[Federal Register Volume 64, Number 226 (Wednesday, November 24, 1999)]
[Proposed Rules]
[Pages 66146-66156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30575]
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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regulations have been restructured for ease of use and outdated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 foia@nsf.gov.
(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]
BILLING CODE 7555-01-U
