[Code of Federal Regulations]
[Title 45, Volume 3, Parts 500 to 1199]
[Revised as of October 1, 1996]
From the U.S. Government Printing Office via GPO Access
[CITE: 45CFR612]
[Page 122-133]
TITLE 45--PUBLIC WELFARE
CHAPTER VI--NATIONAL SCIENCE FOUNDATION
PART 612--AVAILABILITY OF RECORDS AND INFORMATION
Sec.
612.1 Scope.
612.2 Information policy.
612.3 Procedures applicable to the public--requests and appeals.
612.4 Copies of records.
612.5 Creation of records.
612.6 Confidential commercial information--notice.
612.7 Agency actions on receipt of a properly presented request for
record.
612.8 Records not available.
612.9 Fees to be charged--definitions.
612.10 Fees to be charged--general.
612.11 Fees to be charged--categories of requesters.
612.12 Administrative actions to improve assessment and collection of
fees.
612.13 Waivers or reductions.
Authority: 5 U.S.C. 552, as amended.
Sec. 612.1 Scope.
This part establishes procedures by which the National Science
Foundation (NSF) will implement the Freedom of Information Act, 5 U.S.C.
552(a), relating to public availability of NSF records.
[56 FR 47415, Sept. 19, 1991]
Sec. 612.2 Information policy.
(a) Subject to the policies set forth below, NSF will make the
fullest possible disclosure of information to any person who requests
information, without unnecessary expenses or delay. The Inspector
General (concerning records maintained by the Office of Inspector
General) or the Deputy Director (concerning all other NSF records) may,
except where prohibited by law, order disclosure in the public interest
of records exempt from mandatory disclosure under Sec. 612.8 of this
part.
(b) A collection of NSF policy documents, staff instructions, and of
agency opinions and orders in the adjudication of cases, with respective
indices, shall be physically located in the National Science Foundation
library at 4201 Wilson Boulevard, Arlington, VA, where they will be
available for inspection by the public during regular working hours on
Monday through Friday. Copies of such documents shall be furnished in
accordance with these regulations.
(c) The Director, Office of Information and Resource Management (D/
IRM) shall be responsible for maintaining, publishing, distributing and
making available for inspection and copying the current indexes and
supplements thereto which are required by 5 U.S.C. 552(a)(2). Such
indexes shall promptly be published, quarterly or more frequently,
unless the D/IRM determines by order published in the Federal Register
that the publication would be unnecessary. The fee for furnishing copies
of indexes and supplements shall not exceed the direct cost of
duplication.
[40 FR 12793, Mar. 21, 1975, as amended at 49 FR 23049, June 4, 1984; 49
FR 37595, Sept. 25, 1984; 56 FR 47416, Sept. 19, 1991; 59 FR 37437,
37438, July 22, 1994]
Sec. 612.3 Procedures applicable to the public--requests and appeals.
(a) 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. Such publications may be obtained from the Government
Printing Office, the National Technical Information Service, the NSF
Forms and Publications Unit or NSF grantees or contractors. Requests for
such publications will be referred to or the requester informed of the
appropriate source. The booklet, Publications of the National Science
Foundation, which is available without charge from Forms and
Publications, National Science Foundation, 4201 Wilson Boulevard,
Arlington, VA 22230, identifies Annual Reports, Descriptive Brochures,
Program Announcements, Science Resources Studies, Special Studies, and
Periodicals descriptive of Foundation activities, policies, and
procedures, sets forth the cost of each, and tells how copies may be
obtained.
(b) Form of request. A request need not be in any particular format,
but it: (1) Must be in writing and include the requester's mailing
address, (2) must be clearly identified both on the envelope and in the
letter as a Freedom of Information Act or FOIA request, (3) must
[[Page 123]]
describe the records sought with sufficient specificity to permit
identification, and (4) must state that the requester promptly will pay
the fees chargeable under this regulation. Provided, however, that when
the requester places an inadequate limit on the amount he will pay or
the requester has failed to make payments for previous requests, the NSF
may require advance payment in accordance with Sec. 612.12(d) of this
part except in cases when fees have been waived or reduced in accordance
with Sec. 612.13 of this part.
(c) Place of request. Any request for records under FOIA shall be
addressed to the National Science Foundation, Office of General Counsel,
4201 Wilson Boulevard, Arlington, VA 22230, except that requests for
records maintained by the Office of the Inspector General may be
addressed to either the Office of General Counsel, National Science
Foundation, 4201 Wilson Boulevard, Arlington, VA 22230 or to the Office
of the Inspector General, National Science Foundation, 4201 Wilson
Boulevard, Arlington, VA 22230. A request which meets the requirements
of paragraph (b) of this section and is properly addressed will be
deemed received on the date of arrival in the Office of General Counsel
or the Office of the Inspector General.
(d) Time for appeal. A person whose request has been denied or
partially denied may initiate an appeal by filing a request for review
within ten days of the receipt of the denial, Saturdays, Sundays, legal
public holidays, and the date of receipt excluded.
(e) Form of appeal. The appeal shall include a copy of the written
request and the denial together with any written argument the requester
wishes to submit, and shall be signed by the requester.
(f) To whom appeal is made. An appeal shall be addressed to the
General Counsel, National Science Foundation, 4201 Wilson Boulevard,
Arlington, VA 22230.
(g) Decisions on appeal. Decisions on appeal shall be made by the
General Counsel in writing within 20 days (excepting the date of
receipt, Saturdays, Sundays, and legal public holidays) from receipt of
the appeal. If the decision is in favor of the requester it shall order
the record made available promptly to the requester. If adverse to the
requester in whole or in part it shall briefly state the reasons and
notify the requester that he may seek judicial review of the decision
pursuant to paragraph (4) of section 552(a), title 5, United States
Code.
[40 FR 12793, Mar. 21, 1975, as amended at 49 FR 23049, June 4, 1984; 56
FR 47416, Sept. 19, 1991; 59 FR 37438, July 22, 1994; 61 FR 51022, Sept.
30, 1996]
Sec. 612.4 Copies of records.
If a requested record is to be disclosed, a copy will be furnished
the requester as promptly as possible provided payment of fees has been
arranged, or has been waived pursuant to Sec. 612.13 of this part.
Records will not be released for copying.
[56 FR 47416, Sept. 19, 1991]
Sec. 612.5 Creation of records.
A record will not be created by compiling selected items from other
documents at the request of a member of the public nor will a record be
created by analysis, computation or other processing specifically for
the requesting party. If such analysis or computation is available in
the form of a record, copies shall be made available as provided in this
regulation.
[40 FR 12793, Mar. 21, 1975]
Sec. 612.6 Confidential commercial information--notice.
(a) In general. Commercial information provided to the NSF by a
submitter shall not be disclosed pursuant to a Freedom of Information
Act request except in accordance with this section.
(b) Definitions. The following definitions are used in reference to
this section:
Commercial information means information provided to the NSF by a
submitter that arguably is protected from disclosure under section b(4)
of the Freedom of Information Act, 5 U.S.C. 552(b)(4) and
Sec. 612.8(a)(4) of this part.
Submitter means any person, organization, or entity who provides
commercial information, directly or indirectly, to the NSF. The term
includes, but is not limited to, corporations, state governments and
foreign governments.
[[Page 124]]
(c) Designation of commercial information. Submitters of commercial
information shall use good-faith efforts to designate, by appropriate
markings, either at the time of submission or within a reasonable time
thereafter, those portions of their submissions which they deem to be
protected from disclosure under 5 U.S.C. 552(b)(4) and Sec. 612.8(a)(4)
of this part. Such designations shall be deemed to have expired ten
years after the date of the submission unless the submitter requests,
and provides reasonable justification for, a designation period of
greater duration.
(d) Notice to submitters. The NSF shall, to the extent permitted by
law, provide a submitter with written notice of a Freedom of Information
Act request or administrative appeal encompassing its commercial
information wherever required under paragraph (e) of this section,
except as provided for in paragraph (f) of this section. Such written
notice, given in order to afford the submitter an opportunity to object
to disclosure pursuant to paragraph (g) of this section, shall be given
within a reasonable time after NSF's receipt of the Freedom of
Information Act request or administrative appeal, consistent with
statutory requirements, and shall either describe the exact nature of
the commercial information requested or provide copies of the records or
portions thereof containing the information. The requester also shall be
notified that notice and an opportunity to object are being provided to
a submitter.
(e) When notice is required. Notice shall be given to a submitter
whenever:
(1) The information has been designated in good faith by the
submitter as information deemed protected from disclosure under 5 U.S.C.
552(b)(4) and Sec. 612.8(a)(4) of this part, or
(2) The NSF has reason to believe that the information may be
protected from disclosure under 5 U.S.C. 552(b)(4) and Sec. 612.8(a)(4)
of this part.
(f) Exceptions to notice requirements. The notice requirements of
paragraph (d) of this section shall not apply if:
(1) The NSF determines that the information should not be disclosed;
(2) The information lawfully has been published or has been
officially made available to the public;
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552); or
(4) The designation made by the submitter in accordance with
paragraph (c) of this section appears obviously frivolous, except that,
in such case, the NSF shall send to the submitter written notice of any
final administrative decision to disclose commercial information at
least ten days prior to a specified disclosure date.
(g) Opportunity to object to disclosure. Through the notice
described in paragraph (d) of this section, the NSF shall afford a
submitter a reasonable time, consistent with statutory requirements,
within which to provide the NSF with a detailed written statement of any
objection to disclosure. Such statement shall specify all grounds for
withholding any of the information under any exemption of the Freedom of
Information Act and, in the case of 5 U.S.C. 552(b)(4) and
Sec. 612.8(a)(4) of this part, shall provide a detailed description of
why the information is a trade secret or commercial or financial
information that is privileged or confidential. This description shall
explain why release of commercial or financial information would cause
substantial harm to the competitive position of the submitter. Whenever
possible, the submitter's claim of confidentiality should be supported
by a statement or certification by an officer or authorized
representative of the submitter. Information provided by a submitter
pursuant to this paragraph may itself be subject to disclosure under the
FOIA. When the submitter fails to object within the specified time or
the objection appears obviously frivolous, the NSF shall provide the
submitter with written notice pursuant to paragraph (f)(4) of this
section.
(h) Notice of intent to disclose. The NSF shall consider a
submitter's objections and specific grounds for non-disclosure prior to
determining whether to disclose confidential information. Whenever the
Foundation decides to disclose confidential information over the
objection of a submitter, the NSF shall forward to the submitter a
written notice which shall include:
[[Page 125]]
(1) A statement of the reasons for which the submitter's disclosure
objections wee not sustained;
(2) A description of the confidential information to be disclosed;
and
(3) A specified disclosure date.
Such notice of intent to disclose shall be forwarded to the submitter at
least ten days prior to the specified disclosure date and the requester
shall be notified likewise.
(i) Notice of FOIA lawsuit. Whenever a requester brings suit seeking
to compel disclosure of confidential information, the NSF shall promptly
notify the submitter.
[56 FR 47416, Sept. 19, 1991]
Sec. 612.7 Agency actions on receipt of a properly presented request
for record.
(a) Monitoring of requests. The NSF Office of General Counsel, or
such other office as may be designated by the Director, will serve as
the central office for internal administration of these regulations. For
records maintained by the Office of Inspector General, that Office will
control incoming requests made directly to it, dispatch response
letters, and maintain administrative records. For all other records
maintained by NSF, the Office of General Counsel, 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 unavoidable extensions,
dispatch denial and other letters, and maintain administrative records.
(b) Time for response. The Foundation will seek to take appropriate
agency action on a request within 10 days of its receipt (excepting the
date of receipt, Saturdays, Sundays, and legal public holidays). If the
record may exist only in a retired file which has been placed in storage
or there is otherwise a need to search for and collect the requested
records from field facilities or other establishments that are separate
from the Foundation, NSF shall immediately notify the requester by
letter that the record has been ordered from storage (or is otherwise
being sought) and that the time limit for acting on the request is
extended by the length of time required to obtain the record. The letter
will also give the date on which a determination is expected to be
dispatched. If the request seeks a voluminous amount of separate and
distinct records requiring an unusual length of time for search,
collection, and appropriate examination, and determination on the
request cannot be made within 10 working days after agency receipt, NSF
shall within such ten-day period furnish to the requester written notice
extending the period for not more than ten working days. This notice
shall set forth the reasons for such extension and the date on which a
determination is expected to be dispatched. If the record has not been
obtained and examined and notice of the determination whether to comply
with the request has not been given by the last day of the period as
extended, the requester shall be notified on that last day that the
request is denied because the record has not yet been found and
examined. Such denial shall state that NSF will reconsider the denial as
soon as the search and examination is complete, which should be within a
specifically stated number of days, but that the requester may, if he
wishes, file an administrative appeal as provided in Sec. 612.3 of this
regulation. This same procedure for extending the period shall be
followed if the nature of the record requires consultation with another
agency having a substantial interest in the determination of the request
or requires consultation among two or more components of NSF having
substantial subject-matter interest therein.
(c) Records containing commercial information. When the requested
record contains confidential commercial information such as a successful
proposal that was submitted to NSF, the NSF will normally contact, in
accordance with Sec. 612.6 of this part, the organization that submitted
the record in order to ask whether the submitter wished portions of the
records withheld under any applicable exemptions. (The Foundation
protects from disclosure pending proposals or unsuccessful proposals in
any case.)
(d) Denial of request No written request for records shall be denied
except by the Office of General Counsel, the
[[Page 126]]
Office of Inspector General or such other office as may be designated by
the Director. Notice of the denial of a request shall briefly set forth
the reasons therefor which shall be based solely upon one or more of the
exemptions specified in Sec. 612.8 of this part. Each notice of denial
shall set forth the names and title or positions of each person
responsible for the denial and shall inform the requester of the right
to appeal as provided in Sec. 612.3 of this part.
(e) Oral requests. Nothing in these regulations shall be deemed to
preclude NSF from honoring oral requests for information where feasible,
but if the requester is dissatisfied with the disposition of such a
request, he shall be asked to put the request in writing.
[40 FR 12793, Mar. 21, 1975, as amended at 49 FR 23050, June 4, 1984; 56
FR 47417, Sept. 19, 1991; 61 FR 51022, Sept. 30, 1996]
Sec. 612.8 Records not available.
(a) Exemptions. The following types of records are not normally
available for inspection and copying:
(1) Records specifically authorized and in fact properly classified
pursuant to Executive Order to be kept secret in the interest of
national defense or foreign policy.
(2) Records related solely to the internal personnel rules and
practices of NSF. This exemption does not apply to rules relating to the
work hours, leave, and working conditions of NSF personnel, or similar
matters, to the extent that they can be disclosed without harm to the
functions to which they pertain. Examples of exempt records of the type
specified in the first sentence of this paragraph include, but are not
limited to:
(i) Operating rules, guidelines, manuals on internal procedure,
schedules and methods utilized by NSF auditors and examiners;
(ii) Negotiating positions and limitations involved in a negotiation
prior to the execution of a contract or the completion of the action to
which the negotiating positions or limitations were applicable. They may
also be exempt pursuant to other provisions of this section.
(iii) Personnel policies, procedures and instructions, internal
staffing plans, requirements, authorizations, controls, and supporting
data relating to position management and manpower utilization and
information involved in the determination of the qualifications of
candidates for employment or advancement.
(3) Records specifically exempted from disclosure by statute such as
18 U.S.C. 1905 which prohibits disclosure of information which concerns
or relates to the trade secrets, processes, operations, style of work,
or apparatus or to the identity, confidential statistical data, amount
or source of any income, profits, losses, or expenditures of any person,
firm, partnership, corporation or association. This also includes
records that disclose any invention in which the Federal Government owns
or may own a right, title, or interest (including a nonexclusive
license) as provided in 35 U.S.C. 205.
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential. Matter subject to this
exemption is that which is customarily held in confidence by the
originator without regard to whether or not the originator is, or is not
employed by, a nonprofit organization. It includes, but is not limited
to:
(i) Information received in confidence, such as grant applications,
fellowship applications and research proposals prior to award;
(ii) Statistical data or information if received in confidence from
a contractor or potential contractor concerning contract performance,
income, profits, losses, and expenditures.
(5) Inter-agency or intra-agency memoranda or letters which would
not be available by law to a private party in litigation with NSF. To
the extent not so available by law, examples include, but are not
limited to:
(i) Reports, memoranda, correspondence, workpapers, minutes of
meetings (other than those governed by the Federal Advisory Committee
Act), and staff papers prepared for use within NSF or within the
Executive Branch of the Government by personnel and consultants of NSF,
or any Government agency.
(ii) Advance information on proposed NSF plans to procure, lease, or
otherwise acquire, or dispose of materials,
[[Page 127]]
real estate, facilities, services or functions, when such information
would provide undue or unfair competitive advantage to any person;
(iii) Records prepared for use in proceedings before any Federal or
State court or administrative body;
(iv) Evaluations of and comments on specific grant applications,
research proposals, or potential contractors, whether made by NSF
personnel or by external reviewers acting either individually or in
committees;
(v) Preliminary, draft unapproved recommendations, evaluations, and
opinions, such as evaluations of invention disclosures, of research
projects, and of incomplete studies conducted or supported by NSF;
(vi) 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.
(6) Personnel and medical files and similar files, the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy. 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 it may be
disclosed to others with his written consent. Examples of personnel
files exempt from disclosure include, but are not limited to, file
containing reports, records and other materials pertaining to individual
cases in which disciplinary or other administrative action has been or
may be taken. Similar files include reports and evaluations which
reflect upon the qualifications or competence of individuals. Opinions
and orders resulting from those proceedings shall be disclosed without
identifying details if used, cited, or relied upon as precedent.
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings,
(ii) Would deprive a person or a right to a fair trial or an
impartial adjudication,
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy,
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis,
(v) 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
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(8) Matters contained in or related to examination, operating, or
condition reports prepared by, or on behalf of, or for the use of any
government agency responsible for the regulation or supervision of
financial institutions.
(9) Geological and geophysical information and data (including maps)
concerning wells.
(10) Records belonging to another government agency or dealing with
subject matter as to which government agency, other than NSF, has
exclusive or primary responsibility. Requests for such records shall be
promptly forwarded to the appropriate government agency for disposition
or for guidance with respect to disposition.
(b) Deletion of exempt portion and identifying details. Any
reasonably segregable portion of a record shall be provided to any
person requesting such record 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 or names 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
[[Page 128]]
made available with obviously fictitious substitutes and with a
notification such as the following as a preamble:
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.
[40 FR 12793, Mar. 21, 1975, as amended at 47 FR 54943, Dec. 7, 1982.
Redesignated at 49 FR 23050, June 4, 1984, and amended at 52 FR 43073,
Nov. 9, 1987; 56 FR 47417, Sept. 19, 1991]
Sec. 612.9 Fees to be charged--definitions.
For the purpose of these Guidelines:
(a) All the terms defined in the Freedom of Information Act apply.
(b) A statute specifically providing for setting the level of fees
for particular types of records (5 U.S.C. 552(a)(4)(A)(vi)) means any
statute that specifically requires a government agency, such as the
Government Printing Office (GPO) or the National Technical Information
Service (NTIS), to set the level of fees for particular types of
records, in order to:
(1) Serve both the general public and private sector organizations
by conveniently making available government information;
(2) Ensure that groups and individuals pay the cost of publications
and other services which are for their special use so that these costs
are not borne by the general taxpaying public;
(3) Operate an information dissemination activity on a self-
sustaining basis to the maximum extent possible; or
(4) Return revenue to the Treasury for defraying, wholly or in part,
appropriated funds used to pay the cost of disseminating government
information. Statutes, such as the User Fee Statute, which only provide
a general discussion of fees without explicitly requiring that an agency
set and collect fees for particular documents do not supersede the
Freedom of Information Act under section (a)(4)(A)(vi) of that statute.
(c) The term direct costs means those expenditures which an agency
actually incurs in searching for and duplicating (and in the case of
commercial requesters, reviewing) documents to respond to a FOIA
request. Direct costs include, for example, the salary of the employee
performing work (the basic rate of pay for the employee plus 16 percent
of that rate to cover benefits) and the cost of operating duplicating
machinery. Not included in direct costs are overhead expenses such as
costs of space, and heating or lighting the facility in which the
records are stored.
(d) The term search includes all time spent looking for material
that is responsive to a request, including page-by-page or line-by-line
identification of material within documents. NSF shall ensure that
searching for material is done in the most efficient and least expensive
manner so as to minimize costs for both the agency and the requester.
For example, NSF shall not engage in line-by-line search when merely
duplicating an entire document would prove the less expensive and
quicker method of complying with a request. ``Search'' should be
distinguished, moreover, from ``review'' of material in order to
determine whether the material is exempt from disclosure (see paragraph
(f) of this section). Searches may be done manually or by computer using
existing programming.
(e) The term duplication refers to the process of making a copy of a
document necessary to respond to a FOIA request. Such copies can take
the form of paper copy, microform, audio-visual materials, or machine
readable documentation (e.g., magnetic tape or disk), among others. The
copy provided must be in a form that is reasonably usable by requesters.
(f) The term review refers to the process of examining documents
located in response to a request that is for a commercial use (see
paragraph (g) of this section) to determine whether any portion of any
document located is permitted to be withheld. It also includes
processing any documents for disclosure, e.g., doing all that is
necessary to excise them and otherwise prepare them for release. Review
does not include time spent resolving general legal or policy issues
regarding the application of exemptions.
(g) The term `commercial use' request refers to a request from or on
behalf of one who seeks information for a use or purpose that furthers
the commercial,
[[Page 129]]
trade, or profit interests of the requester or the person on whose
behalf the request is made. In determining whether a requester properly
belongs in this category, NSF shall determine the use to which a
requester will put the documents requested. Moreover, where NSF has
reasonable cause to doubt the use to which a requester will put the
records sought, or where that use is not clear from the request itself,
NSF shall seek additional clarification before assigning the request to
a specific category.
(h) The term educational institution refers to a preschool, a public
or private elementary or secondary school, an institution of graduate
higher education, an institution of professional education, and an
institution of vocational education, which operates a program or
programs of scholarly research.
(i) The term non-commercial scientific institution refers to an
institution that is not operated on a ``commercial'' basis as that term
is referenced in paragraph (g) of this section, and which is operated
solely for the purpose of conducting scientific research the results of
which are not intended to promote any particular product or industry.
(j) The term representative of the news media refers to 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 when they can qualify as
disseminators of ``news'') who make their products available for
purchase or subscription by the general public. These examples are not
intended to be all-inclusive. Moreover, as traditional methods of news
delivery evolve (e.g., electronic dissemination of newspapers through
telecommunications services), such alternative media would be included
in this category. In the case of ``freelance'' journalists, they may be
regarded as working for a news organization if they can demonstrate a
solid basis for expecting publication through that organization, even
though not actually employed by it. A publication contract would be the
clearest proof, but NSF may also look to the past publication record of
a requester in making this determination.
[52 FR 43074, Nov. 9, 1987]
Sec. 612.10 Fees to be charged--general.
NSF shall charge fees that recoup the full allowable direct costs
they incur. Moreover, NSF shall use the most efficient and least costly
methods to comply with requests for documents made under the FOIA. NSF
will contract with private sector services to locate, reproduce and
disseminate records in response to FOIA requests when that is the most
efficient and least costly method. When doing so, however, NSF shall
ensure that the ultimate cost to the requester is no greater than it
would be if NSF itself had performed these tasks. In no case will NSF
contract out responsibilities which the FOIA provides that it alone may
discharge, such as determining the applicability of an exemption, or
determining whether to waive or reduce fees. In addition, NSF shall
ensure that when documents that would be responsive to a request are
maintained for distribution by agencies operating statutory-based fee
schedule programs (see definition in Sec. 612.9(b), such as the NTIS,
they inform requesters of the steps necessary to obtain records from
those sources.
(a) Manual searches for records. Whenever feasible, NSF shall charge
at the salary rate(s) (i.e., basic pay plus 16 percent) of the
employee(s) making the search. However, where a homogeneous class of
personnel is used exclusively (e.g., all administrative/clerical, or all
professional/executive), NSF may establish an average rate for the range
of grades typically involved. Thus, for each one-quarter hour after the
first quarter hour, for search of a record by clerical personnel, the
charge is $2.50. For a nonroutine, nonclerical search by professional
personnel, for example, where the task of determining which records fall
within a request and search requires professional or managerial time,
the charge is $7.50 for each one
[[Page 130]]
quarter hour spent in excess of the first quarter hour.
(b) Computer searches for records. NSF shall charge at the actual
direct cost of providing the service. This will include the cost of
operating the central processing unit (CPU) for that portion of
operating time that is directly attributable to searching for records
responsive to a FOIA request and operator/programmer salary
apportionable to the search. When NSF can establish a reasonable agency-
wide average rate for CPU operating costs and operator/programmer
salaries involved in FOIA searches, the Foundation will do so and charge
accordingly.
(c) Review of records. Only requesters who are seeking documents for
commercial use may be charged for time NSF spends reviewing records to
determine whether they are exempt from mandatory disclosure. It should
be noted that charges may be assessed only for the initial review; i.e.,
the review undertaken the first time NSF analyzes the applicability of a
specific exemption to a particular record or portion of a record. NSF
may not charge for review at the administrative appeal level of an
exemption already applied. However, records or portions of records
withheld in full under an exemption which is subsequently determined not
to apply may be reviewed again to determine the applicability of other
exemptions not previously considered. The costs for such a subsequent
review would be properly assessable. Where a single class of reviewers
is typically involved in the review process, NSF may establish a
reasonable agency-wide average and charge accordingly.
(d) Duplication of records. NSF shall establish an average agency-
wide, per-page charge for paper copy reproduction of documents. This
charge shall represent the reasonable direct costs of making such
copies, taking into account the salary of the operators as well as the
cost of the reproduction machinery. For copies prepared by computer,
such as tapes or printouts, NSF shall charge the actual cost, including
operator time, of production of the tape or printout. For other methods
of reproduction or duplication, NSF shall charge the actual direct costs
of producing the document(s). For photocopies of documents, $0.25 per
copy per page will be charged. In practice, if NSF estimates that
duplication charges are likely to exceed $25, it shall notify the
requester of the estimated amount of fees, unless the requester has
indicated in advance his willingness to pay fees as high as those
anticipated. Such a notice shall offer a requester the opportunity to
confer with agency personnel with the object of reformulating the
request to meet his or her needs at a lower cost.
(e) Other charges. It should be noted that complying with requests
for special services such as those listed below is entirely at the
discretion of NSF. Neither the FOIA nor its fee structure cover these
kinds of services. NSF shall recover the full costs of providing
services such as those enumerated below to the extent that it elects to
provide them:
(1) Certifying that records are true copies;
(2) Sending records by special methods such as express mail.
(f) Restrictions on assessing fees. With the exception of requesters
seeking documents for a commercial use, section (4)(A)(iv) of the
Freedom of Information Act, as amended, requires NSF to provide the
first 100 pages of duplication and the first two hours of search time
without charge. Moreover, this section prohibits NSF from charging fees
to any requester, including commercial use requesters, if the cost of
collecting a fee would be equal to or greater than the fee itself. These
provisions work together, so that except for commercial use requesters,
NSF would not begin to assess fees until after they had provided the
free search and reproduction. For example, for a request that involved
two hours and ten minutes of search time and resulted in 105 pages of
documents, NSF will determine the cost of only 10 minutes of search time
and only five pages of reproduction. If this cost was equal to or less
that the cost to the agency of billing the requester and processing the
fee collected, no charges would result.
The elements to be considered in determining the ``cost of collecting a
fee,'' are the administrative costs to the
[[Page 131]]
NSF of receiving and recording a requester's remittance, and processing
the fee for deposit in the Treasury Department's special account (or the
NSF's account if the agency is permitted to retain the fee). The per-
transaction cost to the Treasury to handle such remittances is
negligible and shall not be considered in the NSF's determination. For
purposes of these restrictions on assessment of fees, the word ``pages''
refers to paper copies of a standard agency size which will normally be
``8\1/2\ x 11'' or ``11 by 14.'' Thus, requesters would not be entitled
to 100 microfiche or 100 computer disks, for example. A microfiche
containing the equivalent of 100 pages or 100 pages of computer
printout, however, might meet the terms of the restriction. Similarly,
the term ``search time'' in this context has as its basis manual search.
To apply this term to searches made by computer, NSF shall determine the
hourly cost of operating the central processing unit and the operator's
hourly salary plus 16 percent. When the cost of the search (including
the operator time and the cost of operating the computer to process a
request) equals the equivalent dollar amount of two hours of the salary
of the person performing the search, i.e., the operator, NSF shall begin
assessing charges for computer search.
[52 FR 43074, Nov. 9, 1987, as amended at 56 FR 47417, Sept. 19, 1991]
Sec. 612.11 Fees to be charged--categories of requesters.
There are four categories of FOIA requesters: Commercial use
requesters; educational and non-commercial scientific institutions;
representatives of the news media; and all other requesters. The Act
prescribes specific levels of fees for each of these categories:
(a) Commercial use requesters. When a request for documents for
commercial use is received, NSF shall assess charges which recover the
full direct cost of searching for, reviewing for release, and
duplicating the records sought. Requesters must reasonably describe the
records sought. Commercial use requesters are not entitled to two hours
of free search time nor 100 free pages of reproduction of documents. NSF
may recover the cost of searching for and reviewing records even if
there is ultimately no disclosure of records (see Sec. 612.12(b) of this
part).
(b) Educational and non-commercial scientific institution
requesters. NSF shall provide documents to requesters in this category
for the cost of reproduction alone, excluding charges for the first 100
pages. To be eligible for inclusion in this category, requesters must
show that the request is being made as authorized by and under the
auspices of a qualifying institution and that the records are not sought
for a commercial use, but are sought in furtherance of scholarly (if the
request is from an educational institution) or scientific (if the
request is from a non-commercial scientific institution) research.
Requesters must reasonably describe the records sought.
(c) Requesters who are representatives of the news media. NSF shall
provide documents to requesters in this category for the cost of
reproduction alone, excluding charges for the first 100 pages. To be
eligible for inclusion in this category a requester must meet the
criteria in Sec. 612.9(j) of this part, and his request must not be made
for a commercial use. In reference to this class of requester, a request
for records supporting the news dissemination function of the requester
shall not be considered to be a request that is for commercial use.
Requesters must reasonably describe the records sought.
(d) All other requesters. NSF shall charge requesters who do not fit
into any of the categories above fees which recover the full reasonable
direct cost of searching for and reproducing records that are responsive
to the request, except that the first 100 pages of reproduction and the
first two hours of search time shall be furnished without charge.
Moreover, requests from record subjects for records about themselves
filed in NSF's systems of records will continue to be treated under the
fee provisions of the Privacy Act of 1974 which permit fees only for
reproduction. Requesters must reasonably describe the records sought.
[52 FR 43075, Nov. 9, 1987, as amended at 56 FR 47417, Sept. 19, 1991]
[[Page 132]]
Sec. 612.12 Administrative actions to improve assessment and collection
of fees.
NSF shall ensure that procedures for assessing and collecting fees
are applied consistently and uniformly by all components. To do so, NSF
amends its FOIA regulations to conform to the provisions of this Fee
Schedule and Guidelines, especially including the following elements:
(a) Charging interest--notice and rate. NSF may begin assessing
interest charges on an unpaid bill starting on the 31st day following
the day on which the billing was sent. NSF shall ensure that their
accounting procedures are adequate to properly credit a requester who
has remitted the full amount within the time period. The fact that the
fee has been received by the agency, even if not processed, will suffice
to stay the accrual of interest. Interest will be at the rate prescribed
in section 3717 of Title 31 U.S.C. and will accrue from the date of the
billing.
(b) Charges for unsuccessful search. NSF may assess charges for time
spent searching, even if NSF fails to locate the records or if records
located are determined to be exempt from disclosure. In practice, if NSF
estimates that search charges are likely to exceed $25, it shall notify
the requester of the estimated amount of fees, unless the requester has
indicated in advance his willingness to pay fees as high as those
anticipated. Such a notice shall offer the requester the opportunity to
confer with agency personnel with the object of reformulating the
request to meet his or her needs at a lower cost.
(c) Aggregating requests. Except for requests that are for a
commercial use, NSF shall not charge for the first two hours of search
time or for the first 100 pages of reproduction. However, a requester
may not file multiple requests at the same time, each seeking portions
of a document or documents, solely in order to avoid payment of fees.
When NSF reasonably believes that a requester or, on rare occasions, a
group of requesters acting in concert, is attempting to break a request
down into a series of requests for the purpose of evading the assessment
of fees, NSF may aggregate any such requests and charge accordingly. One
element to be considered in determining whether a belief would be
reasonable is the time period in which the requests have occurred. For
example, it would be reasonable to presume that multiple requests of
this type made within a relatively short period had been made to avoid
fees. For requests made over a longer period, however, such a
presumption becomes harder to sustain and NSF should have a basis for
determining that aggregation is warranted in such cases.
(d) Advance payments. NSF shall not require a requester to make an
advance payment, i.e., payment before work is commenced or continued on
a request, unless:
(1) The NSF estimates or determines that allowable charges that a
requester may be required to pay are likely to exceed $250. Then, NSF
should notify the requester of the likely cost and obtain satisfactory
assurance of full payment where the requester has a history of prompt
payment of FOIA fees, or require an advance payment of an amount up to
the full estimated charges in the case of requesters with no history of
payment; or
(2) A requester has previously failed to pay a fee charged in a
timely fashion (i.e. within 30 days of the date of the billing), NSF may
require the requester to pay the full amount owed plus any applicable
interest as provided above or demonstrate that he has, in fact, paid the
fee, and to make an advance payment of the full amount of the estimated
fee before the NSF begins to process a new request or a pending request
from that requester.
(e) When NSF acts under paragraph (d) (1) or (2) of this section,
the administrative time limits prescribed in subsection (a)(6) of the
FOIA (i.e., 10 working days from receipt of initial requests and 20
working days from receipt of appeals from initial denial, plus
permissible extensions of these time limits) will begin only after NSF
has received fee payments described above.
[52 FR 43076, Nov. 9, 1987]
Sec. 612.13 Waivers or reductions.
(a) Employees of the National Science Foundation are encouraged to
waive fees whenever the statutory fee
[[Page 133]]
waiver standard is met. However, employees are expected to respect the
balance drawn in the statute, safeguarding federal funds by granting
waivers or reductions only where it is determined that the following
statutory standard is satisfied:
Documents shall be furnished without any charge or at a charge
reduced below the fees established under clause (ii) if disclosure of
the 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.
(b) NSF will employ the following six factors in determining when
FOIA fees should be waived or reduced:
(1) The subject of the request: Whether the subject of the requested
records concerns ``the operations or activities of the government'';
(2) The informative value of the information to be disclosed:
whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities;
(3) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the requested information will contribute to ``public understanding'';
(4) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of government operations or activities;
(5) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(6) The primary interest in disclosure: Whether the magnitude of the
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.''
(c) NSF will use U.S. Department of Justice policy guidance in
applying the foregoing factors.
[52 FR 43076, Nov. 9, 1987]