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

§ 672.18 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 ordered to be kept confidential by the Presiding Officer.

$672.19 Proposed sions, and order.

findings,

conclu

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 authorities.

$672.20 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 filing 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,

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.

§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 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 Direc

tor 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.

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 арpointees 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 Gov

150-173 0-94-8

ernment 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);

(2)

Compensation

sources (§683.31);

(3) Honoraria (683.32);

from private

(4) Reimbursement of expenses or receipt of meals, lodging, or travel tickets from private sources (§ 683.33);

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

articles, or other private activities (683.34);

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

(§ 683.35); or

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

(g) Political activity (Hatch Act). (§§ 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.

§ 680.12 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