Fauci Awards Package (Redacted) — page 41

(i) The award and any item incident to the award are not from a person who has interests that may be substantially affected by the performance or nonperformance of the employee's official duties, or from an association or other organization if a majority of its members have such interests; The definition of "person" is found at section 2635.102(k) and is: (k) Person means an individual, corporation and subsidiaries it controls, company, association, firm, partnership, society, joint stock company, or any other organization or institution, including any officer, employee, or agent of such person or entity. For purposes of this part, a corporation will be deemed to control a subsidiary if it owns 50 percent or more of the subsidiary's voting securities. The term is all-inclusive and applies to commercial ventures and nonprofit organizations as well as to foreign, State, and local governments, including the Government of the District of Columbia. It does not include any agency or other entity of the Federal Government or any officer or employee thereof when acting in his official capacity on behalf of that agency or entity. The "National Academy of Sciences (in this chapter, the "corporation") is a federally chartered corporation." 36 USC § 150301. Pursuant to its Mission statement, NAS "is a private, non-profit society [and is] charged with providing independent, objective advice to the nation on matters related to science and technology." The Act to Incorporate the National Academy of Sciences (aka the Academy Charter) states "the Academy shall, whenever called upon by any department of the Government, investigate, examine, experiment, and report upon any subject of science or art . . . ." Academy Charter at §3. While a corporation is a "person" under section 2635.102(k), I argue that the type of corporation that NAS is - a federally chartered corporation, with its exceptional mission to advise the Federal Government - is not the type of corporation that OGE intended to include in the definition. First, OGE could have, but did not include in the definition of "person" any discussion of federally chartered corporations, perhaps because of their uniqueness. And it's this uniqueness which makes the application of section 2635.204(d) unnecessary. NIAID works with NAS because it is directed to do so by Congress and because NAS offers NIAID an expertise that cannot be found elsewhere. NAM did not "return the favor" to NIAID when it selected Dr. Fauci as its 2021 Lienhard awardee. Its relationship with NIAID is rooted in legislation and will continue regardless of an unrelated award to NIAID's Director. Last, OGE stated that "['person'] does not include any agency or other entity of the Federal Government . . . ." I concede that NAS is not a part of the Federal Government. However, in 1997, Congress amended the Federal Advisory Committee Act (FACA) to include the National Academy of Sciences under some of FACA's provisions. See Congressional Research Service report, Congressionally Chartered Nonprofit Organizations ("Title 36 Corporations"): What They Are and How Congress Treats Them (July 14, 2008). There, CSR noted that the FACA amendment was: [T]he first instance in which Congress has made [federally chartered corporations] subject to the provisions of a general management law, and while the action may be supportable on public policy grounds, it does, to the extent of the applicable provisions, diminish the private character of the affected organizations. As such, it constitutes a precedent with implications. CSR Report at 7. FACA's partial application to NAS further supports viewing NAS as a different kind of corporate entity that is outside of the regulatory definition of "person." Therefore, if NAS is not a "person," NAS' non-person status extends to NAM, an entity established under NAS' charter. Consequently, the pending NIAID-NAS matters do not make a gift from NAM a prohibited gift for Dr. Fauci under the applicable regulations. In the alternative, if you find NAS to be a "person" under 2635.102(k), then you should not find it to be the same "person" as NAM. Even though NAM was established in 1970 under the charter of the National Academy of Sciences, the definition of "person" supports a finding that NAM is not a subsidiary of corporate parent NAS. The regulation explains that "for purposes of [Part 2635], a corporation will be deemed to control a subsidiary if it owns 50 percent or more of the subsidiary's voting securities." NAM does not issue voting securities, so NAS cannot control such securities; accordingly, NAM is not a subsidiary of NAS, but rather an independent entity. Furthermore, pursuant to NAM's Articles of Organization (AoO), adopted May 19, 2015 (copy attached), "the governance of [NAM] shall reside in the President and Council to be elected from among the membership," AoO Art. III, § 1, "NAM shall be solely responsible for the content of reports on projects that it undertakes, and such reports may be issued in its own name." AoO Art. VI, § 2. NAM's governing documents repeatedly show NAM's independence from NAS. Last, NAM's AoO gives it its own authority to