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other than the individual to whom they pertain will not be made available except under the following circumstances:

(a) Records required to be made available by the Freedom of Information Act will be released in response to a request formulated in accordance with NSF regulations found at 45 CFR Part 612.

(b) Records not required by the Freedom of Information Act to be released may be released, at the discretion of the Foundation, if the written consent of the individual to whom they pertain has been obtained or if such release would be authorized under 5 U.S.C. 552a(b)(1) or (3)–(11).

§ 613.6 Exemptions.

(a) Fellowships. Pursuant to 5 USC 552a(k)(5), the Foundation hereby exempts from the application of 5 USC 552a(d) any materials which would disclose the identity of references of fellowship applicants contained in any of the following systems of records: (1) Fellowship and Traineeship Filing System and (2) Applicants to Committee on the Challenges of Modern Society Fellowship Program (NATO).

(b) Applicants for Employment. Pursuant to 5 USC 552a(k)(5), the Foundation hereby exempts from the application of 5 USC 552a(d) any materials which would disclose the identity of references of applicants for employment at NSF contained in the system of records entitled "Official Personnel Folders."

PART 614-GOVERNMENT IN THE SUNSHINE ACT REGULATIONS OF THE NATIONAL SCIENCE BOARD

Sec.

614.1 General rule.

614.2 Grounds for closing meetings. 614.3 Materials relating to closed portions of meetings.

614.4 Opening of transcript or recording. 614.5 Public announcement.

614.6 Meeting changes.

614.7 Record vote.

614.8 Application to Board Executive Com

mittee.

AUTHORITY: Government in the Sunshine Act, sec. 552b of Title 5, United States Code; 90 Stat. 1241.

SOURCE: 42 FR 14719, Mar. 16, 1977, unless otherwise noted.

§ 614.1 General rule.

Except as otherwise provided in these regulations, every portion of every meeting of the National Science Board will be open to public observation.

§ 614.2 Grounds for closing meetings.

(a) The National Science Board may by record vote close any portion of any meeting if it properly determines that an open meeting:

(1) Is likely to disclose matters that (i) are specifically authorized under criteria established by Executive Order to be kept secret in the interests of national defense or foreign policy and (ii) are in fact properly classified pursuant to the Executive Order;

(2) Is likely to relate solely to the internal personnel rules and practices of the National Science Foundation;

(3) Is likely to disclose matters specifically exempted from disclosure by statute (other than 5 U.S.C. 552): Provided, That the statute (i) requires in such a manner as to leave no discretion on the issue that the matters be withheld from the public, or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

(4) Is likely to disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) Is likely to involve accusing any person of a crime, or formally censuring any person;

(6) Is likely to disclose personal information where the disclosure would constitute a clearly unwarranted invasion of personal privacy;

(7) Is likely to disclose investigatory law-enforcement records, or information which, if written, would be contained in such records, but only to the extent provided in 5 U.S.C. 552b(c)(7);

(8) Is likely to disclose information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions;

(9) Is likely to disclose information, the premature disclosure of which would:

(i) In the case of information received from an agency which regulates currencies, securities, commodities, or financial institutions, be likely to (A) lead to significant financial speculation in currencies, securities, or commodities, or (B) significantly endanger the stability of any financial institution; or

(ii) Be likely to significantly frustrate implementation of a proposed Foundation action, unless the Foundation has already disclosed to the public the content or nature of its proposed action or is required by law to make such disclosure on its own initiative before taking final action; or

(10) Is likely to specifically concern the Foundation's participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration.

(b) Anyone who believes his interests may be directly affected by a portion of a meeting may request that the Board close it to the public for any reason referred to in paragraphs (a) (5), (6), or (7) of this section. The request should be addressed to the National Science Board, National Science Foundation, Washington, D.C. 20550. It will be circulated to Members of the Board if received at least three full days before the meeting, and on motion of any Member the Board will determine by record vote whether to close the affected portion of the meeting.

§ 614.3 Materials relating to closed portions of meetings.

If a portion or portions of any meeting of the National Science Board are closed to the public under § 614.2:

(a) The General Counsel of the National Science Foundation shall publicly certify that, in his opinion, that portion or portions may properly be closed to the public. The certificate shall state the exemptions under 5 U.S.C. 552b(c) that make the closings proper.

(b) The presiding officer of the meeting (usually the Chairman of the Board) shall furnish a statement set

ting forth the time and place of the meeting and the persons present.

(c) The Board shall make a complete transcript or electronic recording adequate to record fully the proceedings of each portion of the meeting that is closed to the public.

(d) The National Science Board Office shall maintain the General Counsel's certificate, the presiding officer's statement, and the transcript or recording of the meeting for at least two years after the meeting and at least one year after the Board completes consideration of any proposal, report, resolution, or similar matter discussed in any closed portion of the meeting.

§ 614.4 Opening of transcript or recording.

(a) Except as otherwise provided in this section, the transcript or electronic recording of every portion of every meeting closed to the public will promptly be made available on request to any member of the public in an easily accessible place.

(b) Informal requests to inspect or copy the transcript or electronic recording of a closed session may be made to the staff of the National Science Board and will be handled informally and expeditiously. Written requests to inspect or copy such a transcript or recording that cite the Freedom of Information Act or the Sunshine Act will be treated as formal requests made under the Freedom of Information Act. They will be handled under the Foundation's Freedom of Information procedures described in 45 CFR Part 612. The exemptions of these Sunshine Act regulations, 45 CFR 614.2, will govern, however, in determining what portions of the transcript or recording may be withheld.

(c) A request to inspect or copy a transcript or electronic recording should specify the date of the meeting and the agenda item or items to which the request pertains. It should contain a promise to pay the costs of any duplication requested.

(d) No search or transcription fees will be charged. Duplication fees may be charged as provided in 45 CFR 612.6.

[42 FR 55619, Oct. 18, 1977]

§ 614.5 Public announcement.

(a) Except as provided in paragraphs (c) and (d) of this section, the National Science Board will make a public announcement of each Board meeting at least one week before the meeting takes place.

The announcement will cover: (1) The time, place, and subject matter of the meeting;

(2) What portions of the meeting, if any, are to be closed to the public; and

(3) The name and telephone number of the official designated to respond to requests for information on the meeting.

(b) Each such announcement will be promptly posted on public notice boards at the National Science Foundation and made available to journals of general scientific interest. Immediately following the issuance of such an announcement, it will be submitted for publication in the FEDERAL REGISTER.

(c) The announcement may be made less than a week before the meeting it announces or after the meeting only if (1) the Board by record vote determines that agency business requires the meeting to be called on such short or after-the-fact notice and (2) an announcement is made at the earliest practicable time.

(d) All or any portion of the announcement of any meeting may be omitted if the Board by record vote determines that the announcement would disclose information which should be withheld under the same standards as apply for closing meetings under § 614.2.

§ 614.6 Meeting changes.

(a) The time or place of a meeting of the National Science Board that has been publicly announced as provided in § 614.5 may subsequently be changed, but any such change will be publicly announced at the earliest practicable time.

(b) The subject matter of any portion of any meeting of the Board that has been publicly announced as provided in § 614.5 or the determination whether any portion of any meeting so publicly announced will be open or closed may subsequently be changed, but only when:

(1) The Board determines by record vote that agency business so requires and that no earlier announcement of the change was possible; and

(2) The Board publicly announces the change and the vote of each Member on the change at the earliest practicable time.

§ 614.7 Record vote.

(a) For purposes of this part a vote of the National Science Board is a "record vote" if: (1) It carries by a majority of all those holding office as Board Members at the time of the vote;

(2) No proxies are counted toward the necessary majority; and

(3) The individual vote of each Member present and voting is recorded.

(b) Within one day of any such record vote or any attempted record vote that fails to achieve the necessary majority under paragraph (a)(1) of this section, the Board Office will make publicly available a written record showing the vote of each Member on the question.

(c) Within one day of any record vote under which any portion or portions of a Board meeting are to be closed to the public, the Board Office will make available a full written explanation of the Board's action and a list of all persons expected to attend the meeting, showing their affiliations.

§ 614.8 Application to Board Executive Committee.

All the provisions of this part applicable to the National Science Board shall apply equally to the Executive Committee of the Board whenever the Executive Committee is meeting pursuant to its authority to act on behalf of the Board.

PART 630-FELLOWSHIP REVIEW PANEL

Sec.
630.1 Purpose.
630.2

Definitions.

630.3 Fellowship Review Panel; Fellowship Review Board; in general.

630.4 Procedural safeguards.

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(a) "Fellowship Review Panel" (also referred to as "Panel") means a panel of from nine to twelve members selected by the Director, with the approval of the National Science Board, for such terms as may be designated by him, which shall include at least four representatives of the legal discipline and at least four representatives of the field of higher education. At least eight members of the Panel shall be selected from sources outside the Foundation.

(b) "Panel Chairman" means one of the panel members designated by the Director, with the approval of the National Science Board, to

serve as Chairman of the Panel for such time as shall be indicated in the designation.

Board"

(c) "Fellowship Review means not less than three members of the Panel designated by the Panel Chairman for the consideration of one or more cases submitted by the Director. At least two Fellowship Review Board members shall be persons other than employees of the Foundation, and the Fellowship Review Board

shall include at least one representative of the legal discipline and one from the field of higher education. In no event shall anyone who participated in any previous consideration of a case be eligible to serve on a board in connection with its consideration of that case. The Panel Chairman may designate himself as one of the members of a Fellowship Review Board or as the Chairman thereof.

(d) "Fellowship Review Board Chairman” means a member of a Fellowship Review Board who has been designated as Chairman of such Board by the Panel Chairman.

(e) "Foundation" means the National Science Foundation.

(f) "Submission" means a referral (of an individual's request for a hearing) by the Director pursuant to § 610.5 of this chapter.

means

(g) "Preliminary decision" the recommended decision, including findings of fact and conclusions reached in the light of the applicable criteria, prepared by a Hearing Officer and submitted to the Fellowship Review Board.

(h) "Initial decision" means the recommended decision of the Fellowship Review Board, which shall include (1) findings of fact and conclusion reached in the light of the applicable criteria and when applicable, (2) the reasons for any changes or modifications made by the Fellowship Review Board in a preliminary decision.

(i) "Director" means the Director of the National Science Foundation.

(j) "Applicable criteria" means those set forth in § 610.4 of this chapter, or in manual or other issuances of the Foundation pertaining to denial or discontinuance of fellowship or scholarship awards on grounds involving moral character or loyalty.

§ 630.3 Fellowship Review Panel; Fellowship Review Board; in general.

Upon receipt of a submission from the Director, the Chairman of the Fellowship Review Panel shall refer the case to a Fellowship Review Board, constituted as provided in § 630.2(c), for the purpose of recommending to the Director and the National Science Board, on the basis of a preponder

ance of the evidence, after affording to the individual concerned an opportunity for a fair hearing, whether the fellowship or scholarship award should be denied or discontinued by the Foundation on grounds involving, in accordance with applicable criteria, the moral character or loyalty of the applicant for, or holder of the award. The Fellowship Review Board's recommendation shall be embodied in an initial decision in accordance with § 630.2(h).

§ 630.4 Procedural safeguards.

The Fellowship Review Board shall take appropriate steps to afford the individual concerned an opportunity for a fair hearing, which shall include provisions designed to assure to such individual the following:

(a) Sufficient notice of the issues to be considered;

(b) An opportunity to be represented by counsel;

(c) Disclosure of as much of all matters of an evidentiary nature as may be permitted within the framework of applicable laws, regulations, and other requirements (e.g., those pertaining to FBI reports);

(d) An opportunity to appear in person (and to present witnesses in his behalf) or, at the option of the individual concerned, to submit his case in whole or in part in writing (e.g., through interrogatories, affidavits, exhibits, etc.);

(e) An opportunity to cross-examine persons either orally or through written interrogatories, to the extent provided by Executive Order 10865 of February 20, 1960 (relating to safeguarding of classified information within industry);

(f) An option to the individual concerned to have the hearing open or closed to the public;

(g) A determination of the place of the hearing which takes into consideration the convenience of the individual concerned and any witnesses who might be testifying at the hearing.

§ 630.5 Hearing before Fellowship Review Board or a Hearing Officer.

The hearing may be conducted, as determined by the Chairman of the Fellowship Review Board, before the

full Fellowship Review Board as the hearing body, or before a Hearing Officer. The Hearing Officer may be (a) one of the members of the Fellowship Review Board or (b) a nonmember who is qualified as a Hearing Officer under the Administrative Procedure Act.

§ 630.6 Preliminary decision; initial decision; final action.

When the hearing is conducted by the Fellowship Review Board itself, it shall prepare an initial decision for submission to the Director. When the hearing is conducted before a Hearing Officer, the Hearing Officer shall prepare a preliminary decision for submission to the Fellowship Review Board. The preliminary decision shall be reviewed by the Fellowship Review Board and shall become the initial decision of the Fellowship Review Board unless, and to the extent that, it is changed or modified by the Fellowship Review Board. The initial decision of the Fellowship Review Board shall be transmitted to the Director, who shall in turn transmit it to the National Science Board, which shall then consider it and take such final action thereon as it shall deem to be appropriate.

§ 630.7 Notice to the individual concerned and opportunity to submit comment on preliminary decision and initial decision.

Copies of the preliminary decision, if any, and of the initial decision shall be mailed promptly by the Hearing Officer or the Fellowship Review Board, as the case may be, to the individual, or his counsel, with a notice affording him an opportunity to submit written comments thereon, within a specified reasonable time, to the Fellowship Review Board in the case of a preliminary decision, and to the Director in the case of an initial decision.

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