All U.S. Government employees, including certain Special Government Employees (SGEs), are subject to legal restrictions concerning foreign activities. SGEs are Government employees who are appointed to temporary service on an advisory committee (i.e., NIH Institute/Center Advisory Council, Board of Scientific Counselors, or Program Advisory Committee) or, in some cases, as individual experts or consultants. Although SGEs may spend fewer than 10 days per year in an NIH position, many Government regulations apply to them, including, for some, the Emoluments Clause of the U.S. Constitution, which may limit acceptance of funds from foreign sources.

As an SGE, you are required to complete and submit the enclosed Foreign Activities Questionnaire, HHS 697 form. Some have found the questions and process confusing. Questions may arise concerning what is allowable and whether prior commitments made to foreign entities can be fulfilled while serving as an SGE for the NIH. This information sheet provides additional information, answers questions, clarifies the information required by the Foreign Activities Questionnaire, and provides names, phone numbers, and email addresses of people to contact for further clarification. We want to reassure you that we will work to resolve any problems, and usually you will be able to carry out all of your activities.

To whom and when does the Emoluments Clause apply?

• The Emoluments Clause applies to all Government employees, including SGEs who hold an "office of profit or trust" in the U.S. government by virtue of the role and function of the committee on which they serve. A list of all NIH committees and whether the Emoluments Clause applies can be found on the Office of Federal Advisory Committee Policy (OFACP) website at http://www1.od.nih.gov/cmo/index.html
  
• If the Emoluments Clause applies to you as a member of a "covered" committee, it applies at all times during your appointment, not just the dates you are actually at the NIH.

What is the Emoluments Clause?

• The Emoluments Clause of the U.S. Constitution prohibits Government employees, including certain SGEs, from accepting any title, office, position, employment, emolument or gift from a foreign government or political subdivision of a foreign government, including certain public universities or commercial enterprises owned or operated by a foreign government, absent Congressional consent. Congressional consent for exceptions is found in the Foreign Gifts and Decorations Act (FGDA).
  
• Emoluments include salary, honoraria, transportation, per diem allowances, household goods, shipment costs, and housing allowances.
  
• Exceptions include gifts less than $305, or gifts that cover an educational scholarship, medical treatment, or expenses for travel taking place entirely outside the U.S. (including hotel and meal reimbursements in the foreign country, but not airfare for flights originating or terminating in the United States).
  

What foreign activities should I report under Question 1 of the Foreign Activities Questionnaire?

• Report any title, office, position, or employment, from a foreign government or political subdivision of a foreign government.
  
• A spouse or dependent child is permitted to hold a title or position and accept salary or compensation from a foreign entity. You are NOT required to report these activities on the Foreign Activities Questionnaire.
  

What is meant by a foreign government or political subdivision of a foreign government? Question 2 of the Foreign Activities Questionnaire asks me to describe whether the foreign university is independent of the foreign government. How would I know this? How do I respond to this?

• A foreign government or political subdivision includes certain public universities, commercial enterprises owned or operated by a foreign government, and international organizations of which the U.S. is not a member.
  
• NIH ethics officials and advisory committee personnel will determine, with your assistance, if a foreign entity is independent of its government.
  
• The following criteria are considered when evaluating the status of foreign entities:
  
  • independence of management
    
  • who makes personnel decisions
    
  • whether the members of the governing board are appointed by the entity or by the Government
    
  • to whom the governing board reports
    
  • the underlying source of funding
    
  • the nature of the proposed activity
    
  • the type of foreign entity/institution.
    

To find out if an organization is considered to be a foreign government or entity, please see the Contacts list at the end of this document.

Question 3 of the Foreign Activities Questionnaire asks me to describe tangible or intangible gifts that I anticipate receiving from foreign entities during my tenure as an SGE. What should I be reporting here?

• It is important to note that even if the Emoluments Clause does not apply, the FGDA does. Accordingly gifts are prohibited unless an exception applies.
  
• Gifts - if valued at more than $305: these can be accepted only for an educational scholarship, medical treatment, or expenses for travel taking place entirely outside the U.S.
  
• If, at any time during your service, you have a question about whether you may accept a gift, please contact your Committee Management Officer or Deputy Ethics Counselor (see Contacts).
  

Are there any exceptions?

The application of the Emoluments Clause and the FGDA cannot be waived. However, NIH officials will work with you to determine whether certain activities may be permitted with those foreign entities otherwise considered part of a foreign government. Congressional consent affords certain exceptions to the rule, details of which can be found in the Foreign Gifts and Decorations Act. We have compiled the following list of guiding principles to help you determine which activities and gifts are exempt, and which are not.

• Tangible gifts valued at $305 or less are exempt.
  
• Expenses for travel started and completed outside the U. S. are allowed.
  
• If the foreign activity is being done as part of your regular employment, and travel reimbursement is made to your employer rather than to you, then the activity will be permitted and travel beginning and ending in the U.S. can be reimbursed as long as the facts are consistent with your employer's historical "sponsored travel" practice.
  

If you have any questions about exceptions, please contact either your Committee Management Officer or Deputy Ethics Counselor (see Contacts).

As an SGE, what do I have to do with respect to the Emoluments Clause and the FGDA?

• You have to complete form HHS-697, Foreign Activities Questionnaire, prior to your appointment, and yearly during your term of service.
  
• You must list all foreign institutions with which you have an activity. If you wish, you may obtain prior clearance for foreign activities from the Committee. Management Officer or Deputy Ethics Counselor of the NIH Institute or Center with which you are working.
  
• If you are subject to the Emoluments Clause and your Committee Management Officer or Deputy Ethics Counselor determines that a foreign institution has a relationship with its government, your options will be discussed with you.
  
• If, at any time during your service, you have a question, please contact your Committee Management Officer or Deputy Ethics Counselor (see Contacts).
  
• You must not make representations to the U.S. Government on behalf of, or at the behest of, a foreign government, foreign political party or other foreign entity. If you are conducting such activities, they must be reported in Question 4 of the Foreign Activities Questionnaire.
  

If you have any questions, please contact:

IC Committee Management Officers <http://www1.od.nih.gov/cmo/map/index.html - choose About Us and click on OFACP & CMO Staff Directory>

IC Deputy Ethics Counselors <http://ethics.od.nih.gov/decs.pdf>

References:

HHS-697 Foreign Activities Questionnaire http://www1.od.nih.gov/cmo/map/index.html

NIH Administrative Fact Sheet for Special Government Employees http://www1.od.nih.gov/cmo/map/index.html