[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: 5CFR2640.301]

[Page 667-668]
 
                    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. 2640.301  Waivers issued pursuant to 18 U.S.C. 208(b)(1).


    (a) Requirements for issuing an individual waiver under 18 U.S.C. 
208(b)(1). Pursuant to 18 U.S.C. 208(b)(1), an agency may determine in 
an individual case that a disqualifying financial interest in a 
particular matter or matters is not so substantial as to be deemed 
likely to affect the integrity of the employee's services to the 
Government. Upon making that determination, the agency may then waive 
the employee's disqualification notwithstanding the financial interest, 
and permit the employee to participate in the particular matter. Waivers 
issued pursuant to section 208(b)(1) should comply with the following 
requirements:
    (1) The disqualifying financial interest, and the nature and 
circumstances of the particular matter or matters, must be fully 
disclosed to the Government official responsible for appointing the 
employee to his position (or other Government official to whom authority 
to issue such a waiver for the employee has been delegated);
    (2) The waiver must be issued in writing by the Government official 
responsible for appointing the employee to his position (or other 
Government official to whom the authority to issue such a waiver for the 
employee has been delegated);
    (3) The waiver should describe the disqualifying financial interest, 
the particular matter or matters to which it applies, the employee's 
role in the matter or matters, and any limitations on the employee's 
ability to act in such matters;

[[Page 668]]

    (4) The waiver shall be based on a determination that the 
disqualifying financial interest is not so substantial as to be deemed 
likely to affect the integrity of the employee's services to the 
Government. Statements concerning the employee's good character are not 
material to, nor a basis for making, such a decision;
    (5) The waiver must be issued prior to the employee taking any 
action in the matter or matters; and
    (6) The waiver may apply to both present and future financial 
interests, provided the interests are described with sufficient 
specificity.
    Note to paragraph (a): The disqualifying financial interest, the 
particular matter or matters to which the waiver applies, and the 
employee's role in such matters do not need to be described with any 
particular degree of specificity. For example, if a waiver were to apply 
to all matters which an employee would undertake as part of his official 
duties, the waiver document would not have to enumerate those duties. 
The information contained in the waiver, however, should provide a clear 
understanding of the nature and identity of the disqualifying financial 
interest, the matters to which the waiver will apply, and the employee's 
role in such matters.
    (b) Agency determination concerning substantiality of the 
disqualifying financial interest. In determining whether a disqualifying 
financial interest is sufficiently substantial to be deemed likely to 
affect the integrity of the employee's services to the Government, 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 employee's, the relationship of that 
person to the employee;
    (3) 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);
    (4) 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 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
    (5) The nature and importance of the employee's role in the matter, 
including the extent to which the employee is called upon to exercise 
discretion in the matter.
    (6) Other factors which may be taken into consideration include:
    (i) The sensitivity of the matter;
    (ii) The need for the employee's services in the particular matter; 
and
    (iii) Adjustments that may be made in the employee's duties that 
would reduce or eliminate the likelihood that the integrity of the 
employee's services would be questioned by a reasonable person.