signment to the Government of the entire domestic right, title and interest in and to such invention, or in any case where the Government has insufficient interest in an invention to obtain the entire domestic right, title, and interest therein (although the Government could obtain same under paragraph (a) of this section), the Department, subject to the approval of the Commissioner, shall leave title to such invention in the employee, subject, however, to the reservation to the Government of a nonexclusive, irrevocable, royaltyfree license in the invention with power to grant licenses for all governmental purposes, such reservation to appear, where practicable, in any patent, domestic or foreign, which may issue on such invention.

(c) In applying the provisions of paragraphs (a) and (b) of this section, to the facts and circumstances relating to the making of any particular invention, it shall be presumed that an invention made by an employee who is employed or assigned (1) to invent or improve or perfect any art, machine, manufacture, or composition of matter, (2) to conduct or perform research, development work, or both, (3) to supervise, direct, coordinate, or review Government financed or conducted research, development work, or both, or (4) to act in a liaison capacity among governmental or nongovernmental agencies or individuals engaged in such work, falls within the provisions of paragraph (a) of this section, and it shall be presumed that any invention made by any other employee falls within the provisions of paragraph (b) of this section. Either presumption may be rebutted by a showing of the facts and circumstances and shall not preclude a determination that these facts and circumstances justify leaving the entire right, title and interest in and to the invention in the Government employee, subject to law.

(d) In any case wherein the Government neither (1) obtains the entire domestic right, title and interest in and to an invention pursuant to the provisions of paragraph (a) of this section, nor (2) reserves a nonexclusive, irrevocable, royalty-free license in the invention, with power to grant licenses for all governmental purposes, pursuant to the provisions of paragraph (b)

of this section, the Government shall leave the entire right, title and interest in and to the invention in the Government employee, subject to law.

§7.4 Option to acquire foreign rights.

In any case where it is determined that all domestic rights should be assigned to the Government, it shall further be determined, pursuant to Executive Order 9865 and Government-wide regulations issued thereunder, that the Government shall reserve an option to require the assignment of such rights in all or in any specified foreign countries. In case where the inventor is not required to assign the patent rights in any foreign country or countries to the Government or the Government fails to exercise its option within such period of time as may be provided by regulations issued by the Commissioner of Patents, any application for a patent which may be filed in such country or countries by the inventor or his assignee shall nevertheless be subject to a nonexclusive, irrevocable, royaltyfree license to the Government for all governmental purposes, including the power to issue sublicenses for use in behalf of the Government and/or in furtherance of the foreign policies of the Government.

§7.7 Notice to employee of determination.

The employee-inventor shall be notified in writing of the Department's determination of the rights to his invention and of his right of appeal, if any. Notice need not be given if the employee stated in writing that he would agree to the determination of ownership which was in fact made.

$7.8 Employee's right of appeal.

An employee who is aggrieved by a determination of the Department may appeal to the Commissioner of Patents, pursuant to section 4(d) of Executive Order 10096, as amended by Executive Order 10930, and regulations issued thereunder, by filing a written appeal with the Commissioner, in duplicate, and a copy of the appeal with the Secretary within 30 days (or such longer period as the Commissioner may, for good cause, fix in any case) after re

§8.1 What is the scope and applicability of this part?

(a) Except as provided in paragraph (c) of this section, this part establishes the procedures to be followed if the Department or any departmental employee receives a demand for

(1) Testimony by an employee concerning

(1) Records contained in the files of the Department;

(ii) Information relating to records contained in the files of the Department; or

(iii) Information or records acquired or produced by the employee in the course of his or her official duties or because of the employee's official status; or

(2) The production or disclosure of any information or records referred to in paragraph (a)(1) of this section.

(b) This part does not create any right or benefit, substantive or procedural, enforceable by any person

against the Department.

(c) This part does not apply to (1) Any proceeding in which the United States is a party before an adjudicative authority;

(2) A demand for testimony or records made by either House of Congress or, to the extent of matter within its jurisdiction, any committee or subcommittee of Congress; or

(3) An appearance by an employee in his or her private capacity in a legal

proceeding in which the employee's testimony does not relate to the mission or functions of the Department. (Authority: 5 U.S.C. 301; 20 U.S.C. 3474)

§8.2 What definitions apply?

The following definitions apply to this part:

Adjudicative authority includes, but is not limited to

(1) A court of law or other judicial forums; and

(2) Mediation, arbitration, or other forums for dispute resolution.

Demand includes a subpoena, subpoena duces tecum, request, order, or other notice for testimony or records arising in a legal proceeding.

Department means the U.S. Department of Education.

Employee means a current employee or official of the Department or of an advisory committee of the Department, including a special government employee, unless specifically provided otherwise in this part.

Legal proceeding means

(1) A proceeding before an adjudicative authority;

(2) A legislative proceeding, except for a proceeding before either House of Congress or before any committee or subcommittee of Congress, to the extent of matter within the committee's or subcommittee's jurisdiction; or (3) An administrative proceeding. Secretary means the Secretary Education or an official or employee of the Department acting for the Secretary under a delegation of authority.

of

Testimony means statements made in connection with a legal proceeding, including but not limited to statements in court or other forums, depositions, declarations, affidavits, or responses to interrogatories.

United States means the Federal Government of the United States and any of its agencies or instrumentalities. (Authority: 5 U.S.C. 301; 20 U.S.C. 3474)

§8.3 What are the requirements for submitting a demand for testimony or records?

(a) A demand for testimo ployee or former emp1 mand for records is

of an ema deto

the rules governing the legal proceeding in which the demand arises

(1) Must be in writing; and

(2) Must state the nature of the requested testimony or records and why the information sought is unavailable by any other means.

(b) Service of a demand for testimony of an employee or former employee must be made on the employee or former employee whose testimony is demanded, with a copy simultaneously delivered to the General Counsel, U.S. Department of Education, Office of the General Counsel, 400 Maryland Avenue, SW., room 4083, FOB-6, Washington, DC 20202-2100.

(c) Service of a demand for records, as described in 8.5(a)(1), must be made on an employee or former employee who has custody of the records, with a copy simultaneously delivered to the General Counsel at the address listed in paragraph (b) of this section. For assistance in identifying the custodian of the specific records demanded, contact the Records Management Branch Chief, Office of Information Resources Management, U.S. Department of Education, 7th and D Streets, SW., ROB-3, Washington, DC 20202-4753.

(Authority: 5 U.S.C. 301; 20 U.S.C. 3474)

(Approved by the Office of Management and Budget under control number 1801-0002)

[57 FR 34646, Aug. 5, 1992, as amended at 58 FR 7860, Feb. 9, 1993]

§ 8.4 What procedures are followed in response to a demand for testimony?

(a) After an employee receives a demand for testimony, the employee shall immediately notify the Secretary and request instructions.

(b) An employee may not give testimony without the prior written authorization of the Secretary.

(c)(1) The Secretary may allow an employee to testify if the Secretary determines that the demand satisfies the requirements of §8.3 and that granting permission

(i) Would be appropriate under the rules of procedure governing the matter in which the demand arises and other applicable laws, rules, and regulations; and

(ii) Would not be contrary to an interest of the United States, which in

cludes furthering a public interest of the Department and protecting the human and financial resources of the United States.

(2) The Secretary may establish conditions under which the employee may testify.

(d) If a response to a demand for testimony is required before the Secretary determines whether to allow an employee to testify, the employee or counsel for the employee shall—

(1) Inform the court or other authority of the regulations in this part; and (2) Request that the demand be stayed pending the employee's receipt of the Secretary's instructions.

(e) If the court or other authority declines the request for a stay, or rules that the employee must comply with the demand regardless of the Secretary's instructions, the employee or counsel for the employee shall respectfully decline to comply with the demand, citing United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the regulations in this part.

(Authority: 5 U.S.C. 301; 20 U.S.C. 3474)

§8.5 What procedures are followed in response to a demand for records? (a)(1) After an employee receives a demand for records issued pursuant to the rules governing the legal proceeding in which the demand arises, the employee shall immediately notify the Secretary and request instructions.

(2) If an employee receives any other demand for records, the Department

(i) Considers the demand to be a request for records under the Freedom of Information Act; and

(ii) Handles the demand under rules governing public disclosure, as established in 34 CFR part 5.

(b) An employee may not produce records in response to a demand as described in paragraph (a)(1) of this section without the prior written authorization of the Secretary.

(c) The Secretary may make these records available if the Secretary determines that the demand satisfies the requirements and that disclosure

of § 8.3

(1) Would be appropriate under the rules of procedure governing the matter in which the demand arises and

other applicable laws, rules, and regulations; and

(2) Would not be contrary to an interest of the United States, which includes furthering a public interest of the Department and protecting the human and financial resources of the United States.

(d) If a response to a demand for records as described in paragraph (a)(1) of this section is required before the Secretary determines whether to allow an employee to produce those records, the employee or counsel for the employee shall—

(1) Inform the court or other authority of the regulations in this part; and (2) Request that the demand be stayed pending the employee's receipt of the Secretary's instructions.

(e) If the court or other authority declines the request for a stay, or rules that the employee must comply with the demand regardless of the Secretary's instructions, the employee or counsel for the employee shall respectfully decline to comply with the demand, citing United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the regulations in this part.

(Authority: 5 U.S.C. 301; 5 U.S.C. 552; 20 U.S.C. 3474)

11.13 When can an advisory committee meet or take action?

Subpart C-What Are the General Requirements for Committee and Subcommittee Membership?

11.20 Who may be a member of a committee or subcommittee?

11.21 What action may be taken by a subcommittee?

Subpart D-How Does an Advisory
Committee Operate?

11.30 What meeting requirements affect advisory committees?

11.31 What is a quorum?

11.32 What special provisions govern the voting rights of certain committee members?

11.33 What notice is required for advisory committee and subcommittee meetings? 11.34 What public participation is allowed at advisory committee meetings? 11.35 What are the requirements for closing a meeting?

11.36 What special procedures may be used for emergency advisory committee meetings?

11.37 How is the agenda established and distributed?

11.38 What records are kept of advisory committee meetings?

11.39 What reports are made by advisory committees?

11.40 What records must an advisory committee make available to the public? AUTHORITY: 5 U.S.C. App. 2; 20 U.S.C. 1233 et seq, unless otherwise noted.

SOURCE: 52 FR 25152, July 2, 1987, unless otherwise noted.

Subpart A-General

§ 11.1 What is the purpose of these regulations?

The regulations in this part:

(a) Implement the Federal Advisory Committee Act, as amended; and

(b) Provide guidance for advisory committees that are governed by Part D of the General Education Provisions Act, as amended.

(Authority: 5 U.S.C. App. 2; 20 U.S.C. 1233 et seq.)

§ 11.2 What committees are governed by these regulations?

(a) The regulations in this part apply to all advisory committees and their subcommittees providing advice to the Secretary or any other official of the

Department. These regulations do not apply to any entity governed by the Government in the Sunshine Act.

(b) The functions of an advisory committee are to be solely advisory. If a group provides advice to the Department, but the group's advisory function is incidental to and inseparable from other (e.g., operational) functions, these regulations do not apply. However, if the advisory function is separable, the group is subject to these regulations to the extent that the group operates as an advisory committee.

(Authority: 5 U.S.C. App. 2; 20 U.S.C. 1233 et seq.)

§11.3 What definitions apply to these regulations?

(a) Definitions in EDGAR. The following terms used in this part are defined in 34 CFR 77.1:

Department

ED

EDGAR

GEPA

Secretary

(b) Definitions that apply to this part. That following definitions also apply to this part:

Administrator means Administrator of the General Services Administration.

Advisory Committee or Committee, subject to the factors and exclusions described in §§ 11.4 and 11.5, means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof, which is established by statute or reorganization plan, or established or utilized by the Secretary in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.

Committee Management Officer or CMO is the ED employee designated as required by Section 8 of FACA.

Committee Member means an individual who serves by appointment on an advisory committee and, except as otherwise limited by statute or the terms under which the committee is established, has the full right and obligation to participate in the activities of the committee, including voting rights.

Designated Federal Official (DFO) means the ED employee designated for each committee who performs duties

under sections 10 (e) and (f) of FACA. The DFO is an employee who holds a full-time permanent position in the Department and may be assigned other administrative duties in connection with the committee.

Executive Director means the person who has that title and is responsible for overseeing the daily operation or staff or both of an advisory committee.

FACA means the Federal Advisory Committee Act, as amended, 5 U.S.C. Appendix 2.

GEPA Presidential Advisory Committee means a statutory advisory committee, governed by Part D of GEPA, the members of which are appointed by the President.

GSA Committee Management Secretariat is the office within the General Services Administration that administers FACA.

§ 11.4 What kind of group is an advisory committee?

Although no single factor is determinative in deciding whether a group is an advisory committee, the following factors are significant:

(a) Fixed membership, including at least one person who is not a full-time Federal employee.

(b) Establishment by a Federal official or law. If not Federally established, the initiative for its use as an advisory body for the Federal Government comes from a Federal official rather than from a private group.

(c) A purpose of providing consensus advice regarding a particular subject or subjects.

(d) An organizational structure, e.g., officers and staff.