Page images

shall decide all controverted matters upon a preponderance of the evidence. 8672.18 Filing the transcript.

The hearing shall be transcribed verbatim. After the Presiding Officer closes the record, the reporter shall promptly transmit the original and certified copies to the Hearing Clerk, and one certified copy directly to the Presiding Officer. A certificate of service shall accompany each copy of the transcript. The Hearing Clerk shall notify all parties of the availability of the transcript and shall furnish the parties with a copy of the transcript upon payment of the cost of reproduction, unless a party can show that the cost is unduly burdensome. Any person not a party to the proceeding may obtain a copy of the transcript upon payment of the reproduction fee, except for those parts of the transcript or dered to be kept confidential by the Presiding Officer. $672.19 Proposed findings, conclu

sions, and order. Unless otherwise ordered by the Presiding Officer, any party may submit proposed findings of fact, conclusions of law, and a proposed order, together with supporting briefs, within twenty (20) days after the parties are notified of the availability of the transcript. The Presiding Officer shall set a time by which reply briefs must be submitted. All submissions shall be in writing, shall be served upon all parties, and shall contain adequate references to the record and relied-upon authori

along with the record of the proceeding, to the Director

(b) Amount of civil penalty. If the Presiding Officer determines that a violation has occurred, he shall set the dollar amount of the recommended civil penalty in the initial decision in accordance with any criteria set forth in the Act, and must consider any civil penalty guidelines issued by NSF. If the Presiding Officer decides to assess a penalty different in amount from the penalty recommended in the complaint, he shall set forth in the initial decision the specific reasons for the increase or decrease. The Presiding Officer shall not raise a penalty from that recommended in the complaint if the respondent has defaulted.

(c) Effect of initial decision. The initial decision of the Presiding Officer shall become the final order of the Agency within forty-five (45) days after its service upon the parties and without further proceedings unless (1) an appeal to the Director is filed by a party to the proceedings; or (2) the Director elects, sua sponte, to review the initial decision

(d) Motion to reopen a hearing. A motion to reopen a hearing to take further evidence must be made no later than twenty (20) days after service of the initial decision on the parties and shall (1) state the specific grounds upon which relief is sought; (2) state briefly the nature and purpose of the evidence to be adduced; (3) show that such evidence is not cumulative; and (4) show good cause why such evidence was not adduced at the hearing. The motion shall be made to the Presiding Officer and filed with the Hearing Clerk. Parties shall have ten (10) days following service to respond. The Presiding Officer shall grant or deny such motion as soon as practicable. The conduct of any proceeding which may be required as a result of the granting of any motion to reopen shall be governed by the provisions of the applicable sections of these rules. The filing of a motion to reopen a hearing shall automatically stay the running of all time periods specified under these Rules until such time as the motion is denied or the reopened hearing is concluded.


8672.20 Initial decision.

(a) Filing and contents. The Presiding Officer shall issue and file with the Hearing Clerk an initial decision as soon as practicable after the period for filling reply briefs, if any, has expired. The initial decision shall contain findings of fact, conclusions regarding all material issues of law or discretion, the reasons for the findings and conclusions, a recommended civil penalty assessment or other sanction, if appropriate, and a proposed final order. Upon receipt of an initial decision, the Hearing Clerk shall forward a copy to all parties, and shall send the original,

8 672.21 Appeal from or review of in.

terlocutory 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 is sued 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 ap peal 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. 8 672.22 Appeal from or review of ini.

tial 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 i forth alternative findings of fact, alternative conclusions regarding issues of: law or discretion, and a proposed order. together with relevant references to l! 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 appro- ; priate references to the record. Within twenty (20) days of the service of no- en tices of appeal and briefs, any other party or amicus curiae may file with: the Hearing Clerk a reply brief re- ci sponding to argument raised by the app pellant, together with references to the o relevant portions of the record, initial y decision, or opposing brief. Reply briefs 11 shall be limited to the scope of the ap peal brief.

(b) Sua sponte review by the Director. ? Whenever the Director determines sua sponte to review an initial decision, a 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 is- ri sues to be briefed by the parties and a time schedule for the service and filing, of briefs.

(c) Scope of appeal or review. The ap peal of the initial decision shall be limited to those issues raised by the par- 0 ties 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. 8672.23 Final order on appeal.

(a) Contents of the final order. When an appeal has been taken or the Direc

tor issues a notice of intent to conduct AUTHORITY: E.O. 11222 of May 8, 1965, 3 review sua sponte, the Director shall

CFR, 1965 Supplement and Regulations of the issue a final order as soon as prac

Office of Personnel Management, 5 CFR

735.104. ticable after the filing of all appellate briefs or oral argument. The Director

SOURCE: 47 FR 32131, July 26, 1982, unless shall adopt, modify or set aside the

otherwise noted. findings and conclusions contained in the decision or order being reviewed

Subpart A-Introduction to and shall set forth in the final order

Regulations the reasons for his actions. The Director may, in his discretion, increase or $680.10 Introduction. decrease the assessed penalty from the (a) Parts 680 through 684 of this title amount recommended in the decision 45 contain conflict-of-interests rules or order being reviewed, except that if and standards of conduct for employees the order being reviewed is a default and former employees of the National order, the Director may not increase Science Foundation. : the amount of the penalty.

(b) “You", the NSF Employee. The (b) Payment of a civil penalty. The re- principal audience for these regulaspondent shall pay the full amount of tions is the NSF employee who must the civil penalty assessed in the final comply with and understand them. order within sixty (60) days after re- They are therefore addressed directly ceipt of the final order unless other to you. Except where provisions plainly wise agreed by the parties. Payment indicate otherwise, “you” includes shall be made by forwarding to the every NSF employee. It includes not Hearing Clerk a cashier's check or cer only permanent civil service employtified check in the amount of the pen ees, but “rotators" and persons workalty assessed in the final order, payable ing at the NSF under the Intergovernto the Treasurer, United States of mental Personnel Act. It includes reAmerica.

hired annuitants. It includes part-time (c) Money due and owing the United employees. It also includes any interStates by virtue of an unappealed final mittent employees, temporary consultdecision or settlement order may be ants, or members of the National collected by referral to the Department Science Board who work or will work of Justice for appropriate civil action for the Government more than 130 days against respondent.

a year.

(c) What is expected of you. You are PART 680-NSF CONFLICT-OF-IN

not expected to be familiar with every

section of the regulations. You are exTERESTS RULES AND STANDARDS

pected to be thoroughly acquainted OF CONDUCT: INTRODUCTION

with a number of basic conflict-of-inAND GENERAL PROVISIONS

terests rules, which are summarized for

you in 8680.13. You are also responsible Subpart A-Introduction to Regulations

for adhering to general "standards of Sec.

employee conduct” that are laid out in 680.10 Introduction.

8680.16. (Full-time Presidential ap680.11 Summary of conflicts rules.

pointees should also be thoroughly ac680.12 Underlying purposes and consider quainted with the special rules in ations.

8680.15.) Beyond that the regulations 680.13 Summary of additional responsibile

are designed as a reference document ities. 680.14 Summary of special rules for full

and you need not cope with more detail time Presidential appointees.

than you find helpful until a problem 680.15 General standards of employee con

or question comes up. Then, you should duct.

be able to find the detail you may need 680.16 Key terms.

in parts 681 through 683. .

(d) Consultants, Board members, and Subpart B-Statutory Exomptions

other "special employees". Most consult680.20 Necessity and effect of formal exemp ants, members of the National Science tions.

Board, and other temporary or inter680.21 Exemptions under 18 U.S.C. 208(b). mittent employees work for the Gov

150–173 0-94-48

ernment fewer than 130 days a year and matter to the attention of a direcare therefore what the law calls “spe- torate conflicts official. The conflicts cial Government employees". If you official will decide how the matter are such a special employee", see part should be handled and tell you what 684 of these regulations. Part 684 states further steps to take. If the file reflects and explains the rules and standards that a conflicts official has already you must observe. If you are a member been consulted and has decided how the of the National Science Board, part 684 matter should be handled, you may applies to you as to any other “special proceed as the conflicts official has diemployee". Subpart B of part 684 states rected, unless something of possible and explains special rules of the Na- significance has changed. tional Science Board that apply only to (3) You must ask each peer reviewer its members.

of any proposal you are handling to in(e) Ethics counselors. Within the Of- dicate any possible conflicts of interfice of the General Counsel is an attor- ests the reviewer may have. You should ney designated by the General Counsel record in the proposal file all interests, who has primary responsibility for con affiliations, or relationships revealed flict-of-interests matters and for liai- by reviewers; determine how, if at all, son with the Office of Government Eth- they ought to affect the use of the reics. This attorney is the "ethics coun- view; and describe your determination selor". Working with the ethics coun in the file. selor are one or more deputy ethics (c) Representational restrictions and incounselors. Whenever you have a con volvement with proposals and projects flict-of-interests problem or question during and after NSF service. (S$ 682.10 and cannot find a clear answer in these through 682.23) (1) Current-employee reregulations, consult an ethics coun striction. During your Federal employselor.

ment you must not represent anyone

(including yourself) in dealings with 8680.11 Summary of conflicts rules. any Federal official on any proposal,

(a) This section summarizes the prin project, or other matter. cipal conflicts rules that NSF employ (2) One-year NSF restriction. For one ees (other than "special employees") year after you leave NSF employment are expected to observe. Section 680.13 you must not represent anyone (includsummarizes specific conflicts-related ing yourself) in dealings with any NSF responsibilities assigned to particular official on any proposal, project, or organizational units or officials by the other matter. regulations. Section 680.14 summarizes (3) Official responsibility" two-year respecial rules for full-time Presidential striction. For two years after you leave employees. Rules for consultants, NSF employment you must not rep Board members, and other employees resent anyone else in dealings with any who work for the NSF 130 days a year Federal official on any proposal, or less are covered in part 684.

project, or other matter involving spe(b) Rules on handling proposals and cific parties if the same matter was acawards. (8$ 681.10 through 681.44) (1) If tive under your official responsibility you would normally handle a proposal during your last year at the NSF. or other application, but possess with (4) Personal involvement" permanent respect to it an affiliation or relation- restriction. You must never represent ship listed in $681.21, you must bring anyone else in dealings with any Fedthe matter to the attention of a con- eral official on any proposal, project, flicts official in your directorate or or other matter involving specific parstaff office. The conflicts official will ties if you were personally involved determine how the matter should be with the same matter as an NSF emhandled and will tell you what further ployee. steps to take.

General effect: These representational (2) If you become aware that a pro- restrictions do not preclude you from spective, current, or recent NSF em being involved as a researcher or eduployee has an involvement or interest cator with proposals submitted to the in any proposal or other application Government or projects supported by you are handling, you must bring the the Government. They do preclude you

articles, or other private activities (683.34);

(6) Participation in an NSF-supported conference or workshop (8683.35); or

(7) Receipt of a gift, favor, loan, prize, or award (8 683.36).

(8) Political activity (Hatch Act). (88 683.40 through 683.45)

(1) You may not run for public or party office, except in nonpartisan elections and certain local elections.

(2) You may not participate in election campaigning, except in nonpartisan elections and certain local elections.

(3) You may not take an active part in leading or managing a political party.

(4) You must not use your official authority or influence for political purposes.

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. (88 683.10 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. (8 683.20) You must not be personally involved as a Federal employee in the handling of any matter in which you, a member of your immediate famlly, a business partner, or an organization of which you are or may become a part has a financial interest.

(1) 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 (8 683.30);

(2) Compensation from private sources (8683.31); (3) Honoraria (683.32);

(4) Reimbursement of expenses or receipt of meals, lodging, or travel tickets from private sources (8683.33);

(5) Use of inside Government information in connection with speeches,

8680.12 Underlying purposes and con

siderations. (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

« PreviousContinue »