Revision of Freedom of Information Act and Privacy Act Regulations and Implementation of Electronic Freedom of Information Act Amendments of 1996

NATIONAL SCIENCE FOUNDATION

45 CFR Parts 612 and 613

RIN 3145-AA31 and -AA32

Revision of Freedom of Information Act and Privacy Act

Regulations and Implementation of Electronic Freedom of Information Act

Amendments of 1996

AGENCY: National Science Foundation.

ACTION: Proposed rule.

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SUMMARY: This document sets forth proposed revisions of the

Foundation's regulations under the Freedom of Information Act (FOIA)

and Privacy Act. The new FOIA provisions implement the Electronic

Freedom of Information Act Amendments of 1996, including revised time

limit on response, negotiating with the requester, and expedited

processing procedures. They make no changes in the figures currently

used for calculating and charging fees under the FOIA. The Privacy Act

regulations have been restructured for ease of use and outdated

information eliminated.

DATES: Submit comments on or before December 27, 1999.

ADDRESSES: Address all comments concerning this proposed rule to D.

Matthew Powell, Assistant General Counsel, Office of the General

Counsel, National Science Foundation, 4201 Wilson Boulevard, Suite

1265, Arlington, VA 22230.

FOR FURTHER INFORMATION CONTACT: D. Matthew Powell (703) 306-1060.

SUPPLEMENTARY INFORMATION:

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

Regulations)

This revision of part 612 incorporates changes to the language and

structure of the regulations and also adds new provisions to implement

the Electronic Freedom of Information Act Amendments of 1996 (Pub. L.

104-231). New provisions implementing the amendments are found at

Sec. 612.2(b) (electronic reading rooms), Sec. 612.5(b) (timing of

responses), Sec. 612.6(b) (deletion marking), Sec. 612.6(c)(1) (volume

estimation), Sec. 612.10(b)(3) (format of disclosure), and

Sec. 612.10(b)(8) (electronic searches).

Privacy Act Regulations (45 CFR 613)

This revision of part 613 revises the structure of the regulations

and makes them more consistent with the FOIA regulations. It applies

the FOIA fee schedule for duplication of Privacy records which should

eliminate copying fees for nearly all Privacy Act requesters.

Verification procedures have been updated to include the use of a

statement of identity under 28 U.S.C. 1746 and to allow for release of

records to a third party in specified circumstances. The revision

includes exemptions to protect from disclosure confidential sources of

information compiled for enforcement of the Antarctic Conservation Act,

and in investigations of scientific misconduct and personnel security

clearances. It also eliminates references to out-of-date system

notices.

Regulatory Flexibility Act, Unfunded Mandates Reform Act, Executive

Order 12866, and Paperwork Reduction Act

For purposes of the Regulatory Flexibility Act ( 5 U.S.C. 601), the

proposed rule will not have a significant 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 and Privacy 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

45 CFR part 612

Administrative practice and procedure; Freedom of information

45 CFR part 613

Administrative practice and procedure; Privacy.

For the reasons stated in the preamble, the National Science

Foundation proposes to amend 45 CFR Chapter VI as follows:

1. By revising Part 612 to read as follows:

PART 612--AVAILABILITY OF RECORDS AND INFORMATION

Sec.

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 Responses to 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

[[Page 66147]]

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

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 World Wide Web at

www.nsf.gov>.

Sec. 612.3 Requirements for making requests.

(a) Where to send a request. 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),

you may write directly to the Office of Inspector General, National

Science Foundation, 4201 Wilson Boulevard, Suite 1135, Arlington, VA

22230. The FOIA Officer will also forward requests for OIG records to

that Office. Requests may also be sent by facsimile to (703) 306-0149

or by e-mail to [email protected].

(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 as described in Sec. 612.10.

NSF is not obligated to act upon a request until it meets these

procedural requirements.

(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) of this chapter 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)).

(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

of receipt.

(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. Such publications may be obtained from the Government

Printing Office, the National Technical Information Service, the NSF

Publications Clearinghouse PO Box 218, Jessup, MD 20794-0218, or

through NSF's Home Page on the World Wide Web at www.nsf.gov>

``Documents.'' Requests for such publications will be referred to or

the requester informed of the appropriate source.

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

[[Page 66148]]

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

appropriate.

(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.

(3) Where the Foundation reasonably believes that multiple requests

submitted by a requester, or by a group of requesters acting in

concert, constitute a single request that would otherwise involve

unusual circumstances, and the requests involve clearly related

matters, they may be aggregated. Multiple requests involving unrelated

matters will not be aggregated.

(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

exempt.

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 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 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, the FOIA

Officer 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 days.

(2) Where the extension is for more than ten working days, the FOIA

Officer will provide the requester with an opportunity either to modify

the request so that it may be processed within the ten day extension

period or to arrange an agreed upon alternative time period with the

FOIA Officer 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

presenting:

(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 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 expeditiously.

Sec. 612.6 Responses to requests.

(a) Acknowledgment of requests. The FOIA Officer will ordinarily

send an acknowledgment of a FOIA request only if it is anticipated that

a determination on release will not be possible within 20 working days.

(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 and the location of the information

deleted where practicable.

(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 in denying

the request. It will also provide the name and title or position of the

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. 612.9).

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:

[[Page 66149]]

(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 section

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

basis.

(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, workpapers, 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 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

[[Page 66150]]

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.

(iv) 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

proceedings;

(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

governments.

(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

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

wherever:

(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

[[Page 66151]]

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

information.

(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

decision.

(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 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

research.

(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

NSF will also look to the past publication record of a requester in

making this determination. To be in this category, a

[[Page 66152]]

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 will 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

expensive.

(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

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 (i.e.,

basic pay plus 16 percent) 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.

(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

duplication.

(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);

and

(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.

(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.

[[Page 66153]]

(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

economically.

(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

understanding.

(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 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

the 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

interest.

(4) Where only some of the requested records satisfy the

requirements for a waiver of fees, a waiver will be granted for those

records.

(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.

2. By revising part 613 to read as follows:

[[Page 66154]]

PART 613--PRIVACY ACT REGULATIONS

Sec.

613.1 General provisions.

613.2 Requesting access to records.

613.3 Responding to requests for access

to records.

613.4 Amendment of records.

613.5 Exemptions.

613.6 Other rights and services.

Authority: 5 U.S.C. 552a

Sec. 613.1 General provisions.

This part sets forth the National Science Foundation procedures

under the Privacy Act of 1974. The rules in this part apply to all

records in systems of records maintained by NSF that are retrieved by

an individual's name or personal identifier. They describe the

procedures by which individuals may request access to records about

themselves and request amendment or correction of those records. All

Privacy Act requests for access to records are also processed under the

Freedom of Information Act, 5 U.S.C. 552 (as provided in part 612 of

this chapter), which gives requesters the benefit of both statutes.

Notice of systems of records maintained by the National Science

Foundation are published in the Federal Register.

Sec. 613.2 Requesting access to records.

(a) Where to make a request. You may make a request for access to

NSF records about yourself by appearing in person at the National

Science Foundation or by making a written request. If you choose to

visit the Foundation, you must contact the NSF Security Desk and ask to

speak with the Foundation's Privacy Act Officer in the Office of the

General Counsel. Written requests should be sent to the NSF Privacy Act

Officer, National Science Foundation, 4201 Wilson Boulevard, Suite

1265, Arlington, VA 22230. Written requests are recommended, since in

many cases it may take several days to determine whether a record

exists, and additional time may be required for record(s) retrieval and

processing.

(b) Description of requested records. You must describe the records

that you seek in enough detail to enable NSF personnel to locate the

system of records containing them with a reasonable amount of effort.

Providing information about the purpose for which the information was

collected, applicable time periods, and name or identifying number of

each system of records in which you think records about you may be

kept, will help speed the processing of your request. NSF publishes

notices in the Federal Register that describe the systems of records

maintained by the Foundation. The Office of the Federal Register

publishes a biennial ``Privacy Act Compilation'' that includes NSF

system notices. This compilation is available in many large reference

and university libraries, and can be accessed electronically at the

Government Printing Office's web site at www.access.gpo.gov/su__docs/

aces/PrivacyAct.shtml>.

(c) Verification of identity. When requesting access to records

about yourself, NSF requires that you verify your identity in an

appropriate fashion. Individuals appearing in person should be prepared

to show reasonable picture identification such as driver's license,

government or other employment identification card, or passport.

Written requests must state your full name and current address. You

must sign your request and your signature must either be notarized, or

submitted by you under 28 U.S.C. 1746, a law that permits statements to

be made under penalty of perjury as a substitute for notarization.

While no specific form is required, you may obtain information about

these required elements for requests from the NSF Privacy Act Officer,

Suite 1265, 4201 Wilson Blvd, Arlington, VA 22230, or from the NSF Home

Page under ``Public & Media Information--FOIA and Privacy Act'' at

http://www.nsf.gov/home/pubinfo/foia.htm. In order to help

agency personnel in locating and identifying requested records, you may

also, at your option, include your social security number, and/or date

and place of birth. An individual reviewing his or her record(s) in

person may be accompanied by an individual of his or her choice after

signing a written statement authorizing that individual's presence.

Individuals requesting or authorizing the disclosure of records to a

third party must verify their identity and specifically name the third

party and identify the information to be disclosed.

(d) Verification of guardianship. When making a request as the

parent or guardian of a minor or as the guardian of someone determined

by a court of competent jurisdiction to be incompetent, for access to

records about that individual, you must establish:

(1) The identity of the record subject, by stating individual's

name and current address and, at your option, the social security

number and/or date and place of birth of the individual;

(2) Your own identity, as required in paragraph (c) of this

section;

(3) That you are the parent or guardian of that individual, which

you may prove by providing a copy of the individual's birth certificate

showing your parentage or by providing a court order establishing your

guardianship; and

(4) That you are acting on behalf of that individual in making the

request.

(e) The procedures of paragraphs (a) through (d) of this section

shall also apply to requests made pursuant to 5 U.S.C. 552a(c)(3).

(f) Disclosure of records to agencies or persons other than the

record subject. Records subject to the Privacy Act that are requested

by any person other than the individual to whom they pertain will not

be made available except under the following circumstances:

(1) Records required to be made available by the Freedom of

Information Act will be released in response to a request formulated in

accordance with NSF regulations found at 45 CFR part 612.

(2) Records not required by the Freedom of Information Act to be

released may be released, at the discretion of the Foundation, if the

written consent of the individual to whom they pertain has been

obtained as specified in paragraph (c) of this section, or if such

release would be authorized under 5 U.S.C. 552a(b)(1) or (3) through

(12).

Sec. 613.3 Responding to requests for access to records.

(a) Timing of responses to requests. The Foundation will make

reasonable effort to act on a request for access to records within 20

days of its receipt by the Privacy Act Officer (excluding date of

receipt, weekends, and legal holidays) or from the time any required

identification is received by the Privacy Act Officer, whichever is

later. In determining which records are responsive to a request, the

Foundation will include only records in its possession as of the date

of receipt. When the agency cannot complete processing of a request

within 20 working days, the Foundation will send a letter explaining

the delay and notifying the requester of the date by which processing

is expected to be completed.

(b) Authority to grant or deny requests. The Privacy Act Officer,

or his or her designee in the office with responsibility for the

requested records, is authorized to grant or deny access to a

Foundation record.

(c) Granting access to records. When a determination is made to

grant a request for access in whole or part, the requester will be

notified as soon as possible of the Foundation's decision. Where a

requester has previously failed to pay a properly charged fee to any

agency within 30 days of the date of

[[Page 66155]]

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.

(1) Requests made in person. When a request is made in person, if

the records can be found, and reviewed for access without unreasonable

disruption of agency operations, the Foundation may disclose the

records to the requester directly upon payment of any applicable fee. A

written record should be made documenting the granting of the request.

If a requester is accompanied by another person, the requester shall be

required to authorize in writing any discussion of the records in the

presence of the other person.

(2) Requests made in writing. The Foundation will send the records

to the requester promptly upon payment of any applicable fee.

(d) Denying access to records. The requester will be notified in

writing of any determination to deny a request for access to records.

The notification letter will be signed by the Privacy Act Officer, or

his or her designee, as the individual responsible for the denial and

will include a brief statement of the reason(s) for the denial,

including any Privacy Act exemption(s) applied in denying the request.

(e) Fees. The Foundation will charge for duplication of records

requested under the Privacy Act in the same way it charges for

duplication under the Freedom of Information Act (see 45 CFR 612.10).

No search or review fee may be charged for the record unless the record

has been exempted from access under Exemptions (j)(2) or (k)(2) of the

Privacy Act.

Sec. 613.4 Amendment of records.

(a) Where to make a request. An individual may request amendment of

records pertaining to him or her that are maintained in an NSF Privacy

Act system of records, except that certain records described in

paragraph (h) of this section are exempt from amendment. Request for

amendment of records must be made in writing to the NSF Privacy Act

Officer, National Science Foundation, Suite 1265, 4201 Wilson

Boulevard, Arlington, VA 22230.

(b) How to make a request. Your request should identify each

particular record in question, state the amendment you want to take

place, and specify why you believe that the record is not accurate,

relevant, timely, or complete. You may submit any documentation that

you think would be helpful. Providing an edited copy of the record(s)

showing the desired change will assist the agency in making a

determination about your request. If you believe that the same

information is maintained in more than one NSF system of records you

should include that information in your request. You must sign your

request and provide verification of your identity as specified in

Sec. 613.2(c).

(c) Timing of responses to requests. The Privacy Act Officer, or

his or her designee, will acknowledge receipt of request for amendment

within 10 working days of receipt. Upon receipt of a proper request the

Privacy Act Officer will promptly confer with the NSF Directorate or

Office with responsibility for the record to determine if the request

should be granted in whole or part.

(d) Granting request for amendment. When a determination is made to

grant a request for amendment in whole or part, notification to the

requester will be made as soon as possible, normally within 30 working

days of the Privacy Act Officer receiving the request, describing the

amendment made and including a copy of the amended record, in

disclosable form.

(e) Denying request for amendment. When a determination is made

that amendment, in whole or part, is unwarranted, the matter shall be

brought to the attention of the Inspector General, if it pertains to

records maintained by the Office of the Inspector General, or to the

attention of the General Counsel, if it pertains to other NSF records.

If the General Counsel or Inspector General or their designee agrees

with the determination that amendment is not warranted, the Privacy Act

Officer will notify the requester in writing, normally within 30

working days of the Privacy Act Officer receiving the request. The

notification letter will be signed by the Privacy Act Officer or his or

her designee, and will include a statement of the reason(s) for the

denial and how to appeal the decision.

(f) Appealing a denial. You may appeal a denial of a request to

amend records to the General Counsel, National Science Foundation, 4201

Wilson Blvd, 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

envelope ``Privacy Act Appeal.'' Your appeal letter must include a copy

of your original request for amendment and the denial letter, along

with any additional documentation or argument you wish to submit in

favor of amending the records. It must be signed by you or your

officially designated representative.

(g) Responses to appeals. The General Counsel, or his or her

designee, will normally render a decision on the appeal within thirty

working days after proper receipt of the written appeal by the General

Counsel. If additional time to make a determination is necessary you

will be advised in writing of the need for an extension.

(1) Amendment appeal granted. If on appeal the General Counsel, or

his or her designee, determines that amendment of the record should

take place, you will be notified as soon as possible of the

Foundation's decision. The notification will describe the amendment

made and include a copy of the amended record, in disclosable form.

(2) Amendment appeal denied--Statement of disagreement. If on

appeal the General Counsel, or his or her designee, upholds a denial of

a request for amendment of records, you will be notified in writing of

the reasons why the appeal was denied and advised of your right to seek

judicial review of the decision. The letter will also notify you of

your right to file with the Foundation a concise statement setting

forth the reasons for your disagreement with the refusal of the

Foundation to amend the record. The statement should be sent to the

Privacy Act Officer, who will ensure that a copy of the statement is

placed with the disputed record. A copy of the statement will be

included with any subsequent disclosure of the record.

(h) Records not subject to amendment. The following records are not

subject to amendment:

(1) Transcripts of testimony given under oath or written statements

made under oath;

(2) Transcripts of grand jury proceedings, judicial proceedings, or

quasi-judicial proceedings, which are the official record of those

proceedings;

(3) Pre-sentence records that originated with the courts; and

(4) Records in systems of records that have been exempted from

amendment under Privacy Act, 5 U.S.C. 552a(j) or (k) by notice

published in the Federal Register.

Sec. 613.5 Exemptions.

(a) Fellowships and other support. Pursuant to 5 U.S.C. 552a(k)(5),

the Foundation hereby exempts from the application of 5 U.S.C.

552a(c)(3) and (d) any materials which would reveal the identity of

references of fellowship or other award applicants or nominees, or

reviewers of applicants for Federal

[[Page 66156]]

contracts (including grants and cooperative agreements) contained in

any of the following systems of records:

(1) ``Fellowships and Other Awards,''

(2) ``Principal Investigator/Proposal File and Associated

Records,''

(3) ``Reviewer/Proposal File and Associated Records,'' and

(4) ``Reviewer/Fellowship and Other Awards File and Associated

Records.''

(b) OIG files compiled for the purpose of a criminal investigation

and for related purposes. Pursuant to 5 U.S.C. 552a(j)(2), the

Foundation hereby exempts the system of records entitled ``Office of

Inspector General Investigative Files,'' insofar as it consists of

information compiled for the purpose of a criminal investigation or for

other purposes within the scope of 5 U.S.C. 552a(j)(2), from the

application of 5 U.S.C. 552a, except for subsections (b), (c)(1) and

(2), (e)(4) (A) through (F), (e)(6), (7), (9), (10) and (11), and (i).

(c) OIG and ACA files compiled for other law enforcement purposes.

Pursuant to 5 U.S.C. 552a(k)(2), the Foundation hereby exempts the

systems of records entitled ``Office of Inspector General Investigative

Files'' and ``Antarctic Conservation Act Files'' insofar as they

consist of information compiled for law enforcement purposes other than

material within the scope of 5 U.S.C. 552a(j)(2), from the application

of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f).

(d) Investigations of scientific misconduct. Pursuant to 5 U.S.C.

552a(k)(2) and (k)(5), the Foundation hereby exempts from the

application of 5 U.S.C. 552a(c)(3) and (d) any materials which would

reveal the identity of confidential sources of information contained in

the following system of records: ``Debarment/Scientific Misconduct

Files.''

(e) Personnel security clearances. Pursuant to 5 U.S.C. 552a(k)(5),

the Foundation hereby exempts from the application of 5 U.S.C.

552a(c)(3) and (d) any materials which would reveal the identity of

confidential sources of information contained in the following system

of records: ``Personnel Security.''

(f) Applicants for employment. Records on applicants for employment

at NSF are covered by the Office of Personnel Management (OPM)

government-wide system notice ``Recruiting, Examining and Placement

Records.'' These records are exempted as claimed in 5 CFR

297.501(b)(7).

(g) Other records. The Foundation may also assert exemptions for

records received from another agency that could properly be claimed by

that agency in responding to a request.

Sec. 613.6 Other rights and services.

Nothing in this subpart shall 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 Privacy Act.

Lawrence Rudolph,

General Counsel.

[FR Doc. 99-30575 Filed 11-23-99; 8:45 am]

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