transmit to the Director a report reciting the functions of each position, the reason for the transfer, and the identities of the prior holder of the position assumed and the successor, if any, to the position departed. If the Director designates the newly assumed position pursuant to section 207(d)(1)(C) of title 18 U.S.C., such designation shall be effective retroactively to the date of transfer notwithstanding paragraph (d) of this section. 10 (j) Revocation of Designations. In the event the Director determines that a position previously designated should not have been, the designation will be revoked. Except for designations made under paragraph (i) of this section, the revocation may be made retroactive if the initial designation is determined to have been erroneous or if there is a change in standards for designation applicable to the position. Retroactive effect will not be given where the basis for revocation is a change in the functions or importance of a position. § 737.27 Administrative enforcement proceedings. (a) Basic procedures. The following basic guidelines for administrative enforcement of restrictions on post employment activities are designed to expedite consultation with the Director as required pursuant to section 207(j) of title 18 U.S.C. (1) Delegation. The head of an agency may delegate his or her authority under this subpart. (2) Initiation of administrative disciplinary hearing. (i) On receipt of information regarding a possible violation of 18 U.S.C. 207, and after determining that such information appears substantiated, the agency head shall expeditiously provide such information, along with any comments or agency regulations, to the Director and to the Criminal Division, Department of Justice. The agency should coordinate any investigation on administrative action with the Department of Justice to avoid prejudicing criminal proceedings, unless the Department of Justice communicates to the Agency that it does not intend to initiate criminal prosecution. (ii) Whenever an agency has determined after appropriate review that there is reasonable cause to believe that a former Government employee has violated any of these regulations or 18 U.S.C. 207(a), (b), or (c), it may initiate an administrative disciplinary proceeding by providing the former Government employee with notice as defined in paragraph (a)(3) of this section. Agencies may establish procedures to protect the privacy of former employees as to allegations made prior to a determination of sufficient cause to initiate an administrative disciplinary hearing. 442 (3) Adequate notice. (i) An agency must provide a former Government employee with adequate notice of an intention to institute a proceeding and an opportunity for a hearing. (ii) Notice to the former Government employee must include: (A) A statement of allegations (and the basis thereof) sufficiently detailed to enable the former Government employee to prepare an adequate defense; (B) Notification of the right to a hearing; and (C) An explanation of the method by which a hearing may be requested. (4) Presiding official. (i) The presiding official at proceedings under this subpart shall be the agency head or an individual to whom the agency head has delegated authority to make an initial decision (hereinafter referred to as "examiner'). (ii) Appropriate qualifications shall be established for examiners. (iii) An examiner shall be impartial. No individual who has participated in any manner in the decision to initiate the proceedings may serve as an examiner in those proceedings. (5) Time, date and place. (i) The hearing shall be conducted at a reasonable time, date, and place. (ii) In setting a hearing date, the presiding official shall give due regard to the former Government employee's need for: (A) Adequate time to prepare a defense properly, and (B) An expeditious resolution of allegations that may be damaging to his or her reputation. (6) Hearing rights. A hearing shall include, at a minimum, the following rights: (i) To represent oneself or to be represented by counsel, (ii) To introduce and examine witnesses and to submit physical evidence, (iii) To confront and cross-examine adverse witnesses, (iv) To present oral argument, and (v) To receive a transcript or recording of the proceedings, on request. (7) Burden of proof. In any hearing under, this subpart, the agency has the burden of proof and must establish substantial evidence of a violation. (8) Hearing decision. (i) The presiding official shall make a determination exclusively on matters of record in the proceeding, and shall set forth in the decision all findings of fact and conclusions of law relevant to the matters at issue. (ii) Within a reasonable period of the date of an initial decision, as set by the agency, either party may appeal the decision to the agency head. The agency head shall base his or her decision on such appeal solely on the record of the proceedings or those portions thereof cited by the parties to limit the issues. (iii) If the agency head modifies or reverses the initial decision, he or she shall specify such findings of fact and conclusions of law as are different from those of the hearing examiner. (9) Administrative sanctions. The agency head may take appropriate action in the case of any individual who was found in violation of 18 U.S.C. 207 (a), (b), or (c) of these regulations after a final administrative decision or who failed to request a hearing after receiving adequate notice, by: (i) Prohibiting the individual 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, such department or agency on any matter of business for a period not to exceed five years, which may be accomplished by directing agency employees to refuse to participate in any such appearance or to accept any such communication; or (ii) Taking other appropriate disciplinary action. (10) Judicial review. Any person found to have participated in a violation of 18 U.S.C. 207 (a), (b), or (c) of these regulations may seek judicial review of the administrative determination. (11) Consultation and review. Each agency shall submit a copy of its procedures for administrative enforcement to the Director. § 737.29 Effective date of restrictions. (a) Persons affected. Any person who holds a Government position after June 30, 1979, becomes subject to any additional restrictions relating to the holder of that position contained in the amendments to 18 U.S.C. 207 as set forth in these regulations. Restrictions which depend on the designation of a position by the Director shall become applicable on the date such designation becomes effective. (b) Fair notice of substantive changes. No change in the substance of these regulations shall become effective with respect to a Government employee who is adversely affected by such change until and unless such employee remains in a position to which such change is applicable for a period of five months following the first publication of a regulation in final form, reflecting or prescribing such change, or unless such employee accepts such a position after the publication. § 737.31 Separate statutory agencies: Designations. In accordance with the provisions of 18 U.S.C. 207(e) and § 737.13, each of the following departments or agencies is determined, for purposes of 18 U.S.C. 207(c), to have within it separate statutory agencies or bureaus as set forth below: Parent Agency: DEPARTMENT OF THE TREASURY Separate Statutory Components: Bureau of Alcohol, Tobacco and Firearms Comptroller of the Currency Internal Revenue Service United States Customs Service United States Secret Service 443 Please note that Title V, Part 737 $$32 and 33 were not included in the materials provided herein because of their length. For this information, please check Title V in the Code of Federal Regulations C.F.R. transmit to the Director a report reciting the functions of each position, the reason for the transfer, and the identities of the prior holder of the position assumed and the successor, if any, to the position departed. If the Director designates the newly assumed position pursuant to section 207(d)(1)(C) of title 18 U.S.C., such designation shall be effective retroactively to the date of transfer notwithstanding paragraph (d) of this section. 10 (j) Revocation of Designations. In the event the Director determines that a position previously designated should not have been, the designation will be revoked. Except for designations made under paragraph (i) of this section, the revocation may be made retroactive if the initial designation is determined to have been erroneous or if there is a change in standards for designation applicable to the position. Retroactive effect will not be given where the basis for revocation is a change in the functions or importance of a position. § 737.27 Administrative enforcement proceedings. (a) Basic procedures. The following basic guidelines for administrative enforcement of restrictions on post employment activities are designed to expedite consultation with the Director as required pursuant to section 207(j) of title 18 U.S.C. an (1) Delegation. The head of agency may delegate his or her authority under this subpart. (2) Initiation of administrative disciplinary hearing. (i) On receipt of information regarding a possible violation of 18 U.S.C. 207, and after determining that such information appears substantiated, the agency head shall expeditiously provide such information, along with any comments or agency regulations, to the Director and to the Criminal Division, Department of Justice. The agency should coordinate any investigation on administrative action with the Department of Justice to avoid prejudicing criminal proceedings, unless the Department of Justice communicates to the Agency that it does not intend to initiate criminal prosecution. 442 (ii) Whenever an agency has determined after appropriate review that there is reasonable cause to believe that a former Government employee has violated any of these regulations or 18 U.S.C. 207(a), (b), or (c), it may initiate an administrative disciplinary proceeding by providing the former Government employee with notice as defined in paragraph (a)(3) of this section. Agencies may establish procedures to protect the privacy of former employees as to allegations made prior to a determination of sufficient cause to initiate an administrative disciplinary hearing. (3) Adequate notice. (i) An agency must provide a former Government employee with adequate notice of an intention to institute a proceeding and an opportunity for a hearing. (ii) Notice to the former Government employee must include: (A) A statement of allegations (and the basis thereof) sufficiently detailed to enable the former Government employee to prepare an adequate defense; (B) Notification of the right to a hearing; and (C) An explanation of the method by which a hearing may be requested. (4) Presiding official. (i) The presiding official at proceedings under this subpart shall be the agency head or an individual to whom the agency head has delegated authority to make an initial decision (hereinafter referred to as "examiner"). (ii) Appropriate qualifications shall be established for examiners. (iii) An examiner shall be impartial. No individual who has participated in any manner in the decision to initiate the proceedings may serve as an examiner in those proceedings. (5) Time, date and place. (i) The hearing shall be conducted at a reasonable time, date, and place. (ii) In setting a hearing date, the presiding official shall give due regard to the former Government employee's need for: (A) Adequate time to prepare a defense properly, and (B) An expeditious resolution of allegations that may be damaging to his or her reputation. |