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public service, other than giving advice or making recommendations to the Government.
[33 FR 467, Jan. 12, 1968, as amended by Amdt. 95–2, 35 F.R. 5331, Mar. 31, 1970; Amdt. 95–3, 36 FR 431, Jan. 13, 1971]
§ 95.3 Definitions.
For the purposes of this part:
(a) Advisory committee includes any Committee, board, commission, Council, conference, panel, task force, or other similar group, or any Subcommittee, or other subgroup thereof, which is formed within the Department in the interest of obtaining advice or reconmendations, or for any other purpose, and which is not composed wholly of officers or employees of the Government. It also includes any Committee, board, commission, Council, Conference, panel, task force, or other similar group, or any Subcommittee or subgroup thereof, which is not formed within the Department, but only during the period it is being used by the Department in the same manner as a Government-formed advisory Committee.
(b) Industry advisory committee includes any advisory committee Composed predominately of members or representatives of a single industry or group of related industries, or any Subdivision of a single industry, made On a geographic, service, or product basis.
(c) Department means Department of TranSportation.
(d) Secretary means the Secretary of Transportation.
§ 95.5 Use of advisory committees generally.
(a) Advisory Committees are formed to provide a means of obtaining advice, views, and recommendations of benefit to the operations of the Government from industrialists, businessmen, Scientists, engineers, educators, and other public and private citizens whose experience and talents would not otherwise be available to the Department. An advisory committee may be used when its counsel is desired on matters under consideration by any part of the Department. Unless specifically authorized by law to the contrary, no advisory committee may be used for functions which are not solely advisory.
Determinations of action to be taken with respect to matters upon which an advisory committee advises or reconmends may be made only by a fulltime, salaried officer or employee of the GOvernment. (b) An advisory committee may be established to serve the Department, as a whole, the Office of the Secretary, any operating administration, any combination of the Office Of the Secretary and the operating administrations, or the Operating administrations collectively. However, no advisory committee may be formed or used unless (1) the committee is specifically authorized by law, Or (2) the Committee is specifically approved, in writing, by the Secretary or his designee, to be in the public interest in Connection with the performance of duties inposed on the Department Or any part of it.
$95.7 Industry advisory committees: Membership.
Each industry advisory committee must be reasonably representative of the group of industries, the single industry, or the product segment thereof to which it relates, taking into account the size and function of business enterprises in the industry or industries and their location, affiliation, and competitive status annong. Other factors. Selection of industry members shall, unless Otherwise provided by statute, be limited to persons actively engaged in Operations in the particular industry, industries, or segments concerned, except in cases in which the Secretary Or his designee Considers that Such a limitation would interfere with effective Committee Operations.
§ 95.9 Meetings; other than industry advisory committees.
(a) Meetings of an advisory Committee, Other than an industry advisory committee, may be held only at the Call, or with the advance approval, of a full-time, Salaried officer or employee of the Department, with an agenda, formulated or approved by that officer or employee.
(b) Each meeting shall be chaired by, Or be Conducted in the presence of, a. full-time, Salaried officer or employee of the Government who is required to adjourn the meeting whenever he considers it to be in the public interest. (c) Minutes shall be kept of each meeting. As a minimum, the minutes must contain a record of the persons present, a description of the matter discussed and conclusions reached, and a copy of any report received, issued, or approved by the committee. The accuracy of all minutes must be certified by a full-time, salaried officer or employee of the Government who was present during the meeting to which the minutes pertain. (d) The Secretary or his designee may waive any requirement of this Section in any case in which he determines that: (1) Compliance with that requirement would interfere with the proper functioning of the committee or would be innpracticable; : 2) Adequate provisions are made to assure otherwise that the operation of the Committee is Subject to GOvernment control and purpose; and (3) The waiver is in the public intereSt.
$95.11 Meetings; committees.
(a) Meetings of an industry advisory committee may be held only at the Call of a full-time, salaried Officer or employee of the Department, with an agenda formulated by that officer or employee. (b) Each meeting shall be chaired by a full-time, salaried Officer or employee of the Government who is required to adjourn the meeting whenever he considers it to be in the public interest. The Secretary Or his designee may waive the requirements of this paragraph in any case in which he determines that: (1) Compliance with that requirement would interfere with the proper functioning of the committee or would be impracticable; (2) Adequate provisions are made to assure otherwise that the operation of the committee is subject to Government control and purpose; (3) The waiver is in the public interest; and (4) The meeting will be conducted in the presence of a full-time, salaried officer or employee of the Government
who is required to adjourn the meeting whenever he considers it to be in the public interest. (c) A verbatim transcript shall be kept of the proceedings at each meeting, including the name of each person present, his affiliation, and the capacity in which he attended, except in any case in which the Secretary or his des— ignee determines that a verbatim transcript would interfere with the proper functioning of the Committee or would be impracticable and therefore waives the requirement as being in the public interest. In such a case the procedure prescribed in § 95.9(c) applies. (d) No industry advisory committee may receive, compile, or discuss data. or reports showing the current or projected commercial Operations of any identified business enterprise.
[33 FR 467, Jan. 12, 1968, as amended by Amdt. 95–1, 33 FR. 6913, May 3, 1968]
$95.13 Antitrust laws.
The activities of advisory committees are subject to the antitrust laws and committee members are not immune from prosecution under those laws. The Department of Justice takes the position that it retains complete freedom to institute proceedings, either Civil Or criminal, or both, in the event that any particular plan or course of action is used to accomplish unlawful private ends, and to institute civil actions to enjoin continuance of any act or practices found not to be in the public interest and persisted in after notice to desist. This part is intended to minimize the possibility of violating the antitrust laws. Industry representatives and Government perSonnel officially connected with advisory committees should be advised of the antitrust aspects of the committee activity.
$95.15 Conflicts of interest statutes, orders, and regulations.
There is a body of statutes, orders, and regulations prescribed by the President, the Secretary, and other authorities, dealing with conflicts of interest and designed to prevent any Conflict between the official duties and status of Government officers and employees and their private interest. Government officers and employees are required to comply with all applicable laws, orders, and regulations. Part 99 of this chapter sets forth a comprehensive list of the conflicts of interest statutes and guidelines for the employees of the Department to follow in the application of these Statutes to part-time advisers and consultants to the Government. Any officer or employee appointed to serve on an advisory Committee who has any doubt or question respecting a possible conflict of interest, shall seek specific legal advice on
For the purposes of this part, the following definitions apply: (a) Administration means each of the following: (1) The United States Coast Guard. (2) The Federal Aviation Administration. (3) The Federal Highway Administration. (4) The Federal Railroad Administration. (5) The National Highway Traffic Safety Administration. (6) The Urban Mass Transportation Administration. (7) The Saint Lawrence Seaway Development Corporation. (8) The Research and Special Programs Administration. (9) The Maritime Administration. (b) Department means the Department of Transportation. (c) 18 U.S.C. 207 means 18 U.S.C. 207 (a), (b), or (C) or any regulations issued under 18 U.S.C. 207. (d) Secretary means the Secretary of Transportation.
$98.3 Reports of apparent violations.
Any person may report, to the ASSistant General Counsel for Environmental, Civil Rights and General Law, an apparent violation by a former employee of the Department of 18 U.S.C. 207.
$98.4 Initiation of administrative dis
ciplinary proceeding. (a) Whenever the Assistant General Counsel for Environmental, Civil
Rights and General Law has determined that there is reasonable cause to believe that a former Departmental employee has violated 18 U.S.C. 207, the Assistant General Counsel for Environmental, Civil Rights, and General Law: (1) Shall expeditiously provide that information to the Director, Office of Government Ethics, and to the Criminal Division, Department of Justice; and (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 hearling; (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).
(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.
$98.9 Decision if hearing waived.
(a) If the former employee waives or, in accordance wth $98.5(b) of this part, is deemed to have waived a hearing under this part, the examiner shall, after review of the record as it exists, make a decision as to whether the former employee is in violation of 18 D.S.C. 207.
(b) In a decision under paragraph (a) of this section, the requirements of $98.8 of this part apply.
(a) Within 30 working days after receipt of a decision issued under § 98.8 or $98.9 of this part, either the Departmental counsel or the former employee may appeal the decision to the Secretary.
(b) In making a decision on an appeal, the Secretary shall consider only the evidence admitted during the prior proceeding and contained in the record of that proceeding.
(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.
Subport B–Administrotive SCInctions
$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 in pose 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.