(2) After coordinating any proceeding with the Criminal Division, Department of Justice, to avoid prejudicing criminal proceedings, may institute an administrative disciplinary proceeding in accordance with this part.

(b) The person who shall provide for the prosecution of the alleged violation in an administrative disciplinary proceeding under this part (hereinafter referred to as the "Departmental counsel") is:

(1) In a case where the last Departmental employer of the alleged violator is the Office of the Secretary, the Assistant General Counsel for Environmental, Civil Rights and General Law, or his or her designee; or

(2) In a case where the last Departmental employer of the alleged violator is an administration, the Chief Counsel, or his or her designee, for that administration.

(c) Before beginning an administrative disciplinary proceeding, the Departmental counsel shall provide the former employee with actual notice of the institution of a proceeding. This notice must include:

(1) A statement of allegations and the basis for those allegations, which statement must be sufficiently detailed to enable the former employee to prepare an adequate defense;

(2) Notification of the right to a hearing;

(3) An explanation of the method by which a hearing may be requested; and

(4) A statement of the possible sanctions that may be imposed if a violation by the former employee is found to have occurred.

§ 98.5 Former employee response to notice.

(a) Within 30 working days after service of a notice pursuant to § 98.4(c), the former employee may submit to the Departmental counsel in writing:

(1) A request for a hearing, which, if not all issues are disputed by the former employee, should specify those issues that are;

(2) Any evidence and arguments in lieu of a hearing or

(3) A statement that the allegations are true and set forth any factors that should be considered in determining the administrative sanction to be imposed.

(b) The Department shall deem the right to a hearing to have been waived by the former employee if the former employee does not submit a request under paragraph (b)(1) of this section within 30 working days after service of notice pursuant to § 98.4(c).

§ 98.6 Examiner.

(a) The presiding official at a hearing held under this part and the deciding official under § 98.9 of this part (hereinafter referred to as the "examiner") shall be designated by the Secretary.

(b) The examiner shall not have been involved in any of the events specified in the allegations, shall not have been involved in the investigation of the allegations and the institution of the proceedings under this part, and shall not be or have been employed by the administration, or the Office of the Secretary if applicable, in which the alleged violation occurred.

§ 98.7 Hearing.

(a) The examiner shall, within 30 working days of a request for a hearing under § 98.5(b), schedule the hearing for a reasonable time, date, and place. The examiner shall grant any delays or continuances that the examiner determines to be necessary and appropriate for fair resolution of the case, with due regard to the former employee's need for adequate time to prepare a defense and for expeditious resolution of allegations that may be damaging to that former employee's reputation.

(b) The following rights shall be granted to a former employee who requests a hearing under § 98.5(b):

(1) To represent oneself or to be represented by counsel.

(2) To introduce and examine witnesses and to submit physical evidence.

(3) To confront and cross-examine adverse witnesses.

(4) To present oral argument.

(5) To obtain a transcript or recording of the hearing on request from the official reporter upon payment of the fees fixed therefor.

(c) In a hearing under this part, the Federal Rules of Civil Procedure and Evidence do not apply. However, the examiner may make such orders and determinations regarding discovery, admissibility of evidence, conduct of examination and cross-examination, and similar matters the examiner deems necessary or appropriate to ensure orderliness in the proceedings and fundamental fairness to the parties.

§ 98.8 Decision by examiner.

(a) In a hearing under § 98.7 of this part, the Departmental counsel must establish a violation by a preponderance of the evidence.

(b) The examiner shall make a decision exclusively on matters of record in the proceeding and shall set forth in the decision:

(1) All findings of fact relevant to the matters at issue;

(2) All conclusions of law relevant to the matters at issue; and

(3) The sanction to be imposed, if any.

(c) If the Secretary modifies or reverses the initial decision, the Secretary shall specify the findings of fact and conclusions of law that are different from those of the examiner.

§ 98.11 Final administrative decision. The

final administrative decision under this part shall be;

(a) The decision of the examiner under § 98.8(b), if there is no appeal under § 98.10;

(b) The decision by the examiner under § 98.9, if a hearing is waived or is deemed to have been waived and there is no appeal under § 98.10; or

(c) The decision of the Secretary on an appeal under § 98.10.

Subpart B-Administrative Sanctions § 98.12 Administrative sanctions.

(a) The Secretary, in decisions under § 98.10 of this part, and the examiner, in decisions under § 98.8 and § 98.9 of this part, may impose an administrative sanction against a former employee who, after a final administrative decision under this part, is found to be in violation of 18 U.S.C. 207.

(b) The administrative sanctions that may be imposed under subsection (a) of this section are:

(1) Prohibiting the former employee from making, on behalf of any other person except the United States, any formal or informal appearance before, or, with the intent to influence, any oral or written communication to, the Department of any of its administrations on any matter of business for a period not to exceed five years; or

(2) Taking other appropriate disciplinary action, such as a reprimand or suspension from participation in a particular matter or matters before the Department.

Subpart C-Judicial Review

§ 98.13 Judicial review.

Any former employee found to have violated 18 U.S.C. 207 by a final administrative decision under this part may seek judicial review of disciplinary action imposed under this part.

APPENDIX C-LIST OF EMPLOYEES REQUIRED TO SUBMIT STATEMENTS OF EMPLOYMENT AND FINANCIAL INTEREST

APPENDIX D-EXTRACT FROM APPENDIX C OF CIVIL SERVICE FEDERAL PERSONNEL MANUAL SYSTEM ON SPECIAL GOVERNMENT EMPLOYEES (INCLUDING GUIDELINES FOR OBTAINING AND UTILIZING THE SERVICES OF SPECIAL GOVERNMENT EMPLOYEES) APPENDIX E-STATUTES REGULATING POSTEMPLOYMENT RESPONSIBILITIES OF GovERNMENT AND SPECIAL GOVERNMENT EMPLOYEES

AUTHORITY: 49 U.S.C. 322; E.O. 11222, 3 CFR 1964-1965 Comp., p. 306.

SOURCE: Amdt. 99-10, 42 FR 3119, Jan. 14, 1977, unless otherwise noted.

Subpart A-General

§ 99.735-1 Purpose and policy.

(a) This part sets forth standards of ethical and other conduct, and reporting requirements, for employees and special Government employees of the Department of Transportation. It implements Executive Order 11222 (30 FR 6469) and part 735 of chapter I of title 5 of the Code of Federal Regulations (30 FR 12529), as amended (33 FR 12487). The standards and requirements are appropriate to the particular functions and activities of the Department.

(b) Since the efficient operation of the Department requires continued public confidence in its employees, acts which may result in the appearance of a conflict of interest also are governed by this part. The absence of a specific published standard of conduct covering an act which would tend to discredit the Department, and/or

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an employee or special Government employee of the Department does not mean that such an act is condoned, is permissible, or would not call for the result in corrective or disciplinary action.

(c) The President has stated the basic philosophy of conduct for those who carry out the public business:

Where government is based on the consent of the governed, every citizen is entitled to have complete confidence in the integrity of his government. Each individual officer, employee, or advisor of government must help to earn and must honor that trust by his own integrity and conduct in all official actions.

Personnel of the Department are expected to adhere to the President's message and to standards of conduct that will reflect credit on the Government.

Unless the context requires otherwise, the following definitions apply in this part:

Department means the Department of Transportation, including the Office of the Secretary, nonappropriated fund activities, and the following operating administrations:

(a) The U.S. Coast Guard;

(b) The Federal Aviation Administration;

(c) The Federal Highway Administration;

(d) The Federal Railroad Administration;

(e) The National Highway Traffic Safety Administration;

(f) The Urban Mass Transportation Administration;

(g) The St. Lawrence Seaway Development Corporation; and

(h) The Research and Special Programs Administration..

Employee means an officer or employee of the Department and an active duty officer or enlisted member of the Coast Guard, but does not include any special Government employ

ee.

Includes means includes but is not limited to.

May is used in a permissive sense to state authority or permission to do the act prescribed.

Secretary means the Secretary of Transportation or any person to whom he has delegated his authority in the matter concerned.

an

Shall is used in an imperative sense. Special Government employee is a special Government employee of the Department as defined in section 202 of title 18, United States Code, which includes, but is not limited to “* ** officer or employee of the executive branch of the United States Government, of any independent agency of the United States * who is retained, designated, appointed, or employed to perform, with or without compensation, for not to exceed one hundred and thirty days during any period of three hundred and sixty-five consecutive days, temporary duties either on a full-time or intermitent * * *99 66* * * a Reserve officer of basis, the Armed Forces unless otherwise an officer or employee of the United States, shall be classified as a special Government employee while on active duty solely for training," and "a Reserve officer of the Armed Forces *** who is serving involuntarily.

(3) Impeding Government efficiency or economy;

(4) Losing complete independence or impartiality;

(5) Making a Government decision outside of official channels [or not in accordance with applicable published procedures or statutory requirements;

or

(6) Affecting adversely the confidence of the public in the integrity of the Government.

(b) Employees shall not engage in criminal, dishonest, infamous, immoral, or notoriously disgraceful conduct, or any conduct prejudicial to the Government.

§ 99.735-9 Gifts,

entertainment,

favors, employment and reimbursement of expenses.

(a) Except as provided in paragraphs (b) through (e) of this section, an employee shall not solicit, or accept, directly or indirectly, any gift, gratuity, favor, entertainment, food, lodging, loan, or other thing of monetary value, from a person or employer of a person who:

(1) Has, or is seeking to obtain, contractual or other business or financial relationships with the Department.

(2) Conducts operations or activities that are regulated by the Department,

or

(3) Has interests which may be substantially affected by the performance or nonperformance of that employee's official duties.

(b) Notwithstanding paragraph (a) of this section, an employee may:

(1) Accept a gift, gratuity, favor, entertainment, loan, or other thing of value when the circumstances make it clear that an obvious family relationship rather than the business of the persons concerned is the motivating factor;

(2) Accept food or refreshment of nominal value on infrequent occasions in the ordinary course of a luncheon or dinner meeting or other meeting, or on an inspection tour if the employee is properly in attendance and there is not a reasonable opportunity to pay;

(3) Accept a loan from a bank or other financial institution on customary terms to finance proper and usual

activities of the employee such as a home mortgage loan; or

(4) Accept unsolicited advertising or promotional material such as pens, pencils, note pads, calendars, or other items of nominal intrinsic value.

(c) In seeking employment with an organization described in paragraphs (a) (1), (2) and (3) of this section, an employee must be aware of the great potential for the appearance of a conflict of interest, and Federal law which prohibits certain kinds of employment. Accordingly, in soliciting employment an employee shall not:

(1) Solicit such employment if acceptance thereof would cause a violation of section 207 or 208 of title 18 of the U.S. Code;

(2) Permit the prospect of employment otherwise permitted by these regulations to influence the performance or nonperformance of his or her duties;

(3) Communicate or use information of particular interest to the prospective employer even if such information is available to the public generally; or

(4) Indicate, directly or indirectly, that he or she would be able to offer information or special relationships with officials of the Department.

(d) An employee shall not solicit a contribution from another employee for a gift to an official superior, make a donation as a gift to an official superior, or accept a gift from an employee receiving less pay than himself. An employee who violates this paragraph shall be removed from Government service in accordance with 5 U.S.C. 7351. However, this paragraph does not prohibit a voluntary gift of nominal value or the solicitation or making of a voluntary donation in a nominal amount to a gift made on a special occasion such as marriage, illness, resignation, retirement, or transfer.

(e) An employee shall not accept a gift, present, decoration, medal, badge or other emblem from a foreign government or from an agent acting on behalf of a foreign government; however, this section does not prohibit an employee from either (1) accepting and retaining a gift of nominal value given as a souvenir or mark of courtesy, or (2) accepting of a gift of more than nominal value when it appears