§ 220.04 Position management.

(a) Under such regulations as he may prescribe, the Administrator may, notwithstanding the provisions of Chapter 51 of Title 5 of the United States Code, classify positions in A.I.D., both abroad and in the United States, that he designates as Foreign Service positions to be occupied by Foreign Service employees of A.I.D., and establish such positions in relation to the grades provided for the Foreign Service of the United States: Provided, That such actions shall be carried out in a manner consistent with the purposes of this subchapter and with the principles of position classification established in Chapter 51 of Title 5 of the United States Code.

(b) As of the effective date of this subchapter, each position in A.I.D. shall be reviewed and redesignated, if necessary, as to the service in which the incumbent should serve. A position shall be designated as a General Schedule position rather than a Foreign Service position only if the position is in the United States, and if it is determined (1) that the functions of such position are primarily of a clerical, administrative or program support character and can be performed without significant overseas experience or understanding of the overseas development process; or (2) that such position requires continuity of incumbency and specialized knowledge and skill to the extent that it is not practicable for incumbents of such position to be assigned abroad. Any person aggrieved by the designation made pursuant to this section of a position in which he

or she is serving may appeal the designation to the Administrator. Such designation shall remain in effect pending the appeal provided for herein and pending any other appeal an employee may make, and shall be set aside only if arbitrary or capricious.

(c) A position designated as a Foreign Service position in accordance with paragraph (b) of this section which becomes vacant may be occupied thereafter only by a Foreign Service employee: Provided, however, That

(1) From November 2, 1984 through calendar year 1985, when the number of non-Foreign Service employees filling positions in AID's headquarters office in the United States which are designated as Foreign Service positions does not exceed 20 percent of the number of such positions, such a position, when it becomes vacant, may, at the discretion of the Administrator be filled by a non-Foreign Service employee; this percentage will be reduced to 17% for calendar year 1986, 14% for calendar year 1987 and 10% for calendar year 1988 and thereafter.

(2) In order to avoid a reduction in force, the director of the Office of Personnel Management, AID, is authorized to assign a General Schedule employee to a vacant position which has been designated as a Foreign Service position;

(3) Up to fifteen Foreign Service designated positions may be filled on a time-limited appointment basis by non-Foreign Service personnel. These exceptions will be approved personally by the Administrator on a case-by-case basis.

(d) A position designated as General Schedule in accordance with paragraph (b) of this section may be temporarily designated Foreign Service whenever the Administrator deems it advisable in order to administer properly the rotation policies provided for in § 221.02 of this subchapter: Provided, That only vacant General Schedule positions may be so redesignated.

(e) In furtherance of the policy of this subchapter, as provided in § 220.02, to the extent consistent with law, regulation, and staffing and promotion policies generally applicable to AID employees, the Administrator

§ 222.01 Implementing regulations.

(a) Notwithstanding the provisions of this subchapter, existing rules and regulations of or applicable to employment in A.I.D., to the extent not inconsistent with the provisions of this subchapter, shall remain in effect until revoked or until modified or superseded by implementing regulations promulgated in accordance with the provisions of paragraph (b) of this section.

(b) The Administrator may prescribe such administrative, implementing regulations as are necessary and desirable in order to carry out the provisions of this subchapter (and such authority may be delegated as he deems necessary). Such implementing regulations may not revoke, suspend, supersede, or otherwise modify this subchapter.

§ 222.02 Construction.

If any provision of this subchapter or the application of any provision to any circumstance or persons shall be held invalid, the validity of the remainder of this subchapter and the applicability of such provision to other circumstances or persons shall not be affected thereby.

General.

223.2 Report of violations.

223.3 Initiation of proceeding.

223.4

Examiner.

223.5 Agency representative.

223.6 Time, date and place of hearing.

223.7 Rights of parties at hearing. 223.8 Initial decision.

223.9 Appeal.

223.10 Final decision.

223.11 Appropriate action.

AUTHORITY: 18 U.S.C. 207.

SOURCE: 46 FR 55957, Nov. 13, 1981, unless otherwise noted.

§ 223.1 General.

§ 223.2 Report of violations.

On receipt of information regarding a possible violation of the statutory or regulatory post-employment restrictions by a former employee and after determining that such information does not appear to be frivolous, the General Counsel shall provide such information to the Director of the Office of Government Ethics and to the Criminal Division, Department of Justice. Any investigation or administrative action shall be coordinated with the Department of Justice to avoid prejudicing possible criminal proceedings. If the Department of Justice informs the Agency that it does not intend to institute criminal proceedings, such coordination shall no longer be required and the General Counsel is free to decide whether to pursue administrative action.

§ 223.3 Initiation of proceeding.

Whenever the General Counsel has reasonable cause to believe that a former Government employee has violated the statutory or regulatory postemployment restrictions, he or she shall initiate an administrative action by providing the former Government employee with written notice of intention to institute administrative action. Notice 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 respond to the allegations in writing and/or to request a hearing, together with an explanation of the method by which a hearing may be requested; and

(c) A statement that, in the absence of a request for a hearing, the General Counsel shall issue a final decision based upon the evidence gathered to date, including any written reply made by the former Government employee.

§ 223.4 Examiner.

When a former Government employee after receiving adequate notice requests a hearing, a presiding official (hereinafter referred to as "examiner") shall be appointed by the Administrator to make an initial decision. The examiner shall be a responsible person who is impartial and who has not participated in any manner in the decision to initiate the proceeding. The hearing officer shall be an individual with suitable experience and training to conduct the hearing, reach a determination and render an initial decision in an equitable manner.

§ 223.5 Agency representative.

The General Counsel shall appoint an agency representative to present evidence and otherwise participate in the hearing.

§ 223.6 Time, date and place of hearing.

The examiner shall establish a reasonable time, date and place to conduct the hearing. In establishing a date, the examiner shall give due regard to the former 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.

§ 223.7 Rights of parties at hearing.

A hearing shall include, at a minimum, the following rights for both parties:

(a) To represent oneself or to be represented by counsel;

(b) To examine or cross-examine witnesses;

(c) To submit evidence (including the use of interrogatories);

(d) To present oral arguments; and (e) To receive a transcript of recording of the proceedings on request. In any hearing, the agency has the burden of proof and must establish substantial evidence of a violation.

§ 223.8 Initial decision.

The examiner shall issue an initial decision based exclusively on matters of record in the proceedings and shall set forth all findings of fact and conclusions of law relevant to the matters at issue.

§ 223.9 Appeal.

Within twenty days of the date of initial decision, either party may appeal the decision to the Administrator. The opposing party shall have ten days after receipt of a copy of the appeal to reply.

§ 223.10 Final decision.

(a) In cases where the former employee failed to request a hearing after receiving adequate notice, the General Counsel shall decide the matter on its merits based upon the evidence gathered to date, including any written reply of the former employee.

(b) In cases of appeal under § 223.9, the Administrator shall accept, reject or modify the initial decision based solely on the record of the proceedings or those portions cited by the parties to limit the issues.

§ 223.11 Appropriate action.

The Administrator may take appropriate action in the case of any indi

vidual who is found in violation of the statutory or regulatory post employment restrictions after a final decision by:

(a) 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, the 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 such appearance or to accept any such communication; and

--(b) Taking other appropriate disciplinary action.