[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: 5CFR2637.205]

[Page 628-629]
 
                    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. 2637.205  Limitation of restrictions of 18 U.S.C. 207(c) to less than 

that whole of a department or agency.

    (a) Authority. There are two methods by which the application of the 
one-year ``cooling-off'' prohibition of 18 U.S.C. 207(c) may be limited 
to less than the entirety of a department or agency. First, 18 U.S.C. 
207(e) provides that the Director may by rule designate as ``separate'' 
a statutory agency or bureau which exercises functions that are distinct 
and separate from the remaining functions of the parent department or 
agency of which it is part. (see Sec. 2637.214) Second, under the 
provisions of 18 U.S.C. 207(d)(1)(C), the Director may restrict the 
application of the prohibition as to a former employee (other than one 
who served in an Executive Level position or at a uniformed service 
grade level of 0-9 and above) insofar as it affects his or her 
communications with persons in an unrelated agency or bureau within his 
former parent department or agency which has separate and distinct 
subject matter jurisdiction from the agency or bureau in which he or she 
served. (see Sec. 2637.215)
    (b) Distinctions between the 18 U.S.C. 207(e) and 207(d)(1)(C) 
provisions. (1) The authority granted by 18 U.S.C. 207(e) is applicable 
solely to a separate statutory agency or bureau, that is, one created by 
statute or the functions of which are expressly referred to by statute 
in such a way that is appears that Congress intended that its functions 
were to be separable. A determination made under this 18 U.S.C. 207(e) 
does not, however, benefit former heads of the separate statutory agency 
or bureau. Such a determination does, however, work to the benefit of 
other employees at Executive Level or at uniformed service grade level 
of 0-9 or above.
    (2) The determination made pursuant to section 207(d)(1)(C) is 
intended to provide similar recognition of separability where the 
subordinate agency or bureau has been administratively created. A 
determination of such separability does inure to the benefit of the head 
of the separate component if he is a Senior Employee designated by the 
Director. However, the determination is not beneficial to persons, 
including the head of a separate component, in positions at Executive 
Level or serving at uniformed service grade level of 0-9 above.
    (c) Separate Statutory Components--(1) Procedure. Each agency shall 
notify the Director, in writing, of any separate statutory agency or 
bureau which it desires to submit for such designation under 18 U.S.C. 
207(e), providing:
    (i) A description of the functions of the agency or bureau, 
indicating the basis on which such functions are claimed to be distinct 
and separate from the parent organization;
    (ii) The separate statutory basis of the agency or bureau; and
    (iii) Identification of those positions in the parent agency with 
official responsibility for supervision of such separate statutory 
agency or bureau.
    (2) Standards. A parent agency may propose as a ``separate'' 
statutory agency an agency or bureau (i) created specifically by 
statute, (ii) the functions of which are expressly referred to by 
statute in such a way as to indicate that a separate component was 
intended or (iii) which is the successor to either of the foregoing; but 
a decision as to the sufficiency of the statutory authority as well as 
the separability of functions shall be reserved to the Director, OGE.
    (3) Effect of designation. If a subordinate part of an agency is 
designated as ``separate'' by the Director, then Senior Employees of 
such separate agency and those of the parent agency are not subject to 
the restrictions of section 207(c) as to each others' agencies--except 
that the prohibition of section 207(c) remains applicable to the former 
head of a ``separate'' subordinate agency and to former Senior Employees 
of the parent agency whose official responsibility included supervision 
of the subordinate agency.

    Example 1: A former Senior Employee of the Product Agency in 
Executive Department leaves and joins a law firm which represents Q 
Corporation. Product Agency has been designated by the Director as 
separate from Executive Department. The former employee is not 
restricted from representing the Q Corporation on a new matter before 
the Executive Department.

    (d) Separate Nonstatutory Components--(1) Procedure. Each agency may 
notify the Director, in writing, of a

[[Page 629]]

component agency, bureau or office having separate and distinct subject 
matter jurisdiction which it desires to submit for designation under 18 
U.S.C. 207(d)(1)(C), providing:
    (i) A description of the subject matter jurisdiction of such 
component, indicating the basis on which such jurisdiction is claimed to 
be separate and distinct from certain other agencies, bureaus and 
offices of the parent agency;
    (ii) A description of the nature of the connections and interactions 
between such component and certain other agencies, bureaus or offices of 
the parent agency indicating the basis on which the component is claimed 
to be unrelated;
    (iii) A statement of the basis on which it is claimed that no 
potential exists for use by former Senior Employees of such component of 
undue influence or unfair advantage with respect to the named other 
agencies, bureaus or offices of the parent agency, based on past 
Government service; and
    (iv) Identification of those organizational units of the parent 
agency having administrative or operational authority over such 
component agency, bureau or office.
    (2) Standards. (i) A parent agency may propose as ``separate'' from 
other parts of a department or agency any agency or bureau having 
subject matter jurisdiction separate and distinct from one or more other 
portions of the department or agency accompanied by a showing that there 
would be no potential for use of undue influence or unfair advantage 
based upon past Government service if a former employee of one such 
subordinate agency or bureau communicated with employees of such other 
portions of the department or agency.
    (ii) A determination under this section rests solely with the 
Director, OGE, and is available only for those subordinate components 
which would, but for the lack of a statutory basis, qualify for separate 
agency treatment under 18 U.S.C. 207(e).
    (iii) Where one component has supervisory authority over another, 
the two components may not be considered separate and distinct for 
purposes of this section.
    (iv) The requirement of ``separate and distinct subject matter 
jurisdiction'' may be met in at least two ways. First, the substantive 
areas of coverage may be distinct. For example, an office or bureau 
within the parent agency may handle only maritime matters. Second, the 
regional area of coverage may be different. For example, one regional 
office may, on appropriate facts, be considered separate and distinct 
from other regional offices and from the parent agency--except for the 
bureau or office in the parent agency which is responsible for its 
supervision.
    (v) It is necessary to specify the ``unrelated agency or bureau 
within the same department or agency'' as to which it is recommended 
that post employment communication be permitted. For example, one bureau 
may involve a subject matter distinct from some, but not all, parts of 
the parent department. Attempts to fractionalize a department could, 
however, become deeply complicated and involve difficult judgments and 
fact-finding. OGE will not usually act on such cases, and submissions 
should be confined to relatively clear cases.
    (3) Effect of determination. If a component agency, bureau or office 
is determined to be separate by the Director, then Senior Employees of 
such component are not subject to the restrictions of 18 U.S.C. 207(c) 
and Sec. 2637.204 as to the remaining agencies, bureaus or offices of 
the parent agency (except certain such agencies, bureaus or offices as 
specified in Sec. 2637.215)--except that the prohibition of section 
207(c) and Sec. 2637.204 shall remain applicable (i) to those former 
Senior Employees of such component who served in positions designated by 
18 U.S.C. 207(d)(1)(A) and (B) and (ii) to former Senior Employees of 
such component with respect to the parent agency (as defined in Sec. 
2637.205(e)). Such limited application of 18 U.S.C. 207(c) may be 
available for the head of a separate component, unlike the limitation of 
18 U.S.C. 207(e), as determined by the Director.

    Example 1: In the Department of Justice, while the Antitrust 
Division may be ``separate'' from other Divisions, it is not separate 
from the immediate office of the Attorney General.

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