§ 672.21 Appeal from or review of interlocutory orders or rulings.

(a) Request for interlocutory orders or rulings. Except as provided in this section, appeals to the Director or, upon delegation, to the General Counsel, shall obtain as a matter of right only from a default order, an accelerated decision or decision to dismiss, or an initial decision rendered after an evidentiary hearing. Appeals from other orders or rulings shall lie only if the Presiding Officer, upon motion of a party, certifies such orders or rulings to the Director on appeal. Requests for such certification shall be filed in writing within six (6) days of notice of the ruling or service of the order, and shall state briefly the grounds to be relied upon on appeal.

(b) Availability of interlocutory appeal. The Presiding Officer may certify any ruling for appeal to the Director when (1) the order or ruling involves an important question of law or policy and there is substantial grounds for difference of opinion; and (2) either (i) an immediate appeal from the order or ruling will materially advance the ultimate resolution of the proceeding, or (ii) review after the final order is issued will be inadequate or ineffective.

(c) Decision. If the Director or the General Counsel takes no action within thirty (30) days of the certification, the appeal is dismissed. If the Director or the General Counsel decides to hear the interlocutory appeal, he shall make and transmit his findings and conclusions to the Presiding Officer. When the Presiding Officer declines to certify an order or ruling to the Director on interlocutory appeal, it may be reviewed by the Director only upon appeal from the initial decision.

(d) Stay of proceedings. The Presiding Officer may stay the proceedings for an interlocutory appeal. Proceedings will not be stayed except in extraordinary circumstances. Where the Presiding Officer grants a stay of more than thirty (30) days, such stay must be separately approved by the Director.

§672.22 Appeal from or review of initial decision.

(a) Notice of appeal. Any party may appeal any adverse initial decision of

the Presiding Officer by filing a notice of appeal and an accompanying appellate brief with the Hearing Clerk and upon all other parties and amicus curiae within twenty (20) days after the initial decision is served upon the parties. The notice of appeal shall set forth alternative findings of fact, alternative conclusions regarding issues of law or discretion, and a proposed order together with relevant references to the record and the initial decision. The appellant's brief shall contain a statement of the issues presented for review, argument on the issues presented, and a short conclusion stating the precise relief sought, together with appropriate references to the record. Within twenty (20) days of the service of notices of appeal and briefs, any other party or amicus curiae may file with the Hearing Clerk a reply brief responding to argument raised by the appellant, together with references to the relevant portions of the record, initial decision, or opposing brief. Reply briefs shall be limited to the scope of the appeal brief.

(b) Sua sponte review by the Director. Whenever the Director determines sua sponte to review an initial decision, the Hearing Clerk shall serve notice of such intention on the parties within forty-five (45) days after the initial decision is served upon the parties. The notice shall include a statement of issues to be briefed by the parties and a time schedule for the service and filing of briefs.

(c) Scope of appeal or review. The appeal of the initial decision shall be limited to those issues raised by the parties during the course of the proceeding. If the Director determines that issues raised, but not appealed by the parties, should be argued, he shall give the parties or their representatives written notice of such determination to permit preparation of adequate argument. Nothing herein shall prohibit the Director from remanding the case to the Presiding Officer for further proceedings.

(d) Argument. The Director may, upon request of a party or sua sponte, assign a time and place for oral argument.

§ 672.23 Final order on appeal.

(a) Contents of the final order. When an appeal has been taken or the Director issues a notice of intent to conduct review sua sponte, the Director shall issue a final order as soon as practicable after the filing of all appellate briefs or oral argument. The Director shall adopt, modify or set aside the findings and conclusions contained in the decision or order being reviewed and shall set forth in the final order the reasons for his actions. The Director may, in his discretion, increase or decrease the assessed penalty from the amount recommended in the decision or order being reviewed, except that if the order being reviewed is a default order, the Director may not increase the amount of the penalty.

(b) Payment of a civil penalty. The respondent shall pay the full amount of the civil penalty assessed in the final order within sixty (60) days after receipt of the final order unless otherwise agreed by the parties. Payment shall be made by forwarding to the Hearing Clerk a cashier's check or certified check in the amount of the penalty assessed in the final order, payable to the Treasurer, United States of America.

(c) Money due and owing the United States by virtue of an unappealed final decision or settlement order may be collected by referral to the Department of Justice for appropriate civil action against respondent.

PART 680-NSF CONFLICT-OF-INTERESTS RULES AND STANDARDS OF CONDUCT: INTRODUCTION AND GENERAL PROVISIONS

Subpart A-Introduction to Regulations

Sec.

680.10 Introduction.

680.11 Summary of conflicts rules. 680.12 Underlying purposes and consider

ations.

680.13 Summary of additional responsibilities.

680.14 Summary of special rules for fulltime Presidential appointees.

680.15 General standards of employee conduct.

680.16 Key terms.

Subpart B-Statutory Exemptions 680.20 Necessity and effect of formal exemptions.

680.21 Exemptions under 18 U.S.C. 208(b).

AUTHORITY: E.O. 11222 of May 8, 1965, 3 CFR, 1965 Supplement and Regulations of the Office of Personnel Management, 5 CFR 735.104.

SOURCE: 47 FR 32131, July 26, 1982, unless otherwise noted.

Subpart A-Introduction to
Regulations

§ 680.10 Introduction.

(a) Parts 680 through 684 of this title 45 contain conflict-of-interests rules and standards of conduct for employees and former employees of the National Science Foundation.

(b) "You", the NSF Employee. The principal audience for these regulations is the NSF employee who must comply with and understand them. They are therefore addressed directly to you. Except where provisions plainly indicate otherwise, "you" includes every NSF employee. It includes not only permanent civil service employees, but "rotators" and persons working at the NSF under the Intergovernmental Personnel Act. It includes rehired annuitants. It includes part-time employees. It also includes any intermittent employees, temporary consultants, or members of the National Science Board who work or will work for the Government more than 130 days a year.

(c) What is expected of you. You are not expected to be familiar with every section of the regulations. You are expected to be thoroughly acquainted with a number of basic conflict-of-interests rules, which are summarized for you in §680.13. You are also responsible for adhering to general "standards of employee conduct" that are laid out in § 680.16. (Full-time Presidential appointees should also be thoroughly acquainted with the special rules in § 680.15.) Beyond that the regulations are designed as a reference document and you need not cope with more detail than you find helpful until a problem or question comes up. Then, you should be able to find the detail you may need in parts 681 through 683.

(d) Consultants, Board members, and other "special employees". Most consultants, members of the National Science Board, and other temporary or intermittent employees work for the Government fewer than 130 days a year and are therefore what the law calls "special Government employees". If you are such a "special employee", see part 684 of these regulations. Part 684 states and explains the rules and standards you must observe. If you are a member of the National Science Board, part 684 applies to you as to any other "special employee". Subpart B of part 684 states and explains special rules of the National Science Board that apply only to its members.

(e) Ethics counselors. Within the Office of the General Counsel is an attorney designated by the General Counsel who has primary responsibility for conflict-of-interests matters and for liaison with the Office of Government Ethics. This attorney is the "ethics counselor". Working with the ethics counselor are one or more deputy ethics counselors. Whenever you have a conflict-of-interests problem or question and cannot find a clear answer in these regulations, consult an ethics counselor.

§ 680.11 Summary of conflicts rules.

(a) This section summarizes the principal conflicts rules that NSF employees (other than "special employees") are expected to observe. Section 680.13 summarizes specific conflicts-related responsibilities assigned to particular organizational units or officials by the regulations. Section 680.14 summarizes special rules for full-time Presidential employees. Rules for consultants, Board members, and other employees who work for the NSF 130 days a year or less are covered in part 684.

(b) Rules on handling proposals and awards. (§§ 681.10 through 681.44) (1) If you would normally handle a proposal or other application, but possess with respect to it an affiliation or relationship listed in §681.21, you must bring the matter to the attention of a conflicts official in your directorate or staff office. The conflicts official will determine how the matter should be handled and will tell you what further steps to take.

(2) If you become aware that a prospective, current, or recent NSF employee has an involvement or interest in any proposal or other application you are handling, you must bring the matter to the attention of a directorate conflicts official. The conflicts official will decide how the matter should be handled and tell you what further steps to take. If the file reflects that a conflicts official has already been consulted and has decided how the matter should be handled, you may proceed as the conflicts official has directed, unless something of possible significance has changed.

(3) You must ask each peer reviewer of any proposal you are handling to indicate any possible conflicts of interests the reviewer may have. You should record in the proposal file all interests, affiliations, or relationships revealed by reviewers; determine how, if at all, they ought to affect the use of the review; and describe your determination in the file.

(c) Representational restrictions and involvement with proposals and projects during and after NSF service. (§§ 682.10 through 682.23) (1) Current-employee restriction. During your Federal employment you must not represent anyone (including yourself) in dealings with any Federal official on any proposal, project, or other matter.

(2) One-year NSF restriction. For one year after you leave NSF employment you must not represent anyone (including yourself) in dealings with any NSF official on any proposal, project, or other matter.

(3) "Official responsibility" two-year restriction. For two years after you leave NSF employment you must not represent anyone else in dealings with any Federal official on any proposal, project, or other matter involving specific parties if the same matter was active under your official responsibility during your last year at the NSF.

(4) "Personal involvement" permanent restriction. You must never represent anyone else in dealings with any Federal official on any proposal, project, or other matter involving specific parties if you were personally involved with the same matter as an NSF employee.

General effect: These representational restrictions do not preclude you from being involved as a researcher or educator with proposals submitted to the Government or projects supported by the Government. They do preclude you from negotiating with NSF officials or other Federal officials and from engaging in other representational activities intended to influence their decisions on certain proposals and projects. They do not preclude you from representing yourself before the Government on personal matters, such as audits of your individual tax returns or personnel decisions that affect you.

(d) Financial disclosure. (§§ 683.10 through 683.12)

(1) If you are an executive level, SES, or supergrade (GS-16 or equivalent and above) employee, you are a "senior employee" and must file public Financial Disclosure Reports.

(2) Otherwise, if you serve as either a program officer, a directorate administrative official, a grants officer, a contracts officer, an auditor, or a lawyer, you must file confidential Statements of Employment and Financial Interest.

(3) If you fit neither of these categories, no general financial disclosure is required of you.

(4) If you are required to file Financial Disclosure Reports or Statements of Employment and Financial Interests, the Foundation will supply the necessary forms. You may ask for them when you need them, but normally they will be sent to you automatically, with instructions.

(e) Acts affecting your financial interests. (§683.20) You must not be personally involved as a Federal employee in the handling of any matter in which you, a member of your immediate family, a business partner, or an organization of which you are or may become a part has a financial interest.

(f) Outside employment, compensation, gifts, etc. These rules are too numerous to summarize but they are not difficult to use. Refer to the referenced sections whenever you contemplate any of the following:

(1) Outside employment and income (§ 683.30);

(a) Conflicts sensitivity. This section outlines the primary sources of conflicts of interests and explains other considerations that underlie the conflicts rules. If you are sensitive to those considerations and identify situations in which someone might at least think that you have a conflict of interests, you will not be likely to violate the conflict-of-interests rules. When you do identify such a situation, of course, you can and should consult these regulations.

(b) Effect of conflicts of interests. There are two principal reasons why you and the NSF should avoid or minimize actual or apparent conflicts of interests.

(1) The success of the NSF in performing its scientific and other functions depends on the effectiveness of its proposal review process in ensuring that the best and most important work is supported. If judgments are warped because of conflicting interests, that effectiveness is compromised. The same is true of other NSF decision processes.

(2) The NSF must earn the confidence of the scientific community, the Congress, and the general public in the integrity, effectiveness, and evenhandedness of its proposal-review and other decision processes. It will not do so if the processes are seen to be compromised by conflicts of interests.

(c) What is a conflict of interests? A conflict of interests is a clash between an official's concern for the public interest and his or her private interests or allegiances. There are three primary sources: (1) Personal interests; (2) outside affiliations or relationships; and (3) gifts or favors. The examples that follow deliberately present situations that are not clear cut and do not illustrate specific rules you must follow. The pertinent rules appear elsewhere in these regulations.

(1) You might use your government position to further your personal interests, in conflict with the public interest.

Example: If as an NSF program official you recommended a conference of scientists in your field to discuss current issues, then chaired the conference yourself and delivered the principal paper, at least a inference suspicion would arise that you had used your Government position to further your own professional prestige or other personal inter

ests.

(2) Outside affiliations or relationships could affect the objectivity of your judgments as a public official.

Example: A proposal comes to you for handling. You received your degree from the applicant institution and were a professor there until recently. The proposed principal investigator is your cousin. You have potential conflicts of interests arising from both your academic affiliation and your family relationship.

(3) Gifts or favors from those interested in agency decisions could affect the objectivity or integrity of your contribution to those decisions.

Example: The chairman of a university department that regularly sends proposals to your unit is in town. After a late afternoon meeting he proposes dinner at a restaurant on his expense account. Acceptance of the dinner would create a potential conflict between your debt of gratitude towards him and your disinterested pursuit of the public interest.

(d) Inside access and influence. A special concern that underlies many of the conflicts rules is that your insider's access to other Federal officials and your inside influence with them might allow you to sway their decisions or actions where you or those with whom you have ties are interested.

Example: A personal friend is principal investigator on a proposal pending in another part of your NSF unit. He asks you to check how things are going with that proposal. You talk with the program officer and division director handling the proposal. You not only check the status of the review, but mention what a fine scientist your friend is and how excellent his recent work has been. Your friendship with the investigator may influence your judgment on these points, and your inside influence may affect the actions and judgments of those with whom you talk. This creates a potential conflict between your private allegiance to your friend and the public interest.

(e) Conflicts that require prohibition or disqualification. Some conflicts of interests would so warp the performance of a Government agency or damage its credibility that they simply cannot be allowed to occur. (If a proposal from a member of your family or from your home institution comes into your program, for instance, you would clearly have to disqualify yourself from handling it.) Most Federal conflict-of-interests laws and a few conflicts rules special to the NSF deal with conflicts or potential conflicts of this sort. They therefore either flatly prohibit you from doing certain things that could give rise to such conflicts or disqualify you from participating in matters where you would have a potentially serious conflict.

(f) Other conflicts. By no means all conflicts of interests are so serious and clear that flat prohibitions or disqualifications are appropriate. Many conflicts, though real, are subtle, even remote. The seriousness of others so depends on circumstances of the particular case that unvarying rules would be impractical. There are also countervailing considerations. When we flatly prohibit Federal employees from doing things others who are not Federal employees are free to do, we tend to make Federal employment unattractive and so reduce the competence of Government. Also, disqualifying officials from