5 CFR 2641.204 - One-year restriction on any former senior employee's representations to former agency concerning any matter, regardless of prior involvement.
(a) Basic prohibition of 18 U.S.C. 207(c). For one year after his service in a senior position terminates, no former senior employee may knowingly, with the intent to influence, make any communication to or appearance before an employee of an agency in which he served in any capacity within the one-year period prior to his termination from a senior position, if that communication or appearance is made on behalf of any other person in connection with any matter on which the former senior employee seeks official action by any employee of such agency. An individual who served in a “very senior employee” position is subject to the broader two-year restriction set forth in 18 U.S.C. 207(d) in lieu of that set forth in section 207(c). See § 2641.205.
(1) Acting on behalf of the United States. See § 2641.301(a).
(2) Acting as an elected State or local government official. See § 2641.301(b).
(3) Acting on behalf of specified entities. See § 2641.301(c).
(4) Making uncompensated statements based on special knowledge. See § 2641.301(d).
(5) Communicating scientific or technological information pursuant to procedures or certification. See § 2641.301(e).
(6) Testifying under oath. See § 2641.301(f).
(7) Acting on behalf of a candidate or political party. See § 2641.301(g).
(8) Acting on behalf of an international organization pursuant to a waiver. See § 2641.301(h).
(9) Acting as an employee of a Government-owned, contractor-operated entity pursuant to a waiver. See § 2641.301(i).
(10) Subject to a waiver issued for certain positions. See § 2641.301(j).
(c) Applicability to special Government employees and Intergovernmental Personnel Act appointees or detailees -
(1) Special Government employees.
(A) Served in a senior employee position while serving as an SGE; and
(B) Served 60 or more days as an SGE during the one-year period before terminating service as a senior employee.
(ii) Any day on which work is performed shall count toward the 60-day threshold without regard to the number of hours worked that day or whether the day falls on a weekend or holiday. For purposes of determining whether an SGE's rate of basic pay is equal to or greater than 86.5 percent of the rate of basic pay for level II of the Executive Schedule, within the meaning of the definition of senior employee in § 2641.104, the employee's hourly rate of pay (or daily rate divided by eight) shall be multiplied by 2087, the number of Federal working hours in one year. (In the case of a Reserve officer of the Armed Forces or an officer of the National Guard who is an SGE serving in a senior employee position, 18 U.S.C. 207(c) applies if the officer served 60 or more days as an SGE within the one-year period prior to his termination from a period of active duty or active duty for training.)
(2) Intergovernmental Personnel Act appointees or detailees. 18 U.S.C. 207(c) applies to an individual serving as a senior employee pursuant to an appointment or detail under the Intergovernmental Personnel Act, 5 U.S.C. 3371-3376. An individual is a senior employee if he received total pay from Federal or non-Federal sources equal to or greater than 86.5 percent of the rate of basic pay for level II of the Executive Schedule (exclusive of any reimbursement for a non-Federal employer's share of benefits not paid to the employee as salary), and:
(i) The individual served in a Federal position ordinarily compensated at a rate equal to or greater than 86.5 percent of level II of the Executive Schedule, regardless of what portion of the pay is derived from Federal expenditures or expenditures by the individual's non-Federal employer;
(iii) The individual's non-Federal employer received Federal reimbursement equal to or greater than 86.5 percent of level II of the Executive Schedule.
(d) Commencement and length of restriction. 18 U.S.C. 207(c) is a one-year restriction. The one-year period is measured from the date when the employee ceases to serve in a senior employee position, not from the termination of Government service, unless the two events occur simultaneously. (In the case of a Reserve officer of the Armed Forces or an officer of the National Guard who is a special Government employee serving in a senior employee position, section 207(c) is measured from the date when the officer terminates a period of active duty or active duty for training.)
(e) Communication or appearance. See § 2641.201(d).
(f) With the intent to influence. See § 2641.201(e).
(g) To or before employee of former agency -
(1) Employee. For purposes of this paragraph, a former senior employee may not contact:
(iii) An individual detailed to the former senior employee's former agency from another department, agency or other entity, including agencies and entities within the legislative or judicial branches;
(iv) An individual serving with the former senior employee's former agency as a collateral duty pursuant to statute or Executive order; and
(v) In the case of a communication or appearance made by a former senior employee who is barred by 18 U.S.C. 207(c) from communicating to or appearing before the Executive Office of the President, the President and Vice President.
(2) Former agency. The term “agency” is defined in § 2641.104. Unless eligible to benefit from the designation of distinct and separate agency components as described in § 2641.302, a former senior employee's former agency will ordinarily be considered to be the whole of any larger agency of which his former agency was a part on the date he terminated senior service.
(i) One-year period before termination. 18 U.S.C. 207(c) applies with respect to agencies in which the former senior employee served within the one-year period prior to his termination from a senior employee position.
(ii) Served in any capacity. Once the restriction commences, 18 U.S.C. 207(c) applies with respect to any agency in which the former senior employee served in any capacity during the one-year period, regardless of his position, rate of basic pay, or pay grade.
(iii) Multiple assignments. An employee can simultaneously serve in more than one agency. A former senior employee will be considered to have served in his own employing entity and in any entity to which he was detailed for any length of time or with which he was required to serve as a collateral duty pursuant to statute or Executive order.
(iv) Effect of organizational changes. If a former senior employee's former agency has been significantly altered by organizational changes after his termination from senior service, it may be necessary to determine whether a successor entity is the same agency as the former senior employee's former agency. The appropriate designated agency ethics official, in consultation with the Office of Government Ethics, shall identify the entity that is the individual's former agency. Whether a successor entity is the same as the former agency depends upon whether it has substantially the same organizational mission, the extent of the termination or dispersion of the agency's functions, and other factors as may be appropriate.
(A) Agency abolished or substantially changed. If a successor entity is not identifiable as substantially the same agency from which the former senior employee terminated, the 18 U.S.C. 207(c) prohibition will not bar communications or appearances by the former senior employee to that successor entity.
(B) Agency substantially the same. If a successor entity remains identifiable as substantially the same entity from which the former senior employee terminated, the 18 U.S.C. 207(c) bar will extend to the whole of the successor entity.
(C) Employing entity is made separate. If an employing entity is made separate from an agency of which it was a part, but it remains identifiable as substantially the same entity from which the former senior employee terminated senior service before the entity was made separate, the 18 U.S.C. 207(c) bar will apply to a former senior employee of that entity only with respect to the new separate entity.
(D) Component designations. If a former senior employee's former agency was a designated “component” within the meaning of § 2641.302 on the date of his termination as senior employee, see § 2641.302(g).
(ii) Directed to and received by an employee of a former senior employee's former agency in his official capacity, including in his capacity as an employee serving in the agency on detail or, if pursuant to statute or Executive order, as a collateral duty. A former senior employee does not direct his communication or appearance to a bystander who merely happens to overhear the communication or witness the appearance.
(4) Public commentary.
(i) A former senior employee who addresses a public gathering or a conference, seminar, or similar forum as a speaker or panel participant will not be considered to make a prohibited communication or appearance if the forum:
(A) Is not sponsored or co-sponsored by the former senior employee's former agency;
(B) Is attended by a large number of people; and
(C) A significant proportion of those attending are not employees of the former senior employee's former agency.
(iii) A former senior employee also may permit the broadcast or publication of a commentary provided that it is broadcast or appears in a newspaper, periodical, or similar widely-available publication.
(h) On behalf of any other person. See § 2641.201(g).
(i) Matter on which former senior employee seeks official action -
(1) Seeks official action. A former senior employee seeks official action when the circumstances establish that he is making his communication or appearance for the purpose of inducing a current employee, as defined in paragraph (g) of this section, to make a decision or to otherwise act in his official capacity.
(2) Matter. The prohibition on seeking official action applies with respect to any matter, including:
(i) Any “particular matter involving a specific party or parties” as defined in § 2641.201(h);
(ii) The consideration or adoption of broad policy options that are directed to the interests of a large and diverse group of persons;
(iii) A new matter that was not previously pending at or of interest to the former senior employee's former agency; and
Title 5 published on 2015-01-01
The following are ALL rules, proposed rules, and notices (chronologically) published in the Federal Register relating to 5 CFR Part 2641 after this date.