[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR2640.302]

[Page 656-657]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
                CHAPTER XVI--OFFICE OF GOVERNMENT ETHICS
 
PART 2640_INTERPRETATION, EXEMPTIONS AND WAIVER GUIDANCE CONCERNING 18 U.S.C. 
 
                      Subpart C_Individual Waivers
 
Sec.  2640.302  Waivers issued pursuant to 18 U.S.C. 208(b)(3).

    (a) Requirements for issuing an individual waiver under 18 U.S.C. 
208(b)(3). Pursuant to 18 U.S.C. 208(b)(3), an agency may determine in 
an individual case that the prohibition of 18 U.S.C. 208(a) should not 
apply to a special Government employee serving on, or an individual 
being considered for, appointment to an advisory committee established 
under the Federal Advisory Committee Act, notwithstanding the fact that 
the individual has one or more financial interests that would be 
affected by the activities of the advisory committee. The agency's 
determination must be based on a certification that the need for the 
employee's services outweighs the potential for a conflict of interest 
created by the financial interest involved. Waivers issued pursuant to 
18 U.S.C. 208(b)(3) should comply with the following requirements:
    (1) The advisory committee upon which the individual is serving, or 
will serve, is an advisory committee within the meaning of the Federal 
Advisory Committee Act, 5 U.S.C. app.;
    (2) The waiver must be issued in writing by the Government official 
responsible for the individual's appointment (or other Government 
official to which authority to issue such waivers has been delegated) 
after the official reviews the financial disclosure report filed by the 
individual pursuant to the Ethics in Government Act of 1978;
    (3) The waiver must include a certification that the need for the 
individual's services on the advisory committee outweighs the potential 
for a conflict of interest;
    (4) The facts upon which the certification is based should be fully 
described in the waiver, including the nature of the financial interest, 
and the particular matter or matters to which the waiver applies;
    (5) The waiver should describe any limitations on the individual's 
ability to act in the matter or matters;
    (6) The waiver must be issued prior to the individual taking any 
action in the matter or matters; and
    (7) The waiver may apply to both present and future financial 
interests of the individual, provided the interests are described with 
sufficient specificity.
    (b) Agency certification concerning need for individual's services. 
In determining whether the need for an individual's services on an 
advisory committee outweighs the potential for a conflict of interest 
created by the disqualifying financial interest, the responsible 
official may consider the following factors:
    (1) The type of interest that is creating the disqualification (e.g. 
stock, bonds, real estate, other securities, cash payment, job offer, or 
enhancement of a spouse's employment);
    (2) The identity of the person whose financial interest is involved, 
and if the interest is not the individual's, the relationship of that 
person to the individual;
    (3) The uniqueness of the individual's qualifications;
    (4) The difficulty of locating a similarly qualified individual 
without a disqualifying financial interest to serve on the committee;
    (5) The dollar value of the disqualifying financial interest, if it 
is known or can be estimated (e.g. the amount of cash payment which may 
be gained or lost, the salary of the job which will be gained or lost, 
the predictable change in either the market value of the stock or the 
actual or potential profit or loss or cost of the matter to the company 
issuing the stock, the change in the value of real estate or other 
securities);
    (6) The value of the financial instrument or holding from which the 
disqualifying financial interest arises (e.g. the face value of the 
stock, bond, other

[[Page 657]]

security or real estate) and its value in relationship to the 
individual's assets. If the disqualifying financial interest is that of 
a general partner or organization specified in section 208, this 
information must be provided only to the extent that it is known by the 
employee; and
    (7) The extent to which the disqualifying financial interest will be 
affected individually or particularly by the actions of the advisory 
committee.