[Federal Register Volume 74, Number 69 (Monday, April 13, 2009)]
[Proposed Rules]
[Pages 16815-16823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8262]



45 CFR Part 612

RIN 3145-AA52

Notice of Proposed Rulemaking and Opportunity for Comment

AGENCY: National Science Foundation.

ACTION: Notice of proposed rulemaking and opportunity for comment.


SUMMARY: This document sets forth proposed revisions of the 
Foundation's regulations under the Freedom of Information Act (FOIA). 
The new FOIA provisions implement the Openness Promotes Effectiveness 
in our National Government Act of 2007, or the OPEN Government Act of 
2007, Public Law 110-175.

DATES: Submit comments on or before May 13, 2009.

ADDRESSES: Address all comments concerning this proposed rule to the 
Office of the General Counsel, National Science Foundation, 4201 Wilson 
Boulevard, Suite 1265, Arlington, VA 22230. You may also send comments 
by facsimile transmission to (703) 292-9041, or send them 
electronically through the Federal Government's one-stop rulemaking Web 
site at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Leslie A. Jensen, Legal Analyst, 
Office of the General Counsel, National Science Foundation, telephone 
703-292-8060 and e-mail [email protected].


Availability of Records and Information (45 CFR part 612) (FOIA 

    This revision of part 612 implements the new provisions of the 
Openness Promotes Effectiveness in our National Government Act of 2007, 
or the OPEN Government Act of 2007, Public Law 110-175. No changes to 
the Act's nine exemptions were made. The amendments address a range of 
procedural issues impacting FOIA administration, including the 
codification of several provisions of Executive Order 13392, Improving 
Agency Disclosure of Information. Clarifications or minor procedural 
changes are found at Sec.  612.3(a), (b), (f) and (g) (Requirements for 
making requests), Sec.  612.4(a) (Responding to requests), Sec.  612.5 
(c)(1) and (2) (Timing of Response to Requests), Sec.  612.6 (a), (b), 
(c)(1) (Processing requests) and Sec.  612.10(c)(iii) (Fees).
    For purposes of the Regulatory Flexibility Act (5 U.S.C. 601), the 
proposed rule will not have a significant

[[Page 16816]]

economic effect on a substantial number of small entities; the proposed 
rule addresses the procedures to be followed when submitting or 
responding to requests for information under the Freedom of Information 
Act. For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 
104-4) the proposed rule would not significantly or uniquely affect 
small governments and would not result in increased expenditures by 
State, local, and tribal governments, or by the private sector, of $100 
million or more. For purposes of Executive Order 12866, the proposed 
rule is not a significant regulatory action requiring review by the 
Office of Management and Budget. For the purposes of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 35) it has been determined that this 
proposed rulemaking does not impose any reporting or recordkeeping 
requirement on the public.

List of Subjects in 45 CFR Part 612

    Administrative practice and procedure: Freedom of information.

    For the reasons stated in the preamble, the National Science 
Foundation proposes to amend 45 CFR chapter VI by revising part 612 as 


612.1 General provisions.
612.2 Public reading room.
612.3 Requirements for making requests.
612.4 Responding to requests.
612.5 Timing of responses to requests.
612.6 Processing requests.
612.7 Exemptions.
612.8 Business information.
612.9 Appeals.
612.10 Fees.
612.11 Other rights and services.

    Authority: 5 U.S.C. 552, as amended.

Sec.  612.1  General provisions.

    This part contains the rules that the National Science Foundation 
follows in processing requests for records under the Freedom of 
Information Act (FOIA), 5 U.S.C. 552. Information routinely made 
available to the public as part of a regular Foundation activity (for 
example, program announcements and solicitations, summary of awarded 
proposals, statistical reports on U.S. science, news releases) may be 
provided to the public without reliance on this part. As a matter of 
policy, the Foundation also makes discretionary disclosures of records 
or information otherwise exempt under the FOIA whenever disclosure 
would not foreseeably harm an interest protected by a FOIA exemption. 
This policy, however, does not create any right enforceable in court. 
When individuals seek records about themselves under the Privacy Act of 
1974, 5 U.S.C. 552a, NSF processes those requests under both NSF's 
Privacy regulations at part 613, and this part.

Sec.  612.2  Public reading room.

    (a) The Foundation maintains a public reading room located in the 
NSF Library at 4201 Wilson Boulevard, Suite 225, Arlington, Virginia, 
open during regular working hours Monday through Friday. It contains 
the records that the FOIA requires to be made regularly available for 
public inspection and copying and has computers and printers available 
for public use in accessing records. Also available for public 
inspection and copying are current subject matter indexes of reading 
room records.
    (b) Information about FOIA and Privacy at NSF and copies of 
frequently requested FOIA releases are available Online at http://www.nsf.gov/pubinfo/foia.html. Most NSF policy documents, staff 
instructions, manuals, and other publications that affect a member of 
the public, are available in electronic form through the ``Documents'' 
option on the tool bar on NSF's Home Page on the Internet at http://www.nsf.gov.

Sec.  612.3  Requirements for making requests.

    (a) Where to send a request. The National Science Foundation has 
one Agency component. You may make a FOIA request for records of the 
National Science Foundation by writing directly to the FOIA Officer, 
Office of the General Counsel, National Science Foundation, 4201 Wilson 
Boulevard, Suite 1265, Arlington, VA 22230. For records maintained by 
the NSF Office of the Inspector General (OIG), a designated Agency 
component, you may write directly to the Office of Inspector General, 
National Science Foundation, 4201 Wilson Boulevard, Suite 1135, 
Arlington, VA 22230. The Agency FOIA officer and the OIG component will 
also forward requests as appropriate. Requests may also be sent by 
facsimile to the Agency FOIA Officer on (703) 292-9041 or by e-mail to 
[email protected]; or, as appropriate to the OIG component via Fax on (703) 
    (b) Form of request. A FOIA request need not be in any particular 
format, but it must be in writing, include the requester's name and 
mailing address, and be clearly identified both on the envelope and in 
the letter, or in a facsimile or electronic mail message as a Freedom 
of Information Act or ``FOIA'' request. It must describe the records 
sought with sufficient specificity to permit identification, and 
include agreement to pay applicable fees chargeable under the 
Foundation's fee schedule as described in Sec.  612.10.
    (c)(1) If you are making a request for records about yourself and 
the records are not contained in a Privacy Act system of records, your 
request will be processed only under the FOIA, since the Privacy Act 
does not apply. If the records about you are contained in a Privacy Act 
system of records, NSF will respond with information on how to make a 
Privacy Act request (see NSF Privacy Act regulations at 45 CFR 613.2).
    (2) If you are making a request for personal information about 
another individual, either a written authorization signed by that 
individual in accordance with Sec.  613.2(f) permitting disclosure of 
those records to you, or proof that that individual is deceased (for 
example, a copy of a death certificate or a published obituary) will 
help the agency process your request.
    (d) Description of records sought. Your request must describe the 
records that you seek in enough detail to enable NSF personnel to 
locate them with a reasonable amount of effort. A record must have been 
created or obtained by NSF and under the control of NSF at the time of 
the request to be subject to the FOIA. NSF has no obligation under the 
FOIA to create, compile or obtain a record to satisfy a FOIA request. 
Whenever possible, your request should include specific descriptive 
information about each record sought, such as the date, title or name, 
author, recipient, and subject matter of the record. As a general rule, 
the more specific you are about the records or type of records that you 
want, the more likely the Foundation will be able to locate those 
records in response to your request, and the more likely fees will be 
reduced or eliminated. If NSF determines that your request does not 
reasonably describe records, you will be advised what additional 
information is needed to perfect your request or why your request is 
otherwise insufficient.
    (e) Agreement to pay fees. Your request must state that you will 
promptly pay the total fees chargeable under this regulation or set a 
maximum amount you are willing to pay. NSF does not charge if fees 
total less than $25.00. If you seek a waiver of fees, please see Sec.  
612.10(k) for a discussion of the factors you must address. If you 
place an inadequate limit on the amount you will pay, or have failed to 
make payments for previous requests, NSF may require advance payment 
(see Sec.  612.10(i)).

[[Page 16817]]

    (f) Receipt date. A request that meets the requirements of this 
section will be considered received on the date it is received by the 
Office of the General Counsel or the Office of the Inspector General. 
In determining which records are responsive to a FOIA request, the 
Foundation will include only records in its possession as of the date 
the search begins.
    (g) Publications excluded. For the purpose of public requests for 
records the term ``record'' does not include publications which are 
available to the public in the Federal Register, or by sale or free 
distribution. NSF publications are available in print. To request one 
or more print publications (http://www.nsf.gov/publications/obtain.jsp), you may:
    (1) Fill out Web-based order form. http://www.nsf.gov/publications/orderpub.jsp.
    (2) Contact NSF Publications at (703) 292-PUBS (7827).
    (3) Send a letter with the publication number(s) clearly stated to: 
NSF Publications, National Science Foundation, 4201 Wilson Boulevard, 
Suite P-60, Arlington, VA 22230.

Sec.  612.4  Responding to requests.

    (a) Monitoring of requests. The NSF Office of the General Counsel 
(OGC), or such other office as may be designated by the Director, will 
serve as the central office for administering these regulations. For 
records maintained by the Office of Inspector General, that Office will 
control incoming requests made directly or referred to it, dispatch 
response letters, and maintain administrative records. For all other 
records maintained by NSF, OGC (or such other office as may be 
designated by the Director) will control incoming requests, assign them 
to appropriate action offices, monitor compliance, consult with action 
offices on disclosure, approve necessary extensions, dispatch denial 
and other letters, and maintain administrative records.
    (b) Consultations and referrals. When the Foundation receives a 
request for a record in its possession that originated with another 
agency or in which another agency has a substantial interest, it may 
decide that the other agency of the Federal Government is better able 
to determine whether the record should or should not be released under 
the FOIA.
    (1) If the Foundation determines that it is the agency best able to 
process the record in response to the request, then it will do so, 
after consultation with the other interested agencies where 
    (2) If it determines that it is not the agency best able to process 
the record, then it will refer the request regarding that record (or 
portion of the record) to the agency that originated or has a 
substantial interest in the record in question (but only if that agency 
is subject to the FOIA). Ordinarily, the agency that originated a 
record will be presumed to be best able to determine whether to 
disclose it.
    (c) Notice of referral. Whenever the Foundation refers all or any 
part of the responsibility for responding to a request to another 
agency, it ordinarily will notify the requester of the referral and 
inform the requester of the name of each agency to which the request 
has been referred and of the part of the request that has been 
referred, unless such notification would disclose information otherwise 

Sec.  612.5  Timing of responses to requests.

    (a) In general. NSF ordinarily will initiate processing of requests 
according to their order of receipt.
    (b) Time for response. The Foundation will make reasonable effort 
to act on a request within 20 days of when a request is received by the 
OGC or the OIG or perfected (excluding the date of receipt, weekends, 
and legal holidays). A request is perfected when you have reasonably 
described the records sought under Sec.  612.3(d), agreed to pay fees 
chargeable under Sec.  612.3(c), or otherwise met the fee requirements 
under Sec.  612.10.
    (c) Unusual circumstances. (1) Where the time limits for processing 
a request cannot be met because of ``unusual circumstances'' as defined 
in the FOIA, the FOIA Officer or the OIG component will notify the 
requester as soon as practicable in writing of the unusual 
circumstances and may extend the response period for up to ten working 
    (2) Where the extension is for more than ten working days, the FOIA 
Officer or the OIG component will provide the requester with an 
opportunity either to modify the request so that it may be processed 
within the time limits or to arrange an agreed upon alternative time 
period with the FOIA Officer or the OIG component for processing the 
request or a modified request.
    (d) Expedited processing. (1) If you want to receive expedited 
processing you must submit a statement, certified to be true and 
correct to the best of your knowledge and belief, explaining in detail 
the basis for requesting expedited processing.
    (2) Requests and appeals will be given expedited treatment whenever 
it is determined that a requester has demonstrated compelling need by 
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) An urgency to inform the public about an actual or alleged 
Federal government activity, if made by a person primarily engaged in 
disseminating information.
    For example, a requester who is not a full-time member of the news 
media must establish that he or she is a person whose main professional 
activity or occupation is information dissemination, though it need not 
be his or her sole occupation. Such requester also must establish a 
particular urgency to inform the public about the government activity 
involved in the request, beyond the public's right to know about 
government activity generally, and that the information sought has 
particular value that would be lost if not disseminated quickly.
    (3) Within ten calendar days of receipt of a request for expedited 
processing, the FOIA Officer or OIG component will decide whether to 
grant it, and will notify the requester of the decision orally or in 
writing. If a request for expedited treatment is granted, the request 
will be processed as soon as practicable. If a request for expedited 
processing is denied, any appeal of that decision will be acted on 

Sec.  612.6  Processing requests.

    (a) Acknowledgment of requests. Each request is assigned a tracking 
number and the requester is advised of this FOIA number, the receipt 
date and the estimated date of action on the request.
    (b) Grants of requests. Once the Foundation makes a determination 
to grant a request in whole or in part, it will notify the requester in 
writing. The Foundation will inform the requester in the notice of any 
applicable fee and will disclose records to the requester promptly on 
payment of applicable fees. Records disclosed in part will be marked or 
annotated to show both the amount, the location and the FOIA Exemption 
under which the deletion is made.
    (c) Denials of requests. (1) Denials of FOIA requests will be made 
by the Office of the General Counsel, the Office of the Inspector 
General, or such other office as may be designated by the Director. The 
response letter will briefly set forth the reasons for the denial, 
including any FOIA exemption(s) applied by the Foundation or the OIG in 
denying the request. It will also provide the name and title or 
position of the

[[Page 16818]]

person responsible for the denial, will inform the requester of the 
right to appeal, and will, where appropriate, include an estimate of 
the volume of any requested materials withheld. An estimate need not be 
provided when the volume is otherwise indicated through deletions on 
records disclosed in part, or if providing an estimate would harm an 
interest protected by an applicable exemption.
    (2) Requesters can appeal an agency determination to withhold all 
or part of any requested record; a determination that a requested 
record does not exist or cannot be located; a determination that what 
has been requested is not a record subject to the Act; a disapproval of 
a fee category claim by a requester; denial of a fee waiver or 
reduction; or a denial of a request for expedited treatment (see Sec.  

Sec.  612.7  Exemptions.

    (a) Exemptions from disclosure. The following types of records or 
information may be withheld as exempt in full or in part from mandatory 
public disclosure:
    (1) Exemption 1--5 U.S.C. 552(b)(1). Records specifically 
authorized and properly classified pursuant to Executive Order to be 
kept secret in the interest of national defense or foreign policy. NSF 
does not have classifying authority and normally does not deal with 
classified materials.
    (2) Exemption 2--5 U.S.C. 552(b)(2). Records related solely to the 
internal personnel rules and practices of NSF. This exemption primarily 
protects information that if released would allow the recipient to 
circumvent a statute or agency regulation. Administrative information 
such as rules relating to the work hours, leave, and working conditions 
of NSF personnel, or similar matters, can be disclosed to the extent 
that no harm would be caused to the functions to which the information 
pertains. Examples of records exempt from disclosure include, but are 
not limited to:
    (i) Operating rules, guidelines, manuals on internal procedure, 
schedules and methods utilized by NSF investigators, inspectors, 
auditors and examiners.
    (ii) Negotiating positions or limits at least until the execution 
of a contract (including a grant or cooperative agreement) or the 
completion of the action to which the negotiating positions were 
applicable. They may also be exempt pursuant to other provisions of 
this section.
    (iii) Information relating to position management and manpower 
utilization, such as internal staffing plans, authorizations or 
controls, or involved in determination of the qualifications of 
candidates for employment, advancement, or promotion including 
examination questions and answers.
    (iv) Computer software, the release of which would allow 
circumvention of a statute or NSF rules, regulations, orders, manuals, 
directives, instructions, or procedures; or the integrity and security 
of data systems.
    (3) Exemption 3--5 U.S.C. 552(b)(3). Records specifically exempted 
from disclosure by another statute that either requires that the 
information be withheld in such a way that the agency has no discretion 
in the matter; or establishes particular criteria for withholding or 
refers to particular types of information to be withheld. Examples of 
records exempt from disclosure include, but are not limited to:
    (i) Trade secrets, processes, operations, style of work, or 
apparatus; or the confidential statistical data, type, amount, or 
source of any income, profits, losses, or expenditures of any person, 
firm, partnership, corporation or association, 18 U.S.C. 1905;
    (ii) Records that disclose any invention in which the Federal 
Government owns or may own a right, title, or interest (including a 
nonexclusive license), 35 U.S.C. 205;
    (iii) Contractor proposals not specifically set forth or 
incorporated by reference into a contract, 41 U.S.C. 253b(m);
    (iv) Information protected by the Procurement Integrity Act, 41 
U.S.C. 423.
    (4) Exemption 4--5 U.S.C. 552(b)(4). Trade secrets and commercial 
or financial information obtained from a person, and privileged or 
confidential. Information subject to this exemption is that customarily 
held in confidence by the originator(s), including nonprofit 
organizations and their employees. Release of such information is 
likely to cause substantial harm to the competitive position of the 
originator or submitter, or impair the Foundation's ability to obtain 
such information in the future. NSF will process information 
potentially exempted from disclosure by Exemption 4 under Sec.  612.8. 
Examples of information exempt from disclosure include, but are not 
limited to:
    (i) Information received in confidence, such as grant applications, 
fellowship applications, and research proposals prior to award;
    (ii) Confidential scientific and manufacturing processes or 
developments, and technical, scientific, statistical data or other 
information developed by a grantee.
    (iii) Technical, scientific, or statistical data, and commercial or 
financial information privileged or received in confidence from an 
existing or potential contractor or subcontractor, in connection with 
bids, proposals, or contracts, concerning contract performance, income, 
profits, losses, and expenditures, as well as trade secrets, 
inventions, discoveries, or other proprietary data. When the provisions 
of 41 U.S.C. 253b(m) or 41 U.S.C. 423 are met, certain proprietary and 
source selection information may also be withheld under Exemption 3.
    (iv) Confidential proprietary information submitted on a voluntary 
    (v) Statements or information collected in the course of 
inspections, investigations, or audits, when such statements are 
received in confidence from the individual and retained in confidence 
because they reveal trade secrets or commercial or financial 
information normally considered confidential or privileged.
    (5) Exemption 5--5 U.S.C. 552(b)(5). Inter-agency or intra-agency 
memoranda or letters which would not be available by law to a private 
party in litigation with NSF. Factual material contained in such 
records will be considered for release if it can be reasonably 
segregated and is not otherwise exempt. Examples of records exempt from 
disclosure include, but are not limited to:
    (i) Reports, memoranda, correspondence, work papers, minutes of 
meetings, and staff papers, containing evaluations, advice, opinions, 
suggestions, or other deliberative material that are prepared for use 
within NSF or within the Executive Branch of the Government by agency 
personnel and others acting in a consultant or advisory capacity;
    (ii) Advance information on proposed NSF plans to procure, lease, 
or otherwise acquire, or dispose of materials, real estate, facilities, 
services or functions, when such information would provide undue or 
unfair competitive advantage to private interests or impede legitimate 
government functions;
    (iii) Trade secret or other confidential research development, or 
commercial information owned by the Government, where premature release 
is likely to affect the Government's negotiating position or other 
commercial interest;
    (iv) Records prepared for use in proceedings before any Federal or 
State court or administrative body;
    (v) Evaluations of and comments on specific grant applications, 
research projects or proposals, or potential contractors and their 
products, whether

[[Page 16819]]

made by NSF personnel or by external reviewers acting either 
individually or in panels, committees or similar groups;
    (vi) Preliminary, draft or unapproved documents, such as opinions, 
recommendations, evaluations, decisions, or studies conducted or 
supported by NSF;
    (vii) Proposed budget requests, and supporting projections used or 
arising in the preparation and/or execution of a budget; proposed 
annual and multi-year policy, priorities, program and financial plan 
and supporting papers;
    (viii) Those portions of official reports of inspection, reports of 
the Inspector General, audits, investigations, or surveys pertaining to 
safety, security, or the internal management, administration, or 
operation of NSF, when these records have traditionally been treated by 
the courts as privileged against disclosure in litigation.
    (6) Exemption 6--5 U.S.C. 552(b)(6). Personnel and medical files 
and similar files, the disclosure of which would constitute a clearly 
unwarranted invasion of personal privacy. The exemption applies to 
living persons and to family members of a deceased person identified in 
a record. Information in such files which is not otherwise exempt from 
disclosure pursuant to other provisions of this section will be 
released to the subject or to his designated legal representative, and 
may be disclosed to others with the subject's written consent. Examples 
of records exempt from disclosure include, but are not limited to:
    (i) Reports, records, and other materials pertaining to individual 
cases in which disciplinary or other administrative action has been or 
may be taken. Opinions and orders resulting from those administrative 
or disciplinary proceedings shall be disclosed without identifying 
details if used, cited, or relied upon as precedent.
    (ii) Records compiled to evaluate or adjudicate the suitability of 
candidates for employment, and the eligibility of individuals (civilian 
or contractor employees) for security clearances, or for access to 
classified information.
    (iii) Reports and evaluations which reflect upon the qualifications 
or competence of individuals.
    (iv) Personal information such as home addresses and telephone and 
facsimiles numbers, private e-mail addresses, social security numbers, 
dates of birth, marital status and the like.
    (v) The exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest.
    (7) Exemption 7--5 U.S.C. 552(b)(7). Records or information 
compiled for civil or criminal law enforcement purposes, including the 
implementation of Executive Orders or regulations issued pursuant to 
law. This exemption may exempt from mandatory disclosure records not 
originally created, but later gathered, for law enforcement purposes.
    (i) This exemption applies only to the extent that the production 
of such law enforcement records or information:
    (A) Could reasonably be expected to interfere with enforcement 
    (B) Would deprive a person of the right to a fair trial or an 
impartial adjudication;
    (C) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy of a living person, or family members of a 
deceased person identified in a record;
    (D) Could reasonably be expected to disclose the identity of a 
confidential source, including a source within the Federal Government, 
or a State, local, or foreign agency or authority, or any private 
institution, that furnished information on a confidential basis; and 
information furnished by a confidential source and obtained by a 
criminal law enforcement authority in a criminal investigation;
    (E) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law, or
    (F) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (ii) Examples of records exempt from disclosure include, but are 
not limited to:
    (A) The identity and statements of complainants or witnesses, or 
other material developed during the course of an investigation and all 
materials prepared in connection with related government litigation or 
adjudicative proceedings;
    (B) The identity of firms or individuals investigated for alleged 
irregularities involving NSF grants, contracts or other matters when no 
indictment has been obtained, no civil action has been filed against 
them by the United States, or no government-wide public suspension or 
debarment has occurred.
    (C) Information obtained in confidence, expressed or implied, in 
the course of a criminal investigation by the NSF Officer of the 
Inspector General.
    (iii) The exclusions contained in 5 U.S.C. 552(c)(1) and (2) may 
also apply to these records.
    (8) Exemption 8--5 U.S.C. 552(b)(8). Records contained in or 
related to examination, operating, or condition reports prepared by, on 
behalf of, or for the use of any agency responsible for the regulation 
or supervision of financial institutions.
    (9) Exemption 9--5 U.S.C. 552(b)(9). Records containing geological 
and geophysical information and data, including maps, concerning wells.
    (b) Deletion of exempt portions and identifying details. Any 
reasonably segregable portion of a record will be provided to 
requesters after deletion of the portions which are exempt. Whenever 
any final opinion, order, or other materials required to be made 
available relates to a private party or parties and the release of the 
name(s) or other identifying details will constitute a clearly 
unwarranted invasion of personal privacy, the record shall be published 
or made available with such identifying details left blank, or shall be 
published or made available with obviously fictitious substitutes and 
with a notification such as the following: Names of parties and certain 
other identifying details have been removed (and fictitious names 
substituted) in order to prevent a clearly unwarranted invasion of the 
personal privacy of the individuals involved.

Sec.  612.8  Business information.

    (a) In general. Business information obtained by the Foundation 
from a submitter of that information will be disclosed under the FOIA 
only under this section's procedures.
    (b) Definitions. For purposes of this section:
    (1) Business Information means commercial or financial information 
obtained by the Foundation from a submitter that may be protected from 
disclosure under Exemption 4 of the FOIA and Sec.  612.7(a)(4).
    (2) Submitter means any person or entity from whom the Foundation 
obtains business information, directly or indirectly. The term includes 
corporations; state, local, and tribal governments; and foreign 
    (c) Designation of business information. A submitter of business 
information must use good faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under Exemption 4. These designations will 
expire ten years after the date of the submission unless the submitter

[[Page 16820]]

requests, and provides justification for, a longer designation period.
    (d) Notice to submitters. The Foundation will provide a submitter 
with prompt written notice of a FOIA request or administrative appeal 
that seeks its business information wherever required under this 
section, in order to give the submitter an opportunity to object to 
disclosure of any specified portion of that information under paragraph 
(f) of this section. The notice shall either describe the business 
information requested or include copies of the requested records or 
record portions containing the information.
    (e) Where notice is required. Notice will be given to a submitter 
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) The Foundation has reason to believe that the information may 
be protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. NSF will allow a submitter 
a reasonable time, consistent with statutory requirements, to respond 
to the notice described in paragraph (d) of this section. If a 
submitter has any objection to disclosure, it must submit a detailed 
written statement. The statement must specify all grounds for 
withholding any portion of the information under any exemption of the 
FOIA and, in the case of Exemption 4, must show why the information is 
a trade secret, or commercial or financial information that is 
privileged or confidential. In the event that a submitter fails to 
respond within the time specified in the notice, the submitter will be 
considered to have no objection to disclosure of the information. 
Information provided by a submitter under this paragraph may itself be 
a record subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. The Foundation will consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose business information. Whenever it decides 
to disclose business information over the objection of a submitter, the 
Foundation will give the submitter written notice, which will include:
    (1) A statement of the reason(s) why the submitter's disclosure 
objections were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which will be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section will not apply if:
    (1) The Foundation determines that the information should not be 
disclosed (the Foundation protects from disclosure to third parties 
information about specific unfunded applications, including pending, 
withdrawn, or declined proposals);
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other 
than the FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous, in which case the Foundation 
will, within a reasonable time prior to a specified disclosure date, 
give the submitter written notice of any final decision to disclose the 
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, the 
Foundation will promptly notify the submitter(s). Whenever a submitter 
files a lawsuit seeking to prevent the disclosure of business 
information, the Foundation will notify the requester(s).

Sec.  612.9  Appeals.

    (a) Appeals of denials. You may appeal a denial of your request to 
the General Counsel, National Science Foundation, 4201 Wilson 
Boulevard, Suite 1265, Arlington, VA 22230. You must make your appeal 
in writing and it must be received by the Office of the General Counsel 
within ten days of the receipt of the denial (weekends, legal holidays, 
and the date of receipt excluded). Clearly mark your appeal letter and 
the envelope ``Freedom of Information Act Appeal.'' Your appeal letter 
must include a copy of your written request and the denial together 
with any written argument you wish to submit.
    (b) Responses to appeals. A written decision on your appeal will be 
made by the General Counsel. A decision affirming an adverse 
determination in whole or in part will contain a statement of the 
reason(s) for the affirmance, including any FOIA exemption(s) applied, 
and will inform you of the FOIA provisions for court review of the 
decision. If the adverse determination is reversed or modified on 
appeal, in whole or in part, you will be notified in a written decision 
and your request will be reprocessed in accordance with that appeal 
    (c) When appeal is required. If you wish to seek review by a court 
of any denial, you must first appeal it under this section.

Sec.  612.10  Fees.

    (a) In general. NSF will charge for processing requests under the 
FOIA in accordance with paragraph (c) of this section, except where 
fees are limited under paragraph (d) of this section or where a waiver 
or reduction of fees is granted under paragraph (k) of this section. If 
fees are applicable, NSF will itemize the amounts charged. NSF may 
collect all applicable fees before sending copies of requested records 
to a requester. Requesters must pay fees by check or money order made 
payable to the Treasury of the United States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include 
furthering those interests through litigation. When it appears that the 
requester will put the records to a commercial use, either because of 
the nature of the request itself or because NSF has reasonable cause to 
doubt a requester's stated use, NSF will provide the requester a 
reasonable opportunity to submit further clarification.
    (2) Direct costs means those expenses that an agency actually 
incurs in searching for and duplicating (and, in the case of commercial 
use requests, reviewing) records to respond to a FOIA request. Direct 
costs include, for example, the salary of the employee performing the 
work (the basic rate of pay for the employee, plus 16 percent of that 
rate to cover benefits) and the cost of operating duplication 
machinery. Not included in direct costs are overhead expenses such as 
the costs of space and heating or lighting of the facility in which the 
records are kept.
    (3) Duplication means the making of a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, microform, audiovisual materials, or 
electronic records (for example, magnetic tape or disk) among others. 
NSF will honor a requester's specified preference of form or format of 
disclosure if the record is readily reproducible by NSF, with 
reasonable effort, in the requested form or format.
    (4) Educational institution means a preschool, a public or private 
elementary or secondary school, an

[[Page 16821]]

institution of undergraduate higher education, an institution of 
graduate higher education, an institution of professional education, or 
an institution of vocational education, that operates a program of 
scholarly research. To be in this category, a requester must show that 
the request is authorized by and made under the auspices of a 
qualifying institution and that the records are not sought for a 
commercial use, but are sought to further scholarly research.
    (5) Noncommercial scientific institution means an institution that 
is not operated on a ``commercial'' basis, as that term is defined in 
paragraph (b)(1) of this section, and that is operated solely for the 
purpose of conducting scientific research, the results of which are not 
intended to promote any particular product or industry. To be in this 
category, a requester must show that the request is authorized by and 
made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use or to promote any 
particular product or industry, but are sought to further scientific 
    (6) Representative of the news media or news media requester means 
any person actively gathering news for an entity that is organized and 
operated to publish or broadcast news to the public. The term ``news'' 
means information that is about current events or that would be of 
current interest to the public. Examples of news media entities include 
television or radio stations broadcasting to the public at large and 
publishers of periodicals (but only in those instances where they can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public. For ``freelance'' 
journalists to be regarded as working for a news organization, they 
must demonstrate a solid basis for expecting publication through that 
organization. A publication contract would be the clearest proof, but 
the Agency or the OIG, as appropriate, shall also look to the past 
publication record of a requester in making this determination. To be 
in this category, a requester must not be seeking the requested records 
for a commercial use. However, a request for records supporting the 
news-dissemination function of the requester shall not be considered to 
be for a commercial use.
    (7) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt 
from disclosure. It also includes processing any record for disclosure, 
for example, doing all that is necessary to redact it and prepare it 
for disclosure. Review costs are recoverable even if a record 
ultimately is not disclosed. Review time includes time spent 
considering any formal objection to disclosure made by a business 
submitter under Sec.  612.8, but does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    (8) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes page by page or 
line by line identification of information within records and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format. NSF will ensure that 
searches are done in the most efficient and least expensive manner 
reasonably possible. For example, NSF will not search line by line 
where duplicating an entire document would be quicker and less 
    (c) Fees. In responding to FOIA requests, NSF will charge the 
following fees unless a waiver or reduction of fees has been granted 
under paragraph (k) of this section:
    (1) Search. (i) Search fees will be charged for all requests--other 
than requests made by educational institutions, noncommercial 
scientific institutions, or representatives of the news media--subject 
to the limitations of paragraph (d) of this section. NSF may charge for 
time spent searching even if responsive records are not located or are 
withheld entirely as exempt from disclosure.
    (ii) Manual searches for records. Whenever feasible, NSF will 
charge at the salary rate(s) (i.e., basic pay plus 16 percent) of the 
employee(s) conducting the search. Where a homogeneous class of 
personnel is used exclusively (e.g., all administrative/clerical or all 
professional/executive), NSF has established an average rate for the 
range of grades typically involved. Routine search for records by 
clerical personnel are charged at $2.50 for each quarter hour. When a 
non-routine, non-clerical search by professional personnel is conducted 
(for example, where the task of determining which records fall within a 
request requires professional time) the charge is $7.50 for each 
quarter hour.
    (iii) Computer searches of records. NSF will charge at the actual 
direct cost of conducting the search. This will include the cost of 
computer operations for that portion of operating time that is directly 
attributable to searching for records responsive to a FOIA request and 
operator/programmer salary (i.e., basic pay plus 16 percent) 
apportionable to the search. When NSF can establish a reasonable 
agency-wide average rate for computer operating costs and operator/
programmer salaries involved in FOIA searches, the Foundation will do 
so and charge accordingly.
    (2) Duplication. Duplication fees will be charged to all 
requesters, subject to the limitations of paragraph (d) of this 
section. For a paper photocopy of a record (no more than one copy of 
which need be supplied), the fee will be 25 cents per page. For copies 
produced by computer, such as tapes or printouts, NSF will charge the 
direct costs, including operator time, of producing the copy. For other 
forms of duplication, NSF will charge the direct costs of that 
    (3) Review. Review fees will be charged to requesters who make a 
commercial use request. Review fees will be charged only for the 
initial record review--in other words, the review done when NSF 
determines whether an exemption applies to a particular record or 
record portion at the initial request level. NSF may charge for review 
even if a record ultimately is not disclosed. No charge will be made 
for review at the administrative appeal level for an exemption already 
applied. However, records or record portions withheld under an 
exemption that is subsequently determined not to apply may be reviewed 
again to determine whether any other exemption not previously 
considered applies; the costs of that review are chargeable where it is 
made necessary by a change of circumstances. Review fees will be 
charged at the salary rate (basic pay plus 16%) of the employee(s) 
performing the review.
    (d) Limitations on charging fees. (1) No search fee will be charged 
for requests by educational institutions, noncommercial scientific 
institutions, or representatives of the news media.
    (2) Except for requesters seeking records for a commercial use, NSF 
will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent); 
    (ii) The first two hours of search (or the cost equivalent).
    (3) Whenever a total fee calculated under paragraph (c) of this 
section is $25.00 or less for any request, no fee will be charged.
    (4) The provisions of paragraphs (d) (2) and (3) of this section 
work together. This means that noncommercial requesters will be charged 
no fees unless the cost of search in excess of two hours plus the cost 
of duplication in excess of 100 pages totals more than $25.00. 
Commercial requesters will not be charged unless the costs of search, 
review, and duplication total more than $25.00.

[[Page 16822]]

    (e) Notice of anticipated fees in excess of $25.00. When NSF 
determines or estimates that the fees to be charged under this section 
will exceed $25.00, it will notify the requester of the actual or 
estimated amount of the fees, unless the requester has indicated a 
willingness to pay fees as high as those anticipated. If only a portion 
of the fee can be estimated readily, NSF will advise the requester that 
the estimated fee may be only a portion of the total fee. In cases in 
which a requester has been notified that actual or estimated fees 
exceed $25.00, the request will not be considered perfected and further 
work will not be done until the requester agrees to pay the anticipated 
total fee. Any such agreement should be memorialized in writing. A 
notice under this paragraph will offer the requester an opportunity to 
discuss the matter with Foundation personnel in order to reformulate 
the request to meet the requester's needs at a lower cost, if possible. 
If a requester fails to respond within 60 days of notice of actual or 
estimated fees with an agreement to pay those fees, NSF may 
administratively close the request.
    (f) Charges for other services. Apart from the other provisions of 
this section, when NSF chooses as a matter of administrative discretion 
to provide a requested special service--such as certifying that records 
are true copies or sending them by other than ordinary mail--the direct 
costs of providing the service will be charged to the requester.
    (g) Charging interest. NSF may charge interest on any unpaid bill 
starting on the 31st day following the date of billing the requester. 
Interest charges will be assessed at the rate provided in 31 U.S.C. 
3717 and will accrue from the date of the billing until payment is 
received by NSF. NSF will follow the provisions of the Debt Collection 
Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its 
administrative procedures, including the use of consumer reporting 
agencies, collection agencies, and offset.
    (h) Aggregating requests. Where NSF reasonably believes that a 
requester or a group of requesters acting together is attempting to 
divide a request into a series of requests for the purpose of avoiding 
fees, the agency may aggregate those requests and charge accordingly. 
NSF may presume that multiple requests of this type made within a 30-
day period have been made in order to avoid fees. Where requests are 
separated by a longer period, NSF will aggregate them only where there 
exists a solid basis for determining that aggregation is warranted 
under all the circumstances involved. Multiple requests involving 
unrelated matters will not be aggregated.
    (i) Advance payments. (1) For requests other than those described 
in paragraphs (i)(2) and (3) of this section, NSF will not require the 
requester to make an advance payment--in other words, a payment made 
before work is begun or continued on a request. Payment owed for work 
already completed (i.e., a prepayment before copies are sent to a 
requester) is not an advance payment.
    (2) Where NSF determines or estimates that a total fee to be 
charged under this section will be more than $250.00, it may require 
the requester to make an advance payment of an amount up to the amount 
of the entire anticipated fee before beginning to process the request, 
except where it receives a satisfactory assurance of full payment from 
a requester that has a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged fee to any agency within 30 days of the date of billing, NSF 
may require the requester to pay the full amount due, plus any 
applicable interest, and to make an advance payment of the full amount 
of any anticipated fee, before NSF begins to process a new request or 
continues to process a pending request from that requester.
    (4) In cases in which NSF requires advance payment or payment due 
under paragraph (i)(2) or (3) of this section, the request will not be 
considered perfected and further work will not be done on it until the 
required payment is received.
    (j) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. Where records responsive to requests 
are maintained for distribution by agencies operating such statutorily 
based fee schedule programs, NSF will inform requesters of the steps 
for obtaining records from those sources so that they may do so most 
    (k) Waiver or reduction of fees. (1) Records responsive to a 
request will be furnished without charge or at a charge reduced below 
that established under paragraph (c) of this section where NSF 
determines, based on all available information, that disclosure of the 
requested information is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the government and is not primarily in the commercial 
interest of the requester.
    (2) To determine whether the first fee waiver requirement is met, 
NSF will consider the following factors:
    (i) The subject of the request: Whether the subject of the 
requested records concerns ``the operations or activities of the 
government.'' The subject of the requested records must concern 
identifiable operations or activities of the federal government, with a 
connection that is direct and clear, not remote or attenuated.
    (ii) The informative value of the information to be disclosed: 
Whether disclosure is ``likely to contribute'' to an understanding of 
government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. 
Disclosure of information already in the public domain, in either 
duplicative or substantially identical form, is unlikely to contribute 
to such understanding where nothing new would be added to the public's 
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will contribute to ``public understanding.'' The 
disclosure must contribute to the understanding of a reasonably broad 
audience of persons interested in the subject as opposed to the 
individual understanding of the requester. A requester's expertise in 
the subject area and ability and intention to effectively convey 
information to the public will be considered. A representative of the 
news media as defined in paragraph (b)(6) of this section will normally 
be presumed to satisfy this consideration.
    (iv) The significance of the contribution to public understanding: 
Whether disclosure is likely to contribute ``significantly'' to public 
understanding of government operations or activities. The public's 
understanding of the subject in question must be enhanced by the 
disclosure to a significant extent as compared to the level of public 
understanding existing prior to the disclosure. NSF will make no value 
judgments about whether information that would contribute significantly 
to public understanding of the operations or activities of the 
government is ``important'' enough to be made public.
    (3) To determine whether the second fee waiver requirement is met, 
NSF will consider the following factors:
    (i) The existence and magnitude of a commercial interest: Whether 

[[Page 16823]]

requester has a commercial interest that would be furthered by the 
requested disclosure. NSF will consider any commercial interest of the 
requester (with reference to the definition of ``commercial use'' in 
paragraph (b)(1) of this section), or of any person on whose behalf the 
requester may be acting, that would be furthered by the requested 
disclosure. Requesters will be given an opportunity in the 
administrative process to provide explanatory information regarding 
this consideration.
    (ii) The primary interest in disclosure: Whether any identified 
commercial interest of the requester is sufficiently large, in 
comparison with the public interest in disclosure, that disclosure is 
``primarily in the commercial interest of the requester.'' A fee waiver 
or reduction is justified where the public interest standard is 
satisfied and that public interest is greater in magnitude than that of 
any identified commercial interest in disclosure. NSF ordinarily will 
presume that where a news media requester has satisfied the public 
interest standard, the public interest will be the interest primarily 
served by disclosure to that requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return will not be presumed to primarily serve the public 
    (4) Where only some of the requested records satisfy the 
requirements for a waiver of fees, a waiver will be granted for those 
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (k)(2) and (3) of this section, insofar as 
they apply to each request.

Sec.  612.11  Other rights and services.

    Nothing in this part will be construed to entitle any person, as of 
right, to any service or to the disclosure of any record to which such 
person is not entitled under the FOIA.

    Dated: April 7, 2009.
Amy Northcutt,
Deputy General Counsel.
[FR Doc. E9-8262 Filed 4-10-09; 8:45 am]