 
5.013490, sec. 2(e)

 

Guidance on the term, ?registered lobbyist or lobbying
organization?: 00-09-007

Treatment of the following:

501(c)(3) organizations: DO-09-007, LA-12-10
Clients of lobbyists/lobbying firms: DO-09-007
Institutions of higher education: LA-12-10
Media organizations: 00-09-007, LA-12-10

 

 

 

 

. 1-

13770$F3?f?io?? 

4;

37:7: tam?

 

 

Sec. 1, par. 6: I will not for a
period of 2 years from the
date of my appointment
participate in any particular
matter involving specific
parties that is directly and
substantially related to my
former employer or former
clients, including-regulations
and contracts.

 

Revolving door ban

. (incoming appointees):

5.0. 13770, sec. 1, par. 6
?0 13490, sec. 1, par. 2

 
 
 

V115 

h'y?avb

Guidance on the revolving door ban (incoming mappointees):
00-09-011, 00-09-020

Relationship to impartiality regulations: 00-09-011

 

?we?

 

 

Definition of ?directly and
substantially related to my
former employer or former
clients": .

E.O. 13770, sec. 2(d)

13490, sec. Zlk)

Guidance on the term, "directly and substantially relatedto?:
00-09-011

 

De?nition of "former client?:

5.0. 13770, sec. 2(i) .
5.0. 13490, sec. 20)

Guidance on the term, ?former client": 00-09-011

Treatment of the following:
Discrete, short-term engagements/de minimis: 00-09-011

Government entities: 00-09-011

Nonpro?t organizations: 00-09-011

Service as a consultant: 00-09-011

0 State or local colleges and universities: 00-09-011

Federally funded research and development centers: 00-09-011 .

 

De?nition of ?former
employer?:

13770, sec. 2(i)
?0 13490, sec. 2(i)

Guidance on the term, "former employer?: 00-09-011

Treatment of the follovying: .

Federally funded research-and development centers: 00-09-011
Government entities: 00-09-011

State or local colleges and universities: 00-09-011

Nonpro?t organizations: 00-09-011

 

 

De?nition of "particular matter
involving specific parties":

E.O. 13770, sec. 2(5)
sec. 2th)

 

Guidance on the term, ?particular matter involving specific parties":

00-09-011, D0-09-020

Treatment of the following:

Consultation with experts: 00-09-011

Meetings, other communications: 00-09-011

Official speeches: 00-09-020

Open to all interested parties/multiplicity of parties: 00-09-011
Rulemakings/regulations: 00-09-011

 

 

Paragraphs 1 and 3 in Executive Order 13770
Attachment to LA-17-03

 

   

 

 

I will not, within 5 years after the termination of my
employment as an appointee in any executive agency in
which I am appointed to serve, engage in lobbying
activities with respect to that agency. 13770, sec. 1,
par. 1.

In addition to abiding by the limitations of paragraphs 1
and 2, I also agree, upon leaving Government service,
not to engage in lobbying activities with respect to any
covered executive branch official or non-career Senior
Executive Service appointee for the remainder of the
Administration. E-O. 13770, sec. 1, par. 3.

 

 

5 years. E. 0. 13770, sec. 1, par. 1.

Remainder of the Administration. E.O. 13770, sec. 1,

par. 3

 

         
 

cemeht??
si'ic't'ioii.a m.

hint in 4

Termination of employment as an appointee. E.O. 13770,

sec. 1, par. 1.

 

Termination of government service. 13770, sec. 1,
par. 3

 



 

Lobbying activities, as defined in the Lobbying Disclosure Act, but excluding certain types of communications.
5.0. 13770, sec. The term ?lobbying activities" inciudes ?lobbying contacts? and behind-the-scenes efforts in

support ofsuch contacts. 2 U.S.C. 1602(7).

- "Lobbying contacts" are limited to written or oral commtmications with covered officials that are made on

behalf ofa client. 2 U.S.C. 

The term ?lobbying activities" as defined in E0. 13770 does not include communications and appearances
with regard to: a judicial proceeding; a criminal or civil law enforcement inquiry, investigation, or
proceeding; or any agency process for rulemaking, adjudication, or licensing, as defined in and governed
by the Administrative Procedure Act, as amended, 5 U.S.C. 551 et seq.

The definition of "lobbying contact? includes 19 exceptions listed at 2 U.S.C. 2 U.S.C.



. For example, the definition excludes "a request for a meeting, a request for the status of an action, or
any other similar administrative request, if the request does not inciude an attempt to in. iuence a
covered executive branch official." 2 U.S.C. 
- The term "client? means any person or entity that employs or retains another person for financial or other



compensation to condUct Iobbying

activities on behalf of that person or a. dry. 2 U. S. C. 5 1602(2)

- An activity is considered a "lobbying activity" whether or not a former appointee' Is required to register as a
lobbyist. Therefore, there is no minimum requirement to engage in lobbying activities before the restrictions
apply no 20% service threshold}. See E.O. 13770, sec. 

 

Covered executive branch officials at the former
appointee's former agency. E.O. 13770, sec. 1, par. 1
(?with respect to that agency?).

- A communication to or appearance soiely before a
covered legislative branch official is not a lobbying
activity "with respect to" the former appointee's
former agency. id.

. With respect to those appointees to whom
component designations are applicable, ?agency?
means the separate and distinct component
agencies designated in accordance with 18 U.S.C. 
207(h). 13770, sec. 

 

Covered executive branch officials throughout the
executive branch. E.O. 13770, sec. 1, par. 3.

Non-career senior executive service appointees
throughout the executive branch. ED. 13770, sec. 1,
par. 3.

 

 

 

 

Covered executive branch officials are:
- The President;
. The Vice President;

. Any officer or employee, or any other individual functioning in the capacity of such an officer or employee, in

the Executive Office of the President;

. Any officer or employee serving in a position in level I, ll, IV, or of the Executive Schedule, as designated by

statute or Executive order;

a Any member of the uniformed services whose pay grade is at or above 0?7 under section 201 of title 37; and
- Any officer or employee Serving in a position of a confidential, policy?determining, policy-making, or policy-
advocating character described in section of title 5. See 50.13770, sec. 2 U.S.C. 1602(3).

 

 

4/26/2017

LA-17-03: Guidance on
Executive Order 13770

U.S. Office of Government Ethics
Advanced PractitionerWebinar
Thursday, April 27, 2017

Guidance on 

 

LNIFED STATES OFFICF OF
GOVERNMENT ETHICS
it

March 
I if?

WIN MY
Agent} 

um.? AM
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Lad ?mull Uliiu ?-02
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liul .al; In I I mix l3"0 lmme-x JnLiiInqulpiuihm;

I. Applicability ol l'rlorGuldamln 1.3770

 

11 ruulhl) IquJI-fxi. I MIR madam;- I mix hanvln?al-L: In

 

 

4/26/2017

What is Covered in 

 

(Past Guidance)

Elaboration on Guidance in LA-17-02

Extent to which past guidance is applicable to
E0 13770

Extent to which past guidance is NOT applicable or
NOT relevant to E0 13770

 

 

 

What is Covered in 

(New Guidance)

 

- LA-17-03 also addresses recusal obligations
for recent lobbyists (pledge paragraph 7)

a Post-government employment restrictions
5-year restriction under pledge paragraph 1

Administration-length restriction under
pledge paragraph 3

Citations to but not interpretations of??the
Lobbying Disclosure Act (LDA)

 

 

 

4/26/2017

What is Not Covered in 

 

Section 3 of the new Executive Order concerning
pledge waivers

Paragraph 4 concerning post-government
restrictions and the Foreign Agents Registration
Act of 1938

Paragraph 8 concerning employment decisions

IS.1

The continued applicability of EO 13490

 

 

 

Language Common to

E0. 13770 and 50.13490

 

4/26/2017

LA-17-02: Executive Order 13770

 

?With respect to Executive Order 13770,
ethics officials and employees may continue
to rely on prior guidance regarding
Executive Order 13490 to the extent that
such guidance addresses language common
to both orders.?

 

 

 

Guidance on 

 

SI 

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dimmed Ila: l-Ixcculwu I Ink:
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(Inn-Ium-m, Lam] puns mum; a "ll Ink!


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huh Ill: app-mic: lhll'ln): [unwllufnlc [mug unusual-1 Ih:
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sci.- 1.1m 1 TIL: I to II): I'm-u-L-m's n?icc iI' tIm, .n "will"
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lI-v- Ilu: inlcqumnm oI'Ihh Icnu Although 3
Iwr" :mi .mu" no lLv'il cunt-WI 014??qu 

 

 

 

4/26/2017

Example:

Who Must Sign the Ethics Pledge?

 

Note: All substantive legal interpretations in this advisory arc applicablc to Executive Order 13770. sec. 1.
Sci." 7-02 and LA- 1 7-03.

1; United States

aOffice of Government Ethics
3 1201 New York Avenue. NW.. Suite 500
a? Washington. DC 20005?3917

March lt?t. 30th)
DI 1 

'31

TU Designated O?it?mls
Ruben I t'ustck
Director

3-31 'llJl-It' Who .\lu?t Sign the Pledge"

'lht: (.ltTIL'c nt? (jun-mitten! lztlucs IUGE) has recurred numerous qtlt'?lm'h concerning 9

 

 

 

Example:

DO-09-011: Revolving Door Ban?~All Appointees Entering Gov't

 

NOTE: All substantive legal interpretations in this advisory concerning Pledge paragraph 2 (ED. l3490) and the terms used
in Pledge paragraph 2 are applicable to Executive Order 13770. see. 1. par. 6. All substantive legal interpretations pertaining
to waivers ofthe Ethics Pledge are n_ut applicable to Executive Order 13710. sec. 15cc and 

um
?55% United States
9 2 Office of Government Ethics
a 1201 New York Avenue. NW.. Suite 500

?Newt?s. Washington. DC 20005391?

March 26. 2009
[10.1mm 

MEMORANDI 

TO Design-tied Agency Ethics 
FROM Robert I 
Director

5178] ml Pledge Rex-tilting Door Appointee? Enlerutgtiut'enmtent

10

 

 

Executn'c Urdu-r til-NU reqmrex :uw covered ?:tppmutee? to ugn :m Ethics Pledge that

 

Example:



 

 

Note: Please see the attached eddendnm for the applicability ofsubetanlivc legal in this advisory to
Executive Order See also ?-02 and LA-IT-OJ.

iEraandum. 


5 3 Addendum [March In. 2011'!
man-um: run-12mph, mun ruler nu I'I?lgr: no.

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LI lunhnuplu}m?nl hm Lu-unnc 0 ch lt?llch "Iublmnu Mule Illu.l. run? . I . mt .nu 

 

 

0226:2009

DO-09-010: Who Must Sign the Ethics Pledge? -J

06E ldentl?es the categories at of?cials who must sign the Emlca Pledge required by Executive Order 13490 and
those who are not required to slgn. [The guidance in this advisory was modi?ed in 2017 by legal advisorles LA-17-

 

O2 and 7-03.]

 

4/26/2017

 

Attachment to 

kn uh 71 
Juan-om mu 

Flu?Mk?. ?Ana?meI-??ll 

 

 

 

 

 

 

 

13

 

 

Language Common to Both

 

E.O. 1.3370, sec. 1, par. 6

Iwill not for a period of 2
years from the date of my
appointment participate in
any particular matter
involving specific parties
that is directly and
substantially related to my
former employer or former
clients, including
regulations and contracts.

 

i

E.0. 1.3490, sec. 1, par. 2

I will not fora period of 2
years from the date of my
appointment participate in
any particular matter
involving specific parties
that is directly and
substantially related to my
former employer or former
clients, including
regulations and contracts.

14

 

 

4/26/2017

 

Language Common to Both

 

E.O. 13370, sec. 2(b)

?Appointee" means every full-time,
non-career Presidential or Vice-
Presidential appointee, non-career
appointee in the Senior Executive Service
(or other SES-type system), and
appointee to a position that has been
excepted from the competitive service by
reason of being of a confidential or
policymaking character (Schedule and
other positions excepted under
comparable criteria} in an executive
agency. It does not include any person
appointed as a member ofthe Senior
Foreign Service or solely as a uniformed
service commissioned officer.

50.13490, sec. 2(b)

?Appointee" shall include every full-time,
non-career Presidential or Vice-
Presidential appointee, non-career
appointee in the Senior Executive Service
(or other SES-type System), and
appointee to a position that has been
excepted from the competitive service by
reason of being of a confidential or
policymaking character (Schedule and
other positions excepted under
comparable criteria) in an executive
agency. It does not include any person
appointed as a member of the Senior
Foreign Service or solely as a uniformed
service commissioned officer.

15

 

 

Attachment to LA-17-03

 

 

 

 

 

  

 

5.0. 13770 Provision Languau Common toBoth Prior Guidance Appliublo to Exocutlv- Order 13170
Section] r- .- II V. rl-uf ?It' .f-flh: Il?. 
v.5 i?n'Tr?: T: flaw gun.1. in?: ml. .ivT .alw- in r? Tutu
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?l {in 13.7 
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I .oinn?nl?i?llf Hui-I i' 
r. l- .1 I?ll ul uni-HT
'4'lvll- 'r.f.i-1u--I may. --.-,
r.
-.H.-- .. . il': . y.
.. . . 
ru- r-T Win-Ii Ilu? I, icy. rm: t-v 
I .11: "Uri-I . ~14
1 '1..Ir l" "'vl 
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I Huh luv4/26/2017

4/26/2017

.- ,5 -, fa 7., 3
Pat gig! 310117.; I ..

Particular Matter 
Specific Issue Area

Paragraph 7

 

If I was a registered lobbyist within the 2 years
before the date of my appointment. . .

lwill not for a period of 2 years after the date of
my appointment participate in any particular
matter on which I lobbied within the 2 years
before the date of my appointment or
participate in the specific issue area in which
that particular matter falls.

 

 

 

 

 

 

If I was a registered lobbyist
within the 2 years before

the date ofm?yappointment

. . . I will not for a period of

2 years after the date of my
appointment participate in
any particular matter on
which I lobbied within the

2 years before the date of my
appointment or participate in
the specific issue area in
which that particular matter
falls.

19

 

 

 

 

 

If I was a registered lobbyist
within the 2 years before

the date of my appointment

. . . I will not for a period of

2 years after the date of my
appointment participate in
any particular matter on
ELM within the

2 years before the date of my
appointment or participate in
the specific issue area in
which that particular matter
falls.

 

20

 

4/26/2017

10

 

 

?Specific issue area? is not defined in LDA 0r
Executive Orders 13490 or 13770

E0 13490 E0 13770

0 Also contained a two-year - No employment ban for
prohibition on individuals former lobbyists
seeking or accepting 
employment with executive
agencies they lobbied

 

 

 

As used in Executive Order 13770,

was a registered lobbyist


the term specific Issue area within the 2 Years before
means a ?particular matter of the date of my appointment,
general applicability? in addition to abiding by the

limitations of paragraph 6, i
will not for a period of
2 years after the date of my
appointment participate in
.. i? any particular matter on
5 which i lobbied within the
2 years before the date of my
i appointment or participate in
the specific issue area in
which that particular matter
falls.

22

 

 

 

4/26/2017

11

 

Lobbied on: Recusal:

Particular Matter Same

Particular Matter

 

 

If I was a registered
lobbyist within the 2 years
before the date of my
appointment. . . I will not
for a period of 2 years
after the date of my
appointment participate
in any particular matter on
which I lobbied within the
2 yea rs before the date of
my appointment or
participate in the specific
issue area in which that
particular matterfalls.

23

 

 

 

Lobbied on:

Particular Matter

Same
Particular Matter

 

Matter No Recusal to

that Matter

 

 

 

If I was a registered
lobbyist within the 2 years
before the date of my
appointment . . . I will not
for a period of 2 years
afterthe date of my
appointment participate
in any particular matter on
which I lobbied within the
2 years before the date of
my appointment or
participate in the specific
issue area in which that
particular matter falls.

 



 

4/26/2017

12

 

 

was a registered lobbyist
within the 2 years before
the date of my appointment,
in addition to abiding by the
x} I limitations of paragraph 6, i
will not for a period of
2 years after the date of my

 

appointment participate in
any particular matter on
which I lobbied within the
2 years before the date of my
appointment or participate in
the specific issue area in
which that particular matter
falls.

 

15

 

 

 

Paragraph 6

Not limited to
registered
lobbyists

Paragraph 7

Limited to
registered
lobbyists

 

t.

5 1 
SLii-cLl?uiig i0: 

I will not for a period of 2 years from the date of my
appointment participate in any particular matter
involving specific parties that is directly and
substantially related to my former employer or former
clients, including regulations and contracts.

Ifl was a registered lobbyist within the 2 years before
the date of my appointment . . . I will not for a period of
2 years after the date of my appointment participate in
any particular matter on which i lobbied within the

2 years before the date of my appointment or
participate in the specific issue area in which that
particular matterfalls.

26

 

 

4/26/2017

13

 

?a1

Post-Employment Lobbying
Activity Restrictions

n- .. ,1
egg ape-s :1

:21.

Ethics Pledge: Post?Employment Restrictions

Paragraph 1

Paragraph 2

Paragraph 3

Paragraph 1,

 

I will not, within 5 years after the termination of my employment as an
appointee in any executive agency in which I am appointed to serve,
engage in lobbying activities with respect to that agency.

If, Upon my departure from the Government, 1 am covered by the post-
employment restrictions on communicating with appointees of my former
executive agency set forth in section 207(c) oftitle 18, United States Code,
I agree that I will abide by those restrictions.

I also agree, upon leaving Government service, not to engage in lobbying
activities with respect to any covered executive branch official or non-
career Senior Executive Service appointee for the remainder of the
Administration.

I will not, at any time after the termination of my employment in the
United States Government, engage in any activity on behalf of any foreign
government or foreign political party which, were it undertaken on

January 20, 2017, would require me to register under the Foreign Agents
Registration Act of 1938, as amended. 28

 

 

4/26/2017

14

 

am jg: Post-Employment

Lobbying Activity Restrictions

 

 

 

a

1-4) 
j; .i 1 cl 
1

 

Iwill not, within 5 years after the termination of
my employment as an appointee in any
executive agency in which I am appointed to
serve, engage in lobbying activities with respect
to that agency.

 

 

4/26/2017

15

 

 

I also agree, upon leaving Government service,
not to engage in lobbying activities with respect
to any covered executive branch official or non-
career Senior Executive Service appointee for
the remainder ofthe Administration.

31

 

 

33?; :?Post Employment

Lobbying ActIVIty Restrictions

 

RESTRICTED ACTIVITY

WITH RESPECTTO

LENGTH OF RESTRICTION

COMMENCEMENT OF
RESTRICTION

 

Lobbying Activities

Covered executive branch
of?cials throughout the
executive branch.

Former appointee?s
former agency

MEANS:
Covered executive branch Non-career senior executive
of?cials at former aggointee's service appointees throughout
former agency the executive branch.
5 years Remainder of the
Administration

Termination of employment as Termination ofGovernment
appointee Service

32

 

 

4/26/2017

16

 

 

. Engage in a ?lobbying activity? as defined by
the Lobbying Disclosure Act (LDA)

33

 

 

 

 

You engage in a ?lobbying activity? if you:

I Make a lobbying contact
- Written or oral communications
- With covered executive or legislative branch officials
- On behalf ofa client
- For?nandalorotherconwpensa?on
- 19 exceptions
Q?g
. Engage in behind?the-scenes efforts in support of
such lobbying contact

34

 

 

4/26/2017

17

 '27 Post-Employment

 

ng Activity Restrictions

RESTRICTED ACTIVITY Lobbying Activities
WITH RESPECTTO Former appointee?s Covered executive branch
former agency of?cials throughout the
executive branch.
MEANS:
Covered branch Non-career senior executive
of?crals service appointees throughout
the executive branch.
LENGTH OF RESTRICTION 5 years Remainder of the
Administration
COMMENCEMENT 0F Termination of employment as Termination of Government
RESTRICTION appointee Service

35

 

 

 

 

A lobbying activity occurs ?with respect to? that
agency ifthe activity involves:

A communication to a covered executive branch
official at that agency (component designations may be availabie)



Efforts intended, at the time of performance, to
support such a communication to a covered
executive branch official at that agency

36

 

 

 

4/26/2017

18

 

 

A lobbying activity occurs ?with respect to?
certain officials ifthe activity involves:
A communication to a covered executive branch

 

official or non-career SES
93

Efforts intended, at the time of performance, to
support such a communication to a covered
executive branch official or non-career SES

3?

 

 

 



LobbyIng Activity Restrictions

RESTRICTED ACTIVITY

WITH RESPECTTO Former appointee?s

former agency

Covered executive branch

of?cials at former appointee's
forrner agency

LENGTH OF RESTRICTION 5 years

COMMENCEMENT OF
RESTRICTION

Termination of employment as
appointee

IPost- Employment

Lobbying Activities

Covered executive branch

officials throughout the
executive branch.

Non-career senior executive
service appointees throughout
the executive branch.

Remainder of the
Administration

Termination of Government
Service

 

38

 

 

4/26/2017

19

 

Post-Employment

Lobbying Activity Restrictions

 

RESTRICTEDACTIVITY

of?cials mm service appointees throughout

WITH RESPECT TO Former appointee?s

former agency

MEANS:
Covered executive branch
Mugging!
LENGTH OF RESTRICTION 5 years
COMMENCEMENT 0F Termination of employment as

RESTRICTION appointee

Lobbying Activities

Covered executive branch

of?cials throughout the
executive branch.

Non-career senior executive

the executive bLath.

Remainder of the
Administration

Termination of Government
Service

 

39

 

 

 

Write to various exec branch officials
seek support for his client?s research

Assist his client in preparing for a
meeting with one of the officials

Assist his client in understanding grant
application process and guidelines that

agency established for research projects


Request the status of an action
affecting his client.

 

lagree, upon leaving
Government service,
not to engage in
lobbying activities with
respect to any covered
executive branch
official or non-career
Senior Executive
Service appointee for
the remainder ofthe
Administration.

1,0

 

 

4/26/2017

20

 

 

ante to a covered executive branch

I'cia] at NIH to seek support for his 

ants research

his client In preparing fer a
meeting with the FDA official

 

that could affect N1H research projects

I will not, within 5
years after the
termination of my
employment as an
appointee in any
executive agency in
which I am appointed
to serve, engage in
lobbying activities
with respect to that
agency.

 

41

 

 

LA-17-03: Guidance on

Executive Order 13770

U.S. Office of Government Ethics
Advanced Practitioner Webinar


 

4/26/2017

21

 A u: aw' u: auxutnvnau All uni-u aqua M-v. ay?I/u knav lualalu Huh-u


in Pledge paragraph 2 are applicable to Executive Order 13770, sec. 1, par. 6. All substantive legal interpretations pertaining
to waivers of the Ethics Pledge are pg applicable to Executive Order 13770, sec. 3. See 7-02 and 

    

?xt?s 0?
'23, United States -
g? 0 Office of Government Ethics
3? 1201 New York Avenue, Suite 500
gt?i? Washington, DC 200056917

March 26, 2009


MEMORANDUM
I TO: Designated Agency Ethics Of?cials
FROM: Robert I. Cusick
Director

SUBJECT: Ethics Pledge: Revolving Door Ban--All Appointees Entering Government

Executive Order 13490 requires any Covered ?appointee? to sign an Ethics Pledge that
includes several commitments. 74 Fed. Reg. 4673 (January 26, 2009). OGE Memorandum
explains the de?nition of appointee, describes the commitments included in the
Pledge, and provides a Pledge Form to be used for appointees.1 The purpose of the present
memorandum is to advise ethics of?cials on how to implement paragraph 2 of the Pledge,
?Revolving Door Ban??Al1Appointees Entering Government.?

Paragraph 2 of the Pledge requires an appointee to commit that he or she will not, for a
period of two years following appointment, participate in any particular matter involving speci?c
parties that is directly and substantially related to his or her former employer or former clients,
including regulations and contracts. Exec. Order No. 13490 sec. To help agencies
implement this requirement, OGE is providing the following explanation of the phrases that
comprise paragraph 2 of the Pledge and of how paragraph 2 interacts with existing impartiality
regulations.

Understanding the Meaning of the Terms that Comprise Paragraph 2 of the Pledge
?Particular matter involving speci?c parties 

In order to determine whether an appointee?s activities concern any particular matters
involving speci?c patties, ethics of?cials must follow the de?nition of that phrase found in
section 201) of the Executive Order. That de?nition incorporates the longstanding interpretation
of particular matter involving speci?c parties re?ected in 5 C.F.R. However, it
also expands the scope ofthe term to include any meeting or other communication with a former
employer or former client relating to the performance ofthe appointee?s of?cial duties, unless

 

 



Designated Agency Ethics Officials
Page 2 

the communication applies to a particular matter of general applicability and participation in the
meeting or other event is open to all interested parties. The purpose of this expansion of the 
traditional de?nition 13 to address concerns that former employers and clients may appear to have
privileged access, which they may exploit to in?uence an appointee out of the public View.2

The expanded party matter de?nition has a two-part exception for communications with
an appointee ?s former employer or client, if the communication is: (1) about a particular matter
of general applicability Ed (2) is made at a meeting orvother event at which participation is open
to all interested parties. Although the exception refers to particular matters of general
applicability, it also is intended to cover communications and meetings regarding policies that do
not constitute particular matters. An appointee may participate in communications and meetings
with a former employer or client about these particular or non-particular matters if the meeting or
event is ?open to all interested parties.? Exec. Order No. 13490 sec. 201). Because meeting
spaces are typically limited, and time and other practical considerations also may constrain the
size of meetings, common sense demands that reasonable limits be placed on what it means to be
?open to all interested parties.? Such meetings do not have to be open to every comer, but 
should include a multiplicity of parties. For example, if an agency is holding a meeting with ?ve
or more stakeholders regarding a given policy or piece of legislation, an appointee could attend
such a meeting even if one of the stakeholders is a former employer or former client; such
circumstances do not raise the concerns about special access at Which the Executive Order is
directed. Additionally, the Pledge is not intended to preclude an appointee from participating in
rulemaking under section 553 of the Administrative Procedure Act simply because a former
employer or client may have submitted written comments in response to a public notice of
proposed rulemaking.3 In any event, agency ethics o?icials will have to exercise judgment in
determining whether a speci?c forum quali?es as a meeting or other event that is ?open. to all .
interested parties,? and OGE is prepared to assist with this analysis. 

"Particular matter involving speci?c regulations 

Because regulations o?en are cited as examples of particular matters that do not involve.
speci?c parties, OGE wants to emphasize that the phrase is not intended to suggest that all
rulemakings are covered. Rather, the phrase 13 intended to serve as a reminder that regulations
sometimes may be particular matters involving speci?c parties, although ?in rare circumstances.- .
As OGE has observed in connection with 1.8 U.S.C. 207, certain rulemakings may be so
focused on the rights of speci?cally identi?ed parties as to be considered a particular matter

 

2 Note, however, that the expanded de?nition of party matter is not intended to interfere with the ability of
appointees to consult with experts at educational institutions and "think tanks" on general policy matters, at least
where those, entities do not have a ?nancial interest, as opposed to an academic or ideological interest. See Office of
Legal Counsel Memorandum, "Financial Interests of Nonpro?t Organizations," January 2006 (distinguishing
between ?nancial interests and advocacy interests of nonpro?ts), 
cf. 5 C.F.R. impartiality
rule does not require recusal because of employee's political, religious or moral views).
3 For other reasons discussed below, however, rulemaking sometimes may constitute a particular matter involving
speci?c parties, albeit rarely

Designated Agency Ethics Of?cials
Page 3

involving speci?c parties.4 Such rulemakings likewise are covered by paragraph 2. .
?Directly and substantially related to 

I The phrase ?directly and substantially related to,? as de?ned in Section 20:) of the
Executive Order, means only that the former employer or client is a party or represents a party to
the matter.- Ethics of?cials should be familiar with this concept from 5 

?Former employer or former client 

In order to determine who quali?es as an appointee?s former employer or former client,
ethics of?cials must follow the de?nitions of each phrase found in section 2(i) and 20),
respectively, of the Executive Order. In effect, the Executive Order splits the treatment of
. former employer found in the impartiality regulations into two discrete categories, ?former
employer? and ?former client,? and removes contractor from the de?nition of either term. See
5 C.F.R. 

A

mm

For purposes of the Pledge, a former employer is any person for whom the appointee has,
within the two years prior to the date of his or her appointment, served as an employee, of?cer,
director, trustee, or general partner, unless that person is an agency or entity of the Federal,
Government, a state or local government, the?District of Columbia, a Native American tribe, or
any United States territory or possession. Exec. Order No. 13490, sec. While the terms 
employee, officer, director, truStee, or general partner generally follow existing ethics laws and 
guidance, OGE has received questions about the scope of the exclusion for government entities
from the de?nition of former employer, speci?cally with regard to public colleges and
universities. The exclusion for state or local government entities does extend to a state or local
college or university.5 ,1 A

 

OGE also has received several questions about whether the de?nition of former employer
includes nonpro?t organizations. Consistent with the interpretation of similar terms in other
ethics rules and statutes, the de?nition of former employer in the Executive Order covers

 

4 See, 73 Fed. Reg. 36168, 36176 (June 25, 2008); see also OGE Informal Advisory Letter 96 7, n.l. 
5 See OGE Informal Advisory Opinion 93 29 ml where OGE held that for purposes of applying the
supplementation of salary restrictions in 18 U.S.C. 209, the exception for payments from the treasury of any state,
county, or municipality included a state university. OGE cautions, however, that the exclusion for state and local
entities may not extend to all entities af?liated with a state or local college or university. OGE notes that some
colleges and universities may create mixed public/private entities in partnership with commercial enterprises. Such
entities should not automatically be considered as falling within the exclusion, but rather should be examined on a
case-by-case basis to determine whether they should be viewed as instrumentalities of state or local government for
the purposes of the Executive Order. 

Designated Agency Ethics Officials
Page 4

nonpro?t organizations.6 Moreover, it includes nonpro?t organizations in which an appointee
served without compensation, proVided' of . course that the appointee actually served as an
employee, officer, director, trustee, or general partner of the organization. Thus, for example,
the recusal obligations of Pledge'paragraph 2 would apply to an appointee who had served
without pay on the board of directors or trustees of a charity, provided that the?position involved
the ?duciary duties normally associated with directors and trustees under state nonpro?t
organization law. This doesnot include, however, purely honori?c positions, such as "honorary
trustee" of a nonpro?t organization. It also does not include unpaid positions as a member of an
advisory board or committee of a nonpro?t organization, unless the positiOn involved ?duciary
duties of the kind exercised by of?cers, directors or trustees, or involved suf?cient supervision
by the organization to create a common law employee-employer relationship (which is not
typical, in OGE's experience).

For purposes of the Pledge, a former client means any person for whom the appointee
served personally as an' agent, attorney, or consultant within two years prior to date of
appointment. Exec. Order No. 13490 sec. 20). A former client does not include a client of the
appointee?s former employer to whom the appointee did not personally provide services.
Therefore, although an appointee?s former law ?rm provided legal services to a corporation, the
corporation is not a former client of the appointee for purposes of the Pledge if the appointee did
not personally render legal services to the corporation. Moreover, based on discussions with the
White House C0unsel?s office, OGE has determined that the de?nition of former client is
intended to exclude the same governmental entities as those excluded from the de?nition of
former employer. Thus, 'for example, an appointee who had provided legal services to the
Department of Energy would not be prohibited from participating personally in particular matters
in which the Department is a party. i 

In addition, the term former client includes nonpro?t organizations. However, a former
client relationship is not created by service to a nonpro?t organization in which an appointee
participated solely as an unpaid advisory cummittee or advisory board member with no ?duciary
duties. Although a former client includes any person whom the appointee served as a
"consultant," OGE has not construedthe term censultant, as used in analogous provisions of the
Ethics in Government. Act. and the Standards of Ethical Conduct, to include unpaid,
non-?duciary advisory committee members of a nonpro?t organization. See
5 U.S.C. app. 102(a)(6)(A)(disclosure- of consultant positions); 5 C.F.R.
relationship as former consultant). Likewise, former client does
not include a nonpro?t organization in which an appointee served solely in an honori?c capacity.

 

6 For similar reasons, Federally-funded research and development centers whether nonprofit or for
pro?t, are intended to be included in the de?nitions of former employer and former client for purposes of
paragraph 2 of the Pledge. 

Designated Agency Ethics Of?cials
Page 5

The de?nition of former client speci?cally excludes ?instances where the service
provided was limited to a speech or similar appearance.? Exec. Order No. 13490, sec. 20). In
addition to excluding all activities that consist merely of speaking engagements, this provision is
intended to exclude other kinds of discrete, short-term engagements, including certain
. de minirnis consulting activities. Essentially, the Pledge is not intended to reguire a tv'vo-year 

recusal based on activities so insubstantial that they are not likely to engender the kind of
lingering af?nity and mixed loyalties at which the Executive Order is directed. The exclusion
for speaking and similar engagements was added to emphasize that the provision focuses on
services that involved a signi?cant working relationship with a former client. Therefore, the
exclusion is not limited to speeches and. speech~like activities (such as serving on a seminar
panel or discussion forum), but includes other activities that similarly involve a brief, one-time
service with little or .no' ongoing attachment or obligation. In orderto determine whether any
services were de minimis, ethics of?cials will need to consider the totality of the circumstances,
including the following factors: I

the amount of time devoted;

the presence or absence of an ongoing contractual relationship or agreement;

0 the nature of the services whether they involved any representational services
or other ?duciary duties); and

the nature of compensation one-time fee versus a retainer fee).

For example, the recusal obligation of Pledge paragraph 2 would not apply to an appOintee who
had provided consulting services on a technical or scientific issue, for three hours on a single
day, pursuant to an informal oral agreement, with no representational or ?duciary relationship.
On the other hand, an appointee who had an ongoing contractual relationship to provide similar
services as needed over the course of several months would be covered. In closer cases, OGE
believes ethics of?cials should err on the side of coverage, with the understanding that waivers,
under section 3 of the Order, remain an option in appropriate cases.

The Relationship of Paragraph 2 of the Pledge to the Existing Impartiality Regulations

Paragraph 2 of the Pledge is not merely an extension of the existing impartiality
requirements of subpart of the Standards of Ethical Conduct, although 1n some circumstances
the restrictions of the Pledge and the existing impartiality restrictions could align. The effect of
any overlap is that all of the relevant restrictions apply to the appointee and should be
acknowledged in the appointee? 3 ethics agreement and considered when granting a waiver or
authorization under either set of restrictions.

 

7 Note that appointees still will have a covered relationship for one year after-they provided any consulting
services, under the OGE impartiality rule, 5 C.F.R. Therefore, the OGE rule may require an
appointee to recuse ?'om ceriain matters (or obtain an authorization, as appropriate), even if the Pledge does not
extend the recusal for an additional year. Indeed, the presence of the OGE rule as a "fall?back" was a factor in the
decision to exclude certain de minimis consulting services from the Pledge in the ?rst place. .

Designated Agency Ethics Of?cials
Page 6

Paragraph 2 of the Pledge and Impartialz'ty Regulations Di?'er and Overlap

. An appointee? commitments under paragraph 2 of the Pledge both overlap and diverge

from the existing impartiality regulations 1n important ways depending upon the facts of each
appointee? circumstances. The following highlights some of the key areas in which paragraph 2
of the Pledge and the existing impartiality restrictions di??er. In addition, OGE has developed a
chart as a quick reference tool to identify the key di??erences among the existing impartiality
regulations and paragraph 2 of the Pledge. See Attachment 1.

Paragraph 2 of the Pledge IS at once more expansive and more limited than the existing
impartiality restrictions found at 5 C. F. R.- 2635.502, 2635. 503. For example, an appointee is
subject to impartiality restrictions based on his covered relationships with a much broader array
of persons8 than to the restrictions of paragraph 2, which are limited to the appointee? former
employer and former clients. Thus, for instance, if the appointee has served as a contractor, but
not in any of the roles described 1n the de?nitions of former employer or former client in the
Executive Order, then the appointee may have recusal obligations under 5 C. F. R. 2635. 502 
and 2635. 503, but not under Pledge paragraph 2. Conversely, Pledge paragraph 2 is more
expansive than the de?nition of covered relationship in section 2635.502 because the Pledge
provision looks back two years to de?ne a former employer or former client and it imposes a
two-year recusal obligation after appointment, both of which are considerably broader than the
one-year focus of section 2635. 502(b)(1)(iv). Pledge paragraph 2 also IS more expansive in that
the recusal obligation may apply to certain communications and meetings that do not constitute
particular 9matters involving speci?c parties as that phrase is used in sections 2635.502 and
2635.503.

0n the subject of recusal periods alone, ethics of?cials will need to be especially . 
attentive to the possible variations, as it may be possible for as many as three periods to overlap.
For example, an appointee could have: a one-year recusal, under 5 C.F.R. 2635.502, from the
date she last served a former employer; a two-year recusal, under section 2635.503, from the date
she received an extraordinary payment from that same former employer; and a two-year recusal
with respect to that former employer, under Pledge paragraph 2, from the date of her
appointment.

. Specific Recusals under Paragraph -2 of the Pledge are Not Required to be Memorialized in an
Appointee ?3 Ethics Agreement.

Executive Order 13490 does not require recusals under paragraph 2 of the Pledge to be 
addressed speci?cally in an appointee?s ethics agreement, unlike recusals under paragraph 3 of

 

8 See de?nition of ?covc'ed relationship? at 5 C. F. R. 2635. 502(b)(l).

9 Compare Exec. Order broader than post-employment regulation); with 5 C. F. R.
?2635. particular matter involving speci?c parties solely by reference to post-employment
regulations).

Designated Agency Ethics Of?cials
Page 7

the Pledge. See Exec. Order No. 13490 sec. However, if an appointee will have a written
ethics agreement addressing other commitments, OGE requires that the following language be
inserted 1n that written ethics agreement in order to ensure that the appointee is aware of her
commitments and restrictions under both her ethics agreement and the Pledge.

Finally, I understand that as an appointee I am required to sign the Ethics Pledge
(Exec. Order No. 13490) and that I will? be bound by the requirements and
restrictions therein in addition to the commitments I have made in this and any
other ethics agreement.

Written ethics agreements will continue to address section 2635.502 and 2635.503 issues
separately using the model provisions ?om ?Guide to Dra?ing Ethics Agreements for
PAS Nominees.? Thus, regardless of paragraph 2 of the Pledge, the one-year ?covered
relationship? under the DOE impartiality rule remains in effect and may require an appointee to
recuse from certain matters, even if the Pledge does not extend the recusal for an additiOnal year.
See 5 C.F.R. 

The Pledge and Impartiality Regulations Waiver Provisions

Designated Agency Ethics Of?cials have been designated to exercise the waiver
authority for the Ethics Pledge, under section 3 of Executive Order 13490, in addition to their
existing role in the issuance of impartiality waivers and authorizations. DABOgram 
5 C.F.R. Generally, it is expected that waivers of the various
requirements of the Pledge will be granted sparingly. See, OGE DAEOgram 
Although paragraph 2 clearly adds new limits on the revolving door, those limits are not intended
to bar the use of quali?ed appointees who have relevant private sector experience in their ?elds
of expertise." Therefore, at least where the lobbyist restrictions of paragraph 3 of the Pledge are
not implicated, 0GB expects that DAEOs will exercise the waiver authority for paragraph 2 in a
manner that reasonably meets the needs of their agencies. In this regard, DAEOs already have
signi?cant experience in determining whether authorizations under 5 C.F.R. 2635.502(d) are?
justi?ed, and DAEOs should use similar good judgment in decisions about whether to waive
paragraph 2 of the Pledge. Of course, any such waiver decisions still must be made in
consultation with the Counsel to the President. Exec. Order No. 13490, sec. 3. Additional
details on the standards for issuing a waiver of provisions of Pledge paragraph 2, as well as on
issues related to the interaction of the waiVer provisions of the impartiality regulations and
1 relevant paragraphs of the Pledge, are reserved for future guidance.

 

An ethics agreement is de?ned as ?any oral or written promise by a reporting individual to undertake speci?c
actions in order to alleviate an actual or apparent con?ict of interest,? such as recusal from participation in a
particular matter, divestiture of a ?nancial interest, resignation from a position, or procurement of a waiver.



ATTACHMENT 1

OGE developed the following table as a quick reference tool to highlight the main differences between
paragraph 2 of the Pledge and existing impartiality regulations. It is not intended to, be a substitute for
thorough analysis, but we hepe you ?nd it useful.

 

5 C.F.R. 2635.503

 

 

 

 

 

 

 

 

5 C.F.R. 2635.502 Paragraph 2 of the Pledge
Relationship: Former Any person which the Any person which the Two years prior to the date of
Employer employee served, employee served as an his or her appointment served
within the last year, as of?cer, director, as an employee, of?cer,
an of?cer, director, trustee, general director, trustee, or general
trustee, general partner, agent, partner; contractor and
partner, agent, attorney, consultant, consultant omitted from list
attorney, consultant, contractor, or (although consultant added
contractor, or employee; no below under former client); is
employee; no exclusion for not a former employer if
exclusion for governmental entities governmental entity
governmental entities (other than Federal)
(other than Federal)
Former Clients of attorney, Clients of attorney, Two years prior to date of
Client? agent, consultant, agent, consultant, appointment served as an
or contractor 7 or centractor agent, attorney, or consultant. -
covered same way as covered same way as Is not former client if:
former employer, . former employer, 0 Only provided
under 5 C.F.R. under 5 C.F.R. speech/sigma appearance
. (including de minimis
. consulting) .
0 Only provided contracting
Services other than as 
agent, attorney, or
consultant
- 0 Served governmental entity
Business In addition to former No equivalent concept No equivalent concept
and. employers/ clients
Personal/ discussed abOve,
Covered includes various
Relation- current business and
ship personal relationships,
as listed in 5 C.F.R.

Prohibition: May not Reasonable person Extraordinary Includes communication by
participate with knowledge of payment from former former employer or former
in . facts would question employer client unless matter of general
particular impartiality applicability or non-particular
matter matter and open to all
involving interested parties
speci?c
parties if: 
Length of 1 year from the end of 2 years from date of 2 years ?'om date of
recusal: service receipt of payment appointment

 

 

 

 

 

 

05 1

Letter to a Designated Agency Ethics Official
dated February 10, 2005

This is in response to your letter of-February 9, 2005, in
which you inquire whether the deliberations of the President's
Advisory Panel on Federal Tax Reform would constitute particular
matters for purposes of 18 U.S.C. 208. The first meeting of
the Panel is scheduled for February 16, and the need for a
prompt' resolution of the question is apparent. Your letter
follows up on earlier'telephone conversations in which my Office
advised that the proposed work of the Panel, as described to us,
~did. not constitute a particular? matter or particular" matters
within the meaning of the conflict of interest statute. We
continue to be of the same view.

Pursuant to Executive Order 13369 (January_7, 2005), the
Panel is charged with producing a single report that will
address a range ?of "revenue neutral policy options"? for_
.legislative reform of the Federal tax system. 'The contemplated

scope of the report is quite broad, as indicated by the three
guiding principles in the Executive order: the options should
simplify Federal tax laws to reduce the costs and
administrative burdens of compliance with Such laws; share 
burdens and benefits of the Federal tax structure' in an~
appropriately progressive manner while recognizing' the
importance of homeownership and charity in American society; and
promote long-run economic growth and job creation, and
better encourage work effort, saving, and investment, so as to
strengthen the competitiveness of the United States in _the
global marketplace." Executive Order, 3. The-EXecutive order
only prescribes that "at least one option submitted by the
Advisory Panel should use the Federal income tax as the base for
its recommended reforms." Id. Consistent with this ?broad
mandate, your letter indicates that Panel deliberations. are
expected "to focus on a wide range of tax matters--including
both matters that have the potential in) affect all taxpayers
the alternative minimum tax and the compliance burdens
for large, small and individual taxpayers) as well as matters,
that specifically and uniquely affect taxpayers comprised of

industry sectors depletion allowance for the oil and gas
industries)." 

As you know, section 208(a) prohibits employees from
participating" personally and substantially in any "particular
matter" in which_ they have a personal or imputed financial-
interest. Under the interpretive regulations issued by the
Office of Government Ethics, "[t]he term 'particular matter'
"includes only' matters that involve. deliberation, decision,. or

action that is focused upon the interests of specific persons,
or a discrete and identifiable class of 5 C.F.R.
The phrase generally is understood to include.
matters of general applicability that are narrowly focused on
the interests of a discrete industry, such as the meat packing

industry or the trucking- industry. 5 C.F.R.
(example 5 C.F.R, 
(example.2)." However,? the term does not .extend to the

'"consideration or adoption of broad policy options directed to
the interests of a large and diverse group of persons."'


The work of the Panel, as described above, fits comfortably
within the latter exclusion for consideration of broad policy
options directed to the interests of a large and diverse group
of persons. Indeed, the Panel?s report is expected to address
issues affecting every taxpayer in the United States. In this
regard, the ~matter is analogous to example 8 following
section in 'which the consideration of a
legislative proposal for broad health care reform is held not to
be a particular matter because it is intended to affect every
person in the United States. However, your letter refers to the
preamble discussion? of this example in the final rule and
indicates that it suggests that the larger legislatiVe proposal
.may be broken down into different constituent parts that might
be viewed as separate particular matters ?in their ,own right.
61 Fed. Reg. 66830, 66832 (December 18, 1996)._ You note that
some of the many tax policy options to' be considered by the
Panel will focus more narrowly on discrete industries and
question whether the language in the preamble' means that the
consideration. of these options should be. treated as separate
particular matters, apart from the overall report.

It was not OGE's intention that example 8 and the preamble
should be read as requiring that broad legislative proposals of
this type be fractionated into separate provisions or issues for
purposes of identifying particular matters. Such an approach
would prove little, since the consideration of most matters of

broad public policy can be carved up into successively finer and
more.focused parts: after all, much of policymaking inevitably
involves the consideration of how different aspects of an
overall~ proposal Will affect different constituencies in a
pluralistic democracy. Nor do we think it would be workable to
employ a variation _of what one court has criticized as an
"elastic approaCh" to identifying particular matters, which is
contingent on' the part of the overall matter in which the
particular individual happened to be involved. van Ee v. ERA,
,202 F.3d 296, 309 (D.C. Cir. 2000).1 It would not be logical to .
COnclude that an employee could participate in considering the
overall legislative proposal but not its constituent parts.

In any e?vent,- the text of example 8 does not state that
work on the broad health care proposal must be diVided up into
separate particular- matters. It. simply indicates that
"consideration and implementation, through regulations, of a
section of the health care bill" that .limits -prices for
prescription drugs would be a particular matter that is focused -
on the pharmaceutical industry. (example 8)
(emphasis added); rsee also 60 Fed. Reg. 47208, 47210
(September 11, 1995) (preamble to proposed rule) (broad policy
matters may later become particular matters when implemented in
a way that affects specific persons 'or groups of
persons). At most, the preamble language indicates only that
there may be other conceivable situations where a narrowly
focused provision in a larger legislative proposal should not be
viewed? as merely an ?integral part of- the broader policy
deliberations. Although OGE has not had occasion to render any
opinions on such situations, an example might be (depending on
(the facts) a private relief" bill that becomes attached to a
larger legislative vehicle focused on an unrelated subject.

Apart from example 8, the OGE regulations contain another
example- that appears to be almost indistinguishable from ?the
work of the Panel. Example 5 following section 
states that "deliberations on the general merits of an omnibus
bill Such as the'Tax Refonn Act of 1986 are not sufficiently

 

1 van Ee involved the use of the same phrase, "particular
matter," in a related conflict of interest statute, 18 U.S.C.
205. In interpreting the same regulatory definition of
~particular matter discussed above, the Court in that case
criticized the Government for focusing on "aspects of the
[Government matter] that might ultimately affect specific groups
or individuals, rather than upon the overall focus of the
proceeding itself." 202 F.3d at 309. 

focused on the interests of specific persons, or a discrete and
identifiable group of persons to constitute participation in a
particular ?matter." As my Office explained in our earlier
telephone conversations, the Tax Reform Act of 1986 itself
contained numerous provisions, which, if considered alone, might
have constituted separate particular matters, such as specific
tax provisions for the oil, gas and pharmaceutical industries.
See Pub. L. 99?514, October 22, 1986. However, the inclusion of
-such topics -simply. as components of a much more global tax
reform proposal meant that the Tax Reform Act, like the
comprehensive tax reform deliberations of the new Panel, must be
. viewed as too broadly foCused to be considered. a particular

matter.

If you have any further questions about this matter, feel
free to contact my Office.

Sincerely,

Marilyn L. 
Acting Director

 

October 4, 2006


MEMORANDUM
TO: Designated Agency Ethics Officials
FROM: Robert I. Cusick
Director
SUBJECT: "Particular Matter Involving Specific Parties,"

"Particular Matter," and "Matter"

Perhaps no subject has generated as many questions from
ethics officials over the years as the difference between the
phrases "particular matter involving specific parties" and
"particular' matter." These phrases are used in the various
criminal conflict of interest statutes to describe the kinds of
Government actions to which certain restrictions apply.
Moreover, because these phrases are terms of art with
established meanings, the Office of Government Ethics (OGE) has
found it useful to include these same terms in various ethics
rules. A third term, "matter," also has taken on importance in
recent years because certain criminal post-employment
restrictions now use that term without the modifiers
"particular" or "involving specific parties."

. It is crucial that ethics officials understand the
differences among these three phrases. OGE's experience has
been that confusion and disputes can arise when these terms are
used in imprecise ways in ethics agreements, conflict of
interest waivers, and oral or written ethics advice. Therefore,
we are issuing this memorandum to provide guidance in a single
document about the meaning of these terms and the distinctions
among them.

Designated Agency Ethics Officials
Page 2

Because the three phrases are distinguished mainly in terms
of their relative breadth, the discussion below will proceed
from the narrowest phrase to the broadest.

.Particular Matter Involving Specific Parties

The narrowest of these terms is "particular matter .
involving specific parties." Depending on the grammar and
structure of the particular statute or regulation, the-wording
may appear in different forms, but the meaning remains
the same, focusing primarily on the presence of specific
parties.

1. fWhere the Phrase Appears

This language is used in many places in the conflict of
interest laws and OGE regulations. In the post-employment

statute, the phrase "particular matter . . . which involved a
specifiC' party or parties" is used to describe the kinds of
Government matters to which the life?time and two-year

representational bans apply. 18 U.S.C. 207(a)(1), 
OccaSionally, ethics officials have raised questions because
section 207 includes a definition of the term "particular
matter," seCtion 207(i)(3), but not "particular matter involving
specific parties"; however, it is important to remember that
each time "particular matter" is used in section 207(a), it is
modified by the additional "specific party" language.1

In addition to section 207(a), similar language is used in
18 U. S. C. 205(c) and 203(c). These provisions describe the
limited. restrictions on representational activities applicable
to special Government employees (SGEs) during their periOds of
Government service. 2

 

1For a full discussion of the post- employment restrictions, see
OGE DAEDgram DO-O4-023, at oge. gov/Web/oge. nsf/Resources/
.DO- 04- 023: +Summary+of+18+U. S. C. +?+207

2These restrictions on SGEs are discussed in more detail in OGE


+Government+Employees.l

Designated Agency Ethics Officials
Page 3

As explained below, 18 U. S. C. 208 generally uses the
broader phrase "particular matter" to describe the matters from
which employees must recuse themselves because of a financial
interest; However, even this statute has One provision, dealing
with 'Certain Indian birthright interests, that refers to.
particular matters involving certain Indian entities as Fa
specific jparty or parties." 18 208(b)(4); . 
Informal .Advisory Letter 00 x.12. Moreover, OGE has issued
certain regulatory exemptions, under section 208(b)(2), that
refer to particular matters involving specific parties.

5 C.F.R. Likewise, the distinction between
particular matters involving specific parties and broader types
?of particular matters (1. those that have general
applicability to an entire class of persons) is crucial to
several other regulatory exemptions issued by OGE under
section 208(b)(2). 5 C. F. R. 2640. 201(c)(2). 


Finally, OGE has used similar language in various other
rules. Most notably, the provisions dealing with impartiality
and extraordinary payments in subpart of the Standards of
Ethical Conduct for Employees of the EXecutive Branch (Standards
of Conduct) refer to particular matters in which certain persOns
are specific parties. 5 C.F.R. 2635.502; 2635.503. OGE also
uses the phrase to describe a restriction on the compensated
speaking, teaching and writing activities of certain SGEs.

5 C.F.R. 

What the Phrase Means

 

When .this language is used, it reflects "a deliberate
effort to impose a more?limited ban and to narrow the 
circumstances in which the ban is to operate." Bayless Manning,
Federal Conflict of Interest Law 204 (1964). Therefore, OGE has
emphasized that the term "typically involves a specific

Designated- Agency Ethics Officials
Page 4

proceeding affecting the legal rights of the parties, or an
isolatable transaction or related se of transactions between
identified. parties." 5 C.F.R. 3 Examples of
particular matters involving specific parties include contracts,
grants, licenses, product approval applications, investigations,
and litigation. It is important to remember that the phrase
does not cover particular matters of general applicability, such
as rulemaking, legislation, or policy-making of general
applicability. .

Ethics Officials sometimes must deci de when a particular
matter first involves a specific party. Many Government matters
evolve, sometimes starting with a broad concept, developing into.
a discrete program, and eventually involving specific parties.

A case-by?case analysis is required to determine at which stage
a particular matter has sufficiently progressed to inVolve

 

3 This definition, found in OGE's regulations implementing

l8 U.S.C. 208, differs from the definition found in
the regulations implementing a now~superseded version of

18 U.S.C. 207, although this is more a point of clarifiCation
than substance. Specifically, the old section 207 regulations
referred to "identifiable" parties, 5 C.F.R. 
whereas the more recent section 208 rule refers to "identified"
parties. As explained in the preamble to OGE's proposed new
section 207 rule: "The use of 'identified,? rather than~
'identifiable,? is intended to distinguish more clearly between
particular matters involving specific parties and mere
'particular matters,? which are described elsewhere as including
matters of general applicability that focus 'on the interests of
a discrete and identifiable class of persons' but do not involve
specific parties. [citations omitted] The use of the term
'identified,? ,however, does not mean that a matter will lack
specific parties just because the name of a party is not
disclosed. to the Government, as where an agent represents an
unnamed. principal." 68 Feder al Register 7844, 7853-54
(February 18, 2003).

4 Usually, rulemaking and legislation are not c0vered, unless
they focus narrowly on identified parties. OGE Informal
Advisory Opinions 96 7 ("rare? example of rulemaking that
involved specific parties); 83 7 (private relief legislation
may involve specific parties). 

Designated Agency Ethics Officials
Page 5

specific parties. The Government sometimes identifies a
specific party even at a preliminary or informal stage in the
development of a matter. OGE Informal Advisory Letters
993x 23; 99 21; 90 3.

In matters involving contracts, grants and other agreements
between the Government and outside parties, the general rule is
that specific parties are first identified when the Government
first receives an expression of interest frOm a prospective
contractor, grantee or other party. As OGE explained recently
in Informal Advisory Letter 05 6, the Government sometimes may
receive expressions of interest from prospective bidders or
applicants in advance of a published solicitation or request for
proposals. In some cases, such matters may involve specific
parties even before the Government receives an expression of
interest, if there are sufficient indications that the
Government actually has identified a party. OGE Informal
'Advisory Letter 96 21. 

Particular Matter

Despite the similarity of the phrases "particular matter"
and "particular matter involving specific parties," it is
necessary to distinguish them. That is because "particular
matter" 'covers a broader range of Government activities than
"particular matter involving specific parties.? Failure to
appreciate this distinction can lead to inadvertent violations
of law, For example, the financial conflict of interest
statute, 18 U. S. C. 208, generally refers to particular
matters, without the specific party limitation. If an employee
is advised incorrectly that section 208 applies only to
particular matters that focus on a specific person or company,
such as an enforcement action or a contraCt, then the employee
may conclude it is permissible to participate in other
particular' matters, even t, hough the la. prohibits Such
participation.

DeSignated Agency Ethics Officials
Page 6

1. Where the Phrase Appears

In addition to 18 U.S.C. 208, several other statutes and
regulations use the term "particular matter." 5 The
representational restrictions applicable to current employees
(other than SGEs), under 18 U.S.C. 203 and 205, apply to
particular matters.6 As mentioned above, section 207 also
contains a definition of "particular matter." 7 'However, where
the phrase is used in the post-employment prohibitions in

 

5 The relevant language in 18 U.S.C. 208(a) is "a judicial or
other" proceeding, application, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, or other particular matter" (emphasis added).

6 The prohibition in 18 U.SLC. 205(a)(2) aCtually uses the
phrase "covered matter," but that term is in turn defined as
."any judicial or other proceeding, application, request for a

ruling or other determination, contract, claim, controversy,
investigation, charge, accusation, arrest or other particular
matter," 18 205(h)(emphasis added).

7 The definition in 18 U.S.C. 207(i)(3) provides: "the term
'particular matter' includes any investigation, application,
request for a ruling or determination, rulemaking, contract,
controversy, claim, charge, accusation, arrest, or judicial or
other proceeding."~ This language differs from other
references to "particular matter" in sections 203, 205 and 208,
in, part because the list of matters is not followed by the
residual phrase "or other particular matter." However, OGE does
not believe that the absence of such a general catch-all phrase
means that the list of enumerated matters exhausts.the meaning
of "particular matter" under section 207(i)(3). The list is
preceded by the word "includes,? which is generally a term of
enlargement rather than limitation' and indicates that. matters
other than those enumerated are covered. See Norman J. Singer,
2A Sutherland on Statutory Construction 231-232 (2000).

Designated Agency Ethics Officials
Page 7

rsection 207(a)(1) and it is modified by the "specific
parties" limitation.8

The phrase "particular matter" is used pervasively in OGE's
regulations. Of course, the term appears throughout 5 C.F.R.
part 2640, the primary OGE rule interpreting and implementing
18 U.S.C. 208. Similarly, it is used in 5 C.F.R. 2635.402,
which is the provision in the Standards of Conduct that
generally deals with section 208. The phrase also is used
throughout subpart of the Standards of Conduct, which contains
the rules governing recusall from pa.rticular- matters affecting
the financial interest of a person with whom an employee is
seeking non-Federal employment. 5 C.F.R. 2635.601?2635.606.
Moreover, the phrase appears in the "catch-all" provision of

OGE's impartiality rule, 5 C.F.R. See also
5 C.F.R. Various other regulations refer to
"particular matter" for miscellaneous purposes. 5 C.F.R.

on expert witness activities of 
5 C.F.R. rec usals pursuant to ethics
agreements). 

2. What the Phrase Means

 

.Although different conflict of interest statutes use
different wording, such as different lists Of examples
of particular matters, the same standards apply for determining
what is a particUlar matter under each of the relevant statutes

 

8 At one time, the post-employment "cooling?off" restriction for
senior employees in 18 U.S.C. 207(c) applied to particular 
matters, but the language was amended (and broadened) in 1989~
When CongreSs removed the adjective ?particular" that had
modified "matter." ?ee 17 Op. O.L.C. 37, 41-42 (1993).

9 Generally, section 2635.502 focuses on particular matters
involving specific parties, as noted above. However,

section .provides a mechanism for employees to
determine whether they should recuse from other "particular
matters" that are not described elsewhere in the rule. In
appropriate cases, therefore, an agency may require an employee
to recuse from particular matters that do not involve specific
parties, based on the concern that the employee's impartiality
reasonably may be questioned under the circumstances.

Designated Agency Ethics Officials
Page 8

and regulations. 18 Op. O.L.C. 212, 217?20 (1994).
Particular matter means any matter that involves "deliberation,
decision,. or action that is focused upon the interests of
specific persons, or a discrete and identifiable class of
persons." 5 C.F.R. added). It is
clear, then, that particular matter may include matters that do
not involve parties and is n93 "limited to adversarial
proceedings or formal legal relationships.? van Ee v. EPA 
202 F.3d 296, 302 2000). .. 

Essentially, the term covers two categories of matters:
(1) those that involve specific part ies ?(described more fully
above), and (2) those that do not involve specific parties but
at least focus on the interests of a discrete and identifiable
class of persons, such as a particular industry or profession.
OGE regulations sometimes refer to the second category as
"particular matter of general applicability." 5 C.F.R.
This category can include legislation and
policymaking, as long as it is narrowly focused on a discrete
and identifiable class.? Examples provided in OGE rules include
a regulation applicable only to meat packing companies or a
?regulation prescribing safety standards for trucks on interstate
highways. "5 C.F.R. -
Other examples may be found in
various opinions of OGE and the Office of Legal Counsel,
?Department of Justice. OGE Informal Advisory Letter 00 
4 (recommendations concerning specific limits on commercial use
of a particular facility); 18 Op. O.L.C. at 220 (determinations
or legislation focused on the compensation and work conditions
of the class of Assistant United States Attorneys). 

Certain rules recognize that particular matters of
general applicability sometimes may raise fewer conflict of
interest concerns than particular matters involving specific

DeSignated Agency Ethics Officials
Page 9

parties.10 Therefore, while both categories are included in the.
term "particular matter," it is often necessary to distinguish
between these two kinds of particular matters. Of course, in
many instances, the relevant prohibitions apply equally to both
kinds of particular matters. This is the case, for example, in
any application of 18 U.S.C. 208 where there is no appliCable
exemption or waiver that distinguishes the two.

It is important to emphasize that the term "particular
matter" is not so broad as to include every matter involving?
Government action. Particular matter does not cover the
"consideration or adoption of broad policy options directed to
the interests of a large and diverse group of persons."

5 C.F.R. For example, health and safety
'regulations 'applicable to all employers would not be a
particular matter, not would a comprehensive legislative
propOsal for health care reform. 5 C.F.R. 

4), (example also OGE Informal
Advisory Letter 05 1 (report of panel on tax reform addressing
broad range of tax policy issues). Although such actions are
too broadly focused to be particular matters, they still are
deemed "matters" for purposes of the restrictions described
below that use that term. 

 

1? As noted above, OGE's imparti ality rule generally focuses on
particular matters involving specific parties. gee OGE Informal
Advisory Letter 93 25 (rulemaking "would not, except in
'unusual circumstances covered under section 502(a)(2), raise an
issue under section ?Furthermore, as also discussed
above, several of the regulatory exemptions issued by OGE under
18; U.S.C. 208(b)(2) treat particular matters of general
applicability differently than those involving Specific parties.
The preamble to the original proposed regulatory exemptions in
5 C.F.R. part 2640 explains: "The regulation generally contains
more expansive exemptions for participation in [matters of
general applicability not involving specific parties' because.it
is less likely that an employee's integrity would be compromised
by concern for his own financial interests when participating in
these broader matters." 60 Federal Register 47207, 47210
(September 11, 1995). Of course, Congress itself has limited
certain conflict of interest restrictions to the core area of
particular matters that involve specific parties. 
18 U.S.C. 207(a) (1), (2).

Designated Agency Ethics Officials
Page 10

A. question that sometimes arises is when a matter first
becomes a "particular matter.? Some matters begin as broad
policy deliberations and actions pertaining to diverse
interests, but, later, more focused actions may follow.
Usually, a particular matter arises when the deliberations turn
-to specific actions that focus on a certain person or a discrete
and identifiable class Of persons.. For example, although a
legislative pdan for broad health care reform would not be a
particular matter, a particular matter would arise'if an agency
later issued implementing regulations f0cused. narrowly on the
prices that pharmaceutical companies could charge for
preScription drugs. 5 C.F.R. 8).
Similarly, the formulation and implementation of the United
States response to the military invasion of an ally would not be
a particular matter, but a particular matter would arise once 
discussions turned to whether to close a particular oil pumping
station or pipeline operated by a company in the area Where
hostilities~ . are taking place. 5 C.F.R.
7).

Matter

The broadest of the three terms is "matter." However, this
term is used less frequently than the other two in the various
ethics statutes and regulations to describe the kinds of
Government actions to which restrictions apply.

1. Where the Phrase Appears

The important Use of this term is in the one-year
post-employment restrictions applicable to "senior employees"
and "very senior employees."* 18 U.S.C. 207(c), In this
context, "matter" is used to describe the kind of Government
actions that former senior and very senior employees are
prohibited from influencing through contacts with of
their former agencies (as well as contacts with Executive
Schedule officials at other agencies, in the case of very senior
employees). The unmodified term "matter" did not appear in .
these provisions until 1989, when section 207(c) was amended to
replace "particular matter" With "matter" and section 207(d) was
first enacted. Pub. L. No. 101-194, 101(a), November 30, pp
1989. OGE also occasionally uses the term "matter" in ethics
regulations, for example, in the description of teaching,

Designated Agency Ethics Officials
Page 11

speaking and writing that relates to an employee's official
duties.' 5 C.F-R. 

 

2. What the Phrase Means

It is clear that "matter? is broader than "particular
matter." 17 Op. O.L.C. at 41-42; Indeed, the term is
virtually all-encompassing with respect to theiwork of the
Government.11 Unlike "particular matter," the term "matter"
covers even the consideration or adoption of broad policy
_options that are directed to the interests of a large and
diverse group of persons. Of course, the term also includes any
particular matter or particular matter involving specific
parties.

Nevertheless, it is still necessary to understand the
context in which the term "matter" is used, as the context
itself will provide some limits. In 18 U.S.C. 207(c) and 
the post-employment restriCtions apply only to matters "on which
[the former employee] seeks official action." Therefore, the
only matters covered will be those in which the former employee
is seeking to induce a current employee to make a decision or
otherwise act in an official capacity.

 

11 A now-repealed statute, 18 U.S.C. 281 (the predecessor of
18 U.S.C. 203), used the phrase "any proceeding, contract,
claim, controversy, charge, accusation, arrest, or other matter"
(emphaSis added). One commentator noted that the term."matter"
in section 281 was "so open?ended" that it raised questions as
to what limits there might be on the scope. Manning, at 50-51.
Manning postulated that some limits might be inferred from the
character- of the matters listed before the phrase "or other
matter." lg; at 51. Whatever the force of this reasoning with
respect to former section 281, the same could not be said with
respect to 18 U.S.C. 207(c) or as neither of these 
current provisions contains an exemplary list of covered
matters.

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Question 8: On January 29, 2019, you signed an Order (Order No. 3345, Amdt. 24), of
?Temporary Redelegation of Authority? to ?ensure uninterrupted management and
execution of duties of vacant non-career positions during a Presidential transition pending
Senate-con?rmation of new non-career officials.? This is to ensure the duties of 8 vacant
leadership-level political employees are carried out by other officials on an acting basis.

These positions include the directors for the National Park Service, the BLM, Fish and
Wildlife Service, and others. We are in the third year of this administration, and the
President has yet to announce nominees for some of these positions. Your Order implies
Senate confirmation is ?pendingpositions there is no nominee pending.
Do you believe the ?transition? is still underway?

A. Considering we are into the President?s third-year, do you think this redelegation
practice sidesteps the Constitution?s ?checks and balances? framework?

B. Would you commit to ending this practice of having so many officials in an acting
capacity and request the President formally submit nominees to fill these positions?

Response to questions A and B: The Vacancies Reform Act (V RA) places conditions on how a
position requiring con?rmation can be ?lled in an ?acting? capacity. Additionally, the law
allows the head of an agency to delegate to departmental employees certain ?non-exclusive?
functions of roles contemplated to be ?lled by Senate con?rmed individuals. Interior Order
3345 and the Department Reorganization Plan No. 3 of 1950 are fully compliant with the

VRA. Nevertheless, we hope for speedy con?rmation of all nominees.

Question 9: Regarding the ongoing reorganization effort within the Department,
information pertaining to the creation of these 12 ?unified regions?, which problematically
splits my home state of Nevada into two different regions, as well as any information about
potentially moving the headquarters for the BLM to a western state, has been very vague
and hard to come by yet the President?s budget requests $27.6 million to continue these
efforts. Can you provide an update today on the status of this effort and will you commit to
provide a briefing to this committee before any structural changes or announcements are
made?

A. I previously asked this to Secretary Zinke, but did not receive an adequate response,
so I will ask you the same - What studies or analyses have been done in order to determine
if there are needs for this reorganization? Have any analyses been prepared on how the
proposed changes will correct identified needs? If so, would you share those with us? The
response I received from the Secretary was vague and seemed to indicate there were no
such studies or other documentation to otherwise guide any of these decisions.

Response: On August 22, 2017 the Department?s regions were realigned after Congress agreed

to Secretary Zinke?s reprogramming request. As a result, we are now in the phase of
implementing the reality of that action. Simply put, the Department?s bureaus evolved

64

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

independently over many decades, each with its own geographic regions. This structure, with 49
geographic regions, was complex and not optimal for ef?cient citizen service. In order to
improve citizen service, delivery of shared services internally, facilitate improved inter-bureau
coordination and communication, enhance c00peration in shared mission interests and activities,
reduce the confusion that differing bureau boundaries cause the Department?s partners and the
American public, a new regional structure that established 12 Uni?ed Regions went into effect
in August, 2018. We are working now to align the bureau?s structures to the new

boundaries. We expect to complete revisions to the Departmental Manual to re?ect the uni?ed
regions this spring.

As part of the analyses conducted, we commissioned external third party evaluations of
information technology, acquisition processes, and human capital services. Some complex
supporting processes and systems will take time to fully implement. For example, implementing
changes to align the budget and ?nancial structures and systems to the new regions will be
phased in over an extended period. Feedback from the external reviews will help us make sound
business decisions and will inform implementation strategies to help us improve administrative
function and thereby free up resources for citizen-facing work.

We do propose to move certain functions west. We are developing business case analyses of
proposed moves so that spending and relocation decisions are made wisely in order to best
enable the bureau to most effectively accomplish its mission and responsibilities.

By streamlining and improving business practices, shared services, and operations, the
Department and its individual bureaus will more effectively accomplish their missions. We are
committed to thoroughly evaluating the impact of these changes - to measure success and
identify any improvements that should be made. We are evaluating performance metrics that can
help assess and improve the 3 mission areas (Recreation, Collaborative Conservation, and
Permitting) and shared services (human resources, information technology, and acquisition
services). By examining performance metric data early in the process, we will ensure that the
implementation is nimble and ?exible enough to allow us to make any necessary course
corrections during the implementation phase.

Question 10: The review conducted by Interior on monuments created by the Antiquities
Act over the past twenty years, and the subsequent Presidential decision to remove
protections from large swaths of Bears Ears and Grand Staircase-Escalante National
Monuments was largely determined behind closed doors. Following the controversial
changes to the aforementioned monuments, it is unclear what further considerations to
other monuments awaits. Is there active work being done in the Department to pursue
changes to other monuments that were on the monument review list? Can you clarify what
the next steps are for the remaining national monuments that have not been ?pardoned? or
altered?

A. Would you commit to rescinding the recommendations that former Secretary Zinke
made to President Trump as part of his national monuments review?

65

Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

Response: The review of national monuments conducted by former Secretary Zinke in
accordance with the President?s direction in Executive Order 13792 was informed by the
Secretary?s travel to eight monument sites in six states, more than 60 meetings held by the
Secretary and his staff with hundreds of advocates for and opponents of monument designations,
a review of more than 2.4 million public comments, and multiple tribal consultations. Public
input in this review was robust. Secretary Zinke provided a report to the President. Ultimately,
under the Antiquities Act, the President is solely authorized, in his discretion, to declare, by
public proclamation, national monuments.

Follow-up: Would you commit to not writing or rewriting any monument management
plans in any manner that is inconsistent with the intent of the original proclamations?

Response: I commit to implementing the President?s proclamation in accordance with all
appropriate laws and regulations.

Question 11: Please provide data on both how much and what percentage of the land that
has been offered for onshore oil and gas lease sale while you have been Deputy Secretary is
designated as low or no potential? What percentage of land currently available for oil and
gas leasing on a noncompetitive basis has been designated as no or low potential? Please
provide data on how many of Reasonably Foreseeable Development Scenarios
which are used by BLM to inform land use planning and leasing decisions, are
more than five years old? How many has BLM completed overall?

Response: The BLM advises me that since August of 2017, 2,626 parcels have received bids at
competitive lease sales covering 2.74 million acres. During calendar year 2018, a total of 1,412
parcels received bids, covering nearly1.5 million acres at competitive lease sales.

The BLM generated $1.1 billion from 28 oil and gas lease sales in calendar year 2018, an
amount nearly equal to the entire budget for FY 2018. It was the highest-grossing year on
record, nearly tripling what had been the agency?s highest year ever in 2008.

BLM does not have an of?cial resource designation to track resource potential on a national
level. Individual Resource Management Plans (RMPs) and ?eld development Reasonable
Foreseeable Development (RF D) scenarios identify areas, in that time frame, that are expected to
have resource potential. However, given recent technological innovations, areas once thought to
have low potential have been shown to have more promising energy resources. The US.
Geological Survey maintains the National Oil and Gas Assessments, but many of these are
outdated due to technical advancements allowing for development in new formations that were
previously thought to be low potential. The BLM does not track whether nominated lands or
lease parcels were designated to have low or no potential in a RFD scenario.

Noncompetitive leases are considered low potential, since they did not receive bids during

competitive lease sales. Because these are estimates made at a particular time and are subject to
change, whether a lease is designated high and low potential is not maintained in the leasing

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

databases. It is disclosed to the public during the individual lease sale in NEPA compliance
documentation. These documents are posted on ePlanning website and in the public room
45 days prior to the start of the lease sale.

There are a total of 74 completed RFDs, primarily tied to RMPs. Of those, 36 are more than ?ve
years old, many in areas where drilling is not occurring.

Question 12: When were the federal bonding rates for individual leases, statewide bond
minimums, and nationwide bond minimums last updated? If these rates were adjusted for
in?ation, what would they be today? Considering that bonds insure against serious
degradation of public land, can you explain why the Interior Department has declined to
keep bonding rates on pace with inflation, and at levels that are far lower than what many
states require for drilling on state lands?

Response: The BLM advises that its regulations establish the following minimum bond
amounts: $10,000 for an individual lease; $25,000 to cover all leases of a single operator in a
state; and $150,000 to cover all leases of a single operator nationwide.

The bond amount for individual leases was set in 1960, while the statewide and nationwide bond
amounts were set in 1951. The BLM conducts bond adequacy reviews of each oil and gas bond
every ?ve years and makes adjustments as needed. These reviews assess the level of potential
risk and liability posed by an operator.

Question 13: How does the federal onshore oil and gas royalty rate compare to royalty
rates in Colorado, Montana, New Mexico, North Dakota, Texas, Utah and Wyoming?
When was the federal rate last updated? How much additional revenue would taxpayers
receive if federal rates matched, or exceeded, these states? rates?

Response: The Mineral Leasing Act stipulates that the Federal royalty rate be no less than 12.5
percent. The state royalty rate in Colorado is 20.0 percent, Montana is 16.67 percent, New
Mexico is 12.5 to 20.0 percent, North Dakota is 16.67 or 18.75 percent, Utah is 12.5 to 16.67
percent, Wyoming is 12.5 or 16.67 percent, and Texas is typically 20 to 25 percent. It is
important to note that Federal oil and gas leases are subject to different regulations than state oil
and gas leases. Also, in most of these states, obtaining a permit to drill takes signi?cantly less
time and costs less compared to the Federal permitting system.

The Government Accountability Office (GAO) concluded in the Report to Congressional
Committees 1 7-5 40, Oil, Gas, and Coal Raising Federal Royalty Rates Could Decrease
Production on Federal Lands but Increase Federal Revenue, June 201 7 that ?Raising federal
royalty rates?a percentage of the value of production paid to the federal govemment?for
onshore oil, gas, and coal resources could decrease oil, gas, and coal production on federal lands
but increase overall federal revenue, according to studies GAO reviewed and stakeholders

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Nomination of David Bernhardt
Senate Energy and Natural Resources Committee
March 28, 2019

interviewed. However, the extent of these effects is uncertain and depends, according to
stakeholders, on several other factors, such as market conditions and prices.?

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