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Board will determine by record vote quests made under the Freedom of Inwhether to close the affected portion of formation Act. They will be handled the meeting.

under the Foundation's Freedom of In(42 FR 14719, Mar. 16, 1977, as amended at 59

formation procedures described in 45 FR 37438, July 22, 1994)

CFR part 612. The exemptions of these

Sunshine Act regulations, 45 CFR 614.2, 8614.3 Materials relating to closed will govern, however, in determining portions of meetings.

what portions of the transcript or reIf a portion or portions of any meet

cording may be withheld. ing of the National Science Board are

(c) A request to inspect or copy a closed to the public under $614.2:

transcript or electronic recording (a) The General Counsel of the Na

should specify the date of the meeting tional Science Foundation shall pub

and the agenda item or items to which licly certify that, in his opinion, that the request pertains. It should contain portion or portions may properly be

a promise to pay the costs of any dupliclosed to the public. The certificate

cation requested. shall state the exemptions under 5

(d) No search or transcription fees U.S.C. 552b(c) that make the closings

will be charged. Duplication fees may proper.

be charged as provided in 45 CFR 612.6. (b) The presiding officer of the meet- [42 FR 55619, Oct. 18, 1977) ing (usually the Chairman of the Board) shall furnish a statement set 8614.5 Public announcement. ting forth the time and place of the (a) Except as provided in paragraphs meeting and the persons present.

(c) and (d) of this section, the National (c) The Board shall make a complete Science Board will make a public antranscript or electronic recording ade nouncement of each Board meeting at quate to record fully the proceedings of least one week before the meeting each portion of the meeting that is takes place. The announcement will closed to the public.

cover: (d) The National Science Board Office (1) The time, place, and subject matshall maintain the General Counsel's ter of the meeting; certificate, the presiding officer's (2) What portions of the meeting, if statement, and the transcript or re any, are to be closed to the public; and cording of the meeting for at least two (3) The name and telephone number years after the meeting and at least of the official designated to respond to one year after the Board completes requests for information on the meetconsideration of any proposal, report, ing. resolution, or similar matter discussed (b) Each such announcement will be in any closed portion of the meeting. promptly posted on public notice

boards at the National Science Founda$614.4 Opening of transcript or re tion and made available to journals of cording.

general scientific interest. Imme(a) Except as otherwise provided in diately following the issuance of such this section, the transcript or elec- an announcement, it will be submitted tronic recording of every portion of for publication in the FEDERAL REGevery meeting closed to the public will ISTER. promptly be made available on request (C) The announcement may be made to any member of the public in an eas- less than a week before the meeting it ily accessible place.

announces or after the meeting only if (b) Informal requests to inspect or (1) the Board by record vote determines copy the transcript or electronic re that agency business requires the cording of a closed session may be meeting to be called on such short or made to the staff of the National after-the-fact notice and (2) an anScience Board and will be handled in nouncement is made at the earliest formally and expeditiously. Written re- practicable time. quests to inspect or copy such a tran- (d) All or any portion of the anscript or recording that cite the Free- nouncement of any meeting may be dom of Information Act or the Sun- omitted if the Board by record vote deshine Act will be treated as formal re- termines that the announcement would

disclose information which should be withheld under the same standards as apply for closing meetings under $614.2.

8614.8 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 615–TESTIMONY AND PRODUCTION OF RECORDS

8614.6 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 8614.5 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.

Sec. 615.1 Purpose. 615.2 Applicability. 615.3 Definitions. 615.4 Legal proceedings before NSF or in

which the United States is a party 615.5 Legal proceedings between private

litigants: Testimony and production of

documents. 615.6 Legal proceedings between private

litigants: Procedure when demand is

made. 615.7 Legal proceedings between private

litigants: Office of Inspector General em

ployees. AUTHORITY: 42 U.S.C. 1870(a).

SOURCE: 59 FR 44056, Aug. 26, 1994, unless otherwise noted.

8614.7 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.

8615.1 Purpose.

(a) This part sets forth policies and procedures to be followed when, in connection with a legal proceeding, an NSF employee is issued a demand to provide testimony or produce official records and information.

(b) The provisions of this part are intended to promote economy and efficiency in NSF's programs and operations; minimize the possibility of involving NSF in controversial issues not related to its functions; maintain the impartiality of NSF among private litigants; and protect sensitive, confidential information and the deliberative process.

(c) This part is not intended to and does not waive the sovereign immunity of the United States.

(d) This part is intended only to provide guidance for the internal operations of NSF, and is not intended to, and does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States.

8615.2 Applicability.

such an agreement for NSF; and any This part applies to demands and re

individual who served or is serving on quests for factual or expert testimony

any advisory committee or in any advior for official records or information in

sory capacity, whether formal or inforlegal proceedings, whether or not the

mal. United States is a party, except that it

(8) Request means any informal redoes not apply to:

quest, by whatever method, for the pro(a) Demands upon or requests for an duction of official records and informaNSF employee to testify as to facts or tion or for testimony which has not events that are in no way related to his been ordered by a court or other comor her official duties or to the func- petent authority. tions of NSF,

(h) Testimony means any written or (b) Demands upon or requests for a oral statement by a witness, including former NSF employee to testify as to depositions, answers to interrogatories, matters in which the former employee affidavits, declarations, and statewas not directly or materially involved ments at a hearing or trial. while at NSF,

(c) Demands upon or requests for an 8615.4 Legal proceedings before NSF NSF reviewer to testify as to matters or in which the United States is a not directly related to that individual's party. employment by or service to NSF, and

In any legal proceeding before NSF (d) Congressional demands and re

or to which the United States is a quests for testimony or records.

party, the General Counsel shall ar8 615.3 Definitions.

range for a current employee to testify

as a witness for the United States (a) Demand-A subpoena, order, or

whenever the attorney representing other demand of a court or other com

the United States requests it. The empetent authority for the production of

ployee may testify for the United records or for the appearance and testi

States both as to facts within the emmony of an NSF employee, issued in a

ployee's personal knowledge and as an legal proceeding between private liti

expert or opinion witness. For any gants.

party other than the United States, the (b) Foundation or NSF means the Na

employee may testify only as to facts tional Science Foundation.

within his or her personal knowledge. (c) General Counsel means the General Counsel of the Foundation, or any per

8615.5 Legal proceedings between pri. son to whom the General Counsel has

vate litigants: Testimony and prodelegated authority under this part.

duction of documents. (d) Legal proceeding means any pro

(a) No employee may produce official ceeding before a court of law, administrative board or commission, hearing

records and information or provide any officer, or other body conducting a

testimony in response to a demand or

request unless authorized to do so by legal or administrative proceeding. (e) Official records and information

the General Counsel in accordance with means all documents and material

this part. which are records of the Foundation

(b) The General Counsel, in his or her under the Freedom of Information Act,

discretion, may grant an employee per5 U.S.C. 552; all other records contained

mission to testify or produce official in NSF's files; and all other informa

records and information in response to tion or material acquired by an NSF

a demand or request. In making this employee in the performance of his or

decision, the General Counsel shall her official duties or because of his or

consider whether: her official status.

(1) The purposes of this part are met; (1) NSF employee of employee means (2) Allowing such testimony or proany present or former officer or em duction of records would be necessary ployee of NSF; any other individual to prevent a miscarriage of justice; hired through contractual agreement (3) NSF has an interest in the deciby or on behalf of NSF, or who has per- sion that may be rendered in the legal formed or is performing services under proceeding; and

(4) Allowing such testimony or pro- steps to arrange for legal representaduction of records would be in the best tion for the employee, and shall advise interest of NSF or the United States. the employee on how to respond to the

(c) If authorized to testify pursuant demand. to this part, an employee may testify as to facts within his or her personal

8615.7 Legal proceedings between priknowledge, but, unless specifically au

vate litigants: Office of Inspector thorized to do so by the General Coun

General employees. sel, shall not:

Notwithstanding the requirements (1) Disclose confidential or privileged set forth in 88 615.1 through 615.6, when information;

an employee of the Office of Inspector (2) Testify as to facts when the Gen- General is issued a demand to provide eral Counsel determines such testi

testimony or produce official records mony would not be in the best interest and information, the Inspector General of the Foundation or the United or his or her designee shall be responStates; or

sible for performing the functions as(3) Testify as an expert or opinion

signed to the General Counsel with rewitness with regard to any matter aris

spect to such demand pursuant to the ing out of the employee's official du provisions of this part. ties or the functions of the Foundation.

PART 617-NONDISCRIMINATION 8615.6 Legal proceedings between pri ON THE BASIS OF AGE IN PROvate litigants: Procedure when de

GRAMS OR ACTIVITIES RECEIVmand is made.

ING FEDERAL FINANCIAL ASSIST(a) Whenever an employee is served

ANCE FROM NSF with a demand to testify in his or her official capacity, or to produce official

Sec. records and information, the employee

617.1 Purpose. shall immediately notify the General

617.2 Definitions. Counsel.

617.3 Standards. (b) The General Counsel shall review 617.4 General duties of recipients. the demand and, in accordance with 617.5 Self-evaluation. the provisions of $615.5, determine

617.6 Information requirements.

617.7 Compliance reviews. whether, or on what conditions, to au

617.8 Pre-award reviews. thorize the employee to testify and/or

617.9 Complaints. produce official records and informa 617.10 Mediation. tion.

617.11 Investigation. (C) If a response to a demand is re 617.12 Compliance procedure. quired before the General Counsel has

617.13 Hearings, decisions, post-termination made the determination referred to in

proceedings.

617.14 Remedial action by recipients. $615.6(b), the General Counsel shall

617.15 Exhaustion of administrative remprovide the court or other competent

edies. authority with a copy of this part, in- 617.16 Prohibition against intimidation or form the court or other competent au retaliation. thority that the demand is being re

APPENDIX I TO PART 617-LIST OF AGE DISviewed, and seek a stay of the demand

TINCTIONS PROVIDED IN FEDERAL STATpending a final determination. If the UTES OR REGULATIONS AFFECTING FEDcourt fails to stay the demand, the em

ERAL FINANCIAL ASSISTANCE ADMINISployee must appear at the stated time TERED BY NSF and place, produce a copy of this part,

AUTHORITY: Age Discrimination Act of 1975, and respectfully decline to comply as amended, 42 U.S.C. 6101, et seq.: 45 CFR with the demand. United States er rel part 90. Touhy v. Ragen," 340 US 462 (1951).

SOURCE: 49 FR 49628, Dec. 21, 1984, unless (d) If a court or other competent au otherwise noted. thority orders that a demand be complied with notwithstanding a final deci

8617.1 Purpose. sion by the General Counsel to the con This part prescribes NSF's policies trary, or at any other stage in the and procedures under the Age Discrimiprocess, the General Counsel may take nation Act of 1975 and the Department

of Health and Human Services govern ment-wide age discrimination regulations at 45 CFR part 90. The Act and part 90 prohibit discrimination on the basis of age in programs or activities receiving Federal financial assistance. The Act and part 90 permit federally assisted programs and activities and recipients of Federal funds to continue to use age distinctions and factors other than age which meet the requirements of the Act and part 90.

8617.2 Definitions.

The following terms used in this part are defined in part 90:

part within 18 months of the effective date of these regulations, unless a similar evaluation has been completed for another agency.

(b) In its self-evaluation, each recipient shall identify all age distinctions it uses and justify each age distinction it imposes on the program or activity receiving Federal financial assistance from NSF.

(c) Each recipient shall take corrective action whenever a self-evaluation indicates a violation of the Act.

(d) Each recipient shall make the self-evaluation available on request to NSF and the public for three years after its completion. 8617.6 Information requirements.

Each recipient shall:

(a) Make available upon request to NSF information necessary to determine whether the recipient is complying with the Act.

(b) Permit reasonable access by NSF or its designee to the books, records, accounts, and other recipient facilities and sources of information to the extent necessary to determine whether a recipient is complying with the Act.

Act
Action
Age
Age distinction
Age-related term
Agency
Federal financial assistance
Recipient (including subrecipients)
United States

8617.3 Standards.

Standards for determining whether an age distinction or age-related term is prohibited are set out in part 90 of this title 45. See also appendix I to this part. 8617.4 General duties of recipients.

Each recipient of Federal financial assistance from NSF shall comply with the Act, part 90, and this part. Each NSF award of Federal financial assistance shall contain the following provision:

COMPLIANCE WITH AGE DISCRIMINATION ACT

The recipient agrees to comply with the Age Discrimination Act of 1975 as implemented by the Department of Health and Human Services regulations at 45 CFR part 90 and the regulations of the Foundation at 45 CFR part 617. In the event the recipient passes on NSF financial assistance to sub-recipients, this provision shall apply to the subrecipients, and the instrument under which the Federal financial assistance is passed to the subrecipient shall contain a provision identical to this provision.

8 617.7 Compliance reviews.

(a) NSF may conduct compliance reviews of recipients that will permit it to investigate and correct violations of the Act. NSF may conduct these reviews even in the absence of a complaint against a recipient. The review may be as comprehensive as necessary to determine whether a violation of the Act has occurred.

(b) If a compliance review indicates a violation of the Act, NSF will attempt to achieve voluntary compliance with the Act. If voluntary compliance can; not be achieved, NSF may arrange for enforcement as described in 8617.12. 8617.8 Pre-award reviews.

NSF reserves the right to conduct pre-award reviews of applicants for Federal financial assistance from NSF in cases where the NSF has substantial reason to believe that a potential recipient who is not then a recipient of other NSF financial assistance under the same program or activities may engage in practices under that program or activity that would violate the Act.

8617.3 Self-evaluation.

(a) Each recipient (including subrecipients) employing the equivalent of fifteen or more full-time employees shall complete a written selfevaluation of its compliance under this

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