18 U.S.C. § 208 requires that an executive branch employee be disqualified (“recused”) from a “particular matter” if the matter would have a direct and predictable effect on the employee’s own financial interests or on certain financial interests that are “imputed” to the employee by the statute, unless the employee first obtains an individual waiver or a regulatory exemption applies. Section 208(b)(2) was revised in 1989 to eliminate the authority of individual agencies to adopt agency-specific regulations exempting financial interests from the applicability of the statute. Instead, OGE was authorized to issue an executive branch-wide regulation identifying financial interests that are too remote or inconsequential to warrant disqualification under section 208. On December 18, 1996, OGE published a final rule that contained general guidance about section 208 and that promulgated a number of executive branch-wide exemptions. It also included guidance about the issuance of individual waivers. The regulation became effective on January 17, 1997, and was codified in 5 C.F.R. part 2640. Part 2640 has been amended several times. Review the rulemaking history of 5 C.F.R. part 2640.
Note: OGE also publishes general guidance about 18 U.S.C. § 208 in Subpart D of 5 C.F.R. part 2635.
Subpart A establishes the framework for the rest of the regulation. It includes a general explanation of the scope and application of 18 U.S.C. § 208, and includes definitions of terms used in the statute and in various exemptions set out in Subpart B of the regulation.
Subpart B contains three categories of exemptions issued by OGE pursuant to section 208(b)(2):
The miscellaneous provisions establish exemptions that apply only in specific situations or that apply only to employees of certain agencies.
Subpart C contains provisions that provide guidance to agencies concerning the issuance of individual waivers under section 208(b)(1), and the issuance of individual waivers pursuant to section 208(b)(3) to current or prospective members of advisory committees established under the Federal Advisory Committee Act. In the case of both types of waivers, the regulation describes the procedural steps the agency must take when issuing a waiver, and the factors an agency should consider in determining whether a waiver should be granted.
Note: OGE has issued a comprehensive summary that provides additional guidance concerning the issuance of individual waivers under section 208(b)(1)( or (b)(3).