[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR2637.204]

[Page 624-627]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
                CHAPTER XVI--OFFICE OF GOVERNMENT ETHICS
 
PART 2637_REGULATIONS CONCERNING POST EMPLOYMENT CONFLICT OF INTEREST--Table 
 
                    Subpart B_Substantive Provisions
 
Sec. 2637.204  One-year restriction on a former senior employee's transactions 

with former agency on a particular matter, regardless of prior involvement.

    (a) Basic prohibition of 18 U.S.C. 207(c). For a period of one year 
after terminating employment by the United

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States, no former Senior Employee (other than a special Government 
employee who serves for fewer than sixty days in a calendar year) shall 
knowingly act as an agent or attorney for, or otherwise represent, 
anyone in any formal or informal appearance before, or with the intent 
to influence, make any written or oral communication on behalf of anyone 
to (1) his or her former department or agency, or any of its officers or 
employees, (2) in connection with any particular Government matter, 
whether or not involving a specific party, which is pending before such 
department or agency, or in which it has a direct and substantial 
interest.
    (b) Transactions exempted from the basic prohibition of 18 U.S.C. 
207(c). The prohibition set forth above shall not apply to an 
appearance, a communication, or representation by a former Senior 
Employee, who is:
    (1) An elected official of a State or local government, acting on 
behalf of such government, or
    (2) Whose principal occupation or employment is with (i) an agency 
or instrumentality of a State or local government, (ii) an accredited, 
degree-granting institution of higher education, as defined in section 
1201(a) of the Higher Education Act of 1965, or (iii) a hospital or 
medical research organization, exempted and defined under section 
501(c)(3) of the Internal Revenue Code of 1954, and the appearance, 
communication, or representation is on behalf of such government, 
institution, hospital or organization.

    Example 1: A former Senior Employee of the Federal Highway 
Administration is appointed to the position of Secretary of 
Transportation for the State of Kansas. He would not be prohibited from 
transacting business with his former agency concerning new matters on 
behalf of the State. He would, however, be restricted as to 207(a) and 
207(b) matters.
    Example 2: A former Senior Employee of the Department of Housing and 
Urban Development establishes a consulting firm and is engaged by the 
City of Los Angeles to aid it in procuring a particular grant. He may 
not represent Los Angeles before his former Department because his 
``principal occupation or employment'' is not with such city.
    Example 3: A former Senior Employee of the Department of Education 
founds a vocational school for the training of legal paraprofessionals 
and associated staff. He desires to communicate with officials at his 
former Department for the purpose of establishing a program of 
assistance to such institutions. He may not do so, since the vocational 
school is not an ``accredited, degree granting institution of higher 
education.''

    (c) No prior involvement required. The prohibition contained in this 
section applies without regard to whether the former Senior Employee had 
participated in, or had responsibility for, the particular matter and 
includes matters which first arise after the employee leaves Government 
service. The section aims at the possible use of personal influence 
based upon past Governmental affiliations to facilitate the transaction 
of business.
    (d) Specific parties unnecessary. The particular matter in which the 
former Senior Employee proposes to act before his or her former agency 
need not be one ``involving specific parties,'' and thus is not limited 
to disputed proceedings or contracts in which a party has already been 
identified. However, the restriction does not encompass every kind of 
matter, but only a particular one similar to those cited in the 
statutory language, i.e., any judicial or other proceeding, application, 
request for a ruling or determination, contract, claim, controversy, 
investigation, charge, accusation, or arrest. Rulemaking is specifically 
included. Thus such matters as the proposed adoption of a regulation or 
interpretive ruling, or an agency's determination to undertake a 
particular project or to open such a project to competitive bidding are 
covered. Not included are broad technical areas and policy issues and 
conceptual work done before a program has become particularized into one 
or more specific projects. The particular matter must be pending before 
the agency or be one in which the agency has a ``direct and substantial 
interest.''

    Note: Each post employment activity in the examples in this section 
is assumed to take place within one year of termination of Government 
employment.
    Example 1: A Senior Employee of the Department of Health and Human 
Services leaves Government employment for private practice, and shortly 
thereafter telephones a former associate urging that the Department (a) 
adopt a new procedure to put a ceiling on hospital costs; (b) not adopt 
a particular rule proposed for drug testing; and (c) oppose a

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bill pending in Congress relating to such drug testing. He is prohibited 
from attempting to influence his former co-worker on any of these 
matters. The first, not yet pending, is of interest to the Department; 
the second is pending in the Department; and the third is pending 
elsewhere, and is of interest to the Department. Note that the former 
Senior Employee may, however, communicate the same views to Congress, 
other agencies, the public or the press.
    Example 2: A recently retired Senior Employee of the Department of 
Defense believes that the Department's general emphasis on manned 
aircraft is not in the national interest. After his departure, he may 
continue to argue the point to the Department.

    (e) Element of controversy or influence required. The prohibition on 
acting as a representative or attempting to influence applies to 
situations in which there is an appreciable element of actual or 
potential dispute or an application or submission to obtain Government 
rulings, benefits or approvals, and not to a situation merely involving, 
for example: the transmission or filing of a document that does not 
involve an application for Government benefit, approval or ruling; a 
request for information; purely social or informational communications; 
or those required by law or regulations (in situations other than 
adversary proceedings). Each agency should, after consulting with the 
Director or the Attorney General, as appropriate, give guidance on the 
kinds of applications, filings and other matters which are not 
prohibited by section 207(c).

    Example 1: A former Senior Employee of the Internal Revenue Service 
prepares and mails a client's tax return. This is not a prohibited act. 
Should any controversy arise in connection with the tax return, the 
former employee may not represent the client, but may be called upon to 
state how the return was prepared.
    Example 2: A former Senior Employee of the Securities and Exchange 
Commission prepared and transmitted for filing to the Commission a 
client's annual report on form 10-K. This is not a violation, because 
the 10-K is a disclosure report, not intended to obtain a Government 
benefit or ruling.
    Example 3: A former Senior Employee of the Securities and Exchange 
Commission becomes executive vice-president of a major industrial 
corporation, registered under the Securities Exchange Act of 1934. 
Pursuant to Commission regulations, the officers of the corporation are 
required to sign certain filings on behalf of the corporation, which are 
transmitted to the Commission. The employee may review, concur or 
request changes in, and sign any such filing required to be transmitted 
to the Commission.

    (f) Agency activity or interest in matter. The restriction applies 
to the former employee's contacts with his or her former agency in 
connection with a matter before or of ``direct and substantial 
interest'' to the agency.

    Example 1: A former Senior Employee of the Securities and Exchange 
Commission is asked to represent Z Company in a new matter before the 
Commission, one in which the former employee had no prior involvement. 
He may not do so.
    Example 2: The matter in the foregoing example is referred to the 
Department of Justice for prosecution, and the former employee is asked 
for the first time to represent Z Company in the criminal proceeding. 
The matter is likely to be of direct and substantial interest to the 
Commission. If so, the former employee may not communicate with the 
Commission in the matter. However, the former Senior Employee may 
communicate with the Commission in order to determine whether it asserts 
a direct and substantial interest in the criminal proceeding. In the 
event of a negative answer to the question, the former Senior Employee 
may communicate with the Commission.
    Example 3: In connection with an entirely new matter a former Senior 
Employee of the Securities and Exchange Commission undertakes the 
representation of Z Company in private litigation brought by Q Company, 
(e.g., a private action arising under the Securities Exchange Act of 
1934). Before the suit was commenced, there was no actual expression of 
interest by the Commission in the matter. As the litigation develops, an 
important question of statutory interpretation is raised, and the 
Commission files a brief as amicus curiae (friend of the court). The 
former Senior Employee may respond to the brief and need not withdraw 
from representation of Z Company, but he may not otherwise communicate 
with the Commission in the matter. If the Commission were to commence a 
proceeding or investigation again, Z Company on the basis of the same 
facts involved in the private litigation, the former employee could 
continue his representation in the private litigation, but could not 
represent Z Company in the Commission's proceeding until after the 
expiration of one year from the termination of his employment with the 
Commission.
    [Note: Where an agency becomes a party to a proceeding subsequent to 
its commencement, the question whether a former Senior Employee may 
continue representation should ordinarily be decided by the court on

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a motion for disqualification in the particular circumstances.]
    Example 4: In connection with a new matter, a former Senior Employee 
of the Federal Food and Drug Administration, since retired to private 
law practice, is asked to consult and assist in the preparation of 
briefs to be filed with the Administration on a new particular matter. 
He may do so, but he should not sign briefs or other communications or 
take any other action that might constitute an appearance.

    (g) Application or proposals for funding of research. In connection 
with any application or proposal for Government funding of research, the 
restrictions of this section do not prevent a former Senior Employee 
from assuming responsibility for the direction or conduct of such 
research and from providing scientific or technological information to 
the Senior Employee's former agency regarding such research. The former 
Senior Employee may not, however, submit the application on behalf of 
the applicant or argue for its approval or funding by the agency.

    Example 1: A former Senior Employee of the National Institute of 
Health (NIH), employed by a non-exempt research institute, prepares an 
application to NIH for a research contract. The application is submitted 
to NIH by the institute and lists the Senior Employee as principal 
investigator. The Senior Employee does not violate 18 U.S.C. 207(c) by 
preparing the application or by being listed as principal investigator, 
since these are not representational activities. He may also sign an 
assurance to NIH, as part of the application, that he will be 
responsible for the scientific and technical direction and conduct of 
the project if an award is made. He may also communicate with NIH to 
provide scientific or technical information on the application, 
including presentation to NIH personnel at the research site, so long as 
he does not argue for approval or funding of the application.

    (h) Personal matters. Unlike the provisions of subsections 207(a) 
and (b) the restrictions of this section apply when the former Senior 
Employee seeks to represent himself or herself. However, they do not 
apply to appearances or communications concerning matters of a personal 
and individual nature, such as personal income taxes, pension benefits, 
or the application of any provision of these regulations to an 
undertaking proposed by a Senior Employee. (See 18 U.S.C. 207(i).) A 
former Senior Employee may also appear pro se (on his or her own behalf) 
in any litigation or administrative proceeding, involving the 
individual's former agency. The former employee may not contact his or 
her former agency in order to secure an item of business, except for (1) 
discussions in contemplation of being employed by the agency as a 
consultant or otherwise; or (2) a proposal to furnish scientific or 
technological information to the Government.

    Example 1: Any former Government Employee may contact his or her 
former agency to seek information or determinations as to matters in 
question under these regulations or under 18 U.S.C. 207, such as whether 
a particular matter is considered to have been under the employee's 
official responsibility, whether a matter is one in which the agency 
asserts a direct and substantial interest, or whether a current matter 
is considered to be the same as that in which the employee had been 
involved.

    (i) Statements based on special knowledge. The restrictions of the 
section do not prevent a former Senior Employee from making or providing 
a statement, which is based on the former Senior Employee's own special 
knowledge in the particular area that is the subject matter of the 
statement, provided that no compensation is thereby received, other than 
that regularly provided by law or regulation for witnesses. (See 18 
U.S.C. 207(i).)

    Example 1: A former Senior Employee may make any statement of his 
own views to his former agency on any subject matter in which he has no 
substantial pecuniary interests, acting on his own behalf.
    Example 2: A former Senior Employee is called by his successor at 
the agency for the purpose of eliciting some information on a matter in 
which he had been involved in an official capacity. His response is not 
prohibited.
    Example 3: A former Senior Employee may recommend an individual to 
her former agency for employment, based on her own personal knowledge of 
the individual's qualifications and character.

    (j) Measurement of one-year restriction period. The statutory one-
year period is measured from the date when the individual's 
responsibility as a Senior Employee in a particular agency ends, not 
from the termination of Government service, unless the two occur 
simultaneously. (See Sec. 2637.202(e).)

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