Page images
PDF
EPUB

to disciplinary action and criminal prosecution for knowing and willful violations of the Act and regulation. In addition, employees may also be subject to disciplinary action for unknowing or unwillful violations, where the employee had notice of the provisions of the Act and regulations and failed to inform himself sufficiently or to conduct himself in accordance with the requirements to avoid violations.

(2) The Department may be subjected to civil liability for the following actions undertaken by its employees:

(a) Making a determination under the Act and $85b.7 and 5b.8 of the regulation not to amend an individual's record in accordance with his request, or failing to make such review in conformity with those provisions;

(b) Refusing to comply with an individual's request for notification of or access to a record pertaining to him;

(c) Failing to maintain any record pertaining to any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such a record, and consequently a determination is made which is adverse to the individual; or

(d) Failing to comply with any other provision of the Act or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual.

(3) “An employee may be personally subject to criminal liability as set forth below and in 5 U.S.C. 552a (1):

(a) Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to agency records which contain individually identifiable information the disclosure of which is prohibited by the Act or by rules or regulations established thereunder, and who, knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000."

(b) "Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements (of the Act) shall be guilty of a misdemeanor and fined not more than $5,000.”

(c) Rules Governing Employees Not Working With Systems of Records. Employees whose duties do not involve working with systems of records will not generally disclose to any one, without specific authorization from their supervisors, records pertaining to employees or other individuals which by reason of their official duties are available to them. Notwithstanding the above, the following records concerning Federal employees are a

matter of public record and no further authorization is necessary for disclosure:

(1) Name and title of individual.

(2) Grade classification or equivalent and annual rate of salary.

(3) Position description.

(4) Location of duty station, including room number and telephone number. In addition, employees shall disclose records which are listed in the Department's Freedom of Information Regulation as being available to the public. Requests for other records will be referred to the responsible Department official. This does not preclude employees from discussing matters which are known to them personally, and without resort to a record, to official investigators of Federal agencies for official purposes such as suitability checks, Equal Employment Opportunity investigations, adverse action proceedings, grievance proceedings, etc.

(d) Rules governing employees whose duties require use or reference to systems of records. Employees whose official duties require that they refer to, maintain, service, or otherwise deal with systems of records (hereinafter referred to as "Systems Employees") are governed by the general provisions. In addition, extra precautions are required and systems employees are held to higher standards of conduct.

(1) Systems Employees shall:

(a) Be informed with respect to their responsibilities under the Act:

(b) Be alert to possible misuses of the system and report to their supervisors any potential or actual use of the system which they believe is not in compliance with the Act and regulation;

(c) Make a disclosure of records within the Department only to an employee who has a legitimate need to know the record in the course of his official duties;

(d) Maintain records as accurately as practicable.

(e) Consult with a supervisor prior to taking any action where they are in doubt whether such action is in conformance with the Act and regulation.

(2) Systems Employees shall not:

(a) Disclose in any form records from a system of records except (1) with the consent or at the request of the subject individual; or (2) where its disclosure is permitted under $5b.9 of the regulation.

(b) Permit unauthorized individuals to be present in controlled areas. Any unauthorized individuals observed in controlled areas shall be reported to a supervisor or to the guard force.

(C) Knowingly or willfully take action which might subject the Department to civil liability.

(d) Make any arrangements for the design development, or operation of any system of records without making reasonable effort to

APPENDIX B TO PART 5B-ROUTINE USES

APPLICABLE TO MORE THAN ONE
SYSTEM OF RECORDS MAINTAINED BY
ED

provide that the system can be maintained in accordance with the Act and regulation.

(e) Contracting officers. In addition to any applicable provisions set forth above, those employees whose official duties involve entering into contracts on behalf of the Department shall also be governed by the following provisions:

(1) Contracts for design, or development of systems and equipment. No contract for the design or development of a system of records, or for equipment to store, service or maintain a system of records shall be entered into unless the contracting officer has made reasonable effort to ensure that the product to be purchased is capable of being used without violation of the Act or regulation. Special attention shall be given to provision of physical safeguards.

(2) Contracts for the operation of systems and equipment. No contract for the design or development of a system of whom he feels appropriate, of all proposed contracts providing for the operation of systems of records shall be made prior to execution of the contracts to determine whether operation of the system of records is for the purpose of accomplishing a Department function. If a determination is made that the operation of the system is to accomplish a Department function, the contracting officer shall be responsible for including in the contract appropriate provisions to apply the provisions of the Act and regulation to the system, including prohibitions against improper release by the contractor, his employees, agents, or subcontractors.

(3) Other service contracts. Contracting officers entering into general service contracts shall be responsible for determining the appropriateness of including provisions in the contract to prevent potential misuse (inadvertent or otherwise) by employees, agents, or subcontractors of the contractor.

(f) Rules Governing Responsible Department Officials. In addition to the requirements for Systems Employees, responsible Department officials shall:

(1) Respond to all requests for notification of or access, disclosure, or amendment of records in a timely fashion in accordance with the Act and regulation;

(2) Make any amendment of records accurately and in a timely fashion;

(3) Inform all persons whom the accounting records show have received copies of the record prior to the amendments of the correction; and

(4) Associate any statement of disagreement with the disputed record, and

(a) Transmit a copy of the statement to all persons whom the accounting records show have received a copy of the disputed record, and

(b) Transmit that statement with any future disclosure.

(1) In the event that a system of records maintained by this agency to carry out its functions indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the appropriate agency, whether federal, or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation or order issued pursuant thereto.

(2) Referrals may be made of assignments of research investigators and project monitors to specific research projects to the Smithsonian Institution to contribute to the Smithsonian Science Information Exchange, Inc.

(3) In the event the Department deems it desirable or necessary, in determining whether particular records are required to be disclosed under the Freedom of Information Act, disclosure may be made to the Department of Justice for the purpose of obtaining its advice.

(4) A record from this system of records may be disclosed as a "routine use" to a federal, state or local agency maintaining civil, criminal or other relevant enforcement records or other pertinent records, such as current licenses, if necessary to obtain a record relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant or other benefit. A record from this system of records may be disclosed to a federal agency, in response to its request, in connection with the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the record is relevant and necessary to the requesting agency's decision on the matter.

(5) In the event that a system of records maintained by this agency to carry out its function indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the appropriate agency, whether state or local charged with the responsibility

of investigating or prosecuting such viola employees, contractors and grantees tion or charged with enforcing or imple with the aid of public funds and facilimenting the statute, or rule, regulation or

ties; order issued pursuant thereto.

(b) To encourage and recognize indi(6) Where federal agencies having the power to subpoena other federal agencies'

vidual and cooperative achievement in records, such as the Internal Revenue Sery research and investigations; and ice or the Civil Rights Commission, issue a (c) To establish a procedure, consubpoena to the Department for records in sistent with pertinent statutes, Executhis system of records, the Department will tive orders and general Government make such records available.

regulations, for the determination of (7) Where a contract between a component

rights and obligations relating to the of the Department and a labor organization recognized under E.O. 11491 provides that the

patenting of inventions. agency will disclose personal records relevant to the organization's mission, records

$6.1 Publication or patenting of inven

tions. in this system of records may be disclosed to such organization.

It is the general policy of the Depart(8) Where the appropriate official of the ment that the results of Department Department, pursuant to the Department's

research should be made widely, Freedom of Information Regulation deter

promptly and freely available to other mines that it is in the public interest to disclose a record which is otherwise exempt

research workers and to the public. from mandatory disclosure, disclosure may

This availability can generally be adebe made from this system of records.

quately preserved by the dedication of (9) The Department contemplates that it a Government-owned invention to the will contract with a private firm for the pur public. Determinations to file a domespose of collating, analyzing, aggregating or tic patent application on inventions in otherwise refining records in this system.

which the Department has an interest Relevant records will be disclosed to such a

will be made where the circumstances contractor. The contractor shall be required to maintain Privacy Act safeguards with re

indicate that this is desirable in the spect to such records.

public interest, and if it is practicable (10) To individuals and organizations, to do so. Department determinations deemed qualified by the Secretary to carry not to apply for a domestic patent on out specific research solely for the purpose of employee inventions are subject to recarrying out such research.

view and approval by the Commis(11) Disclosures in the course of employee

sioner of Patents. Except where discipline or competence determination pro

deemed necessary for protecting the ceedings.

patent claim, the fact that a patent ap[45 FR 30808, May 9, 1980; 45 FR 37426, June 3,

plication has been or may be filed will 1980)

not require any departure from normal

policy regarding the dissemination of PART 6-INVENTIONS AND PATENTS

the results of Department research. (GENERAL)

$6.3 Licensing of Government-owned Sec.

patents. 6.0 General policy.

(a) Licenses to practice inventions 6.1 Publication or patenting of inventions. 6.3 Licensing of Government-owned patents.

covered by patents and pending patent 6.4 Central records; confidentiality.

applications owned by the U.S. Govern

ment as represented by this DepartAUTHORITY: 5 U.S.C. 301.

ment will generally be royalty free, SOURCE: 45 FR 30814, May 9, 1980, unless revocable and nonexclusive. They will otherwise noted.

normally be issued to all applicants

and will generally contain no limita$6.0 General policy.

tions or standards relating to the qualInventions developed through the re ity or testing of the products to be sources and activities of the Depart- manufactured, sold, or distributed ment are a potential resource of great thereunder. value to the public. It is the policy of (b) Where it appears however that the the Department:

public interest will be served under the (a) To safeguard the public interest circumstances of the particular case by in inventions developed by Department licenses which impose conditions, such

as

as those relating to quality or testing less than a minimum number of days of products, requirement of payment of per week, or less than the minimum royalties to the Government, etc., or number of weeks per year, regularly reby the issuance of limited exclusive li quired of full-time employees of his censes by the Secretary after notice class. and opportunity for hearing thereon, such licenses may be issued.

$7.1 Duty of employee to report inven

tions. 86.4 Central records; confidentiality. Every Department employee is re

Central files and records shall be quired to report to the Secretary in acmaintained of all inventions, patents, cordance with the procedures estaband licenses in which the Department lished therefor, every invention made has an interest, together with a record by him (whether or not jointly with of all licenses issued by the Depart- others) which bears any relation to his ment under such patents. Invention re official duties or which was made in ports required from employees or oth whole or in any part during working ers for the purpose of obtaining deter hours, or with any contribution of Govminations of ownership, and documents ernment facilities, equipment, mateand information obtained for the pur rial, funds, or information, or of time pose of prosecuting patent applications or services of other Government emshall be confidential and shall be dis ployees on official duty. closed only as required for official purposes or with the consent of the inven

$7.3 Determination to domestic

rights. tor.

The determination of the ownership PART 7-EMPLOYEE INVENTIONS of the domestic right, title, and inter

est in and to an invention which is or Sec.

may be patentable, made by a Govern7.0 Who are employees.

ment employee while under the admin7.1 Duty of employee to report inventions. istrative jurisdiction of the Depart7.3 Determination as to domestic rights. ment, will be made in writing by the 7.4 Option to acquire foreign rights.

Secretary in accordance with the pro7.7 Notice to employee of determination.

visions of Executive Order 10096 and 7.8 Employee's right of appeal.

Government-wide regulations issued AUTHORITY: E.O. 10096, 15 FR 391; 3 CFR thereunder by the Commissioner of 1950 Supp.; E.O. 10930, 26 FR 2583; 3 CFR 1961 Patents as follows: Supp.

(a) The Government as represented SOURCE: 45 FR 30814, May 9, 1980, unless by the Secretary shall obtain the enotherwise noted.

tire domestic right, title and interest

in and to all inventions made by any $7.0 Who are employees.

Government employee (1) during workAs used in this part, the term Govern ing hours, or (2) with a contribution by ment employee means any officer or em the Government of facilities, equipployee, civilian or military, except ment, materials, funds, or information, such part-time employees or part-time or of time or services of other Governconsultants as may be excluded there ment employees on official duty, or (3) from by a determination made in writ which bear a direct relation to or are ing by the head of the employee's office made in consequence of the official duor constituent organization, pursuant ties of the inventor. to an exemption approved by the Com (b) In any case where the contribumissioner of Patents that to include tion of the Government, as measured him or them would be impracticable or by any one or more of the criteria set inequitable, given the reasons therefor. forth in paragraph (a) of this section, A person shall not be considered to be to the invention is insufficient equia part-time employee or part-time con tably to justify a requirement of assultant for this purpose unless the signment to the Government of the enterms of his employment contemplate tire domestic right, title and interest that he shall work for less than the in and to such invention, or in any case minimum number of hours per day, or where the Government has insufficient

interest in an invention to obtain the $7.4 Option to acquire foreign rights. entire domestic right, title, and interest therein (although the Government

In any case where it is determined could obtain same under paragraph (a)

that all domestic rights should be asof this section), the Department, sub

signed to the Government, it shall furject to the approval of the Commis

ther be determined, pursuant to Execusioner, shall leave title to such inven

tive Order 9865 and Government-wide tion in the employee, subject, however,

regulations issued thereunder, that the to the reservation to the Government

Government shall reserve an option to of a nonexclusive, irrevocable, royalty require the assignment of such rights free license in the invention with in all or in any specified foreign counpower to grant licenses for all govern tries. In case where the inventor is not mental purposes, such reservation to required to assign the patent rights in appear, where practicable, in any pat any foreign country or countries to the ent, domestic or foreign, which may Government or the Government fails to issue on such invention.

exercise its option within such period (c) In applying the provisions of para of time as may be provided by regulagraphs (a) and (b) of this section, to the tions issued by the Commissioner of facts and circumstances relating to the

Patents, any application for a patent making of any particular invention, it

which may be filed in such country or shall be presumed that an invention

countries by the inventor or his asmade by an employee who is employed signee shall nevertheless be subject to or assigned (1) to invent or improve or

a nonexclusive, irrevocable, royaltyperfect any art, machine, manufacture,

free license to the Government for all or composition of matter, (2) to conduct or perform research, development

governmental purposes, including the work, or both, (3) to supervise, direct,

power to issue sublicenses for use in becoordinate, or review Government fi

half of the Government and/or in furnanced or conducted research, develop

therance of the foreign policies of the ment work, or both, or (4) to act in a li

Government. aison capacity among governmental or nongovernmental agencies or individ

$ 7.7 Notice to employee of determina

tion. uals engaged in such work, falls within the provisions of paragraph (a) of this The employee-inventor shall be notisection, and it shall be presumed that fied in writing of the Department's deany invention made by any other em termination of the rights to his invenployee falls within the provisions of tion and of his right of appeal, if any. paragraph (b) of this section. Either Notice need not be given if the empresumption may be rebutted by a Tee stated in writing that he would showing of the facts and circumstances

agree to the determination of ownerand shall not preclude a determination

ship which was in fact made. that these facts and circumstances justify leaving the entire right, title and $7.8 Employee's right of appeal. interest in and to the invention in the Government employee, subject to law.

An employee who is aggrieved by a (d) In any case wherein the Govern

determination of the Department may ment neither (1) obtains the entire do

appeal to the Commissioner of Patents, mestic right, title and interest in and

pursuant to section 4(d) of Executive to an invention pursuant to the provi

Order 10096, as amended by Executive sions of paragraph (a) of this section,

Order 10930, and regulations issued nor (2) reserves a nonexclusive, irrev thereunder, by filing a written appeal ocable, royalty-free license in the in

with the Commissioner, in duplicate, vention, with power to grant licenses and a copy of the appeal with the Secfor all governmental purposes, pursu retary within 30 days (or such longer ant to the provisions of paragraph (b) period as the Commissioner may, for of this section, the Government shall good cause, fix in any case) after releave the entire right, title and inter ceiving written notice of such deterest in and to the invention in the Gov mination. ernment employee, subject to law.

« PreviousContinue »