may be called for. Your judgment should depend heavily on the extent to which someone else who will be able to substitute effectively for the official might be disqualified.

(c) Other special handling. You are not confined to relying either on disclosure only or on complete disqualification. Other, intermediate solutions can also go a long way toward removing or minimizing any potential for bias. For example:

(1) Sometimes you might allow a case to be handled normally, but provide for extra peer reviews or extra review within the NSF.

(2) Sometimes you might have an official perform some functions but not others. The official might be able to supply a list of potential reviewers, for example, without running into serious conflicts. Or the official might be consulted by a substitute official on the competitive range in the program where the substitute is competent enough to read reviews and judge the merit of a proposal, but ill-prepared to determine where that places the proposal among those competing for funds within the same program.

a

(3) In some cases scientists from outside the NSF could be relied on to a greater extent than usual. For example, suppose a substitute NSF official has less than optimal technical competence or less than optimal sense of the competitive range in the affected program. Such substitute might nonetheless be able to stand in if aided by an outsider who is more familiar with the scientific subfield or the affected program or both. The outsider might be a former NSF official, a panel member, a scientist from a sister agency, or in an unusual case, a special consultant.

(4) In any case involving a current member of the National Science Board, you must always require that any proposed award, additional funding for an award, or continuing grant increment be presented to the Board for its information before any final action is taken.

(d) Consolidated handling of related cases. If you anticipate a number of cases that will involve the same person and the same general circumstances, you may make a single determination

and issue a single memo covering all of the cases. For example, you might issue a memo indicating that a rotator will be disqualified from handling any proposal or application from his or her home institution, and saying who will handle any such proposal or application instead. A copy of this memo should be placed in the file for each affected proposal or award.

[47 FR 32135, July 26, 1982, as amended at 48 FR 52732, Nov. 22, 1983]

§ 681.43 Potential conflicts when an NSF employee has an involvement or interest.

(a) When a prospective, current, or recent NSF employee has an involvement or interest in a pending proposal or other application, you should look for and deal appropriately with the five types of potential conflicts described in the rest of this section.

(b) Recruiter's conflicts. These are potential conflicts that could arise if an NSF official who is recruiting a prospective employee were simultaneously to handle a proposal or other application in which the prospective employee has an interest. You should identify those actively interested in recruiting the prospective employee and look for ways to limit their involvement in the handling of the proposal or other application. In particular:

(1) The person who would be the immediate supervisor of the prospective employee usually will have an especially active interest in successful recruiting. You should treat that interest as "normally disqualifying".

(2) Those directly involved in discussions with the prospective employee will also have an interest in successful recruiting. You should consider their possible conflicts.

(3) Officials at higher echelons who are not directly involved in the particular recruitment may still have an interest in successful recruiting within their organizations. You should consider their possible conflicts.

(c) Superior's conflicts. These are potential conflicts that could arise if an NSF official were to handle a proposal or other application in which one of the official's subordinates has an interest. In particular:

(1) The immediate supervisor of an employee usually will have an especially active interest in having the employee happy and in maintaining good relations with the employee. You should treat the immediate supervisor's interest as "normally disqualifying" if the interested employee is a prospective or current employee. You need not do so, however, in the case of a recent employee, for the supervisor's interest diminishes when the employment relationship ends.

(2) Persons at higher echelons might also be influenced by an interest in having the employee happy. You should consider whether their involvement in handling the proposal or application can or should be limited.

(d) Subordinate's conflicts. These are potential conflicts that could arise if an NSF official were to handle a proposal or other application in which the official's immediate superior or someone at a higher echelon in the official's "chain of command" has an interest. In particular:

a

(1) An NSF official would be placed in particularly difficult position if asked to act on a proposal or other application in which the official's boss has an interest. Thus you should treat the immediate subordinate of a prospective or current employee as having a "normally disqualifying" relationship and only under the most special circumstances allow him or her to have any part in handling the proposal or application. You need not necessarily disqualify one who was the immediate subordinate of a recent employee, however, since the potential conflict would be substantially diminished once the supervisor-subordinate relationship

ends.

(2) You may sometimes have to allow less immediate subordinates at lower echelons to play a role if there is not to be serious loss of technical competence and awareness of competitive range in the program affected. But you should take particular care in involving such lower-echelon subordinates. Disqualification would be preferable if it is workable. One possibility if disqualification is not workable may be to allow the official handling the proposal to stay anonymous, dealing with investigators and the grantee institution

through another NSF official-perhaps a senior official or a grants officer. Other types of special handling that might be useful in such a case are described in § 681.42(c).

(e) Professional associate's conflicts. These are potential conflicts that could arise if an NSF official were to handle a proposal or other application in which a close professional associate at the NSF has an interest. In particular:

(1) You may have to consider disqualification of a very close associate of the interested employee, particularly where professional association may have led to personal friendship.

(2) When the degree of professional association and personal acquaintance involved is only what normally arises from service within the same organizational unit, little more than disclosure should normally be required.

(f) Reviewer's conflicts. These are potential conflicts that could arise when reviewers are asked to pass upon a proposal involving the interests of a scientist who will later be passing upon their proposals as an NSF program official. To avoid them:

(1) All files, active and inactive, that involve research or a research group with which the employee was or is associated should be sequestered to protect the anonymity of reviewers.

(2) To the extent possible you may want to provide more protection by selecting as peer reviewers persons who are not supported by any program for which the interested official is responsible.

§ 681.44 Handling

prospective-em

ployee determinations.

(a) You may be called upon to determine whether, when, and to what extent proposals or other applications that involve a prospective employee require special attention and special handling. You should be consulted as soon as a person becomes a prospective employee. The procedure for this is described in § 681.32.

(b) Nature of possible conflicts. Actual or potential conflicts of interests can arise in such a situation if any of those who would handle a proposal or other application either is trying to recruit the prospective employee or would be a

subordinate, supervisor, or close colleague of the potential employee.

(c) When you should take action. If there is a significant possibility that such actual or potential conflicts could improperly influence decisions on proposals or other applications or awards, you must institute special handling as described in §§ 681.42 and 681.43. In the case of proposals and awards outside your own directorate or office, you should do that by notifying officials of the other directorate. A conflicts official of that directorate or office will determine what special handling may be necessary there.

(d) Avoid premature action. However, you should avoid unnecessarily early disclosure that a person is under consideration for an NSF position, for two

reasons:

(1) That a person is considering a change of jobs is often confidential, particularly in earlier stages; and

(2) That an interested person is a prospective NSF employee cannot affect an official's judgment on a proposal or other application if the official has no knowledge of the prospective employment.

Since an official who works in one NSF organizational unit is less likely to know that a person is under consideration for employment in a different unit, and is also less likely to be influenced by any such knowledge, it normally makes sense to delay notifying officials outside the recruiting unit until it seems quite likely that the prospect will indeed become an NSF employee.

Subpart B-Involvement With Proposals and NSF-Supported Projects During and After NSF Service

682.20 General; restricted representational activities vs. permitted research or educational activities.

682.21 Proposals and projects over which you had official responsibility or with which you were personally involved. 682.22 When you are or would be principal investigator.

682.23 Compensation or reimbursement of expenses from Federal awards.

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 32140, July 26, 1982, unless otherwise noted.

Subpart A-The Representational Restrictions Generally

§ 682.10 Summary; the four basic representational restrictions.

(a) NSF employees are subject to four basic restrictions on representing private parties (not the Government) in dealings with other Federal officials. The first of these applies while you are working for the Government. The other three apply for varying periods afterward; they are thus known collectively as the post-employment restrictions.

(1) Current-employee restriction. During your Federal employment you must not represent private parties 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 private parties 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 private parties 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 private parties in dealings with any Federal official on any proposal,

"Personal involvement" perma- Forever

nent restriction.

Any Federal official

Any matter involving specific parties that was under your official responsibility.

Any matter involving specific parties in which you were personally involved.

Example 1: You have been on the Physics faculty at the University of Wyoming and have been principal investigator on grants from the NSF and from the Department of Defense. You come to the NSF for a two-year stint as a section head. While you are away a colleague acts as principal investigator on both your grants. During your stint at the NSF the Department of Defense grant is about to expire. The substitute principal investigator files a new proposal with DOD. She asks you to call the DOD program officer, with whom you have great credibility from past dealings, to vouch for her excellence and to urge that he continue to fund the Wyoming work. The current-employee restriction prohibits you from doing so.

Example 2: Same underlying facts as Example 1. After your stint at the NSF you return to Wyoming and want again to become principal investigator on the NSF-supported work. You may do so, but the one-year NSF restriction prohibits you from calling, writing, or visiting NSF officials to represent yourself or your institution on the award.

Example 3: Same facts as Examples 1 and 2. A few months after your return it comes time to file a new proposal for another NSF award so that you can continue the line of investigation you have been pursuing with the NSF support. You may prepare a proposal for your institution and may be listed as principal investigator, but the one-year NSF restriction prohibits you from calling, writing, or visiting NSF officials to represent yourself or your institution on the proposal.

Example 4: Same underlying facts as Example 1. During the last year of your tenure as section head another physics proposal came in from the University of Wyoming. Though the program officer who handled the peer review and submitted a recommendation was in your section, you disqualified yourself from any participation in handling the proposal. A three year continuing grant was

awarded. Within two years after you return to Wyoming a problem comes up with the last increment of the continuing grant. You have meanwhile become department chairman. As department chairman you would normally confer with NSF officials about the problem and try to resolve it. The "official responsibility" two-year restriction prohibits you from doing so. If the problem came up more than two years after you left the NSF, however, you would be free to confer with NSF officials. The "official responsibility" twoyear restriction would no longer apply, and the "personal involvement" permanent restriction would not apply because you had no personal involvement in handling the proposal while at the NSF.

Example 5: While you were Director of the Division of Grants and Contracts at the NSF you personally approved the terms of a contract to the Solar Equipment Company for development of solar heating equipment. Subsequently, responsibility for this contract was transferred to the Department of Energy. After you retire from your NSF position, you accept a position with the Solar Equipment Company. A problem comes up under the same contract, and you would normally be responsible for resolving it in discussions with DOE officials. The "personal involvement" permanent restriction prohibits you from doing so. That you would be dealing with DOE officials, not NSF officials, makes no difference: the restriction applies to dealings with any Federal official.

(c) Proposals and projects. Subpart B (§§ 682.20 through 682.23) is devoted entirely to the application of the representational restrictions in relation to proposals and projects. In relation to proposals and projects you may rely entirely on subpart B.

(d) Other matters. For most current and former NSF employees the representational restrictions will rarely apply except in relation to proposals and projects. You are nonetheless responsible for making yourself familiar

with the restrictions and abiding by them in relation to all covered matters.

(e) Terms and effect. The wording of the restrictions as presented in this section and §682.20 has been simplified substantially from the wording of the underlying statutes, so that they will be easier to understand. In the process, they have also been deliberately overstated, with exceptions and "escape hatches" left out, so that your initial reaction will be to interpret them conservatively. The next three sections fill in critical concepts: what it means to have "official responsibility" or to be "personally involved" (§ 682.11); what is and is not representation subject to the restrictions (§ 682.12); and which are the matters on which representation is restricted (§682.13). In the process they explain the exceptions and refinements left out in this section.

(f) Partners. During your Federal service only, there is a further restriction that applies to any partner of a business or professional partnership to which you belong. If you belong to any such partnership, see § 682.14.

(g) Source statutes and penalties for violation. For the most part these restrictions derive from Federal criminal statutes and apply to officials of all Federal agencies. In one respect the NSF rules are stricter. At other agencies the one-year agency restriction applies only to former high-ranking officials; the one-year NSF restriction applies to all former NSF employees. Violation of the statutory provisions can lead to criminal prosecution (the penalties are a fine of up to $10,000 or imprisonment for up to two years of both) or to civil debarment from dealings with the NSF (for up to five years). A violation of the NSF's current-employee restriction can lead to disciplinary personnel action against an employee.

(h) Consultation. If in doubt about any of the rules in this part, consult an ethics counselor in the Office of the General Counsel. You are welcome to consult an ethics counselor for this purpose even after you leave the NSF.

§ 682.11 "Official responsibility"; "personally involved".

(a) The “official responsibility” twoyear restriction applies only if you had official responsibility for the matter in question during your last year at the NSF. The "personal involvement” permanent restriction applies only if you were personally involved with the matter in question while at the NSF. This section elaborates the concepts of “official responsibility" and "personal involvement".

(b) "Official responsibility". You had "official responsibility" for a matter if you had direct authority to approve, disapprove, or otherwise direct Government actions regarding that matter, and it was actually pending during your tenure. It does not matter whether your authority was intermediate or final, whether it was exercisable alone or with others, or whether it was exercisable personally or through subordinates. Specifically:

(1) The scope of your "official responsibility" is ordinarily determined by the responsibilities of position you filled or the organization you headed.

(2) Any matter under consideration in the NSF is under the "official responsibility" of the Director and of each intermediate supervisor who has responsibility for any employee who actually participates in the matter within the scope of his or her duties.

Example: A proposal under consideration within a particular program is under the "official jurisdiction" of the program officer who actually handles it, of the program director for the program, of the responsible section head, of the responsible division director, of the responsible assistant director, and of the Director of the NSF. Whether it is under the "official responsibility" of any of their deputies depends on the responsibilities assigned to the deputies by their position descriptions, by any formal delegations to them, or by an other legally effective means.

(c) "Personal involvement". "Personally involved" is short for the following statutory language:

"Participated personally and substantially as an officer or employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise".

In other words: