5 CFR § 2641.301 - Statutory exceptions and waivers.
(a) Exception for acting on behalf of United States. A former employee is not prohibited by any of the prohibitions of 18 U.S.C. 207 from engaging in any activity on behalf of the United States.
(1) United States. For purposes of this paragraph, the term “United States” means:
(i) The executive branch (including a Government corporation);
(ii) The legislative branch; or
(iii) The judicial branch.
(2) On behalf of the United States. A former employee will be deemed to engage in the activity on behalf of the United States if he acts in accordance with paragraph (a)(2)(i) or (a)(2)(ii) of this section.
(i) As employee of the United States. A former employee engages in an activity on behalf of the United States when he carries out official duties as a current employee of the United States.
(ii) As other than employee of the United States.
(A) Provided that he does not represent, aid, or advise a foreign entity in violation of 18 U.S.C. 207(f), a former employee engages in an activity on behalf of the United States when he serves:
(1) As a representative of the United States pursuant to a specific agreement with the United States to provide representational services to the United States; or
(2) As a witness called by the United States (including a Congressional committee or subcommittee) to testify at a Congressional hearing (even if applicable procedural rules do not require him to declare by oath or affirmation that he will testify truthfully).
(B) A former employee will not be deemed to engage in an activity on behalf of the United States merely because he is performing work funded by the Government, because he is engaging in the activity in response to a contact initiated by the Government, because the Government will derive some benefit from the activity, or because he or the person on whose behalf he is acting may share the same objective as the Government.
See also § 2641.301(f) concerning the permissibility of testimony under oath, including testimony as an expert witness, when a former employee is called as a witness by the United States.
See also example 9 to paragraph (j) of § 2641.202 and example 1 to paragraph (d) of § 2641.204.
(b) Exception for acting on behalf of State or local government as elected official. A former employee is not prohibited by any of the prohibitions of 18 U.S.C. 207 from engaging in any post-employment activity on behalf of one or more State or local governments, provided the activity is undertaken in carrying out official duties as an elected official of a State or local government.
(c) Exception for acting on behalf of specified entities. A former senior or very senior employee is not prohibited by 18 U.S.C. 207(c) or (d), or §§ 2641.204 or 2641.205, from making a communication or appearance on behalf of one or more entities specified in paragraph (c)(1) of this section, provided the communication or appearance is made in carrying out official duties as an employee of a specified entity.
(1) Specified entities. For purposes of this paragraph, a specified entity is:
(i) An agency or instrumentality of a State or local government;
(ii) A hospital or medical research organization, if exempted from taxation under 26 U.S.C. 501(c)(3); or
(iii) An accredited, degree-granting institution of higher education, as defined in 20 U.S.C. 1001.
(2) Employee. For purposes of this paragraph, the term “employee” of a specified entity means a person who has an employee-employer relationship with an entity specified in paragraph (c)(1) of this section. It includes a person who is employed to work part-time for a specified entity. The term excludes an individual performing services for a specified entity as a consultant or independent contractor.
(d) Exception for uncompensated statements based on special knowledge. A former senior or very senior employee is not prohibited by 18 U.S.C. 207(c) or (d), or §§ 2641.204 or 2641.205, from making a statement based on his own special knowledge in the particular area that is the subject of the statement, provided that he receives no compensation for making the statement.
(1) Special knowledge. A former employee has special knowledge concerning a subject area if he is familiar with the subject area as a result of education, interaction with experts, or other unique or particularized experience.
(2) Statement. A statement for purposes of this paragraph is a communication of facts observed by the former employee.
(3) Compensation. Compensation includes any form of remuneration or income that is given in consideration, in whole or in part, for the statement. It does not include the payment of actual and necessary expenses incurred in connection with making the statement.
(e) Exception for furnishing scientific or technological information. A former employee is not prohibited by 18 U.S.C. 207(a), (c), or (d), or §§ 2641.201, 2641.202, 2641.204, or 2641.205, from making communications, including appearances, solely for the purpose of furnishing scientific or technological information, provided the communications are made either in accordance with procedures adopted by the agency or agencies to which the communications are directed or the head of such agency or agencies, in consultation with the Director of the Office of Government Ethics, makes a certification published in the Federal Register.
(1) Purpose of information. A communication made solely for the purpose of furnishing scientific or technological information may be:
(i) Made in connection with a matter that involves an appreciable element of actual or potential dispute;
(ii) Made in connection with an effort to seek a discretionary Government ruling, benefit, approval, or other action; or
(iii) Inherently influential in relation to the matter in dispute or the Government action sought.
(2) Scientific or technological information. The former employee must convey information of a scientific or technological character, such as technical or engineering information relating to the natural sciences. The exception does not extend to information associated with a nontechnical discipline such as law, economics, or political science.
(3) Incidental references or remarks. Provided the former employee's communication primarily conveys information of a scientific or technological character, the entirety of the communication will be deemed made solely for the purpose of furnishing such information notwithstanding an incidental reference or remark:
(i) Unrelated to the matter to which the post-employment restriction applies;
(ii) Concerning feasibility, risk, cost, speed of implementation, or other considerations when necessary to appreciate the practical significance of the basic scientific or technological information provided; or
(iii) Intended to facilitate the furnishing of scientific or technological information, such as those references or remarks necessary to determine the kind and form of information required or the adequacy of information already supplied.
(4) Communications made under procedures acceptable to the agency.
(i) An agency may adopt such procedures as are acceptable to it, specifying conditions under which former Government employees may make communications solely for the purpose of furnishing scientific or technological information, in light of the agency's particular programs and needs. In promulgating such procedures, an agency may consider, for example, one or more of the following:
(A) Requiring that the former employee specifically invoke the exception prior to making a communication (or series of communications);
(B) Requiring that the designated agency ethics official for the agency to which the communication is directed (or other agency designee) be informed when the exception is used;
(C) Limiting communications to certain formats which are least conducive to the use of personal influence;
(D) Segregating, to the extent possible, meetings and presentations involving technical substance from those involving other aspects of the matter; or
(E) Employing more restrictive practices in relation to communications concerning specified categories of matters or specified aspects of a matter, such as in relation to the pre-award as distinguished from the post-award phase of a procurement.
(ii) The Director of the Office of Government Ethics may review any agency implementation of this exception in connection with OGE's executive branch ethics program oversight responsibilities. See 5 CFR part 2638.
(5) Certification for expertise in technical discipline. A certification issued in accordance with this section shall be effective on the date it is executed (unless a later date is specified), provided that it is transmitted to the Federal Register for publication.
(i) Criteria for issuance. A certification issued in accordance with this section may not broaden the scope of the exception and may be issued only when:
(A) The former employee has outstanding qualifications in a scientific, technological, or other technical discipline (involving engineering or other natural sciences as distinguished from a nontechnical discipline such as law, economics, or political science);
(B) The matter requires the use of such qualifications; and
(C) The national interest would be served by the former employee's participation.
(ii) Submission of requests. The individual wishing to make the communication shall forward a written request to the head of the agency to which the communications would be directed. Any such request shall address the criteria set forth in paragraph (e)(5)(i) of this section.
(iii) Issuance. The head of the agency to which the communications would be directed may, upon finding that the criteria specified in paragraph (e)(5)(i) of this section are satisfied, approve the request by executing a certification, which shall be published in the Federal Register. A copy of the certification shall be forwarded to the affected individual. The head of the agency shall, prior to execution of the certification, furnish a draft copy of the certification to the Director of the Office of Government Ethics and consider the Director's comments, if any, in relation to the draft. The certification shall specify:
(A) The name of the former employee;
(B) The Government position or positions held by the former employee during his most recent period of Government service;
(C) The identity of the employer or other person on behalf of which the former employee will be acting;
(D) The restriction or restrictions to which the certification shall apply;
(E) Any limitations imposed by the agency head with respect to the scope of the certification; and
(F) The basis for finding that the criteria specified in paragraph (e)(5)(i) of this section are satisfied, specifically including a description of the matter and the communications that will be permissible or, if relevant, a statement that such information is protected from disclosure by statute.
(iv) Copy to Office of Government Ethics. Once published, the agency shall provide the Director of the Office of Government Ethics with a copy of the certification as published in the Federal Register.
(v) Revocation. The agency head may revoke a certification and shall forward a written notice of the revocation to the former employee and to the OGE Director. Revocation of a certification shall be effective on the date specified in the notice revoking the certification.
(f) Exception for giving testimony under oath or making statements required to be made under penalty of perjury. Subject to the limitation described in paragraph (f)(2) of this section concerning expert witness testimony, a former employee is not prohibited by any of the prohibitions of 18 U.S.C. 207 from giving testimony under oath or making a statement required to be made under penalty of perjury.
(1) Testimony under oath. Testimony under oath is evidence delivered by a witness either orally or in writing, including deposition testimony and written affidavits, in connection with a judicial, quasi-judicial, administrative, or other legally recognized proceeding in which applicable procedural rules require a witness to declare by oath or affirmation that he will testify truthfully.
(2) Limitation on exception for service as an expert witness. The exception described in paragraph (f)(1) of this section does not negate the bar of 18 U.S.C. 207(a)(1), or § 2641.201, to a former employee serving as an expert witness; where the bar of section 207(a)(1) applies, a former employee may not serve as an expert witness except:
(i) If he is called as a witness by the United States; or
(ii) By court order. For this purpose, a subpoena is not a court order, nor is an order merely qualifying an individual to testify as an expert witness.
(3) Statements made under penalty of perjury. A former employee may make any statement required to be made under penalty of perjury, except that he may not:
(i) Submit a pleading, application, or other document as an attorney or other representative; or
(ii) Serve as an expert witness where the bar of 18 U.S.C. 207(a)(1) applies, except as provided in paragraph (f)(2) of this section.
Whether compensation of a witness is appropriate is not addressed by 18 U.S.C. 207. However, 18 U.S.C. 201 may prohibit individuals from receiving compensation for testifying under oath in certain forums except as authorized by 18 U.S.C. 201(d). Note also that there may be statutory or other bars on the disclosure by a current or former employee of information from the agency's files or acquired in connection with the individual's employment with the Government; a former employee's agency may have promulgated procedures to be followed with respect to the production or disclosure of such information.
(g) Exception for representing certain candidates or political organizations. Except as provided in paragraph (g)(2) of this section, a former senior or very senior employee is not prohibited by 18 U.S.C. 207(c) or (d), or §§ 2641.204 or 2641.205, from making a communication or appearance on behalf of a candidate in his capacity as a candidate or an entity specified in paragraphs (g)(1)(ii) through (g)(1)(vi) of this section.
(1) Specified persons or entities. For purposes of this paragraph (g), the specified persons or entities are:
(i) A candidate. A candidate means any person who seeks nomination for election, or election to, Federal or State office or who has authorized others to explore on his own behalf the possibility of seeking nomination for election, or election to, Federal or State office;
(ii) An authorized committee. An authorized committee means any political committee designated in writing by a candidate as authorized to receive contributions or make expenditures to promote the nomination or election of the candidate or to explore the possibility of seeking the nomination or election of the candidate. The term does not include a committee that receives contributions or makes expenditures to promote more than one candidate;
(iii) A national committee. A national committee means the organization which, under the bylaws of a political party, is responsible for the day-to-day operation of the political party at the national level;
(iv) A national Federal campaign committee. A national Federal campaign committee means an organization which, under the bylaws of a political party, is established primarily to provide assistance at the national level to candidates nominated by the party for election to the office of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress;
(v) A State committee. A State committee means the organization which, under the bylaws of a political party, is responsible for the day-to-day operation of the political party at the State level; or
(vi) A political party. A political party means an association, committee, or organization that nominates a candidate for election to any Federal or State elected office whose name appears on the election ballot as the candidate of the association, committee, or organization.
(2) Limitations. The exception in this paragraph (g) shall not apply if the communication or appearance:
(i) Is made at a time the former senior or very senior employee is employed by any person or entity other than:
(A) A person or entity specified in paragraph (g)(1) of this section; or
(B) A person or entity who exclusively represents, aids, or advises persons or entities described in paragraph (g)(1) of this section;
(ii) Is made other than solely on behalf of one or more persons or entities specified in paragraph (g)(1) or (g)(2)(i)(B) of this section; or
(iii) Is made to or before the Federal Election Commission by a former senior or very senior employee of the Federal Election Commission.
(h) Waiver for acting on behalf of international organization. The Secretary of State may grant an individual waiver of one or more of the restrictions in 18 U.S.C. 207 where the former employee would appear or communicate on behalf of, or provide aid or advice to, an international organization in which the United States participates. The Secretary of State must certify in advance that the proposed activity is in the interest of the United States.
An employee who is detailed under 5 U.S.C. 3343 to an international organization remains an employee of his agency. In contrast, an employee who transfers under 5 U.S.C. 3581–3584 to an international organization is a former employee of his agency.
(i) Waiver for re-employment by Government-owned, contractor-operated entity. The President may grant a waiver of one or more of the restrictions in 18 U.S.C. 207 to eligible employees upon the determination and certification in writing that the waiver is in the public interest and the services of the individual are critically needed for the benefit of the Federal Government. Upon the issuance of a waiver pursuant to this paragraph, the restriction or restrictions waived will not apply to a former employee acting as an employee of the same Government-owned, contractor-operated entity with which he was employed immediately before the period of Government service during which the waiver was granted. If the individual was employed by the Lawrence Livermore National Laboratory, the Los Alamos National Laboratory, or the Sandia National Laboratory immediately before the person's Federal Government employment began, the restriction or restrictions waived shall not apply to a former employee acting as an employee of any one of those three national laboratories after the former employee's Government service has terminated.
(1) Eligible employees. Any current civilian employee of the executive branch, other than an employee serving in the Executive Office of the President, who served as an officer or employee at a Government-owned, contractor-operated entity immediately before he became a Government employee. A total of no more than 25 current employees shall hold waivers at any one time.
(2) Issuance. The President may not delegate the authority to issue waivers under this paragraph. If the President issues a waiver, a certification shall be published in the Federal Register and shall identify:
(i) The employee covered by the waiver by name and position; and
(ii) The reasons for granting the waiver.
(3) Copy to Office of Government Ethics. A copy of the certification shall be provided to the Director of the Office of Government Ethics (OGE).
(4) Effective date. A waiver issued under this section shall be effective on the date the certification is published in the Federal Register.
(5) Reports. Each former employee holding a waiver must submit semiannual reports, for a period of two years after terminating Government service, to the President and the OGE Director.
(i) Submission. The reports shall be submitted:
(A) Not later than six months and 60 days after the date of the former employee's termination from the period of Government service during which the waiver was granted; and
(B) Not later than 60 days after the end of any successive six-month period.
(ii) Content. Each report shall describe all activities undertaken by the former employee during the six-month period that would have been prohibited by 18 U.S.C. 207 but for the waiver.
(iii) Public availability. All reports filed with the OGE Director under this paragraph shall be made available for public inspection and copying.
18 U.S.C. 207(k)(5)(D) specifies that an individual who is granted a waiver as described in this paragraph is ineligible for appointment in the civil service unless all reports required by that section have been filed.
(6) Revocation. A waiver shall be revoked when the recipient of the waiver fails to file a report required by paragraph (i)(4) of this section, and the recipient of the waiver shall be notified of such revocation. The revocation shall take effect upon the person's receipt of the notification and shall remain in effect until the report is filed.
(j) Waiver of restrictions of 18 U.S.C. 207(c) and (f) for certain positions. The Director of the Office of Government Ethics may waive application of the restriction of section 18 U.S.C. 207(c) and § 2641.204, with respect to certain positions or categories of positions. When the restriction of 18 U.S.C. 207(c) has been waived by the Director pursuant to this paragraph, the one-year restriction of 18 U.S.C. 207(f) and § 2641.206 also will not be triggered upon an employee's termination from the position.
(1) Eligible senior employee positions. A position which could be occupied by a senior employee is eligible for a waiver of the 18 U.S.C. 207(c) restriction except:
(i) The following positions are ineligible:
(A) Positions for which the rate of pay is specified in or fixed according to 5 U.S.C. 5311–5318 (the Executive Schedule);
(B) Positions for which occupants are appointed by the President pursuant to 3 U.S.C. 105(a)(2)(B); or
(C) Positions for which occupants are appointed by the Vice President pursuant to 3 U.S.C. 106(a)(1)(B).
(ii) Regardless of the position occupied, private sector assignees under the Information Technology Exchange Program, within the meaning of paragraph (6) of the definition of senior employee in section 2641.104, are not eligible to benefit from a waiver.
(2) Criteria for waiver. A waiver of restrictions for a position or category of positions shall be based on findings that:
(i) The agency has experienced or is experiencing undue hardship in obtaining qualified personnel to fill such position or positions as shown by relevant factors which may include, but are not limited to:
(A) Vacancy rates;
(B) The payment of a special rate of pay to the incumbent of the position pursuant to specific statutory authority; or
(C) The requirement that the incumbent of the position have outstanding qualifications in a scientific, technological, technical, or other specialized discipline;
(ii) Waiver of the restriction with respect to the position or positions is expected to ameliorate the recruiting difficulties; and
(iii) The granting of the waiver would not create the potential for the use of undue influence or unfair advantage based on past Government service, including the potential for use of such influence or advantage for the benefit of a foreign entity.
(3) Procedures. A waiver shall be granted in accordance with the following procedures:
(i) Agency recommendation. An agency's designated agency ethics official (DAEO) may, at any time, recommend the waiver of the 18 U.S.C. 207(c) (and section 207(f)) restriction for a position or category of positions by forwarding a written request to the Director addressing the criteria set forth in paragraph (j)(2) of this section. A DAEO may, at any time, request that a current waiver be revoked.
(ii) Action by Office of Government Ethics. The Director of the Office of Government Ethics shall promptly provide to the designated agency ethics official a written response to each request for waiver or revocation. The Director shall maintain a listing of positions or categories of positions in appendix A to this part for which the 18 U.S.C. 207(c) restriction has been waived. The Director shall publish notice in the Federal Register when revoking a waiver.
(4) Effective dates. A waiver shall be effective on the date of the written response to the designated agency ethics official indicating that the request for waiver has been granted. A waiver shall inure to the benefit of the individual who holds the position when the waiver takes effect, as well as to his successors, but shall not benefit individuals who terminated senior service prior to the effective date of the waiver. Revocation of a waiver shall be effective 90 days after the date that the OGE Director publishes notice of the revocation in the Federal Register. Individuals who formerly served in a position for which a waiver of restrictions was applicable will not become subject to 18 U.S.C. 207(c) (or section 207(f)) if the waiver is revoked after their termination from the position.
(k) Miscellaneous statutory exceptions. Several statutory authorities specifically modify the scope of 18 U.S.C. 207 as it would otherwise apply to a former employee or class of former employees. These authorities include:
(1) 22 U.S.C. 3310(c), permitting employees of the American Institute in Taiwan to represent the Institute notwithstanding 18 U.S.C. 207;
(2) 22 U.S.C. 3613(d), permitting the individual who was Administrator of the Panama Canal Commission on the date of its termination to act in carrying out official duties as Administrator of the Panama Canal Authority notwithstanding 18 U.S.C. 207;
(3) 22 U.S.C. 3622(e), permitting an individual who was an employee of the Panama Canal Commission on the date of its termination to act in carrying out official duties on behalf of the Panama Canal Authority;
(4) 25 U.S.C. 450i(j), permitting a former employee who is carrying out official duties as an employee or elected or appointed official of a tribal organization or inter-tribal consortium to act on behalf of the organization or consortium in connection with any matter related to a tribal governmental activity or Federal Indian program or service, if the former employee submits notice of any personal and substantial involvement in the matter during Government service;
(5) 38 U.S.C. 5902(d), permitting a former employee who is a retired officer, warrant officer, or enlisted member of the Armed Forces, while not on active duty, to act on behalf of certain claimants notwithstanding 18 U.S.C. 207 if the claim arises under laws administered by the Secretary of Veterans Affairs;
(6) 50 U.S.C. 405(b), permitting a former part-time member of an advisory committee appointed by the Federal Emergency Management Agency, the Director of National Intelligence, or the National Security Council to engage in conduct notwithstanding 18 U.S.C. 207 except with respect to any particular matter directly involving an agency the former member advised or in which such agency is directly interested;
(7) 50 U.S.C. app. 463, permitting former employees appointed to certain positions under 50 U.S.C. app. 451 et seq. (Military Selective Service Act) to engage in conduct notwithstanding 18 U.S.C. 207; and
(8) Public Law 97–241, title I, section 120, August 24, 1982 (18 U.S.C. 203 note), providing that 18 U.S.C. 207 shall not apply under certain circumstances to private sector representatives on United States delegations to international telecommunications meetings and conferences.
Exceptions from 18 U.S.C. 207 may be included in legislation mandating privatization of Governmental entities. See, for example, 42 U.S.C. 2297h–3(c), concerning the privatization of the United States Enrichment Corporation.
(l) Guide to available exceptions and waivers to the prohibitions of 18 U.S.C. 207. This chart lists the exceptions and waivers set forth in 18 U.S.C. 207 and for each exception and waiver identifies the prohibitions of section 207 excepted or subject to waiver. Detailed guidance on the applicability of the exceptions and waivers is contained in the cross-referenced paragraphs of this section.
|Exception/waiver||Section 207 Prohibitions affected|
|(1) Acting for the United States,
|(2) Elected State or local government official,
|(3) Acting for specified entities,
|(4) Special knowledge,
|(5) Scientific or technological information,
|(7) Acting for a candidate or political party,
|(8) Acting for an international organization,
|(9) Employee of a Government-owned, contractor-operated entity,
|(10) Waiver for certain positions,