Ex Parte AsandeiDownload PDFPatent Trial and Appeal BoardApr 20, 201512052947 (P.T.A.B. Apr. 20, 2015) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte THE UNIVERSITY OF CONNECTICUT ____________________ Appeal 2013-006801 Application 12/052,947 Technology Center 1700 ____________________ Before FRED E. McKELVEY, RICHARD E. SCHAFER and BEVERLY A. FRANKLIN, Administrative Patent Judges. McKELVEY, Administrative Patent Judge. DECISION ON APPEAL 37 C.F.R. § 41.50 I. Statement of the Case A. Background The University of Connecticut (“Appellant”), the real party in interest (Brief (“App. Br.”), 3), seeks review under 35 U.S.C. § 134(a) of a final rejection dated 31 May 2012. We have jurisdiction under 35 U.S.C. § 134(a). The application on appeal was filed in the USPTO on 21 March 2008. Appellant claims priority of U.S. Provisional Application 60/896,609, filed 23 March 2007. Appeal 2013-006801 Application 12/052,947 2 The application on appeal has been published as U.S. Patent Application Publication 2008/0234433 A1 (25 Sept. 2008).1 B. Evidence The Examiner relies on the following documentary evidence. Grant Proposal D32 National Science Foundation Grant Proposal 0158247, NSF Division of Chemistry, Novel Chemistry of Early Transition Metals for the Synthesis of Complex Polymer Architectures Start Date: 1 Sept. 2005 Asandei et al. “Asandei 1” D5 TiCp2Cl-Catalyzed Living Radical and Ring Opening Polymerizations Initiated from Epoxides and Aldehydes in the Synthesis of Linear, Graft and Branched Polymers, 856E MATER. RES. SOC. SYMP. PROC. BB11.9.1 ©2005 1 References to the Specification (“Spec.”) are to the Published Application. 2 Appellant and the Examiner have referred to the Examiner’s documentary evidence as D3, D5, D6, and D7. We will do likewise. Other abbreviations used in this opinion are identified below. Appeal 2013-006801 Application 12/052,947 3 Lee et al. D6 U.S. Patent Application Publication 2003/0068317 A1 10 Apr. 2003 Asandei “Asandei 2” D7 Living Grafting Polymerization of Styrene and (Meth)Acrylates From Poly(Glycidyl Methacrylate-co- methyl Methacrylate) Initiated by TiCp2Cl-Catalyzed Epoxide Radical Ring Opening, PMSE 394, 230th ACS National Meeting, Division of Polymeric Materials: Science and Engineering 30 Aug. 2005 Except for Reference D3 (Grant Proposal), Appellant does not contest the prior art status of the Examiner’s documentary evidence. D5, D6, and D7 are prior art under 35 U.S.C. § 102(b). Appellant offered the following documentary evidence. E-mail 1 E-mail from Ian J. Lodovice (counsel for Appellant) to Leslie A. Jensen (FOIA/Privacy Act Officer, Office of the General Counsel, National Science Foundation) Dated: 19 October 2009 3:00 PM E-mail 2 E-mail from Leslie A. Jensen to Ian J. Lodovice Dated: 21 October 2009 7:16 AM In its Appeal Brief, Appellant quotes from the following documents, but has not supplied copies of those documents. A copy of the document from which material is quoted should be submitted to the PTO. The PTO can then be in a position to verify that quoted material is accurate. Supplying a copy of the document (1) saves the agency, especially the Examiner, time hunting for intended Appeal 2013-006801 Application 12/052,947 4 documents and (2) makes clear in the file wrapper the precise document upon which an applicant relies. Supplying a copy of a document should not be an undue burden on an applicant given that the applicant quotes from a document presumably in its possession. Executive Order Executive Order No. 12600 3 CFR Comp., page 235 (copy of original not supplied) 1988 NSF Rule 612.7 45 C.F.R. § 612.7 (copy of original not supplied) 1 Oct. 2004 NSF Rule 612.8 45 C.F.R. § 612.8 (copy of original not supplied) 1 Oct. 2004 NSF Guide NSF Grant Proposal Guide (NSF 04-23) (copy of original not supplied) Dated: July 20043 To complete the record in this particular case, we elect to make the following additional evidence of record so that there can be no doubt as to documentation we cite.4 Cover Sheet Appendix 1 Cover Sheet for Proposal to the National Science Foundation Oct. 1999 Executive Order “EO” Appendix 2 Executive Order No. 12600, 52 Fed. Reg. 23781 25 June 1987 NSF Regulations Part 612 Appendix 3 45 C.F.R. Part 612, including 45 C.F.R. § 612.7 and § 612.8 1 Oct. 2004 3 On page 11 of the Appeal Brief, Appellant refers to a Guide dated June 2004. We understand the date to be July 2004. 4 Copies of the documents appear as Appendix 1 through Appendix 9 of this opinion. Appeal 2013-006801 Application 12/052,947 5 NSF Regulations Part 612 Appendix 4 45 C.F.R. Part 612, including 45 C.F.R. § 612.7 and § 612.8 1 Oct. 2005 NSF Regulations Part 612 Appendix 5 45 C.F.R. Part 612, including 45 C.F.R. § 612.7 and § 612.8 1 Oct. 2006 NSF Regulations Part 612 Appendix 6 45 C.F.R. Part 612, including 45 C.F.R. § 612.7 and § 612.8 1 Oct. 2007 NSF Regulations Part 612 Appendix 7 45 C.F.R. Part 612, including 45 C.F.R. § 612.7 and § 612.8 1 Oct. 2008 NSF Grant Proposal Guide “GBG” Appendix 8 NSF Grant Proposal Guide (GPG) (NSF 04-23), effective for proposals submitted on or after 1 September 2004 (pages 1–3, 6–10, 13, 26, and 50–51) July 2004 FOIA Guide Appendix 9 Department of Justice, Freedom of Information Act Guide May 2004 C. Other Abbreviations In addition to “D3,” “D5,” “D6,” and “D7”, the following abbreviations are used in this opinion. Abbreviation Meaning Bpy 2,2’-bipyridyl (Spec., ¶ 26) Cp2TiCl2 Bis(cyclopentadienyl)titanium dichloride (Spec., ¶ 77) DOJ Department of Justice EO Executive Order FOIA Freedom of Information Act IDS Information Disclosure Statement MBSC 4-Methoxybenzenesulfonyl chloride (Spec., ¶ 77) NSF National Science Foundation PGMA Poly(glycidyl methacrylate) (D5, BB11.9.4) Appeal 2013-006801 Application 12/052,947 6 II. Claims on Appeal Claims 1 and 3–18 are on appeal. App. Br., 3 and 19–23; Answer (“Ans.”), 3. III. The Rejections In the Answer, the Examiner has maintained three of five rejections entered in the Final Rejection. A. Rejection 1 Claims 1 and 3–16 stand rejected as unpatentable under 35 U.S.C. § 103(a) over D3 (Grant Proposal). Ans., 6; Final Rejection, 2. B. Rejection 2 Claims 1, 3–8, 11–14, 17, and 18 stand rejected as unpatentable under 35 U.S.C. § 103(a) over the combination of D5 (Asandei 1) and D6 (Lee). Ans., 7; Final Rejection, 5. C. Rejection 3 Claims 9 and 10 stand rejected as unpatentable under 35 U.S.C. § 103(a) over the combination of D5 (Asandei 1), D6 (Lee) and D7 (Asandei 2). Ans., 9; Final Rejection, 6. IV. Analysis A. Rejection 1 1. Background Insofar as we are aware, Rejection 1 raises an issue of first impression. The rejection is based on reference D3, a Grant Proposal made to NSF by The University of Connecticut (Appellant). Appeal 2013-006801 Application 12/052,947 7 The Grant Proposal is identified in the Specification as “National Science Foundation Grant No. CHEM0518247.” Spec., ¶ 2. The record contains a copy of a “Document” having the title “Novel Chemistry of Early Transition Metals for the Synthesis of Complex Polymer Architectures.” The Document was submitted with an Information Disclosure Statement (“IDS”) dated 20 April 2009, and has become known on the record as D3. The “Document” is identified in the IDS as “ALEX ASANDIE, Novel Chemistry of Early Transition Metals for the Synthesis of Complex Polymer Architectures, Grant Proposal to the National Science Foundation, 2005, 27 pages.” IDS, 3, entry 3. The “Document” does not appear to be a complete copy of any original Grant Proposal as submitted to NSF. The hand-written notes reproduced below appear at the top of page 1 of the document: It would appear that the copy of the “Document” was made from internal records of The University of Connecticut. Appellant and the Examiner treat the content of the “Document” as being an authentic copy of at least the descriptive portion of the Grant Proposal submitted to NSF. We will do likewise because the Grant Proposal was submitted to NSF by Appellant, The University of Connecticut. On the record before us we have no Appeal 2013-006801 Application 12/052,947 8 reason to doubt its authenticity. Not included is a Cover Sheet or other information provided by Appellant to NSF at the time the Grant Proposal was filed or any other documentation filed with NSF after the Grant Proposal was originally filed with NSF. 2. Appellant’s Position Appellant does not contend that D3 fails to render the subject matter of claims 1 and 3–18 unpatentable on the merits. Rather, Appellant maintains that D3 is not prior art. App. Br., 8. The Examiner found that D3 constitutes prior art because it “was indexed, catalogued, and publicly available, under the Freedom of Information Act, via the NSF website.” Final Rejection, 3:1–2. Appellant disagrees solely on the ground that D3 was not “publicly accessible” and therefore cannot be prior art. App. Br., 8, § VII. A., citing In re Hall, 781 F.2d 897, 899 (Fed. Cir. 1986) (“proponent of the publication [as prior art] . . . must show that . . . the reference was . . . accessible . . . to the public interested in the art . . . .”). 3. Burden of Establishing Accessibility The burden of establishing “accessibility” of a reference is on the proponent, in this case the Examiner. Hall, at 899; In re Wyer, 655 F.2d 221, 227 (CCPA 1981) (by demonstrating “accessibility of . . . appellant’s application in the Australian Patent Office . . . , the PTO has met . . . [its] burden”). Whether the burden has been satisfied proceeds “on a case-by-case basis.” Wyer, 655 at 227. Appeal 2013-006801 Application 12/052,947 9 4. FOIA The general rule under FOIA is that agency records shall be made available on request of any person: Except with respect to . . . [certain] records . . . , each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person. 5 U.S.C. § 552(a)(3)(A) (emphasis added). NSF is an agency of the United States: There is established in the executive branch of the Government an independent agency to be known as the National Science Foundation (hereinafter referred to as the “Foundation”). 42 U.S.C. § 1861. FOIA, “places a general obligation on the agency to make information available to the public.” Chrysler Corp. v. Brown, 441 U.S. 281, 292 (1979). The general obligation has been characterized as a “check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). There are exceptions to the general obligation. One exception relates to confidential information: (b) This section [5 U.S.C. § 552] does not apply to matters that are – . . . . (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential. Appeal 2013-006801 Application 12/052,947 10 The exception is generally referred to as FOIA “Exemption 4.” Executive Order 12600 provides that confidential commercial information “means records provided to the government by a submitter that arguably contain material exempt from release under Exemption 4 of . . . [FOIA] because disclosure could reasonably be expected to cause substantial competitive harm.” EO 12600, § 2(a); 52 Fed. Reg. 23781, 23781 (June 25, 1987). The EO further provides: For confidential commercial information submitted on or after January 1, 1988, the head of each Executive department or agency shall, to the extent permitted by law, establish procedures to permit submitters of confidential commercial information to designate, at the time the information is submitted to the Federal government or a reasonable time thereafter, any information the disclosure of which the submitter claims could reasonably be expected to cause substantial competitive harm. Such agency procedures may provide for the expiration, after a specified period of time or changes in circumstances, of designations of competitive harm made by submitters. Additionally, such procedures may permit the agency to designate specific classes of information that will be treated by the agency as if the information had been so designated by the submitter. The head of each Executive department or agency shall, to the extent permitted by law, provide the submitter notice in accordance with section 1 of this Order whenever the department or agency determines that it may be required to disclose records: (i) designated pursuant to this subsection; or Appeal 2013-006801 Application 12/052,947 11 (ii) the disclosure of which the department or agency has reason to believe could reasonably be expected to cause substantial competitive harm. EO, § 3(b); 52 Fed. Reg. at 23781-82 (emphasis added). The substantial competitive harm standard of the EO had earlier been addressed in judicial precedent involving Exemption 4 issues. See, e.g., Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974) (information is confidential if it is likely “to cause substantial harm to the competitive position of the person from whom the information was obtained.”). However, if the information is in the public domain, generally there can be no harm in releasing information. R & W Flammann GmbH v. United States, 339 F.3d 1320, 1323 (Fed. Cir. 2003), citing CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1154 (D.C. Cir. 1987) (“To the extent that any data requested under FOIA is in the public domain, the submitter is unable to make any claim to confidentiality—a sine qua non of Exemption 4.”). Appeal 2013-006801 Application 12/052,947 12 5. NSF Procedures (a) NSF FOIA Rules Appellant cites 45 C.F.R. §§ 612.7 and 612.8 (1 Oct. 2004 through 1 Oct. 2008 versions)5 (App. Br., 9), and quotes from 45 C.F.R. § 612.8 (1 Oct. 2004 version). App. Br., 9–11. The relevant part of § 612.8 (2004) reads as follows [matter in brackets and emphasis added, original emphasis omitted]: § 612.8 Business Information (a) In general. Business information obtained by the [National Science] 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 §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, 5 The different versions of NSF Part 612 regulations were cited presumably to show that the regulations did not change during the relevant time period, i.e., 2004 through 2008. Appeal 2013-006801 Application 12/052,947 13 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 Appeal 2013-006801 Application 12/052,947 14 case of Exemption 4, must show why the information is a trade secret, or commercial or financial information that is privileged or confidential. In the event that a submitter fails to respond within the time specified in the notice, the submitter will be considered to have no objection to disclosure of the information. Information provided by a submitter under this paragraph may itself be a record subject to disclosure under the FOIA. (g) Notice of intent to disclose. The Foundation will consider a submitter’s objections and specific grounds for nondisclosure in deciding whether to disclose business information. Whenever it decides to disclose business information over the objection of a submitter, the Foundation will give the submitter written notice, which will include: (1) A statement of the reason(s) why the submitter’s disclosure objections were not sustained; (2) A description of the business information to be disclosed; and (3) A specified disclosure date, which will be a reasonable time subsequent to the notice. (h) Exceptions to notice requirements. The notice requirements of paragraphs (d) and (g) of this section will not apply if: (1) The Foundation determines that the information should not be disclosed (the Foundation protects from disclosure to third parties information about specific unfunded applications, including pending, withdrawn, or declined proposals); Appeal 2013-006801 Application 12/052,947 15 (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 [i.e., a reverse FOIA lawsuit] seeking to prevent the disclosure of business information, the Foundation will notify the requester(s). (b) NSF Grant Proposal Guidelines (GPG) Persons or entities submitting grant proposals to NSF are required to file a Grant Proposal. Any grant proposal is to be accompanied by a Cover Sheet for Proposal to the National Science Foundation (Appendix 1). On page 1 of the Cover Sheet, a copy of which we were able to download from the internet (NSF Form 1207 (10/99)), includes a box that can be checked whereby the submitter signals to NSF that the Grant Proposal contains “proprietary & privileged information:” Appeal 2013-006801 Application 12/052,947 16 □ PROPRIETARY & PRIVILEGED INFORMATION (GPG I.B, II D.7) GPG I.B, II. D.7 is believed to refer to an earlier version of a Grant Proposal Guide. The applicable 2004 Guide is GPG I. D.3, which reads: Proprietary or Privileged Information Patentable ideas, trade secrets, privileged or confidential commercial or financial information, disclosure of which may harm the proposer, should be included in the proposals only when such information is necessary to convey an understanding of the proposed project. Such information must be clearly marked in the proposal and be appropriately labeled with a legend such as, “The following is (proprietary or confidential) information that (name of proposing organization) requests not be released to persons outside the Government, except for purposes of review and evaluation.” Such information also may be included as a separate statement. If this method is used, the statement must be submitted electronically as a single-copy document in the Proposal Preparation Module in the FastLane system. (See also Chapter II, Section C.1 for further information regarding submission of single-copy documents.) The box for “Proprietary and Privileged Information” must be checked on the proposal Cover Sheet [i.e., NSF Form 1207,] when the proposal contains such information. While NSF will make every effort to prevent unauthorized access to such material, the Foundation is not responsible or in any way liable Appeal 2013-006801 Application 12/052,947 17 for the release of such material. (See also Chapter VI, Section K, “Release of Grantee Proposal Information.”) GPG, 13 (footnote 4 omitted) (emphasis added). Chapter VI, § K reads: Release of Grantee Proposal Information A proposal that results in an NSF award will be available to the public on request, except for privileged information or material that is personal, proprietary or otherwise exempt from disclosure under law. Appropriate labeling in the proposal aids identification of what may be specifically exempt. (See Chapter I, Section D.3., The Full Proposal). Such information will be withheld from public disclosure to the extent permitted by law, including the Freedom of Information Act. Without assuming any liability for inadvertent disclosure, NSF will seek to limit disclosure of such information to its employees and to outside reviewers when necessary for merit review of the proposal, or as otherwise authorized by law. Portions of the proposals resulting in grants that contain descriptions of invention in which either the Government or the grantee owns a right, title, or interest (including a non-exclusive license) will not normally be made available to the public until a reasonable time has been allowed for filing patent applications. NSF will notify the grantee of receipt of requests for copies of funded proposals so that the grantee may advise NSF of such inventions described, or other confidential, commercial or proprietary information contained in the proposal. A proposal that does not result in an NSF grant will be retained by NSF for a prescribed time (currently five years), but will be Appeal 2013-006801 Application 12/052,947 18 released to the public only with the consent of the proposer or to the extent required by law. GPG, pages 50–51. 6. Prosecution History (a) Office Action of 15 June 2009 The Examiner relied upon the Grant Proposal D3 as early as 15 June 2009. Office Action dated 15 June 2009, 4, ¶ 6. The Examiner concluded that the Grant Proposal D3 is prior art because it was (1) indexed, (2) catalogued, and (3) publically available under FOIA. Id. In support of the conclusion that the Grant Proposal was prior art, the Examiner cited E. I. duPont de Nemours & Co. v. Cetus Corp., 1990 U.S. Dist. LEXIS 18382 (N.D. Cal. Dec. 11, 1990).6 (b) Response of 16 November 2009 In a response dated 16 November 2009, Appellant maintained that Grant Proposal D3 is not prior art because it was not “publicly accessible.” Response, 9. In support of the Response, Appellant maintained that DuPont v. Cetus was not applicable because it dealt with NSF FOIA regulations dated prior to 2004, regulations which Appellant maintains were amended after DuPont v. Cetus was decided. Response, 9. According to Appellant, NSF would not release information in the Grant Proposal until (1) a reasonable time has passed for filing a patent application and 6 Since we have access to WestLaw and the USPQ, we cite to 1990 WL 305551, reprinted at 19 USPQ2d 1174. We have not found it necessary to rely on DuPont v. Cetus. Appeal 2013-006801 Application 12/052,947 19 (2) NSF had given the submitter an opportunity to state its position on release. Response, 13. (c) Action of 10 January 2012 In an action dated 10 January 2012, the Examiner again rejected claims over the Grant Proposal D3. See Office Action, 2, ¶ 4. The Examiner noted that standards for determining prior art are based on MPEP, ¶ 2128 and that NSF guidelines are different from PTO standards. See Office Action, 4, ¶ 16. Importantly, the Examiner observed: It is noted that NSF guidelines indicates [sic—indicate] that material marked as patentable ideas etc. are not released in the grant proposal if they are properly labeled (e.g., the box “Proprietary of Privileged Information” is checked in the cover sheet). In the instant case . . . [Appellant] has not provided information that the document [, i.e., the Grant Proposal,] was labeled etc. Therefore, it is reasonable for the [E]xaminer to maintain that D3 is prior art until further information is provided. Office Action, 4, ¶ 17 (italics added). (d) Response of 5 April 2012 In a Response dated 5 April 2012, Appellant continued to take the position that the Grant Proposal D3 is not prior art. Appellant argued: that having the box checked on the Cover Sheet, or even having the relevant information labeled with Proprietary or Confidential, is not a prerequisite to have i) the NSF notify the grantee of receipt of requests for copies of funded proposals so Appeal 2013-006801 Application 12/052,947 20 the grantee can advise the NSF of the confidential or proprietary information contained in the proposal, or ii) have the information considered exempt from disclosure under a FOIA request. Response, 8. (e) Final Rejection of 31 May 2012 In the Final Rejection, the Examiner indicated that Appellant had not supplied the necessary information for the PTO to make an informed determination of the alleged non-accessibility status of Grant Proposal D3. Final Rejection, 9. In particular, the Examiner observed: [P]atentable ideas etc. are not released [by NSF] in the grant proposal if they are properly labeled (e.g. the box “Proprietary or Privileged Information” is checked in the cover sheet). In the instant case . . . [Appellant] has not provided information that the document was labeled etc. Therefore, it is reasonable for the [E]xaminer to maintain that D3 is prior art until further information is provided. Final Rejection, 9 (italics added). 7. Discussion (a) Accessibility—Prima Facie Case A record of the U.S. Government that is indexed, catalogued, and accessible is prima facie available to the public. 5 U.S.C. § 552(a)(3)(A) (reproduced above). Appellant does not maintain that Grant Proposal D3 is not (1) a record, (2) indexed, or (3) catalogued. Appeal 2013-006801 Application 12/052,947 21 Appellant maintains, however, that Grant Proposal D3 was not accessible to the public. In the context of patent examination, we hold that an examiner makes out a prima facie case of accessibility when the examiner establishes that a record of the U.S. Government is facially available to the public under FOIA. The Examiner established that Grant Proposal D3 is prima facie available under FOIA. FOIA confirms the Examiner’s finding of accessibility. 5 U.S.C. § 552(a)(3)(A). (b) Appellant’s Response We do not have a FOIA request before us. Nor is it our chore to determine precisely how NSF might have handled a FOIA request for the Grant Proposal. Cf. In re Anthony, 414 F.2d 1383 (CCPA 1969) (FDA, not Commissioner, is responsible for safety of drugs which are sought to be patented). While we do not have a FOIA request before us, we believe that Exemption 4 FOIA principles assist us in determining how to allocate burdens of proof or persuasion in ex parte patent examination. Before us is a situation analogous to what is known as a “reverse FOIA” case. In a “reverse FOIA” case the party seeking to avoid disclosure bears the burden of proving that the circumstances to justify nondisclosure. Nat’l Parks & Conservation Ass’n v. Kleppe, 547 F.2d 673, 382 n.20 (D.C. Cir. Appeal 2013-006801 Application 12/052,947 22 1976); Occidental Petroleum Corp. v. S.E.C., 873 F.2d 325, 347 (D.C. Cir. 1989); FOIA Guide, 1, last ¶. We believe a similar burden is appropriate in this particular ex parte case. Once an examiner establishes prima facie accessibility, (1) all information to show otherwise generally should be in the hands of the applicant or (2) the applicant should have access to the information.7 The applicant should have no difficulty providing such information. Appellant claims that NSF would not have released Grant Proposal D3. Appellant’s support for its claim is based on conclusory and generalized assertions said to be justified by citations to the EO, NSF regulations, and NSF Grant Proposal Guidelines. While the citations provide some input on how NSF handles FOIA and reverse FOIA matters, the Examiner was interested in factual documentary support for Appellant’s specific claim of non-accessibility. Appellant’s burden cannot be satisfied with conclusory and generalized assertions. Niagara Mohawk Power Corp. v. U.S. Dept. of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999). The documents cited by Appellant reveal the kind of information Appellant should have known was being sought by the Examiner: 7 We leave for another day a case where the applicant and the submitter are different parties. Appeal 2013-006801 Application 12/052,947 23 (1) On at least two occasions the Examiner suggested that Appellant supply factual information concerning Grant Proposal D3. We are somewhat at a loss as to why Appellant did not supply the information so that the Examiner might have been in a position to more thoroughly evaluate accessibility. For example, the Examiner wanted to know if the “box” for proprietary & privileged information on NSF Cover Sheet had been checked. Final Rejection, 9, ¶ 21; Action dated 10 January 2012, , ¶ 17. The Examiner never received a response. (2) NSF documents reveal that Appellant was aware that in place of checked box a submitter can submit a “separate statement.” App. Br., Evidence Appendix, 1 (E-mail 2, citing GPG, Chapter II, C.1); GPG, 13, next-to-last paragraph. Appellant did not supply evidence that a separate statement was ever submitted to NSF. A copy of any separate statement would have been at least partially responsive to the Examiner’s suggestion that Appellant file additional information. (3) Appellant recognized that prior to any release of information NSF would allow a grantee (Appellant in this case) to identify portions of the proposal that it wishes withheld. App. Br., 12; 45 C.F.R § 612.8(d) and (f) (2004). Appellant did not favor the Examiner with any information identifying those portions of the Grant Proposal that it regarded as trade secrets Appeal 2013-006801 Application 12/052,947 24 as of the grant start date of 1 September 2005. A review of the Grant Proposal reveals that at least part of the Grant Proposal is based on information in the public domain. See D3, “References Cited,” pages 1–9 containing 99 references to published technical material. Appellant did not supply the Examiner with any relevant information, e.g., Rule 132 testimony accompanied by a redacted copy of the Grant Proposal. Had that information been submitted, the Examiner might have been in a position to address whether unredacted material would have been sufficient, by itself or in combination with other prior art, to support a § 103(a) rejection. (4) Appellant called attention to a procedure whereby a submitter is given a reasonable opportunity to file a patent application. App. Br., pages 11–12; GPG, 50, last paragraph. Appellant did not provide the Examiner with any Rule 132 testimony explaining when preparation of a patent application began. Given the Appellant does not contest the § 103(a) rejection based on D3 on the merits, a reasonable assumption is that D3 describes much of what is contained in the application on appeal. One can legitimately question whether a time period of 1 September 2005 (date of grant) until 21 March 2008 (filing Appeal 2013-006801 Application 12/052,947 25 of application) is a reasonable time period.8 However, because information which Appellant recognized as important was not provided to the Examiner, there was no opportunity during the examination process to consider from a factual point of review the weight to be given the time to file a patent application. Based on Email 2, Appellant notes that NSF did not receive a FOIA request for the Grant Proposal. App. Br., 12. We agree with the Examiner that there need not be proof that “someone actually looked at a publication when that publication is accessible to the public.” Ans., 11; MPEP, § 2128.01 (Rev. 9, Aug. 2012), page 2100-66, paragraph bridging cols. 1–2, citing Wyer and Hall. In our view, and in the context of ex parte patent application examination, Appellant has failed to sustain its burden of establishing non-accessibility. (c) Additional Observation In the Answer, the Examiner makes the following observation: It should also be noted that D3 was submitted with the IDS filed 04/20/2009. It is not clear what the rational[e] for submitting D3 for consideration if it is not a printed publication. Ans., 11. Our view differs from that of the Examiner’s observation. 8 Proof that a reasonable time was taken to file a patent application is not necessarily the same as proof to establish diligence under Rule 131 or interference practice. Appeal 2013-006801 Application 12/052,947 26 During a 1991 rulemaking effort involving 37 C.F.R. § 56, it was made clear that a reference making out a prima facie case of unpatentability must be submitted albeit an applicant may also submit evidence rebutting any prima facie case. The object was to permit the PTO, not the applicant, to make a final determination on whether claims are unpatentable over the cited reference. Notice of Proposed Rulemaking, “Duty of Disclosure,” 56 Fed. Reg. 37321, 37324, cols. 1–2 (Aug. 6, 1991) (“an individual would have a duty to submit the information which creates a prima facie case of unpatentability and [also] may submit . . . rebuttal information to the Office so that the examiner can make an informed determination on patentability.”). See also, Notice of Final Rule, “Duty of Disclosure,” 57 Fed. Reg. 2021, 2022–24, col. 1 (answers to Comments 3 and 4) (Jan. 17, 1992) (Comment 3: “The Office believes that most applicants will wish to submit the information . . . even though they may not be required to do so, to . . . avoid the risks of an incorrect judgment of their part on materiality . . . .” Comment 4: “Presumably, applicants will continue to submit information for consideration by the Office in applications rather than making and relying on their own determinations of materiality.”). As this case shows, Appellant elected, we think correctly, to submit the Grant Proposal via an IDS and also present its views as to why Grant Proposal D3 was not-accessible. Thus, mere listing of Grant Proposal D3 in the IDS was not a concession on the part of Appellant that Grant Proposal D3 is prior art. Appeal 2013-006801 Application 12/052,947 27 8. Decision on Rejection 1 For the reasons given, Rejection 1 is affirmed. B. Rejection 2 1. Background Claims 1, 3–8, 11–14, 17, and 18 stand rejected as unpatentable under 35 U.S.C. § 103(a) over the combination of D5 (Asandei 1) and D6 (Lee). Ans., 7; Final Rejection, 5. In presenting the appeal as to Rejection 2, Appellant does not argue the separate patentability of claims 3–8, 11–14, 17, and 18 apart from claim 1. Accordingly, we decide Rejection 1 on the basis of claim 1. 37 C.F.R § 41.37(c)(1)(iv). 2. Claim 1 Claim 1, reproduced from the Claim Appendix of the Appeal Brief, page 19, reads [some indentation and bracketed matter added]: Claim 1 A method of preparing a graft copolymer comprising: [1] reacting a first grafting monomer with an epoxide macroinitiator in the presence of an early transition metal radical ring opening catalyst to form a first graft copolymer, wherein the first graft copolymer comprises epoxide groups; [2] reacting the first graft copolymer with a second grafting monomer in the presence of an early transition metal radical ring opening catalyst to form a second graft copolymer comprising two different grafts, Appeal 2013-006801 Application 12/052,947 28 wherein the second graft copolymer comprises epoxide groups; [3] reacting the second graft copolymer with a third grafting monomer in the presence of an early transition metal radical ring opening catalyst to form a third graft copolymer comprising three different grafts; wherein the third graft copolymer optionally comprises remaining unreacted epoxide groups available for further granting reactions. 3. The Invention The invention can be understood by reference to Figure 1 of the drawings, reproduced on the following page, and the discussion concerning Figure 1 in the written description portion of the Specification. Appeal 2013-006801 Application 12/052,947 29 Fig. 1 Figure 1 depicts a general schematic of the synthesis of graft copolymers Appeal 2013-006801 Application 12/052,947 30 Appellant’s Specification states with respect to Figure 1: A generalized schematic of a sequential grafting process is provided in FIG. 1, which is exemplary only. An epoxide macroinitiator (3) is prepared from the reaction between a macroinitiator monomer (1) and an additional monomer (2a). The macroinitiator monomer (1) of FIG. 1 satisfies a general structure wherein each occurrence of X is independently O or S; R3 is hydrogen, halogen or C1-C6 alkyl; and R4 is C1-C6 alkylene or aryl group optionally substituted. An exemplary (1) is glycidyl acrylate where X is O, R3 is hydrogen, and R4 is methylene. The additional monomer (2a) is an ethylenically unsaturated compound wherein R1 is hydrogen, C1-C6 alkyl, or halogen and R2 is C1-C6 alkyl, aryl, C1-C6 alkylester or aryl. The epoxide macroinitiator (3) is then reacted with a grafting monomer (2b) in the presence of Cp2TiCl. Not wishing to be bound by theory, but it is believed that the radical ring opening proceeds with the formation of macromolecular Ti alkoxides (Cp2ClTi—O macroinitiator) and of a mixture of reactive, constitutionally isomeric primary and secondary C-centered radicals derived from the regioselectivity of the radical ring opening (4). The β–titanoxy radicals have the same thermodynamic stabilization as the corresponding alkyl radicals and typically the secondary radical is favored. Such radicals add readily to conventional monomers such as (meth)acrylates, styrene, vinyl acetate, vinyl chloride, vinylidene fluoride, isoprene, and butadiene for example, and initiate the polymerization. In addition the Ti alkoxide which is formed at the same time, can initiate the living ring opening polymerization of cyclic esters. For simplicity, only one mode of epoxide radical ring opening is depicted in FIG. 1 for the grafted structures. The epoxide macroinitiator (3) typically contains a large excess of epoxide groups by comparison with available Cp2TiCl and thus lead to its fast and complete consumption. Other living radical polymerization mediators such as CuX2 (X = Cl, Br) are used to control grafting and Appeal 2013-006801 Application 12/052,947 31 prevent potential crosslinking. Thus, after the Ti-mediated radical ring opening initiation, CuX2/bpy enables the synthesis of the graft copolymer (5) in a controlled fashion by reacting with additional monomer (2b) wherein R5 is hydrogen or C1-C6 alkyl, and R6 is C1-C6 alkyl, aryl, or C1-C6 alkylester. Radical ring opening is effected for only a portion of the available epoxides during grafting allowing for the sequential grafting copolymerization of several different grafting monomers (2c, 2d) until the complete consumption of all epoxides. For graft copolymers (6,7), R7 and R9 are independently hydrogen or C1-C6 alkyl, and R8 and R10 are independently C1-C6 alkyl, aryl, or C1-C6 alkylester. The method described in FIG. 1 does not require additional epoxide protection/deprotection steps, as the amount of epoxide opening is controlled by the Cp2TiCl/epoxide ratio and there is no reaction between Cu halides and epoxides. In one embodiment, a method of preparing a graft copolymer comprises [1] reacting a first grafting monomer with an epoxide macroinitiator in the presence of an early transition metal radical ring opening catalyst to form a first graft copolymer which comprises epoxide groups; [2] reacting the first graft copolymer with a second grafting monomer in the presence of an early transition metal radical ring opening catalyst to form a second graft copolymer comprising two different grafts and remaining epoxide groups; [3] reacting the second graft copolymer with a third grafting monomer in the presence of an early transition metal radical ring opening catalyst to form a third graft copolymer comprising three different grafts and optionally comprising remaining epoxide groups; and [4] optionally reacting the third graft copolymer with a fourth grafting monomer in the presence of an early transition metal radical ring opening catalyst to form a fourth graft copolymer comprising four different grafts and optionally Appeal 2013-006801 Application 12/052,947 32 comprising remaining epoxide groups; and further reiterating the grafting reaction to obtain a graft copolymer comprising five, six, seven, eight, nine, ten, or more different grafts. Spec., ¶¶ 61–62. 4. Scope and Content of the Prior Art (a) D5—Asandei 1 The Examiner found that: Asandei et al. [D5] discloses a method of preparing a graft copolymer comprising: reacting [1] a first grafting monomer, styrene, with . . . [2] polymers containing pendant epoxide groups (glycidyl methacrylate . . . see abstract) in the presence of TiCP2Cl (an early transition metal catalyst) to form a first graft [polymer]. See abstract. Asandei et al. [D5] discloses that “(t)he grafting density as well as branch length can be easily manipulated from the amount of Ti and St [styrene].” See page BB11.9.4, first paragraph [, last sentence,] and figure 2. Since grafting density can be controlled, it is apparent that additional epoxide groups would be present in the grafted polymer. Final Rejection, 5; Ans., pages 7–8 (matter in brackets added). In describing styrene graft polymerization from poly(glycidyl methacrylate) (PGMA), D5 indicates notes that “the epoxide groups are in excess . . . .” Page BB11.9.4, first paragraph, line 4. (b) D6—Lee The Examiner found that: Lee et al. [D6] teaches that “[m]ultiple grafting steps can . . . be used to create . . . polymer brushes.” See paragraph [0146]. Lee et al. [D6] further discloses that the brushes (grafts) are formed via generating radicals on . . . material, Appeal 2013-006801 Application 12/052,947 33 followed by radical polymerization. “As such, grafted polymer #1 is obtained. The above processes are repeated to obtain grafted polymer #2, grafted polymer #3 and so on. Moreover, the grafting process can be stopped at any step depending on the desired complexity of the brush structure. Different reactive monomers can be used at each grafting step.” See paragraph [0146]. The use of different reactive monomers would include multiple monomers for each step. Ans., 8. For completeness, we reproduce Lee paragraph 146 (emphasis added): Multiple grafting steps can also be used to create the polymer brushes. Radicals are generated in the base material, for example a polymer base material is irradiated at an ambient temperature under nitrogen atmosphere to create radicals for polymer grafting. In the currently preferred embodiment, irradiation is performed by using an electron beam accelerator. Graft polymerization of reactive monomers (for example, liquid phase grafting) is performed on the base material to allow the formation of polymer brushes. As such, grafted polymer #1 is obtained. The above processes are repeated to obtain grafted polymer #2, grafted polymer #3 and so on. Moreover, the grafting process can be stopped at any step depending on the desired complexity of the brush structure. Different reactive monomers can be used at each grafting step, providing a plurality of brush compositions for immobilizing numerous types of functional groups or bioactive molecules thereto. The process can include immobilization of functional groups followed by additional grafting reactions. Appeal 2013-006801 Application 12/052,947 34 5. Differences (a) D5—Asandei et al. The Examiner found (Final Rejection, 5), and Appellant agrees (App. Br., 14), that D5 describes only a single grafting step. D5 therefore differs from the subject matter of claim 1 in that it does not describe steps [2] and [3] of claim 1 as reproduced above. (b) D6—Lee D6 “generally discloses engrafted polymer brushes and [that] multiple grafting steps can be used to obtain 1, 2, 3, or more grafts where different grafting monomers can be used in each grafting step.” App. Br., 14. However, the method of D6 for accomplishing each grafting step (irradiation) differs from the method set out in steps [1], [2], and [3] of claim 1 as reproduced above. Each of steps [1], [2], and [3] of claim 1 call for a radical ring-opening catalyst based process described by D5—Asandei 1. 6. Level of Skill in the Art The prior art reveals the level of skill in the art. In re GPAC, Inc., 57 F.3d 1573, 1577 (Fed. Cir. 1995) (level of skill in the art can be determined by reference to prior art of record). 7. Analysis (a) Examiner’s Analysis The Examiner found that one skilled in the art would have a reason to use the multiple grafting steps of D6 (Lee) to modify the single graft polymers Appeal 2013-006801 Application 12/052,947 35 described by D5 (Asandei et al.) to control complexity of the D5 polymer. Final Rejection, 6. The Examiner held that the subject matter of claim 1 would have been obvious. (b) Appellant’s Position Appellant questions the Examiner’s analysis on multi-fronts: D6’s [Lee’s] disclosure is [1] merely a generalized description or mere objective with [2] no teaching of how to achieve such a result. [3] No specific example of a multiple grafting process is shown and no disclosure of processes to achieve multiple grafts of varying grafting monomers is disclosed. Furthermore, [4] D6 does not involve chemistry that is similar to the living radical ring opening processes of . . . [D5]. Based on mere generalizations in D6 and the description of a single graft in . . . [D5], one having ordinary skill in the art would not have been directed to use the process of . . . [D5] in an iterative fashion to perform a multiple grafting process with multiple different grafting monomers as is required by . . . [claim 1.] App. Br., 14 (matter in brackets added). (c) Generalized Description Argument Appellant does not tell us why a generalized description cannot serve as evidence of obviousness. Moreover, Appellant’s generalized description argument overlooks the basis upon which the Examiner relied upon D6. The reference was relied upon to show that multiple grafting steps have been accomplished in the past, albeit by different methods. D5, ¶ 146. Appeal 2013-006801 Application 12/052,947 36 When D5 was published in 2005, one skilled in the art would have been charged with knowledge of D6 published earlier in 2003. While the grafting process of D6 differs from that of D5, one skilled in the art would have recognized that the advantages of multi-grafting of D6 could be applied to the single-graft disclosure of D5 to achieve the the benefits that arise from the presence of multiple grafts in the polymer. Likewise, one skilled in the art would have recognized that the D5 polymerization technique could have been used in place of the D6 less reliable irradiation polymer technique to make multi-graft materials as suggested by D6. Counsel for Appellant also argues that D6 “is not a grafting process.” App. Br., 16. No evidence is given in support of the argument. Moreover, the argument appears to be facially inconsistent with D6’s description of its process as a grafting process. See, e.g., D6, ¶ 146. (d) No Teaching How to Achieve Result Appellant in effect questions whether D6 describes a means for accomplishing multi-grafting. It is true that a reference relied upon in support of a § 103(a) rejection must be enabling. In re Hoeksema, 399 F.2d 269, 274 (CCPA 1968). However, it is also true that the party alleging non-enablement bears the burden of proving non-enablement. In re Antor Media Corp., 689 F.3d 1282, 1288–89 (Fed. Cir. 2012) (a publication is presumed to be enabling). Appellant produced no evidence in support of its allegation that D6 is non-enabling. Nor has Appellant provided a response in a reply brief to the Examiner’s observation on page 12 of the Answer that “[i]t is evident from the teachings of D6 Appeal 2013-006801 Application 12/052,947 37 that the second grafting step etc. involves repeating the procedure of the first grafting step.” (e) No Example Argument Appellant’s “no example” argument cannot be reconciled with applicable precedent. In re Burckel, 592 F.2d 1175, 1179 (CCPA 1979) (a prior art disclosure is not limited to its preferred embodiments or specific working examples); In re Mills, 470 F.2d 649, 651 (CCPA 1972) (all the disclosures in a reference must be evaluated). (f) Different Chemistry The Examiner addressed Appellant’s “different chemistry” argument. In particular, the Examiner noted that: D6 [Lee] is directed towards radiation-induced radical polymerization and nucleophilic opening of epoxides, while . . . [claim 1 is directed to] an early transition metal radical ring opening catalyzed polymerization. Ans., 12. The Examiner noted, however, that D6 teaches the advantages of synthesizing multiple grafted polymers. Id. [I]f a technique has been used to improve one device [that of D6—Lee], and a person of ordinary skill in the art would recognize that it would improve similar devices [those of D5— Asandei 1] in the same way, using the technique is obvious unless its actual application is beyond his or her skill [which it is not given the how to polymerize teachings of D5—Asandei 1] KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007). Appeal 2013-006801 Application 12/052,947 38 8. Decision on Rejection 2 For the reasons given, Rejection 2 is affirmed. C. Rejection 3 Claims 9 and 10 stand rejected as unpatentable under 35 U.S.C. § 103(a) over the combination of D5 (Asandei 1), D6 (Lee) and D7 (Asandei 2). Ans., 9; Final Rejection, 5. Claims 9 and 10 call for the use of specific monomers. Those monomers are not described in D5 or D6, but are described in D7. We address only the arguments made in the Appeal Brief, at pages 16 and 17. First, Appellant argues, as it did in connection with Rejection 2, that D5 and D6 “fail to teach or suggest multiple, iterative grafting polymerization of three or more different grafting monomers onto an epoxide macroinitiator.” App. Br., 17. We addressed in connection with Rejection 2 how D5 teaches grafting onto an epoxide macroinitiator and D6 teaches iterative grafting. Second, Appellant concedes that “D7 discloses single grafting processes of three individual monomers.” App. Br., 17. However, Appellant argues that D7 “too fails to teach or suggest that these monomers can be used in an iterative grafting polymerization process.” Id. D6 provides the necessary teaching of iterative grafting polymerization. In effect, Rejection 3 stands or falls with Rejection 2. For the reasons given, Rejection 3 is affirmed. Decision Upon consideration of the appeal, and for the reasons given herein, it is Appeal 2013-006801 Application 12/052,947 39 ORDERED that Rejection 1 is affirmed. FURTHER ORDERED that Rejection 2 is affirmed. FURTHER ORDERED that Rejection 3 is affirmed. FURTHER ORDERED that no time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED bar Appeal 2013-006801 Application 12/052,947 Appendix 1 Cover Sheet for National Science Foundation Proposal (Oct. 1999) COVER SHEET FOR PROPOSAL TO THE NATIONAL SCIENCE FOUNDATION PROGRAM ANNOUNCEMENT/SOLICITATION NO.lCLOSING DATE/If not in response to a program announcement/solicitation enter NSF 00-2 IS THIS AGENCY? 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The certification set out below is a material representation of fact upon which reliance was placed when the agency determined to award the grant. If it is later determined that the grantee knowingly rendered a false certification, or otherwise violates the requirements of the Drug-Free Workplace Act, the agency, in addition to any other remedies available to the Federal Government, may take action authorized under the Drug-Free Workplace Act. 3. For grantees other than individuals, Alternate I applies. 4. For grantees who are individuals, Alternate II applies. Certification Regarding Drug-Free Workplace Requirements Alternate I (Grantees Other Than Individuals) The grantee certifies that it will or will continue to provide a drug-free workplace by: (a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition; (b) Establishing an ongoing drug-free awareness program to inform employees about (1) The dangers of drug abuse in the workplace; (2) The grantee's policy of maintaining a drug-free workplace; (3) Any available drug counseling, rehabilitation and employee assistance programs; and (4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; (c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a); (d) Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will (1) Abide by the terms of the statement; and (2) Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace, no later than five calendar days after such conviction; (e) Notifying the agency in writing, within 10 calendar days after receiving notice under subparagraph (d)(2) from an employee or oth erwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification number(s) of each affected grant; (f) Taking one of the following actions, within 30 calendar days of receiving notice under subparagraph (d)(2), with respect to any em ployee who is so convicted (1) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or . (2) Requiring such employee to partiCipate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health. law enforcement, or other appropriate agency; (g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (a), (b). (c), (d), (e) and (f). Alternate 1\ (Grantees Who Are Individuals) (a) The grantee certifies that, as a condition of the grant, he or she will not engage in the unlawful manufacture. distribution, dispensing, possession or use of a controlled substance in conducting any activity with the grant. (b) If convicted of a criminal drug offense resulting from a violation occurring during the conduct of any grant activity. he or she will report the conviction. in writing, within 10 calendar days of the conviction, to every grant officer or other designee, unless the Federal agency deSignates a central point for the receipt of such notices. When notice is made to such a central pOint, it shall include the identification number(s) of each affected grant. (For NSF, grantee notification should be made to the Cost Analysis/Audit Resolution Branch, Division of Contracts, Policy & OverSight, NSF, Arlington, VA 22230) Appeal 2013-006801 Application 12/052,947 Appendix 2 Executive Order No. 12600 52 Fed. Reg. 23781 (June 25, 1987) Federal Register I Vol:'52. No. 122 I Thursday. June' 25. 1987 I Presidential Documents 23781: Presidential Documents Executive Order -12600 of JUDe 28. 1987 Predisclosure Notification Procedures for Confidential Commercial Information By the authority vested in me as President by the Constitution and statutes of the United States of America. and in order to provide predisclosure notifica tion procedures under the Freedom of Information Act concerning confidential commercial information, and to make existing agency notification provisions more uniform, it is hereby ordered as follows: Section 1. The head of each Executive department and agency subject to the Freedom of Information Act shall. to the extent permitted by law. establish procedures to notify submitters of records containing confidential commercial information as described in section 3 of this Order. when those records are requested under the Freedom of Information Act (FOIA). 5 U.S.C. 552, as amended. if after reviewing the req'!lest. the responsive records. and any appeal by the requester, the d~partrnent or agency determines that it may be required to disclose the records. Such notice requires that an agency use good faith efforts to advise submitters of confidential commercial information of the procedures established under this Order. Further. where notification of a voluminous number of submitters is required. such notification may be accom plished by posting or publishing the notice in a place reasonably calculated to accomplish notification. Sec. 2. For purposes of this Order. the following definitions apply: (a) "Confidential commercial information" means r,ecords provided to the government by a submitter that arguably contain material exempt !ro'm re lease under Exemption 4 of the Freedom of Information Act. 5 U.S.C. 552(b)(4). because disclosure could reasonably be expected to cause substantial com petitive harm. (b] "Submitter" means any person or entity who provides confidential com mercial information to the government. The term "submitter" inc]udes. but is ' not limited to. corporations. state governments. and foreign governments .. Sec. 3. (a) For confidential commercial information 'submitted prior to January 1. 1988. the head of each Executive department or agency shall. to the extent permitted by law; provide a submitter with notice pursuant to section 1 whenever: (i) the records are less than 10 years old and the information has been designated by the submitter as confidential commercial information; or (ii) the department or agency has reason to believe that disclosure of the information could reasonably be expected to cause substantial competitive harm. {b) For confidential commercial information submitted on or after January 1. 1988. the head of each Executive department or agency shall. to the extent permitted by law. establish procedures to permit submitters of confidential commercial information to designate. at the time the information is submitted to the Federal government or a reasonable time thereafter. any information the disclosure of which the submitter claims could reasonably be expected to cause substantial competitive harm. Such agency procedures may provide for the expiration. after a specified period of time or changes in circumstances. of , designations of competitive harm made by submitters. Additionally. such 23182 ':Federal Register I Vol. 52. No. 122 I Thursday, June 25. 1987' I Presidenti~l Dpcuments pro~edures may permit the agency to designate specific classes of informatiQn _that will be treated by the agency as if the information had been,so:designated byUle ,submitter. The head of eac~ Executive depar~ent or agency shall. to ,the extent permitted by law, ,provide the submiUer notice in accordance with se~tion 1 of this Order whenever the department or agency determines that it ma·y be required to disclose records:' ." (i) designated pursuant to this subsection; or (ii) the disclosure of which the department or agency has reason to believe could reasonably be expected to cause substantial competitive harm. ' ,Sec. 4. When notification is made pursuant to section 1, each agency's procedures shall. to the extent permitted by law. afford the submitter a reasonable 'period of time in which t~!!! submitter or its designee may object to the disclosure of any specified portion of the information and to state all grounds upon which disclosure is opposed., '" Sec. ~., Each agency shall give careful consideration to all such specified grounds for nondisclosure prior to making an administrat,ive determination of the issue. In all instances when'the agency determines to disclose the request ed records, its procedures shall provide that the agency give the submitter a written statement briefly explaining why the submitter's objections are not sustained. Such statement shall. to the extent permitted by law, be provided a reasonable number of days prior to a specified disclosure date. Sec. 6. Whenever a FOIA requester brings suit seeking to compel disclosure of confidential commercial information. each agency's procedures shall require that the submitter be promptly notified: Sec. '7.' The designation and notification proceduresreq1.lired, by this Order shall be established by regulations. after notice and public:comment. If similar procedures or regulations already exist. they should ,be reviewed for conf~rmi ty and revised where necessary. Existing procedures 'or regulations need not be, modi~ed 'if they are in compliance with this Order. Sec. 8. The notice requirements of thi~ Order need not be followed if: .[a) 'T~e agency determines that the inf!)rmation should Jlot be disclosed; (b) The iriformation has been published or has been officially made available to the public: (c) Disclosure of the information is required by law (other than 5 U.S.C. 552); (d) The disclosure is required by an agency rule that (1) wa~ ~~opted pursuant to notice and public comment. (2) specifies narrow classes, of records, submit ted to the agency that are to be released under the .Fjreedom of Information Act. and (3) provides in exceptional circumstarices for 'notice when the submitter provides written justification. at the,time the inforJ.1laliQn is submit ted or a reasonable time thereafter. that disclosure of the information could reasonably be expected to cause substantial competitive harm; ,: (e) The information requested is not designated by the 8ub~it'er as exempt from disclosure in accordance with agency regulations promulgated pursuant to section 7, when the submitter had an opportunUy to do so at the time of submission of the ,information or a reasonable time thereafter. unless the agency has substantial reason to believe that disclosure of the information would result in competitive harm: or , ', . , [f). The designation made by the 8ubmJtterin accordance with agency regula tions promulgated pursuant to section 7 appears obviously frivolous; except that. in such case. the agency must provide the submitter with written notice of ariy final administrative disclosure determination within a reasonable number of days prior to the specified disclosure date. Sec. 9. Whenever an agency notifies a submitter that it may be required to disclose information pursuant to section 1 of this Order, the agency shall also notify the requester that notice and an opportunity to .comment are being Federal Register I 'Vol. 52. No. 122 I Thursday. J~ne 25. 1987 I Presidential Doc~~ent8' 23783 provided the submitter. Whenever an agency notifies a submitter of a final decision pursuant to section.5 of this ,Order. the agency shall also notify the requester. . . '. Sec. 10. This Order is intended only to improve the internal management of the Federal government. and is not intended to create any right or benefit. substantive or procedural. enforceable at law by a party against the United State~. its agencies,. its officers. or any person. THE WHITE HOUSE, June 23, 1987. [FR Doc. 87-t4OO% •Filed &-23-87; 4:38 pm) Blllill8 code 31~-M Appeal 2013-006801 Application 12/052,947 Appendix 3 45 C.F.R. Part 612 (Oct. 1, 2004) >\.UTHENTICATE US. GOVI;R.N'lAENT lNroRMATlON GPO9 pt, 611, App, A (li) The entity of such State or local government that distributes such as sistance and each such department or agency (and each other State or local government entity) to which the as sistance is extended, in the case of as sistance to a State or local govern ment; (2) (i) A college, university, or other postsecondary institution, or a public system of higher education; or (ii) A local educational agency (as de fined in 20 U.S.C. 7801). system of voca tional education, or other school sys tem; (3) (i) An entire corporation, partner ship, or other private organization, or an entire sole proprietorship (A) If assistance is extended to such corporation, partnership. private orga nization, or sole proprietorship as a whole; or (B) Which is principally engaged in the business of prOViding education, health care, housing. social services. or parks and recreation; or (li) The entire plant or other com parable, geographically separate facil ity to which Federal financial assist ance is extended, in the case of any other corporation. partnership, private organization, or sole proprietorship; or (4) Any other entity which is estab lished by two or more of the entities described in paragraph (f)(1). (2), or (3) of this section. (g) The term facility includes all or any portion of structures, equipment, or other real or personal property or interests therein, and the provision of facilities includes the construction. ex pansion, renovation, remodeling, alter ation or acquisition of facilities. (h) The term recipient means any State. political subdivision of any State, or instrumentality of any State or political subdiVision. any public or private agency, institution, or organi zation, or other entity or any indi vidual, in any State, to whom Federal financial assistance is extended, di rectly or through another recipient, in cluding any successor, assign, or trans feree thereof. but such term does not include any ultimate benefiCiary. (1) The term primary recipient means any recipient which is authorized or re quired to extend Federal financial as sistance to another recipient. 45 CFR Ch. VI (10-1-04 Edition) (j) The term applicant means one who submits an application. request, or plan reqUired to be approved by a re sponsible Foundation official, or by a primary recipient, as a condition to eligibility for Federal financial assist ance, and the term application means such an application, request, or plan. [29 FR 16305, Dec. 4, 1964, as amended at 68 FR 51382, Aug. 26, 20031 ApPENDIX A TO PART 611 Statutory Provisions under which the Na tional Science Foundation provides Federal financial assistance: The National Science Foundation Act of 1950, as amended (42 U.S.C. 1861-1875). [38 FR 17986, July 5, 1973, as amended at 59 FR 37437, July 22, 19941 PART 612-AVAILABILITY OF RECORDS AND INFORMAl'ION Sec. 612.1 General provisions. 612.2 Public reading room. 612.3 Requirements for making requests. 612,4 Processing 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. SOURCE: 65 FR 11741, Mar. 6, 2000, unless otherwise noted. § 612.1 General provisions. This part contains the rules that the National Science Foundation follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. Information rou tinely 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 Foun dation also makes discretionary disclo sures of records or information other wise exempt under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemp tion. This policy, however, does not 120 National Science Foundation 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 reg ulations at part 613 of this chapter, and this part. § 612.2 Public reading room. (a) The Foundation maintains a pub lic reading room located in the NSF Li brary 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 print ers available for public use in accessing records. Also available for public in spection and copying are current sub ject matter indexes of reading room records. (b) Information about FOIA and Pri vacy at NSF and copies of frequently requested FOIA releases are available online at . Most NSF policy docu ments, staff instructions, manuals. and other publications that affect a mem ber of the public, are available in elec tronic form through the "Documents" option on the tool bar on NSF's Home Page on the World Wide Web at . § 612.3 Requirements for making re quests. (a) Where to send a request. You may make a FOIA request for records of the National Science Foundation by writ ing directly to the FOIA Officer, Office of the General Counsel. National Science Foundation. 4201 Wilson Boule vard. Suite 1265, Arlington, VA 22230. For records maintained by the NSF Of fice of the Inspector General (OIG). you may write directly to the Office of In spector 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 bye-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, §612.3 and be clearly identified both on the envelope and in the letter. or in a fac simile 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 de scribed in §612.1O. 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 sys tem 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 in diVidual, either a written authorization signed by that individual in accordance with §613.2(f) of this chapter permit ting disclosure of those records to you, or proof that that individual is de ceased (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 informa tion about each record sought, such as the date, title or name, author, recipi ent, 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 re duced or eliminated. If NSF determines that your request does not reasonably describe records, you will be advised what additional information is needed 121 §612.4 to perfect your request or why your re quest is otherwise insufficient. (e) Agreement to pay fees. Your re quest must state that you will prompt ly 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 §612.1O(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 §612.lO(i». (f) Receipt date. A request that meets the requirements of this section will be considered received on the date it is re ceived by the Office of the General Counselor 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 close of busi ness (5:00pm) on the date of receipt. (g) Publications excluded. For the pur pose of public requests for records the term "record" does not include publica tions 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 Publica tions Clearinghouse PO Box 218, Jessup, MD 20794-0218, or through NSF's Home Page on the World Wide Web at "Documents." Requests for such publications will be referred to or the requester informed of the appropriate source. § 612.4 Processing 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 cen tral office for administering these reg ulations. For records maintained by the Office of Inspector General, that Office will control incoming requests made directly or referred to it, dis patch 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 45 CFR Ch. VI (lo-l-Q4 Edition) action offices, monitor compliance, consult with action offices on disclo sure, approve necessary extensions, dis patch 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 an other agency has a substantial inter est, it may decide that the other agen cy of the Federal Government is better able to determine whether the record should or should not be released under the FOIA. (1) If the Foundation determines that it is the agency best able to process the record in response to the request, then it will do so, after consultation with the other interested agencies where ap propriate. (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 sub mitted 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 mat ters, 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 re quest 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 infor mation otherwise exempt. § 612.5 Timing of responses to re quests. (a) In general. NSF ordinarily will initiate processing of requests accord ing to their order of receipt. 122 National SCience Foundation (b) Time for response. The Foundation will seek to take appropriate agency action within 20 days of when a request is received or is perfected (excluding the date of receipt, weekends, and legal holidays), whichever is later. A request which otherwise meets the require ments of §612.3 is perfected when you have reasonably described the records sought under §612.3(d), and agreed to pay fees under §612.3(c), or otherwise met the fee requirements under §612.10. (c) Unusual circumstances. (1) Where the time limits for processing a request cannot be met because of unusual cir cumstances, as defined in the FOIA, the FOIA Officer will notify the re quester as soon as practicable in writ ing 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 Offi cer will provide the requester with an opportunity either to modify the re quest so that it may be processed with in 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 re quest. (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 expe dited processing. (2) (I) Requests and appeals will be given expedited treatment whenever it is determined that a requester has demonstrated compelling need by pre senting: (A) Circumstances in which the lack of expedited treatment could reason ably be expected to pose an imminent threat to the life or physical safety of an individual; or (B) An urgency to inform the public about an actual or alleged Federal gov ernment activity, if made by a person primarily engaged in disseminating in formation. (Ii) 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 ac tivity or occupation is information dis semination, though it need not be his §612.6 or her sole occupation. Such requester also must establish a particular ur gency to inform the public about the government activity involved in the re quest, beyond the public's right to know about government activity gen erally, and that the information sought has particular value that would be lost if not disseminated quickly. (3) Within ten calendar days of re ceipt of a request for expedited proc essing, the FOIA Officer or OIG will de cide whether to grant it, and will no tify 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 de nied, any appeal of that decision will be acted on expeditiously. § 612.6 Responses to requests. (a) Acknowledgment of requests. The FOIA Officer will ordinarily send an ac knowledgment of a FOIA request only if it is anticipated that a determina tion on release will not be possible within 20 working days. (b) Grants of requests. Once the Foun dation makes a determination to grant a request in whole or in part, it will no tify 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 infor mation deleted where practicable. (c) Denials of requests. (I) Denials of FOIA requests will be made by the Of fice of the General Counsel. the Office of the Inspector General, or such other office as may be designated by the Di rector. The response letter will briefly set forth the reasons for the denial, in cluding any FOIA exemption(s) applied by the Foundation in denying the re quest. It will also provide the name and title or position of the person respon sible for the denial. will inform the re quester of the right to appeal, and will. where appropriate. include an estimate of the volume of any requested mate rials withheld. An estimate need not be provided when the volume is otherwise indicated through deletions on records 123 §612.7 disclosed in part. or if providing an es timate would harm an interest pro tected by an applicable exemption. (2) Requesters can appeal an agency determination to withhold all or part of any requested record; a determina tion that a requested record does not exist or cannot be located; a deter mination 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 §612.9). §612.7 Exemptions. (a) Exemptions from disclosure. The fol lowing types of records or information may be withholdable as exempt in full or in part from mandatory public dis closure: (1) Exemption 1-5 USC. 552(b) (I). Records specifically authorized and properly classified pursuant to Execu tive Order to be kept secret in the in terest 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 in formation 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 normally exempt from disclosure include. but are not limited to: (i) Operating rules, guidelines, manu als on internal procedure. schedules and methods utilized by NSF investiga tors, inspectors. auditors and exam iners. (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 posi tions were applicable. They may also be exempt pursuant to other provisions of this section. 45 CFR Ch. VI (lD-Hl4 Edition) (iii) Information relating to position management and manpower utiliza tion, such as internal staffing plans. authorizations or controls. or involved in determination of the qualifications of candidates for employment. ad vancement, or promotion including ex amination questions and answers. (iv) Computer software. the release of which would allow circumvention of a statute or NSF rules. regulations, or ders. manuals. directives. instructions, or procedures; or the integrity and se curity of data systems. (3) Exemption 3-5 U.S.C. 552(b)(3). Records specifically exempted from disclosure by another statute that ei ther requires that the information be withheld in a such way that the agency has no discretion in the matter; or es tablishes particular criteria for with holding or refers to particular types of information to be withheld. Examples of records exempt from disclosure in clude, but are not limited to: (i) Records that disclose any inven tion in which the Federal Government owns or may own a right. title, or in terest (including a nonexclusive li cense). 35 U.S.C. 205; (ii) Contractor proposals not specifi cally set forth or incorporated by ref erence into a contract. 41 U.S.C. 253b(m); (iii) Information protected by the Procurement Integrity Act. 41 U.S.C. 423. (4) Exemption 4-5 USC. 552(b)(4). Trade secrets and commercial or finan cial information obtained from a per son. and privileged or confidential. In formation subject to this exemption is that customarily held in confidence by the originator(s). including nonprofit organizations and their employees. Re lease of such information is likely to cause substantial harm to the competi tive position of the originator or sub mitter. or impair the Foundation's ability to obtain such information in the future. NSF will process informa tion potentially exempted from disclo sure by Exemption 4 under § 612.8. Ex amples of records or information nor mally exempt from disclosure include, but are not limited to: 124 National Science Foundation (i) Information received in con fidence, such as grant applications, fel lowship applications, and research pro posals prior to award; (ii) Confidential scientific and manu facturing processes or developments, and technical, scientific, statistical data or other information developed by a grantee. (iii) Technical, scientific, or statis tical data, and commercial or financial information privileged or received in confidence from an ,existing or poten tial contractor or subcontractor, in connection with bids, proposals, or con tracts, concerning contract perform ance, income, profits, losses, and ex penditures, as well as trade secrets, in ventions, discoveries, or other propri etary data. When the provisions of 41 U.S.C. 253b(m) or 41 U.S.C. 423 are met, certain proprietary and source selec tion Information may also be withheld under Exemption 3. (iv) Confidential proprietary infor mation submitted on a voluntary basis. (v) Statements or information col lected in the course of inspections, In vestigations, 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 in formation normally considered con fidential or privileged. (5) Exemption 5-5 U.s.C. 552(b)(5). Inter-agency or intra-agency memo randa 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 con sidered for release if it can be reason ably segregated and is not otherwise exempt. Examples of records exempt from disclosure include, but are not limited to: (i) Those portions of reports, memo randa, correspondence, workpapers, minutes of meetings, and staff papers, containing evaluations, advice, opin ions, 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 con sultant or advisory capacity; (ii) Advance information on proposed NSF plans to procure, lease, or other wise acquire, or dispose of materials, §612.7 real estate, facilities, services or func tions, when such information would provide undue or unfair competitive advantage to private interests or im pede legitimate government functions; (iii) Trade secret or other confiden tial research development, or commer cial information owned by the Govern ment, where premature release is like ly to affect the Government's negoti ating position or other commercial in terest; (iv) Records prepared for use in pro ceedings before any Federal or State court or administrative body; (v) Evaluations of and comments on specific grant applications, research projects or proposals, or potential con tractors 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, rec ommendations, 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 fi nancial plan and supporting papers; (Viii) Those portions of official re ports of inspection, reports of the In spector General, audits, investigations, or surveys pertaining to safety, secu rity. or the internal management, ad ministration, 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 inva sion of personal privacy. The exemp tion may apply to protect the privacy of living persons and of living close survivors of a deceased person identi fied in a record. Information in such files which is not otherwise exempt from disclosure pursuant to other pro visions 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 con sent. Examples of records exempt from 125 §612.7 disclosure include, but are not limited to: (0 Reports, records, and other mate rials pertaining to individual cases in which disciplinary or other administra tive action has been or may be taken. Opinions and orders resulting from those administrative or disciplinary proceedings shall be disclosed without identil)ting details if used, cited, or re lied upon as precedent. (ii) Records compiled to evaluate or adjudicate the suitability of candidates for employment, and the eligibility of individuals (civilian or contractor em ployees) for security clearances, or for access to classified information. (iii) Reports and evaluations which reflect upon the qualifications or com petence of individuals. (iv) Personal information such as home addresses and telephone and fac similes numbers, private e-mail ad dresses, social security numbers, dates of birth, marital status and the like. (v) The exemption also applies when the fact of the existence or nonexist ence 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 pur poses, 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. 0) 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 pro ceedings; (B) Would deprive a person of the right to a fair trial or an impartial ad judication; (C) Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a living person, or living close survivors of a deceased per son identified in a record; (D) Could reasonably be expected to disclose the identity of a confidential source, including a source within the 45 CFR Ch. VI (1 Q-l-04 EdiHon) Federal Government, or a State, local, or foreign agency or authority, or any private institution, that furnished in formation on a confidential basis; and information furnished by a confidential source and obtained by a criminal law enforcement authority in a criminal investigation; (El Would disclose techniques and procedures for law enforcement inves tigations or prosecutions, or would dis close guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be ex pected 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 normally ex empt 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 individ uals investigated for alleged irregular ities 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 con fidence, expressed or implied, in the course of a criminal investigation by the NSF Officer of the Inspector Gen eral. (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 ex amination, operating, or condition re ports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of finan cial institutions. (9) Exemption 9-5 U.S.C. 552(b)(9). Records containing geological and geo physical information and data, includ ing maps, concerning wells. 126 National Science Foundation (b) Deletion of exempt portions and identifying details. Any reasonably seg regable portion of a record will be pro vided to requesters after deletion of the portions which are exempt. Whenever any final opinion, order. or other mate rials required to be made available re lates to a private party or parties and the release of the name(s) or other identifying details will constitute a clearly unwarranted invasion of per sonal privacy, the record shall be pub lished or made available with such identifying details left blank, or shall be published or made available with ob viously 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. § 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 com mercial or financial information ob tained by the Foundation from a sub mitter that may be protected from dis closure under Exemption 4 of the FOIA and §612.7(a)(4). (2) Submitter means any person or en tity from whom the Foundation ob tains business information, directly or indirectly. The term includes corpora tions; state, local. and tribal govern ments; and foreign governments. (c) DeSignation of business information. A submitter of business information must use good faith efforts to des ignate, by appropriate markings, either at the time of submission or at a rea sonable time thereafter, any portions of its submission that it considers to be protected from disclosure under Ex emption 4. These designations will ex pire ten years after the date of the sub mission unless the submitter requests, and provides justification for, a longer designation period. (d) Notice to submitters. The Founda tion will provide a submitter with §612.8 prompt written notice of a FOIA re quest or administrative appeal that seeks its business information wher ever required under this section. in order to give the submitter an oppor tunity to object to disclosure of any specified portion of that information under paragraph (f) of this section. The notice shall either describe the busi ness information requested or include copies of the requested records or record portions containing the infor mation. (e) Where notice is required. Notice will be given to a submitter wherever: (1) The information has been des ignated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or (2) The Foundation has reason to be lieve that the information may be pro tected from disclosure under Exemp tion 4. (f) Opportunity to object to disclosure. NSF will allow a submitter a reason able time. consistent with statutory requirements, to respond to the notice described in paragraph (d) of this sec tion. If a submitter has any objection to disclosure, it must submit a detailed written statement. The statement must specify all grounds for with holding 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 re spond within the time specified in the notice, the submitter will be consid ered to have no objection to disclosure of the information. Information pro vided by a submitter under this para graph 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 non disclosure in deciding whether to dis close business information. Whenever it deCides to disclose business informa tion 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; 127 §612.9 (2) A description of the business in formation 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 disclo sure to third parties information about specific unfu.nded applications, includ ing 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 ac cordance with the requirements of Ex ecutive Order 12600 (3 CFR. 1988 Comp., p. 235); or (4) The designation made by the sub mitter under paragraph (c) of this sec tion 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 ofFOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of business infor mation, the Foundation will promptly notify the submitter(s). Whenever a submitter files a lawsuit seeking to prevent the disclosure of business in formation, the Foundation will notify the requester(s). § 612.9 Appeals. (a) Appeals ofdenials. You may appeal a denial of your request to the General Counsel, National Science Foundation, 4201 Wilson Boulevard, Suite 1265, Ar lington, VA 22230. You must make your appeal in writing and it must be re ceived 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 45 CFR Ch. VI (lD-H)4 Edition) and the denial together with any writ ten argument you wish to submit. (b) Responses to appeals. A written de cision on your appeal will be made by the General Counsel. A decision affirm ing an adverse determination in whole or in part will contain a statement of the reason(s) for the affirmance, in cluding any FOIA exemption(s) ap plied, and will inform you of the FOIA provisions for court review of the deci sion. If the adverse determination is re versed 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. § 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 send ing copies of requested records to a re quester. 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 re quest 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 in clude 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 be cause NSF has reasonable cause to doubt a requester's stated use, NSF will provide the requester a reasonable opportunity to submit further clari fication. (2) Direct casts 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 128 National Science Foundation 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 machin ery. Not included in direct costs are overhead expenses such as the costs of space and heating or lighting of the fa cility 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 ex ample. 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 re producible by NSF. with reasonable ef fort, in the requested form or format. (4) Educational institution means a preschool. a public or private elemen tary or secondary school. an institu tion of undergraduate higher edu cation. an institution of graduate high er education. an institution of profes sional 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 oper ated 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 cat egory. a requester must show that the request is authorized by and made under the auspices of a qualifying in stitution and that the records are not sought for a commercial use or to pro mote any particular product or indus try. 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 pub lish or broadcast news to the pUblic. §612.IO The term news means information that is about current events or that would be of current interest to the public. Ex amples of news media entities include television or radio stations broad casting to the public at large and pub lishers 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 or ganization. A publication contract would be the clearest proof, but NSF will also look to the past publication record of a requester in making this de termination. To be in this category. a requester must not be seeking the re quested records for a commercial use. However, a request for records sup porting the news dissemination func tion of the requester will not be consid ered to be for a commercial use. (7) Review means the examination of a record located in response to a re quest in order to determine whether any portion of it is exempt from disclo sure. 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 §612.8. but does not include time spent resolving general legal or policy issues regarding the application of exemp tions. (8) Search means the process of look ing for and retrieving records or infor mation responsive to a request. It in cludes page by page or line by line identification of information within records and also includes reasonable ef forts 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. 129 §612.10 (c) Fees. In responding to FOIA re quests, 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 re quests made by educational institu tions, noncommercial scientific insti tutions, 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. When ever 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 profes sional/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 con ducted (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 in clude the cost of operating the central processing unit (CPU) for that portion of operating time that is directly at tributable to searching for records re sponsive to a FOIA request and oper ator/programmer salary (i.e., basic pay plus 16 percent) apportionable to the search. When NSF can establish a rea sonable agency-wide average rate for CPU operating costs and operator/pro grammer 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, in 4S CFR Ch, VI (10-1-04 Edition) cluding 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 com mercial use request. Review fees will be charged only for the initial record review-in other words, the review done when NSF determines whether an ex emption 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 subse quently determined not to apply may be reviewed again to determine wheth er any other exemption not previously considered applies; the costs of that re view are chargeable where it is made necessary by a change of cir cumstances. Review fees will be charged at the salary rate (basic pay plus 16%) of the employee(s) per forming the review. (d) Limitations on charging fees. (1) No search fee will be charged for requests by educational institutions, non commercial 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 (il) 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 to gether. This means that noncommer cial 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 esti mates that the fees to be charged under 130 National Science Foundation this section will exceed $25.00, it will notify the requester of the actual or es timated 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 esti mated readily, NSF will advise the re quester 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 consid ered perfected and further work will not be done until the requester agrees to pay the anticipated total fee. Any such agreement should be memorial ized in writing. A notice under this paragraph will offer the requester an opportunity to discuss the matter with Foundation personnel in order to refor mulate the request to meet the re quester's needs at a lower cost, if pos sible. If a requester fails to respond within 60 days of notice of actual or es timated 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 sec tion, when NSF chooses as a matter of administrative discretion to provide a requested special service-such as certi fying 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 re quester. (g) Charging interest. NSF may charge interest on any unpaid bill starting on the 31st day following the date of bill ing 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 re ceived 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 proce dures, including the use of consumer reporting agencies, collection agencies, and offset. (h) Aggregating requests. Where NSF reasonably believes that a requester or a group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees, the agency may aggre gate those requests and charge accord ingly. NSF may presume that multiple §612.10 requests of this type made within a 30 day period have been made in order to avoid fees. Where requests are sepa rated by a longer period, NSF will ag gregate them only where there exists a solid basis for determining that aggre gation is warranted under all the cir cumstances involved. Multiple requests involving unrelated matters will not be aggregated. (i) Advance payments. (I) For requests other than those described in para graphs (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. Pay ment 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 esti mates 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 re ceives 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 re quester 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 ad vance payment or payment due under paragraph (i) (2) or (3) of this section, the request will not be considered per fected and further work will not be done on it until the required payment is received. (j) Other statutes specificalJy 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 131 §612.10 schedule programs, NSF will inform re questers 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 un derstanding of the operations or activi ties of the government and is not pri marily 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: Wheth er the subject of the requested records concerns "the operations or activities of the government." The subject of the requested records must concern identi fiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated. (li) The informative value of the in formation to be disclosed: Whether dis closure is "likely to contribute" to an understanding of government oper ations 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 do main, in either duplicative or substan tially 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 under standing of the subject by the public likely to result from disclosure: Whether disclosure of the requested in formation 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 re quester. A requester's expertise in the subject area and ability and intention 45 CFR Ch. VI (1 D-l-04 Edition) to effectively convey information to the public will be considered, A rep resentative of the news media as de fined in paragraph (b)(6) of this section will normally be presumed satisfy this consideration. (iv) The significance of the contribu tion to public understanding: Whether disclosure is likely to contribute "sig nificantly" to public understanding of government operations or activities. The public's understanding of the sub ject in question must be enhanced by the disclosure to a significant extent as compared to the level of public under standing existing prior to the disclo sure. NSF will make no value judg ments about whether information that would contribute significantly to pub lic understanding of the operations or activities of the government is "impor tant" 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 re quester has a commercial interest that would be furthered by the requested disclosure. NSF will consider any com mercial interest of the requester (with reference to the definition of "commer cial use" in paragraph (b)(l) of this sec tion). 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 infor mation regarding this consideration. (ii) The primary interest in disclo sure: Whether any identified commer cial interest of the requester is suffi Ciently large. in comparison with the public interest in disclosure, that dis closure is "primarily in the commercial interest of the requester." A fee waiver or reduction is justified where the pub lic interest standard is satisfied and that public interest is greater in mag nitude than that of any identified com mercial interest in disclosure. NSF or dinarily will presume that where a news media requester has satisfied the public interest standard, the public in terest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others 132 National Science Foundation who merely compile and market gov ernment information for direct eco nomic 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 reduc tion of fees should address the factors listed in paragraphs (k) (2) and (3) of this section. insofar as they apply to each request. § 612.11 Other rights and services. Nothing in this part will be con strued to entitle any person, as of right, to any service or to the disclo sure of any record to which such person is not entitled under the FOIA. 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. SOURCE: 65· FR 11748. Mar. 6, 2000. unless otherwise noted. § 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 sys tems of records maintained by NSF that are retrieved by an individual's name or personal identifier. They de scribe the procedures by which individ uals may request access to records about themselves and request amend ment 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 chap ter), 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. §613.2 § 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 Founda tion 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 Foun dation's Privacy Act Officer in the Of fice of the General Counsel. Written re quests should be sent to the NSF Pri vacy 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 reason able amount of effort. Providing infor mation 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 proc essing of your request. NSF publishes notices in the FEDERAL REGISTER that describe the systems of records main tained by the Foundation. The Office of the Federal Register publishes a bien nial "Privacy Act Compilation" that in cludes NSF system notices. This com pilation is available in many large ref erence and univerSity libraries, and can be accessed electronically at the Gov ernment Printing Office's web site at . (c) Verification of identity. When re questing access to records about your self, NSF requires that you verify your identity In an appropriate fashion. In dividuals appearing in person should be prepared to show reasonable picture identification such as driver's license, government or other employment Iden tification card, or passport. Written re quests 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 133 Appeal 2013-006801 Application 12/052,947 Appendix 4 45 C.F.R. Part 612 (Oct. 1, 2005) AUTHENTICATED? u $~ GOVERNMENT INFORMATION GPO pt. 611, App. A (ii) The entity of such State or local government that distributes such as sistance and each such department or agency (and each other State or local government entity) to which the as sistance is extended, in the case of as sistance to a State or local govern ment: (2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or (ii) A local educational agency (as de fined in 20 U.S.C. 7801), system of voca tional education, or other school sys tem; (3)(i) An entire corporation, partner ship, or other private organization, or an entire sole proprietorship (A) If assistance is extended to such corporation, partnership, private orga nization, or sole proprietorship as a whole; or (8) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (ii) The entire plant or other com parable, geographically separate facil ity to which Federal financial assist ance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or (4) Any other entity which is estab lished by two or more of the entities described in paragraph (f)(I), (2). or (3) of this section. (g) The term facillty includes all or any portion of structures, equipment, or other real or personal property or interests therein, and the proviSion of facilities includes the construction, ex pansion, renovation, remodeling, alter ation or acquisition of facilities. (h) The term recipient means any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organi zation, or other entity or any indi vidual. in any State, to whom Federal financial assistance is extended, di rectly or through another reCipient, in cluding any successor, assign, or trans feree thereof, but such term does not include any ultimate beneficiary. (i) The term primary recipient means any recipient which is authorized or re quired to extend Federal financial as sistance to another reCipient. 45 CFR Ch. VI (10-1-05 Edition) 0) The term applicant means one who submits an application, request, or plan required to be approved by a re sponsible Foundation official, or by a primary reCipient, as a condition to eligibility for Federal financial assist ance, and the term application means such an application, request, or plan. [29 FR 16305, Dec. 4, 1964, as amended at 68 FR 51382, Aug. 26, 2003] ApPENDIX A TO PART 611 Statutory Provisions under which the Na tional Science Foundation provides Federal financial assistance: The National Science Foundation Act of 1950, as amended (42 U.S.C. 1861-1875). [38 FR 17986, July 5. 1973, as amended at 59 FR 37437, July 22, 1994] PART 612-AVAILABILlTV OF RECORDS AND INFORMATION Sec. 612,1 General provisions. 612.2 Public reading rOom, 612.3 Requirements for making requests. 612.4 Processing 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. SOURCE: 65 FR 11741, Mar. 6. 2000, unless otherwise noted. § 612.1 General provisions. This part contains the rules that the National Science Foundation follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.G. 552. Information rou tinely 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 Foun dation also makes discretionary disclo sures of records or information other wise exempt under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemp tion. This policy, however, does not 120 National Science Foundation 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 reg ulations at part 613 of this chapter, and this part. § 612.2 Public reading room. (a) The Foundation maintains a pub lic reading room located in the NSF Li brary 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 print ers available for public use in accessing records. Also available for public in spection and copying are current sub ject matter indexes of reading room records. (b) Information about FOIA and Pri vacy at NSF and copies of frequently requested FOIA releases are available online at www.nsf.gov!pubinfolfoia.html. Most NSF policy documents, staff in structions, manuals, and other publica tions that affect a member of the pub lic, 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. § 612.3 Requirements for making re quests. (a) Where to send a request. You may make a FOIA request for records of the National Science Foundation by writ ing directly to the ForA Officer, Office of the General Counsel. National Science Foundation, 4201 Wilson Boule vard. Suite 1265, Arlington, VA 22230. For records maintained by the NSF Of fice of the Inspector General (OIG). you may write directly to the Office of In spector 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 bye-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 §612.3 envelope and in the letter, or in a fac simile 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 de scribed in § 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 sys tem 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 in dividual, either a written authorization signed by that individual in accordance with §613.2(f) of this chapter permit ting disclosure of those records to you, or proof that that individual Is de ceased (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 informa tion about each record sought, such as the date, title or name, author, reCipi ent, 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 re duced or eliminated. If NSF determines that your request does not reasonably describe records, you will be advised what additional information is needed 121 §612.4 to perfect your request or why your re quest is otherwise insufficient. (e) Agreement to pay fees. Your re quest must state that you will prompt ly 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 §612.1O(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 §612.10(i». (f) Receipt date. A request that meets the requirements of this section will be considered received on the date it is re ceived by the Office of the General Counselor 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 close of busi ness (5:00pm) on the date of receipt. (g) Publications excluded. For the pur pose of public requests for records the term "record" does not include publi cations which are available to the pub lic 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 Publica tions Clearinghouse PO Box 218, Jessup, MD 20194-0218, or through NSF's Home Page on the World Wide Web at www.nsf.gov "Documents." Re quests for such publications will be re ferred to or the requester informed of the appropriate source. § 612.4 Processing 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 cen tral office for administering these reg ulations. For records maintained by the Office of Inspector General. that Office will control incoming requests made directly or referred to it, dis patch 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 45 CFR Ch. VI (10-1-05 Edition) action offices, monitor compliance. consult with action offices on disclo sure, approve necessary extensions, dis patch 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 an other agency has a substantial inter est, it may decide that the other agen cy of the Federal Government is better able to determine whether the record should or should not be released under the FOIA. (I) 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 ap propriate. (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 sub mitted 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 mat ters, 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 re quest 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 infor mation otherwise exempt. § 612.5 Timing of responses to re quests. (a) In general. NSF ordinarily will initiate processing of requests accord ing to their order of receipt. 122 National Science Foundation (b) Time for response. The Foundation will seek to take appropriate agency action within 20 days of when a request is received or is perfected (excluding the date of receipt, weekends. and legal holidays), whichever is later. A request which otherwise meets the require ments of § 612.3 is perfected when you have reasonably described the records sought under §612.3(d), and agreed to pay fees under §612.3(c), or otherwise met the fee requirements under §612.1O. (c) Unusual circumstances. (1) Where the time limits for processing a request cannot be met because of unusual cir cumstances, as defined in the FOIA, the FOIA Officer will notify the re quester as soon as practicable in writ ing 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 Offi cer will provide the requester with an opportunity either to modify the re quest so that it may be processed with in 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 re quest. (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 expe dited processing. (2) (i) Requests and appeals will be given expedited treatment whenever it is determined that a requester has demonstrated compelling need by pre senting: (A) Circumstances in which the lack of expedited treatment could reason ably be expected to pose an imminent threat to the life or physical safety of an individual; or (8) An urgency to inform the public about an actual or alleged Federal gov ernment activity. if made by a person primarily engaged in disseminating in formation, (ii) 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 ac tivity or occupation is information dis semination, though it need not be his §612.6 or her sole occupation. Such requester also must establish a particular ur gency to inform the public about the government activity involved in the re quest. beyond the public's right to know about government activity gen erally. and that the information sought has particular value that would be lost if not disseminated quickly. (3) Within ten calendar days of re ceipt of a request for expedited proc essing. the FOlA Officer or OlG will de cide whether to grant it, and will no tify 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 de nied, any appeal of that decision will be acted on expeditiously. § 612.6 Responses to requests. (a) Acknowledgment of requests. The FOIA Officer will ordinarily send an ac knowledgment of a FOIA request only if it is anticipated that a determina tion on release will not be possible within 20 working days. (b) Grants of requests. Once the Foun dation makes a determination to grant a request in whole or in part. it will no tify 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 infor mation deleted where practicable. (c) Denials of requests. (1) Denials of FOIA requests will be made by the Of fice of the General Counsel. the Office of the Inspector General. or such other office as may be designated by the Di rector. The response letter will briefly set forth the reasons for the denial, in cluding any FOlA exemption(s) applied by the Foundation in denying the re quest. It will also provide the name and title or position of the person respon sible for the denial, will inform the re quester of the right to appeal. and will, where appropriate, include an estimate of the volume of any requested mate rials withheld. An estimate need not be provided when the volume is otherwise indicated through deletions on records 123 §612.7 disclosed in part. or if providing an es timate would harm an interest pro tected by an applicable exemption. (2) Requesters can appeal an agency determination to withhold all or part of any requested record; a determina tion that a requested record does not exist or cannot be located; a deter mination 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 §612.9). § 612.7 Exemptions. (a) Exemptions from disclosure. The fol lowing types of records or information may be withholdable as exempt in full or in part from mandatory public dis closure: (1) Exemption 1-5 U.S.C. 552(b)(1}. Records specifically authorized and properly classified pursuant to Execu tive Order to be kept secret in the in terest of national defense or foreign policy. NSF does not have classifying authority and normally does not deal with classified materials. (2) Exemption 2-5 USc. 552(b)(2). Records related solely to the internal personnel rules and practices of NSF. This exemption primarily protects in formation 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 normally exempt from disclosure include. but are not limited to: (i) Operating rules. guidelines, manu als on internal procedure, schedules and methods utilized by NSF investiga tors. inspectors. auditors and exam iners. (il) 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 posi tions were applicable. They may also be exempt pursuant to other provisions of this section. 45 CFR Ch. VI (10-1-05 Edition) (iii) Information relating to position management and manpower utiliza tion, such as internal staffing plans. authorizations or controls, or involved in determination of the qualifications of candidates for employment. ad vancement. or promotion including ex amination questions and answers. (iv) Computer software. the release of which would allow circumvention of a statute or NSF rules. regulations. or ders. manuals. directives. instructions. or procedures; or the integrity and se curity of data systems. (3) Exemption 3-5 USC. 552(b)(3). Records specifically exempted from disclosure by another statute that ei ther requires that the information be withheld in a such way that the agency has no discretion in the matter; or es tablishes particular criteria for with holding or refers to particular types of information to be withheld. Examples of records exempt from disclosure in clude. but are not limited to: (0 Records that disclose any inven tion in which the Federal Government owns or may own a right. title. or in terest (including a nonexclusive li cense). 35 U.S.C. 205; (il) Contractor proposals not specifi cally set forth or incorporated by ref erence into a contract. 41 U.S.C. 253b(m); (iii) Information protected by the Procurement Integrity Act, 41 U.S.C. 423. (4) Exemption 4-5 USC. 552(b)(4). Trade secrets and commercial or finan cial information obtained from a per son, and privileged or confidentiaL In formation subject to this exemption is that customarily held in confidence by the originator(s). including nonprofit organizations and their employees. Re lease of such information is likely to cause substantial harm to the competi tive position of the originator or sub mitter. or impair the Foundation's ability to obtain such information in the future. NSF will process informa tion potentially exempted from disclo sure by Exemption 4 under §612.B. Ex amples of records or information nor mally exempt from disclosure include, but are not limited to: 124 National Science Foundation (i) Information received in con fidence, such as grant applications, fel lowship applications, and research pro posals prior to award; (il) Confidential scientific and manu facturing processes or developments, and technical. scientific, statistical data or other information developed by a grantee. (iii) Technical, scientific, or statis tical data, and commercial or financial information privileged or received in confidence from an existing or poten tial contractor or subcontractor, in connection with bids, proposals, or con tracts, concerning contract perform ance, income, profits, losses, and ex penditures, as well as trade secrets, in ventions, discoveries, or other propri etary data. When the provisions of 41 U.S.C. 253b(m) or 41 U.S.C. 423 are met, certain proprietary and source selec tion information may also be withheld under Exemption 3. (iv) Confidential proprietary infor mation submitted on a voluntary basis. (v) Statements or information col lected in the course of inspections, in vestigations, 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 in formation normally considered con fidential or privileged. (5) Exemption 5-5 U.S.C. 552(b)(5). Inter-agency or intra-agency memo randa 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 con sidered for release if it can be reason ably segregated and is not otherwise exempt. Examples of records exempt from disclosure include, but are not limited to: (i) Those portions of reports, memo randa, correspondence, workpapers, minutes of meetings, and staff papers. containing evaluations, advice, opin ions. 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 con sultant or advisory capacity; (il) Advance information on proposed NSF plans to procure, lease, or other wise acquire. or dispose of materials. §612.7 real estate, facilities. services or func tions, when such information would provide undue or unfair competitive advantage to private interests or im pede legitimate government functions; (iii) Trade secret or other confiden tial research development. or commer cial information owned by the Govern ment, where premature release is like ly to affect the Government's negoti ating pOSition or other commercial in terest; (iv) Records prepared for use in pro ceedings before any Federal or State court or administrative body; (v) Evaluations of and comments on specific grant applications. research projects or proposals, or potential con tractors 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, rec ommendations. 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 fi nancial plan and supporting papers; (viii) Those portions of official re ports of inspection. reports of the In spector General. audits. investigations. or surveys pertaining to safety, secu rity. or the internal management, ad ministration. 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 inva sion of personal privacy. The exemp tion may apply to protect the privacy of living persons and of living close survivors of a deceased person identi fied in a record. Information in such files which is not otherwise exempt from disclosure pursuant to other pro visions 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 con sent. Examples of records exempt from 125 §612.7 disclosure include. but are not limited to; (I) Reports. records. and other mate rials pertaining to individual cases in which disciplinary or other administra tive 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 re lied upon as precedent. (ill Records compiled to evaluate or adjudicate the suitability of candidates for employment. and the eligibility of individuals (civilian or contractor em ployees) for security clearances. or for access to classified information. (iii) Reports and evaluations which reflect upon the qualifications or com petence of individuals. (iv) Personal information such as home addresses and telephone and fac similes numbers. private e-mail ad dresses, social security numbers, dates of birth, marital status and the like. (v) The exemption also applies when the fact of the existence or nonexist ence 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 pur poses, 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 pro ceedings; (B) Would deprive a person of the right to a fair trial or an impartial ad judication; (C) Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a living person, or living close survivors of a deceased per son identified in a record: (D) Could reasonably be expected to disclose the identity of a confidential source. including a source within the 45 CFR Ch. VI (10-1-05 Edition) Federal Government. or a State. local, or foreign agency or authority, or any private institution. that furnished in formation on a confidential basis; and information furnished by a confidential source and obtained by a criminal law enforcement authority in a criminal investigation; (El Would disclose techniques and procedures for law enforcement inves tigations or prosecutions. or would dis close guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be ex pected to risk circumvention of the law. or (F) Could reasonably be expected to endanger the life or physical safety of any individual. (il) Examples of records normally ex empt 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 individ uals investigated for alleged irregular ities involving NSF grants. contracts or other matters when no indictment has been obtained. no clvil action has been filed against them by the United States. or no government-wide public suspension or debarment has occurred. (C) Information obtained in con fidence. expressed or implied. in the course of a criminal investigation by the NSF Officer of the Inspector Gen eral. (iii) The exclusions contained in 5 U.S.C. 55Z(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 ex amination, operating. or condition re ports prepared by. on behalf of, or for the use of any agency responsible for the regulation or supervision of finan cial institutions. (9) Exemption 9-5 U.S.C. 552(b)(9). Records containing geological and geo physical information and data. includ ing maps. concerning wells. 126 National Science Foundation (b) Deletion of exempt portions and identifying details. Any reasonably seg regable portion of a record will be pro vided to requesters after deletion of the portions which are exempt. Whenever any final opinion, order, or other mate rials required to be made available re lates to a private party or parties and the release of the name(s) or other identifying details will constitute a clearly unwarranted invasion of per sonal privacy, the record shall be pub lished or made available with such identifying details left blank, or shall be published or made available with ob viously 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. § 612.8 Business Information (a) In generaJ. 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: (I) Business Information means com mercial or financial information ob tained by the Foundation from a sub mitter that may be protected from dis closure under Exemption 4 of the FOIA and §612.1(a)(4). (2) Submitter means any person or en tity from whom the Foundation ob tains business information, directly or indirectly. The term includes corpora tions; state, local, and tribal govern ments; and foreign governments. (c) Designation of business information. A submitter of business information. must use good faith efforts to des ignate, by appropriate markings, either at the time of submission or at a rea sonable time thereafter, any portions of its submission that it considers to be protected from disclosure under Ex emption 4. These designations will ex pire ten years after the date of the sub mission unless the submitter requests, and provides justification for, a longer designation period. (d) Notice to submitters. The Founda tion will provide a submitter with §612.8 prompt written notice of a FOIA re quest or administrative appeal that seeks its business information wher ever required under this section, in order to give the submitter an oppor tunity to object to disclosure of any specified portion of that information under paragraph (0 of this section. The notice shall either describe the busi ness information requested or include copies of the requested records or record portions containing the infor mation. (e) Where notice is required. Notice will be given to a submitter wherever: (1) The information has been des ignated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or (2) The Foundation has reason to be lieve that the information may be pro tected from disclosure under Exemp tion 4. (0 Opportunity to object to disclosure. NSF will allow a submitter a reason able time, consistent with statutory requirements, to respond to the notice described in paragraph (d) of this sec tion. If a submitter has any objection to disclosure, it must submit a detailed written statement. The statement must specify all grounds for with holding 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 re spond within the time specified in the notice, the submitter will be consid ered to have no objection to disclosure of the information. Information pro vided by a submitter under this para graph 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 non disclosure in deciding whether to dis close business information. Whenever it decides to disclose business informa tion 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; 127 §612.9 (2) A description of the business in formation 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: (I) The Foundation determines that the information should not be disclosed (the Foundation protects from disclo sure to third parties information about specific unfunded applications. includ ing 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 ac cordance with the requirements of Ex ecutive Order 12600 (3 CFR, 1988 Comp.. p. 235); or (4) The designation made by the sub mitter under paragraph (c) of this sec tion 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 infor mation. the Foundation will promptly notify the submitter(s). Whenever a submitter files a lawsuit seeking to prevent the disclosure of business in formation. the Foundation will notify the requester(s). § 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. Ar lington. VA 22230. You must make your appeal in writing and it must be re ceived 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 45 CFR Ch. VI (10-14)5 Edition) and the denial together with any writ ten argument you wish to submit. (b) Responses to appeals. A written de cision on your appeal will be made by the General Counsel. A decision affirm ing an adverse determination in whole or in part will contain a statement of the reason(s) for the affirmance. in cluding any FOIA exemption(s) ap plied. and will inform you of the FOIA provisions for court review of the deci sion. If the adverse determination is re versed 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. § 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 send ing copies of requested records to a re quester. 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 re quest 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 in clude 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 be cause NSF has reasonable cause to doubt a requester's stated use, NSF will provide the requester a reasonable opportunity to submit further clari fication. (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 128 National Science Foundation 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 machin ery. Not included in direct costs are overhead expenses such as the costs of space and heating or lighting of the fa cility 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 ex ample. 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 re producible by NSF. with reasonable ef fort, in the requested form or format. (4) Educational institution means a preschool, a public or private elemen tary or secondary school. an institu tion of undergraduate higher edu cation, an institution of graduate high er education, an institution of profes sional 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 oper ated 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 cat egory, a requester must show that the request is authorized by and made under the auspices of a qualifying in stitution and that the records are not sought for a commercial use or to pro mote any particular product or indus try, 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 pub lish or broadcast news to the public. §612.10 The term news means information that is about current events or that would be of current interest to the public. Ex amples of news media entities include television or radio stations broad casting to the public at large and pub lishers 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 or ganization. A publication contract would be the clearest proof, but NSF will also look to the past publication record of a requester in making this de termination. To be in this category, a requester must not be seeking the re quested records for a commercial use. However, a request for records sup porting the news dissemination func tion of the requester will not be consid ered to be for a commercial use. (7) Review means the examination of a record located in response to a re quest in order to determine whether any portion of it is exempt from disclo sure. 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 §612.S, but does not include time spent resolving general legal or policy issues regarding the application of exemp tions. (S) Search means the process of look ing for and retrieving records or infor mation responsive to a request. It in cludes page by page or line by line identification of information within records and also includes reasonable ef forts 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. 129 §612.10 (c) Fees. In responding to FOIA re quests, NSF will charge the following fees unless a waiver or reduction of fees has been granted under paragraph (k) of this section: (1) Search. (1) Search fees will be charged for all requests-other than re quests made by educational institu tions, noncommercial scientific insti tutions, 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. When ever feasible, NSF will charge at the salary rate(s) (j.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 profes sional/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 con ducted (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 in clude the cost of operating the central processing unit (CPU) for that portion of operating time that is directly at tributable to searching for records re sponsive to a FOIA request and oper ator/programmer salary (i.e.. basic pay plus 16 percent) apportionable to the search. When NSF can establish a rea sonable agency-wide average rate for CPU operating costs and operator/pro grammer 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, in 45 CFR Ch. VI (10-1-05 Edition) cluding 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 com mercial use request. Review fees will be charged only for the initial record review-in other words. the review done when NSF determines whether an ex emption 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 subse quently determined not to apply may be reviewed again to determine wheth er any other exemption not previously considered applies; the costs of that re view are chargeable where it is made necessary by a change of cir cumstances. Review fees will be charged at the salary rate (basic pay plus 16%) of the employee(s) per forming the review. (d) Limitations on charging fees. (1) No search fee will be charged for requests by educational institutions, non commercial 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 to gether. This means that noncommer cial 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 esti mates that the fees to be charged under 130 National Science Foundation this section will exceed $25.00, it will notify the requester of the actual or es timated 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 esti mated readily. NSF will advise the re quester 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 consid ered perfected and further work will not be done until the requester agrees to pay the anticipated total fee. Any such agreement should be memorial ized in writing. A notice under this paragraph will offer the requester an opportunity to discuss the matter with Foundation personnel in order to refor mulate the request to meet the re quester's needs at a lower cost. if pos sible. If a requester fails to respond within 60 days of notice of actual or es timated fees with an agreement to pay those fees. NSF may administratively close the request. (1) Charges for other services. Apart from the other provisions of this sec tion, when NSF chooses as a matter of administrative discretion to provide a requested special service-such as certi fying 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 re quester. (g) Charging interest. NSF may charge interest on any unpaid bill starting on the 31st day following the date of bill ing 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 re ceived 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 proce dures. including the use of consumer reporting agencies. collection agencies. and offset. (h) Aggregating requests. Where NSF reasonably believes that a requester or a group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees. the agency may aggre gate those requests and charge accord ingly. NSF may presume that multiple §612.10 requests of this type made within a 30 day period have been made in order to avoid fees. Where requests are sepa rated by a longer period. NSF will ag gregate them only where there exists a solid basis for determining that aggre gation is warranted under all the cir cumstances involved. Multiple requests involving unrelated matters will not be aggregated. (i) Advance payments. (1) For requests other than those described in para graphs (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. Pay ment 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 esti mates 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 re ceives 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 re quester 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 ad vance payment or payment due under paragraph (i) (2) or (3) of this section, the request will not be considered per fected 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 131 §612.10 schedule programs, NSF will inform re questers 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 (cl 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 un derstanding of the operations or activi ties of the government and is not pri marily 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: Wheth er the subject Of the requested records concerns "the operations or activities of the government." The subject of the requested records must concern identi fiable 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 in formation to be disclosed: Whether dis closure is "likely to contribute" to an understanding of government oper ations 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 do main, in either duplicative or substan tially identical form, is unlikely to contribute to such understanding where nothing new would be added to the public's understanding. (iii) TlJe contribution to an under standing of the subject by the public likely to result from disclosure: Whether disclosure of the requested in formation 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 re quester. A requester's expertise in the subject area and ability and intention 45 CFR Ch. VI 00-1-05 Edition) to effectively convey information to the public will be considered. A rep resentative of the news media as de fined in paragraph (b) (6) of this section will normally be presumed satisfy this consideration. (iv) The significance of the contribu tion to public understanding: Whether disclosure is likely to contribute "sig nificantly" to public understanding of government operations or activities. The public's understanding of the sub ject in question must be enhanced by the disclosure to a significant extent as compared to the level of public under standing existing prior to the disclo sure. NSF will make no value judg ments about whether information that would contribute significantly to pub lic understanding of the operations or· activities of the government is "im portant" 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 re quester has a commercial interest that would be furthered by the requested disclosure. NSF will consider any com mercial interest of the requester (with reference to the definition of "com mercial use" in paragraph (b){l) of this section), or of any person on whose be half 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 infor mation regarding this consideration. (ii) The primary interest in disclo sure: Whether any identified commer cial interest of the requester is suffi ciently large, in comparison with the public interest in disclosure, that dis closure is "primarily in the commer cial 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 in terest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others 132 National Science Foundation who merely compile and market gov ernment information for direct eco nomic 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 reduc tion of fees should address the factors listed in paragraphs (k) (2) and (3) of this section, insofar as they apply to each request. §612.11 Other rights and services. Nothing in this part will be con strued to entitle any person, as of right, to any service or to the disclo sure of any record to which such person is not entitled under the FOIA. 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. SOURCE: 70 FR 43068, July 26. 2005, unless otherwise noted. §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 sys tems of records maintained by NSF that are retrieved by an individual's name or personal identifier. They de scribe the procedures by which individ uals, as defined in the Privacy Act, 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 pro vided 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 FED ERAL REGISTER. §613.2 § 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 Founda tion 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 Foun dation's Privacy Act Officer of the General Counsel. Written requests should be sent to the NSF Privacy Act Officer. National Science Foundation, 4201 Wilson Boulevard, Suite 1265, Ar lington. 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) re trieval 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 reason able amount of effort. Providing infor mation 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 proc essing of your request. NSF publishes notices in the FEDERAL REGISTER that describe the systems of records main tained by the Foundation. The Office of the Federal Register publishes a bien nial "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.gpolsu_~docslacesl PrivacyAct.shtml. (c) Verification of identity. When re questing access to records about your self, NSF requires that you verify your identity in an appropriate fashion. In dividuals appearing in person should be prepared to show reasonable picture identification such as driver's license, government or other employment iden tification card, or passport. Written re quests must state your full name and current address. you must sign your re quest and your signature must either be notarized. or submitted by you under 28 U.S.C. 1746, a law that permits 133 Appeal 2013-006801 Application 12/052,947 Appendix 5 45 C.F.R. Part 612 (Oct. 1, 2006) ,,\UTHENTICATE U,!i, COVERN\{ENT iNfORM.60Tl0N GPO9 Pt. 611, App. A (ii) The entity of such State or local government that distributes such as sistance and each such department or agency (and each other State or local government entity) to which the as sistance is extended. in the case of as sistance to a State or local govern ment; (2)(i) A college. university. or other postsecondary institution. or a public system of higher education; or (ii) A local educational agency (as de fined in 20 U.S.C. 7801), system of voca tional education, or other school sys tem; (3)(i) An entire corporation, partner ship, or other private organization, or an entire sole proprietorship (A) If assistance is extended to such corporation, partnership, private orga nization. or sole proprietorship as a whole; or (B) Which is principally engaged in the business of providing education. health care. housing. social services, or parks and recreation; or (il) The entire plant or other com parable. geographically separate facil ity to which Federal financial assist ance is extended. in the case of any other corporation. partnership, private organization, or sole proprietorship; or (4) Any other entity which is estab lished by two or more of the entities described in paragraph (0 (1). (2), or (3) of this section. (g) The term facility includes all or any portion of structures, equipment. or other real or personal property or interests therein, and the provision of facilities includes the construction, ex pansion, renovation, remodeling, alter ation or acquisition of facilities. (h) The term recipient means any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organi zation, or other entity or any indi vidual. in any State, to whom Federal financial assistance is extended, di rectly or through another recipient, in cluding any successor, assign, or trans feree thereof, but such term does not include any ultimate beneficiary. (i) The term primary recipient means any recipient which is authorized or re quired to extend Federal financial as sistance to another recipient. 45 CFR Ch. VI (10-1-06 Edition) (j) The term applicant means one who submits an application, request, or plan required to be approved by a re sponsible Foundation official, or by a primary reCipient. as a condition to eligibility for Federal financial assist ance, and the term application means such an application, request, or plan. [29 FR 16305. Dec. 4, 1964, as amended at 68 FR 51382, Aug. 26, 2003) ApPENDIX A TO PART 611 Statutory Provisions under which the Na tional SCience Foundation provides Federal financial assistance: The National Science Foundation Act of 1950, as amended (42 U.S.C. 1861~1815). [38 FR 17986, July 5, 1973, as amended at S9 FR 37437, July 22, 1994) 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 Processing requests. 612.5 Timing of responses to requests. 612.6 Responses to requests. 612.1 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. SOURCE: 65 FR 11741, Mar. 6. 2000, unless otherwise noted. § 612.1 General provisions. This part contains the rules that the National Science Foundation follows in processing requests for records under the Freedom of Information Act (FOIA) , 5 U.S.C. 552. Information rou tinely 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 Foun dation also makes discretionary disclo sures of records or information other wise exempt under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOrA exemp tion. This policy, however, does not 120 National Science Foundation 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 reg ulations at part 613 of this chapter, and this part. § 612.2 Public reading room. (a) The Foundation maintains a pub lic reading room located in the NSF Li brary 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 print ers available for public use in accessing records. Also available for public in spection and copying are current sub ject matter indexes of reading room records. (b) Information about FOIA and Pri vacy at NSF and copies of frequently requested FOIA releases are available online at www.nsf.govlpubinfolfoia.html. Most NSF policy documents, staff in structions. manuals. and other publica tions that affect a member of the pub lic. 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. § 612.3 Requirements for making re quests. (a) Where to send a request. You may make a FOIA request for records of the National Science Foundation by writ ing directly to the FOIA Officer, Office of the General Counsel. National Science Foundation. 4201 Wilson Boule vard, Suite 1265, Arlington. VA 22230. For records maintained by the NSF Of fice of the Inspector General (OIG). you may write directly to the Office of In spector General. National Science Foundation. 4201 Wilson Boulevard. Suite 1135, Arlington. VA 22230. The FOIA Officer will also forward requests for OrG records to that Office. Requests may also be sent by facsimile to (703) 306-0149 or bye-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 §612.3 envelope and in the letter. or in a fac simile 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 de scribed in §612.10. NSF is not obligated to act upon a request until it meets these procedural requirements. (cHI) If you are making a request for records about yourself and the records are not contained in a Privacy Act sys tem of records. your request will be processed only under the FOrA. 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 in dividual. either a written authorization signed by that individual in accordance with §613.2(f) of this chapter permit ting disclosure of those records to you. or proof that that individual is de ceased (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 informa tion about each record sought. such as the date. title or name. author. recipi ent. 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 re duced or eliminated. If NSF determines that your request does not reasonably describe records. you will be advised what additional information is needed 121 §612.4 to perfect your request or why your re quest is otherwise insufficient. (e) Agreement to pay fees. Your re quest must state that you will prompt ly 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 §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 §6l2.10(i». (f) Receipt date. A request that meets the requirements of this section will be considered received on the date it is re ceived by the Office of the General Counselor 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 close of busi ness (5:00pm) on the date of receipt. (g) Publications excluded. For the pur pose of public requests for records the term "record" does not include publi cations which are available to the pub lic 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 Publica tions Clearinghouse PO Box 218, Jessup, MD 20794-0218, or through NSF's Home Page on the World Wide Web at www.nsfgov "Documents." Re quests for such publications will be re ferred to or the requester informed of the appropriate source. § 612.4 Processing 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 cen tral office for administering these reg ulations. For records maintained by the Office of Inspector General, that Office will control incoming requests made directly or referred to it, dis patch 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 45 CFR Ch. VI (10-1-06 Edition) action offices, monitor compliance, consult with action offices on disclo sure, approve necessary extensions. dis patch 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 an other agency has a substantial inter est, it may deCide that the other agen cy of the Federal Government is better able to determine whether the record should or should not be released under the FOIA. (I) 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 ap propriate. (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 sub mitted 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 mat ters, 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 re quest 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 infor mation otherwise exempt. § 612.5 Timing of responses to re quests. (a) In general. NSF ordinarily will initiate processing of requests accord ing to their order of receipt. 122 National Science Foundation (b) Time for response. The Foundation will seek to take appropriate agency action within 20 days of when a request is received or is perfected (excluding the date of receipt, weekends, and legal holidays), whichever is later. A request which otherwise meets the require ments of §612.3 is perfected when you have reasonably described the records sought under §612.3(d), and agreed to pay fees under §612.3(c), or otherwise met the fee requirements under §612.1O. (c) Unusual circumstances. (1) Where the time limits for processing a request cannot be met because of unusual cir cumstances, as defined in the FOIA, the FOIA Officer will notify the re quester as soon as practicable in writ ing 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 Offi cer will provide the requester with an opportunity either to modify the re quest so that it may be processed with in 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 re quest. (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 expe dited processing. (2) (i) Requests and appeals will be given expedited treatment whenever it is determined that a requester has demonstrated compelling need by pre senting: (A) Circumstances in which the lack of expedited treatment could reason ably be expected to pose an imminent threat to the life or physical safety of an individual: or (8) An urgency to inform the public about an actual or alleged Federal gov ernment activity, if made by a person primarily engaged in disseminating in formation. (ii) 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 ac tivity or occupation is information dis semination, though it need not be his §612.6 or her sole occupation. Such requester also must establish a particular ur gency to inform the public about the government activity involved in the re quest, beyond the public's right to know about government activity gen erally. and that the information sought has particular value that would be lost if not disseminated quickly. (3) Within ten calendar days of re ceipt of a request for expedited proc essing, the FOIA Officer or OIG will de cide whether to grant it, and will no tify 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 de nied, any appeal of that decision will be acted on expeditiously. § 612.6 Responses to requests. (a) Acknowledgment of requests. The FOIA Officer will ordinarily send an ac knowledgment of a FOIA request only if it is anticipated that a determina tion on release will not be possible within 20 working days. (b) Grants of requests. Once the Foun dation makes a determination to grant a request in whole or in part, it will no tify 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 infor mation deleted where practicable. (c) Denials of requests. (1) Denials of FOIA requests will be made by the Of fice of the General Counsel, the Office of the Inspector General, or such other office as may be designated by the Di rector. The response letter will briefly set forth the reasons for the denial, in cluding any FOIA exemption(s) applied by the Foundation in denying the re quest. It will also provide the name and title or position of the person respon sible for the denial, will inform the re quester of the right to appeal, and will, where appropriate, include an estimate of the volume of any requested mate rials withheld. An estimate need not be provided when the volume is otherwise indicated through deletions on records 123 §612.7 disclosed in part. or if providing an es timate would harm an interest pro tected by an applicable exemption. (2) Requesters can appeal an agency determination to withhold all or part of any requested record; a determina tion that a requested record does not exist or cannot be located; a deter mination 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 §612.9). § 612.7 Exemptions. (a) Exemptions from disclosure. The fol lowing types of records or information may be withholdable as exempt in full or in part from mandatory public dis closure: (1) Exemption 1-5 U.s.c. 552(b)(J). Records specifically authorized and properly classified pursuant to Execu tive Order to be kept secret in the in terest 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 in formation 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 normally exempt from disclosure include. but are not limited to: (0 Operating rules. gUidelines. manu als on internal procedure. schedules and methods utilized by NSF investiga tors. inspectors. auditors and exam iners. (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 posi tions were applicable. They may also be exempt pursuant to other provisions of this section. 45 CFR Ch. VI (10-1-06 Edition) (iii) Information relating to position management and manpower utiliza tion. such as internal staffing plans. authorizations or controls. or involved in determination of the qualifications of candidates for employment. ad vancement. or promotion including ex amination questions and answers. (tv) Computer software. the release of which would allow circumvention of a statute or NSF rules. regulations. or ders. manuals. directives. instructions. or procedures; or the integrity and se curity of data systems. (3) Exemption 3-5 U.s.c. 552(b)(3). Records specifically exempted from disclosure by another statute that ei ther requires that the information be withheld in a such way that the agency has no discretion in the matter; or es tablishes particular criteria for with holding or refers to particular types of information to be withheld. Examples of records exempt from disclosure in clude. but are not limited to: (1) Records that disclose any inven tion in which the Federal Government owns or may own a right. title. or in terest (including a nonexclusive li cense). 35 U.S.C. 205; (ii) Contractor proposals not specifi cally set forth or incorporated by ref erence into a contract. 41 U.S.C. 253b(m); (iii) 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 finan cial information obtained from a per son. and privileged or confidential. In formation subject to this exemption is that customarily held in confidence by the originator(s). including nonprofit organizations and their employees. Re lease of such information is likely to cause substantial harm to the competi tive position of the originator or sub mitter. or impair the Foundation's ability to obtain such information in the future. NSF will process informa tion potentially exempted from disclo sure by Exemption 4 under § 612.8. Ex amples of records or information nor mally exempt from disclosure include. but are not limited to: 124 National Science Foundation (i) Information received in con fidence. such as grant applications. fel lowship applications. and research pro posals prior to award; (ii) Confidential scientific and manu facturing processes or developments. and technical. scientific. statistical data or other information developed by a grantee. (iii) Technical. scientific. or statis tical data. and commercial or financial information privileged or received in confidence from an existing or poten tial contractor or subcontractor. in connection with bids. proposals. or con tracts. concerning contract perform ance. income. profits. losses. and ex penditures, as well as trade secrets. in ventions. discoveries. or other propri etary data. When the provisions of 41 U.S.C. 253b(m) or 41 U.S.C. 423 are met. certain proprietary and source selec tion information may also be withheld under Exemption 3. (iv) Confidential proprietary infor mation submitted on a voluntary basis. (v) Statements or information col lected in the course of inspections. in vestigations. 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 in formation normally considered con fidential or privileged. (5) Exemption 5-5 u.S.C. 552(b)(5). Inter-agency or intra-agency memo randa 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 con sidered for release if it can be reason ably segregated and is not otherwise exempt. Examples of records exempt from disclosure include, but are not limited to: (i) Those portions of reports. memo randa. correspondence. workpapers. minutes of meetings, and staff papers. containing evaluations. advice. opin ions, 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 con sultant or advisory capacity; (Ii) Advance information on proposed NSF plans to procure. lease. or other wise acquire. or dispose of materials, §612.7 real estate, facilities. services or func tions. when such information would provide undue or unfair competitive advantage to private Interests or im pede legitimate government functions; (iii) Trade secret or other confiden tial research development. or commer cial information owned by the Govern ment. where premature release is like ly to affect the Government's negoti ating pOSition or other commercial in terest; (iv) Records prepared for use in pro ceedings before any Federal or State court or administrative body; (v) Evaluations of and comments on specific grant applications, research projects or proposals. or potential con tractors 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. rec ommendations. 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 fi nancial plan and supporting papers; (viii) Those portions of official re ports of inspection. reports of the In spector General. audits. investigations. or surveys pertaining to safety. secu rity. or the internal management. ad ministration. 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 inva sion of personal privacy. The exemp tion may apply to protect the privacy of living persons and of living close survivors of a deceased person identi fied in a record. Information in such files which is not otherwise exempt from disclosure pursuant to other pro visions 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 con sent. Examples of records exempt from 125 §612.7 disclosure include, but are not limited to: (i) Reports. records. and other mate rials pertaining to individual cases in which disciplinary or other administra tive 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 re lied upon as precedent. (ii) Records compiled to evaluate or adjudicate the suitability of candidates for employment, and the eligibility of individuals (civilian or contractor em ployees) for security clearances, or for access to classified information. (iii) Reports and evaluations which reflect upon the qualifications or com petence of individuals. (iv) Personal information such as home addresses and telephone and fac similes numbers. private e-mail ad dresses, social security numbers. dates of birth. marital status and the like. (v) The exemption also applies when the fact of the existence or nonexist ence of a responsive record would itself reveal personally private information. and the public interest in disclosure is not sufficient to outweigh the privacy interest. (1) Exemption 7-5 u.s.c. 552(b)(7). Records or information compiled for civil or criminal law enforcement pur poses, 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 pro ceedings; (8) Would deprive a person of the right to a fair trial or an impartial ad judication; (C) Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a living person, or living close survivors of a deceased per son identified in a record; (D) Could reasonably be expected to disclose the identity of a confidential source, including a source within the 45 CFR Ch. VI (10-1-06 Edition) Federal Government, or a State, local, or foreign agency or authority, or any private institution, that furnished in formation 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 inves tigations or prosecutions, or would dis close guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be ex pected 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 normally ex empt 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; (8) The Identity of firms or individ uals investigated for alleged irregular ities 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 con fidence, expressed or implied, in the course of a criminal investigation by the NSF Officer of the Inspector Gen eraL (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 ex amination, operating, or condition re ports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of finan cial institutions. (9) Exemption 9-5 U.s.C. 552(b)(9). Records containing geological and geo physical Information and data, includ ing maps, concerning wells. 126 National Science Foundation (b) Deletion of exempt portions and identifying details. Any reasonably seg regable portion of a record will be pro vided to requesters after deletion of the portions which are exempt. Whenever any final opinion, order, or other mate rials required to be made available re lates to a private party or parties and the release of the name(s) or other identifying details will constitute a clearly unwarranted invasion of per sonal privacy, the record shall be pub lished or made available with such identifying details left blank, or shall be published or made available with ob viously 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. § 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 com mercial or financial information ob tained by the Foundation from a sub mitter that may be protected from dis closure under Exemption 4 of the FOIA and §612.7(a)(4). (2) Submitter means any person or en tity from whom the Foundation ob tains business information, directly or indirectly. The term includes corpora tions; state, local, and tribal govern ments; and foreign governments. (c) Designation of business information. A submitter of business information must use good faith efforts to des ignate. by appropriate markings. either at the time of submission or at a rea sonable time thereafter. any portions of its submission that it considers to be protected from disclosure under Ex emption 4. These designations will ex pire ten years after the date of the sub mission unless the submitter requests. and provides justification for. a longer designation period. (d) Notice to submitters. The Founda tion will provide a submItter with §612.8 prompt written notice of a FOIA re quest or administrative appeal that seeks its business information wher ever required under this section. in order to give the submitter an oppor tunity to object to disclosure of any specified portion of that information under paragraph (1) of this section. The notice shall either describe the busi ness information requested or include copies of the requested records or record portions containing the infor mation. (e) Where notice is required. Notice will be given to a submitter wherever: (l) The information has been des ignated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or (2) The Foundation has reason to be lieve that the information may be pro tected from disclosure under Exemp tion 4. (1) Opportunity to object to disclosure. NSF will allow a submitter a reason able time. consistent with statutory requirements, to respond to the notice described in paragraph (d) of this sec tion. If a submitter has any objection to disclosure. it must submit a detailed written statement. The statement must specify all grounds for with holding 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 re spond within the time specified in the notice, the submitter will be consid ered to have no objection to disclosure of the information. Information pro vided by a submitter under this para graph 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 non disclosure in deciding whether to dis close business information. Whenever it decides to disclose business informa tion 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; 127 §612.9 (2) A description of the business in formation 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 disclo sure to third parties information about specific unfunded applications. includ ing 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 ac cordance with the requirements of Ex ecutive Order 12600 (3 CFR. 1988 Comp., p. 235); or (4) The designation made by the sub mitter under paragraph (c) of this sec tion 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 ofFOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of business infor mation, the Foundation will promptly notify the submitter(s). Whenever a submitter files a lawsuit seeking to prevent the disclosure of business in formation, the Foundation will notify the requester(s). § 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. Ar lington, VA 22230. You must make your appeal in writing and it must be re ceived 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 45 CFR Ch. VI (10-1-06 Edition) and the denial together with any writ ten argument you wish to submit. (b) Responses to appeals. A written de Cision on your appeal will be made by the General Counsel. A decision affirm ing an adverse determination in whole or in part will contain a statement of the reason(s) for the affirmance. in cluding any FOIA exemption(s) ap plied, and will inform you of the FOIA provisions for court review of the deci sion. If the adverse determination is re versed 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. §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 send ing copies of requested records to a re quester. 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 re quest 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 in clude 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 be cause NSF has reasonable cause to doubt a requester's stated use, NSF will provide the requester a reasonable opportunity to submit further clari fication. (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 128 National SCience Foundation 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 dupl ication machin ery. Not included in direct costs are overhead expenses such as the costs of space and heating or lighting of the fa cility 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 ex ample. 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 re producible by NSF. with reasonable ef fort. in the requested form or format. (4) Educational institution means a preschool. a public or private elemen tary or secondary school. an institu tion of undergraduate higher edu cation. an institution of graduate high er education. an institution of profes Sional 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 oper ated 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 cat egory. a requester must show that the request is authorized by and made under the auspices of a qualifying in stitution and that the records are not sought for a commercial use or to pro mote any particular product or indus try. 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 pub lish or broadcast news to the publiC. §612.10 The term news means information that is about current events or that would be of current interest to the public. Ex amples of news media entities include television or radio stations broad casting to the public at large and pub lishers 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 or ganization. A publication contract would be the clearest proof. but NSF will also look to the past publication record of a requester in making this de termination. To be in this category. a requester must not be seeking the re quested records for a commercial use. However. a request for records sup porting the news dissemination func tion of the requester will not be consid ered to be for a commercial use. (1) Review means the examination of a record located in response to a re quest in order to determine whether any portion of it is exempt from disclo sure. 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 §612.8. but does not include time spent resolving general legal or policy issues regarding the application of exemp tions. (8) Search means the process of look ing for and retrieving records or infor mation responsive to a request. It in cludes page by page or line by line identification of information within records and also includes reasonable ef forts 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. 129 §612.10 (c) Fees. In responding to FOIA re quests, 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 re quests made by educational institu tions, noncommercial scientific insti tutions, 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. When ever 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 profes sional/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 con ducted (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 in clude the cost of operating the central processing unit (CPU) for that portion of operating time that is directly at tributable to searching for records re sponsive to a FOIA request and oper ator/programmer salary (i.e., basic pay plus 16 percent) apportionable to the search. When NSF can establish a rea sonable agency-wide average rate for CPU operating costs and operator/pro grammer 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, in 45 CFR Ch. VI (10-1-06 Edition) cluding 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 com mercial use request. Review fees will be charged only for the initial record review-in other words, the review done when NSF determines whether an ex emption 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 subse quently determined not to apply may be reviewed again to determine wheth er any other exemption not previously considered applies; the costs of that re view are chargeable where it is made necessary by a change of cir cumstances. Review fees will be charged at the salary rate (basic pay plus 16%) of the employee(s) per forming the review. (d) Limitations on charging fees. (I) No search fee will be charged for requests by educational institutions, non commercial scientific institutions, or representatives of the news media. (2) Except for requesters seeking records for a commercial use, NSF will provide without charge: (1) The first 100 pages of duplication (or the cost equivalent); and (i1) 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 to gether. This means that noncommer cial 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 esti mates that the fees to be charged under 130 National Science Foundation this section will exceed $25.00. it will notify the requester of the actual or es timated 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 esti mated readily, NSF will advise the re quester 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 consid ered perfected and further work will not be done until the requester agrees to pay the anticipated total fee. Any such agreement should be memorial ized in writing. A notice under this paragraph will offer the requester an opportunity to discuss the matter with Foundation personnel in order to refor mulate the request to meet the re quester's needs at a lower cost. if pos sible. If a requester fails to respond within 60 days of notice of actual or es timated 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 sec tion. when NSF chooses as a matter of administrative discretion to provide a requested special service-such as certi fying 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 re quester. (g) Charging interest. NSF may charge interest on any unpaid bill starting on the 31st day following the date of bill ing 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 re ceived 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 proce dures. including the use of consumer reporting agencies. collection agencies. and offset. (h) Aggregating requests. Where NSF reasonably believes that a requester or a group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees, the agency may aggre gate those requests and charge accord ingly. NSF may presume that multiple §612.10 requests of this type made within a 30 day period have been made in order to avoid fees. Where requests are sepa rated by a longer period, NSF will ag gregate them only where there exists a solid basis for determining that aggre gation is warranted under all the cir cumstances involved. Multiple requests involving unrelated matters will not be aggregated. (i) Advance payments. (1) For requests other than those described in para graphs (1) (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. Pay ment 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 esti mates 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 re ceives 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 re quester 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 ad vance payment or payment due under paragraph (1) (2) or (3) of this section, the request will not be considered per fected and further work will not be done on it until the required payment is received. OJ 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 131 §612.10 schedule programs, NSF will inform re questers 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 un derstanding of the operations or activi ties of the government and is not pri marily 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: Wheth er the subject of the requested records concerns "the operations or activities of the government." The subject of the requested records must concern identi fiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated. (il) The informative value of the in formation to be disclosed: Whether dis closure is "likely to contribute" to an understanding of government oper ations 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 do main, in either duplicative or substan tially 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 under standing of the subject by the public likely to result from disclosure: Whether disclosure of the requested in formation 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 re quester. A requester's expertise in the subject area and ability and intention 45 CFR Ch. VI (10-1-06 Edition) to effectively convey information to the public will be considered. A rep resentative of the news media as de fined in paragraph (b)(6) of this section will normally be presumed satisfy this consideration. (iv) The significance of the contribu tion to public understanding: Whether disclosure is likely to contribute "sig nificantly" to public understanding of government operations or activities. The public's understanding of the sub ject in question must be enhanced by the disclosure to a significant extent as compared to the level of public under standing existing prior to the disclo sure. NSF will make no value judg ments about whether information that would contribute significantly to pub lic understanding of the operations or activities of the government is "im portant" 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 re quester has a commercial interest that would be furthered by the requested disclosure. NSF will consider any com mercial interest of the requester (with reference to the definition of "com mercial use" in paragraph (b)(l) of this section), or of any person on whose be half 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 infor mation regarding this consideration. (il) The primary interest in disclo sure: Whether any identified commer cial interest of the requester is suffi ciently large, in comparison with the public interest in disclosure, that dis closure is "primarily in the commer cial 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 in terest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others 132 National Science Foundation who merely compile and market gov ernment information for direct eco nomic 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 reduc tion of fees should address the factors listed in paragraphs (k) (2) and (3) of this section, insofar as they apply to each request. § 612.11 Other rights and services. Nothing in this part will be con strued to entitle any person, as of right, to any service or to the disclo sure of any record to which such person is not entitled under the FOIA. 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. AUTIIORITY: 5 U.S.C. 552a. SOURCE: 70 FR 43068, July 26, 2005, unless otherwise noted. §613.1 General Provisions. This part sets forth the National Science Foundation procedures under the Privacy Act of 1914. The rules in this part apply to all records in sys tems of records maintained by NSF that are retrieved by an individual's name or personal identifier. They de scribe the procedures by which individ uals, as defined in the Privacy Act, 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 pro vided 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 FED ERAL REGISTER. §613.2 § 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 Founda tion 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 Foun dation's Privacy Act Officer of the General CounseL Written requests should be sent to the NSF Privacy Act Officer, National Science Foundation, 4201 Wilson Boulevard, Suite 1265, Ar lington, 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) re trieval 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 reason able amount of effort. Providing infor mation 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 proc essing of your request. NSF publishes notices in the FEDERAL REGISTER that describe the systems of records main tained by the Foundation. The Office of the Federal Register publishes a bien nial "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!su_docslacesl PrivacyA ct. shtml. (c) Verification of identity. When re questing access to records about your self, NSF requires that you verify your identity in an appropriate fashion. In dividuals appearing in person should be prepared to show reasonable picture identification such as driver's license, government or other employment iden tification card, or passport, Written re quests must state your full name and current address. you must sign your re quest and your signature must either be notarized, or submitted by you under 28 U.S.C. 1746, a law that permits 133 Appeal 2013-006801 Application 12/052,947 Appendix 6 45 C.F.R. Part 612 (Oct. 1, 2007) AUTHENTICATE~ us. GOVERNMENT INFORMATION CPO pt. 611, App. A (ii) The entity of such State or local government that distributes such as sistance and each such department or agency (and each other State or local government entity) to which the as sistance is extended, in the case of as sistance to a State or local govern ment; (2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or (ii) A local educational agency (as de fined in 20 U.S.C. 7801), system of voca tional education, or other school sys tem; (3)(0 An entire corporation, partner ship, or other private organization, or an entire sole proprietorship (A) If assistance is extended to such corporation, partnership, private orga nization, or sole proprietorship as a whole; or (B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (it) The entire plant or other com parable, geographically separate facil ity to which Federal financial assist ance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or (4) Any other entity which is estab lished by two or more of the entities described in paragraph (f)(1), (2), or (3) of this section. (g) The term facility includes all or any portion of structures, equipment, or other real or personal property or interests therein, and the provision of facilities includes the construction, ex pansion, renovation, remodeling, alter ation or acquisition of facilities. (h) The term recipient means any State, pOlitical subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organi zation, or other entity or any indi vidual, in any State, to whom Federal financial assistance is extended, di rectly or through another recipient, in cluding any successor, assign, or trans feree thereof, but such term does not include any ultimate beneficiary. (i) The term primary recipient means any recipient which is authorized or re quired to extend Federal financial as sistance to another recipient. 45 CFR Ch. VI (10-1-07 Edition) (j) The term applicant means one who submits an application, request, or plan required to be approved by a re sponsible Foundation official, or by a primary reCipient, as a condition to eligibility for Federal financial assist ance, and the term application means such an application, request, or plan. [29 FR 16305, Dec. 4, 1964, as amended at 68 FR 51382, Aug. 26, 2003] ApPENDIX A TO PART 611 Statutory Provisions under which the Na tional Science Foundation provides Federal financial assistance: The National Science Foundation Act of 1950, as amended (42 U.S.O. 1861-1875). [38 FR 17986, July 5, 1973, as amended at 59 FR 37437, July 22, 1994] 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 Processing 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.O. 552, as amended. SOURCE: 65 FR 11741, Mar. 6, 2000, unless otherwise noted. § 612.1 General provisions. This part contains the rules that the National Science Foundation follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. Information rou tinely 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 Foun dation also makes discretionary disclo sures of records or information other wise exempt under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemp tion. This pOlicy, however, does not 120 National Science Foundation 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 reg ulations at part 613 of this chapter, and this part. § 612.2 Public reading room. (a) The Foundation maintains a pub lic reading room located in the NSF Li brary 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 print ers available for public use in accessing records. Also available for public in spection and copying are current sub ject matter indexes of reading room records. (b) Information about FOIA and Pri vacy at NSF and copies of frequently requested FOIA releases are available online at www.ns/.gov/pubin/o//oia.html. Most NSF policy documents, staff in structions, manuals, and other publica tions that affect a member of the pub lic, 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.ns/.gov. § 612.3 Requirements for making re quests. (a) Where to send a request. You may make a FOIA request for records of the National Science Foundation by writ ing directly to the FOIA Officer, Office of the General Counsel, National Science Foundation, 4201 Wilson Boule vard, Suite 1265, Arlington, V A 22230. For records maintained by the NSF Of fice of the Inspector General (OIG), you may write directly to the Office of In spector General, National Science Foundation, 4201 Wilson Boulevard, Suite 1135, Arlington, V A 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 bye-mail to /oia@ns/.gov. (b) Form 0/ 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 §612.3 envelope and in the letter, or in a fac simile 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 de scribed in §612.10. NSF is not obligated to act upon a request until it meets these procedural requirements. (c)(l) If you are making a request for records about yourself and the records are not contained in a Privacy Act sys tem 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 in dividual. either a written authorization signed by that individual in accordance with §613.2(f) of this chapter permit ting disclosure of those records to you, or proof that that individual is de ceased (for example, a copy of a death certificate or a published obituary) will help the agency process your request. (d) Description 0/ 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 informa tion about each record sought, such as the date, title or name, author, recipi ent, 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 re duced or eliminated. If NSF determines that your request does not reasonably describe records, you will be advised what additional information is needed 121 §612.4 to perfect your request or why your re quest is otherwise insufficient. (e) Agreement to pay fees. Your re quest must state that you will prompt ly 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 §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 § 612.10(i}). (f) Receipt date. A request that meets the requirements of this section will be considered received on the date it is re ceived by the Office of the General Counselor 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 close of busi ness (5:00pm) on the date of receipt. (g) Publications excluded. For the pur pose of public requests for records the term "record" does not include publi cations which are available to the pub lic 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 Publica tions Clearinghouse PO Box 218, Jessup, MD 20794-0218, or through NSF's Home Page on the World Wide Web at www.nsf.gov "Documents." Re quests for such publications will be re ferred to or the requester informed of the appropriate source. § 612.4 Processing 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 cen tral office for administering these reg ulations. For records maintained by the Office of Inspector General, that Office will control incoming requests made directly or referred to it, dis patch 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 45 CFR Ch. VI 00-1-07 Edition) action offices, monitor compliance, consult with action offices on disclo sure, approve necessary extensions, dis patch 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 an other agency has a substantial inter est, it may decide that the other agen cy of the Federal Government is better able to determine whether the record should or should not be released under the FOIA. (1) If the Foundation determines that it is the agency best able to process the record in response to the request, then it will do so, after consultation with the other interested agencies where ap propriate. (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 sub mitted 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 mat ters, 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 re quest 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 infor mation otherwise exempt. § 612.5 Timing of responses to re quests. (a) In general. NSF ordinarily will initiate processing of requests accord ing to their order of receipt. 122 National SCience Foundation (b) Time for response. The Foundation will seek to take appropriate agency action within 20 days of when a request is received or is perfected (excluding the date of receipt, weekends, and legal holidays), whichever is later. A request which otherwise meets the require ments of §612.3 is perfected when you have reasonably described the records sought under §612.3(d), and agreed to pay fees under §612.3(c), or otherwise met the fee requirements under §612.10. (c) Unusual circumstances. (1) Where the time limits for processing a request cannot be met because of unusual cir cumstances, as defined in the FOIA, the FOIA Officer will notify the re quester as soon as practicable in writ ing 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 Offi cer will provide the requester with an opportunity either to modify the re quest so that it may be processed with in 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 re quest. (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 expe dited processing. (2)(i) Requests and appeals will be given expedited treatment whenever it is determined that a requester has demonstrated compelling need by pre senting: (A) Circumstances in which the lack of expedited treatment could reason ably be expected to pose an imminent threat to the life or physical safety of an individual; or (B) An urgency to inform the public about an actual or alleged Federal gov ernment activity, if made by a person primarily engaged in disseminating in formation. (ii) 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 ac tivity or occupation is information dis semination, though it need not be his §612.6 or her sole occupation. Such requester also must establish a particular ur gency to inform the public about the government activity involved in the re quest, beyond the public's right to know about government activity gen erally, and that the information sought has particular value that would be lost if not disseminated quickly. (3) Within ten calendar days of re ceipt of a request for expedited proc essing, the FOIA Officer or OIG wi11 de cide whether to grant it, and will no tify 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 de nied, any appeal of that decision will be acted on expeditiously. § 612.6 Responses to requests. (a) Acknowledgment of requests. The FOIA Officer will ordinarily send an ac knowledgment of a FOIA request only if it is anticipated that a determina tion on release will not be possible within 20 working days. (b) Grants of requests. Once the Foun dation makes a determination to grant a request in whole or in part, it will no tify 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 infor mation deleted where practicable. (c) Denials of requests. (1) Denials of FOIA requests will be made by the Of fice of the General Counsel, the Office of the Inspector General, or such other office as may be deSignated by the Di rector. The response letter will briefly set forth the reasons for the denial, in cluding any FOIA exemption(s) applied by the Foundation in denying the re quest. It will also provide the name and title or pOSition of the person respon sible for the denial, will inform the re quester of the right to appeal, and will, where appropriate, include an estimate of the volume of any requested mate rials withheld. An estimate need not be provided when the volume is otherwise indicated through deletions on records 123 §612.7 disclosed in part, or if providing an es timate would harm an interest pro tected by an applicable exemption. (2) Requesters can appeal an agency determination to withhold all or part of any requested record; a determina tion that a requested record does not exist or cannot be located; a deter mination 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 §612.9). § 612.7 Exemptions. (a) Exemptions [rom disclosure. The fol lowing types of records or information may be withholdable as exempt in full or in part from mandatory public dis closure: (1) Exemption 1~-5 U.S.C. 552(b)(1). Records specifically authorized and properly classified pursuant to Execu tive Order to be kept secret in the in terest 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 in formation 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 normally exempt from disclosure include, but are not limited to: (i) Operating rules, guidelines, manu als on internal procedure, schedules and methods utilized by NSF investiga tors, inspectors, auditors and exam iners. (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 posi tions were applicable. They may also be exempt pursuant to other provisions of this section. 45 CFR Ch. VI (10-1-07 Edition) (iii) Information relating to position management and manpower utiliza tion, such as internal staffing plans, authorizations or controls, or involved in determination of the qualifications of candidates for employment, ad vancement, or promotion including ex amination questions and answers. (iv) Computer software, the release of which would allow circumvention of a statute or NSF rules, regulations, or ders, manuals, directives, instructions, or procedures; or the integrity and se curity of data systems. (3) Exemption 3-5 U.S.C. 552(b)(3). Records specifically exempted from disclosure by another statute that ei ther requires that the information be withheld in a such way that the agency has no discretion in the matter; or es tablishes particular criteria for with holding or refers to particular types of information to be withheld. Examples of records exempt from disclosure in clude, but are not limited to: (1) Records that disclose any inven tion in which the Federal Government owns or may own a right, title, or in terest (including a nonexclusive li cense), 35 U.S.C. 205; (it) Contractor proposals not specifi cally set forth or incorporated by ref erence into a contract, 41 U.S.C. 253b(m); (iii) 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 finan cial information obtained from a per son, and privileged or confidential. In formation subject to this exemption is that customarily held in confidence by the originator(s), including nonprofit organizations and their employees. Re lease of such information is likely to cause substantial harm to the competi tive position of the originator or sub mitter, or impair the Foundation's ability to obtain such information in the future. NSF will process informa tion potentially exempted from disclo sure by Exemption 4 under § 612.8. Ex amples of records or information nor mally exempt from disclosure include, but are not limited to: 124 National Science Foundation (i) Information received in con fidence, such as grant applications, fel lowship applications, and research pro posals prior to award; (it) Confidential scientific and manu facturing processes or developments, and technical, scientific, statistical data or other information developed by a grantee. (iii) Technical, scientific, or statis tical data, and commercial or financial information privileged or received in confidence from an existing or poten tial contractor or subcontractor, in connection with bids, proposals, or con tracts, concerning contract perform ance, income, profits, losses, and ex penditures, as well as trade secrets, in ventions, discoveries, or other propri etary data. When the provisions of 41 U.S.C. 253b(m) or 41 U.S.C. 423 are met, certain proprietary and source selec tion information may also be withheld under Exemption 3. (iv) Confidential proprietary infor mation submitted on a voluntary basis. (v) Statements or information col lected in the course of inspections, in vestigations, 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 in formation normally considered con fidential or privileged. (5) Exemption 5-5 U.S.C. 552(b)(5). Inter-agency or intra-agency memo randa 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 con sidered for release if it can be reason ably segregated and is not otherwise exempt. Examples of records exempt from disclosure include, but are not limited to: (i) Those portions of reports, memo randa, correspondence, workpapers, minutes of meetings, and staff papers, containing evaluations, advice, opin ions, 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 con sultant or advisory capacity; (ii) Advance information on proposed NSF plans to procure, lease, or other wise acquire, or dispose of materials, §612.7 real estate, facilities, services or func tions, when such information would provide undue or unfair competitive advantage to private interests or im pede legitimate government functions; (iii) Trade secret or other confiden tial research development, or commer cial information owned by the Govern ment, where premature release is like ly to affect the Government's negoti ating position or other commercial in terest; (iv) Records prepared for use in pro ceedings before any Federal or State court or administrative body; (v) Evaluations of and comments on specific grant applications, research projects or proposals, or potential con tractors 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 opllllOns, rec ommendations, 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 fi nancial plan and supporting papers; (viii) Those portions of official re ports of inspection, reports of the In spector General, audits, investigations, or surveys pertaining to safety, secu rity, or the internal management, ad ministration, 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 inva sion of personal privacy. The exemp tion may apply to protect the privacy of living persons and of living close survivors of a deceased person identi fied in a record. Information in such files which is not otherwise exempt from disclosure pursuant to other pro visions 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 con sent. Examples of records exempt from 125 §612.7 disclosure include, but are not limited to: (i) Reports, records, and other mate rials pertaining to individual cases in which disciplinary or other administra tive 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 re lied upon as precedent. (ti) Records compiled to evaluate or adjudicate the suitability of candidates for employment, and the eligibility of individuals (civilian or contractor em ployees) for security clearances, or for access to classified information. (iii) Reports and evaluations which reflect upon the qualifications or com petence of individuals. (iv) Personal information such as home addresses and telephone and fac similes numbers, private e-mail ad dresses, social security numbers, dates of birth, marital status and the like. (v) The exemption also applies when the fact of the existence or nonexist ence 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 pur poses, 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. (1) 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 pro ceedings; (B) Would deprive a person of the right to a fair trial or an impartial ad judication; (C) Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a living person, or living close survivors of a deceased per son identified in a record; (D) Could reasonably be expected to disclose the identity of a confidential source, including a source within the 45 CFR Ch. VI (10-1-07 Edition) Federal Government, or a State, local, or foreign agency or authority. or any private institution, that furnished in formation 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 inves tigations or prosecutions, or would dis close guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be ex pected to risk circumvention of the law, or (F) Could reasonably be expected to endanger the life or physical safety of any individual. (U) Examples of records normally ex empt 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 individ uals investigated for alleged irregular ities 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 con fidence, expressed or implied, in the course of a criminal investigation by the NSF Officer of the Inspector Gen eraL (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 ex amination, operating, or condition re ports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of finan cial institutions. (9) Exemption 9-5 U.S.C. 552(b)(9). Records containing geological and geo physical information and data, includ ing maps, concerning wells. 126 Notional Science Foundation (b) Deletion of exempt portions and identifying details. Any reasonably seg regable portion of a record will be pro vided to requesters after deletion of the portions which are exempt. Whenever any final opinion, order, or other mate rials required to be made available re lates to a private party or parties and the release of the name(s) or other identifying details will constitute a clearly unwarranted invasion of per sonal privacy, the record shall be pub lished or made available with such identifying details left blank, or shall be published or made available with ob viously 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. § 612.8 Business Information (a) In general. Business information obtained by the Foundation from a submitter of that information will be disclosed under the FOlA only under this section's procedures. (b) Definitions. For purposes of this section: (1) Business Information means com mercial or financial information ob tained by the Foundation from a sub mitter that may be protected from dis closure under Exemption 4 of the FOlA and §612.7(a)(4). (2) Submitter means any person or en tity from whom the Foundation ob tains business information, directly or indirectly. The term includes corpora tions; state, local, and tribal govern ments; and foreign governments. (c) Designation of business information. A submitter of business information must use good faith efforts to des ignate, by appropriate markings, either at the time of submission or at a rea sonable time thereafter, any portions of its submission that it considers to be protected from disclosure under Ex emption 4. These designations will ex pire ten years after the date of the sub mission unless the submitter requests, and provides justification for, a longer designation period. (d) Notice to submitters. The Founda tion will provide a submitter with §612.8 prompt written notice of a FOlA re quest or administrative appeal that seeks its business information wher ever required under this section, in order to give the submitter an oppor tunity to object to disclosure of any speCified portion of that information under paragraph (f) of this section. The notice shall either describe the busi ness information requested or include copies of the requested records or record portions containing the infor mation. (e) Where notice is required. Notice will be given to a submitter wherever: (1) The information has been des ignated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or (2) The Foundation has reason to be lieve that the information may be pro tected from disclosure under Exemp tion 4. (f) Opportunity to object to disclosure. NSF will allow a submitter a reason able time, consistent with statutory requirements, to respond to the notice described in paragraph (d) of this sec tion. If a submitter has any objection to disclosure, it must submit a detailed written statement. The statement must specify all grounds for with holding 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 re spond within the time specified in the notice, the submitter will be consid ered to have no objection to disclosure of the information, Information pro vided by a submitter under this para graph may itself be a record subject to disclosure under the FOlA. (g) Notice of intent to disclose. The Foundation will consider a submitter's objections and specific grounds for non disclosure in deciding whether to dis close business information. Whenever it decides to disclose business informa tion 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; 127 §612.9 (2) A description of the business in formation 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 disclo sure to third parties information about specific unfunded applications, includ ing 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 ac cordance with the requirements of Ex ecutive Order 12600 (3 CFR, 1988 Comp., p. 235); or (4) The designation made by the sub mitter under paragraph (c) of this sec tion 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 infor mation, the Foundation will promptly notify the submitter(s). Whenever a submitter files a lawsuit seeking to prevent the disclosure of business in formation, the Foundation will notify the requester(s). § 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, Ar lington, VA 22230. You must make your appeal in writing and it must be re ceived 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 45 CFR Ch. VI (10-1-07 EdiHon) and the denial together with any writ ten argument you wish to submit. (b) Responses to appeals. A written de cision on your appeal will be made by the General Counsel. A decision affirm ing an adverse determination in whole or in part will contain a statement of the reason(s) for the affirmance, in cluding any FOIA exemption(s) ap plied, and will inform you of the FOIA provisions for court review of the deci sion. If the adverse determination is re versed 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. § 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 send ing copies of requested records to a re quester. 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 re quest 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 in clude 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 be cause NSF has reasonable cause to doubt a requester's stated use, NSF will provide the requester a reasonable opportunity to submit further clari fication. (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 128 National Science Foundation 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 machin ery. Not included in direct costs are overhead expenses such as the costs of space and heating or lighting of the fa cility 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 ex ample, 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 re producible by NSF, with reasonable ef fort, in the requested form or format. (4) Educational institution means a preschool, a public or private elemen tary or secondary school, an institu tion of undergraduate higher edu cation, an institution of graduate high er education, an institution of profes sional 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 oper ated 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 cat egory, a requester must show that the request is authorized by and made under the auspices of a qualifying in stitution and that the records are not sought for a commercial use or to pro mote any particular product or indus try, 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 pub lish or broadcast news to the public. §612.10 The term news means information that is about current events or that would be of current interest to the public. Ex amples of news media entities include television or radio stations broad casting to the public at large and pub lishers 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 or ganization. A publication contract would be the clearest proof, but NSF will also look to the past publication record of a requester in making this de termination. To be in this category, a requester must not be seeking the re quested records for a commercial use. However, a request for records sup porting the news dissemination func tion of the requester will not be consid ered to be for a commercial use. (7) Review means the examination of a record located in response to a re quest in order to determine whether any portion of it is exempt from disclo sure. 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 §612.8, but does not include time spent resolving general legal or policy issues regarding the application of exemp tions. (8) Search means the process of look ing for and retrieving records or infor mation responsive to a request. It in cludes page by page or line by line identification of information within records and also includes reasonable ef forts 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. 129 §612.10 (c) Fees. In responding to FOIA re quests, 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 re quests made by educational institu tions, noncommercial scientific insti tutions, 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. When ever 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 profes sional/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 con ducted (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 in clude the cost of operating the central processing unit (CPU) for that portion of operating time that is directly at tributable to searching for records re sponsive to a FOIA request and oper ator/programmer salary (i.e., basic pay plus 16 percent) apportionable to the search. When NSF can establish a rea sonable agency-wide average rate for CPU operating costs and operator/pro grammer 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, in 45 CFR Ch. VI (10-1-07 EdiHon) cluding 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 com mercial use request. Review fees will be charged only for the initial record review-in other words, the review done when NSF determines whether an ex emption 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 subse quently determined not to apply may be reviewed again to determine wheth er any other exemption not previously conSidered applies; the costs of that re view are chargeable where it is made necessary by a change of cir cumstances. Review fees will be charged at the salary rate (basic pay plus 16%) of the employee(s) per forming the review. (d) Limitations on charging fees. (1) No search fee will be charged for requests by educational institutions, non commercial 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 Cd) (2) and (3) of this section work to gether. This means that noncommer cial 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 esti mates that the fees to be charged under 130 National Science Foundation this section will exceed $25.00, it will notify the requester of the actual or es timated 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 esti mated readily, NSF will advise the re quester 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 consid ered perfected and further work will not be done until the requester agrees to pay the anticipated total fee. Any such agreement should be memorial ized in writing. A notice under this paragraph will offer the requester an opportunity to discuss the matter with Foundation personnel in order to refor mulate the request to meet the re quester's needs at a lower cost, if pos sible. If a requester fails to respond within 60 days of notice of actual or es timated 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 sec tion, when NSF chooses as a matter of administrative discretion to provide a requested special service-such as certi fying 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 re quester. (g) Charging interest. NSF may charge interest on any unpaid bill starting on the 31st day following the date of bill ing 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 re ceived 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 proce dures, including the use of consumer reporting agencies, collection agencies, and offset. (h) Aggregating requests. Where NSF reasonably believes that a requester or a group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees, the agency may aggre gate those requests and charge accord ingly. NSF may presume that multiple §612.10 requests of this type made within a 30 day period have been made in order to avoid fees. Where requests are sepa rated by a longer period, NSF will ag gregate them only where there exists a solid basis for determining that aggre gation is warranted under all the cir cumstances involved. Multiple requests involving unrelated matters will not be aggregated. (i) Advance payments. (1) For requests other than those described in para graphs (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. Pay ment 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 esti mates 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 re ceives 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 re quester 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 ad vance payment or payment due under paragraph (i)(2) or (3) of this section, the request will not be considered per fected 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 131 §612.10 schedule programs, NSF will inform re questers 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 un derstanding of the operations or activi ties of the government and is not pri marily in the commercial interest of the requester. (2) To determine whether the first fee waiver requirement is met, NSF will consider the following factors: (1) The subject of the request: Wheth er the subject of the requested records concerns "the operations or activities of the government." The subject of the requested records must concern identi fiable 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 in formation to be disclosed: Whether dis closure is "likely to contribute" to an understanding of government oper ations 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 do main, in either duplicative or substan tially 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 under standing of the subject by the public likely to result from disclosure: Whether disclosure of the requested in formation 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 re quester. A requester's expertise in the subject area and ability and intention 45 CFR Ch. VI (10-1-07 Edition) to effectively convey information to the public will be considered. A rep resentative of the news media as de fined in paragraph (b)(6) of this section will normally be presumed satisfy this consideration. (iv) The Significance of the contribu tion to public understanding: Whether disclosure is likely to contribute "sig nificantly" to public understanding of government operations or activities. The public's understanding of the sub ject in question must be enhanced by the disclosure to a significant extent as compared to the level of public under standing existing prior to the disclo sure. NSF will make no value judg ments about whether information that would contribute Significantly to pub lic understanding of the operations or activities of the government is "im portant" enough to be made public. (3) To determine whether the second fee waiver requirement is met, NSF will consider the following factors: (1) The existence and magnitude of a commercial interest: Whether the re quester has a commercial interest that would be furthered by the requested disclosure. NSF will consider any com mercial interest of the requester (with reference to the definition of "com merCial use" in paragraph (b)(l) of this section), or of any person on whose be half 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 infor mation regarding this consideration. (it) The primary interest in disclo sure: Whether any identified commer cial interest of the requester is suffi Ciently large, in comparison with the public interest in disclosure, that dis closure is "primarily in the commer cial 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 in terest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others 132 National Science Foundation who merely compile and market gov ernment information for direct eco nomic 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 reduc tion of fees should address the factors listed in paragraphs (k) (2) and (3) of this section, insofar as they apply to each request. § 612.11 Other rights and services. Nothing in this part will be con strued to entitle any person, as of right, to any service or to the disclo sure of any record to which such person is not entitled under the FOIA. 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. SOURCE: 70 FR 43068, July 26, 2005. unless otherwise noted. § 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 sys tems of records maintained by NSF that are retrieved by an individual's name or personal identifier. They de scribe the procedures by which individ uals, as defined in the Privacy Act, 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 pro vided 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 FED ERAL REGISTER. §613.2 § 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 Founda tion 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 Foun dation's Privacy Act Officer of the General Counsel. Written requests should be sent to the NSF Privacy Act Officer, National Science Foundation. 4201 Wilson Boulevard, Suite 1265. Ar lington, 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) re trieval 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 reason able amount of effort. Providing infor mation 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 proc essing of your request. NSF publishes notices in the FEDERAL REGISTER that describe the systems of records main tained by the Foundation. The Office of the Federal Register publishes a bien nial "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.gpolsu~_docslace81 Pri vacy Act .shtml. (c) Verification of identity. When re questing access to records about your self, NSF requires that you verifY your identity in an appropriate fashion. In dividuals appearing in person should be prepared to show reasonable picture identification such as driver's license, government or other employment iden tification card, or passport. Written re quests must state your full name and current address. you must sign your re quest and your signature must either be notarized, or submitted by you under 28 U.S.C. 1746, a law that permits 133 Appeal 2013-006801 Application 12/052,947 Appendix 7 45 C.F.R. Part 612 (Oct. 1, 2008) :"UTHENTICA.TED us GOVERNMENT INFORMA.Tl0N OPO9 Pt. 611, App. A (ii) The entity of such State or local government that distributes such as sistance and each such department or agency (and each other State or local government entity) to which the as sistance is extended, in the case of as sistance to a State or local govern ment; (2)(1) A college, university, or other postsecondary institution, or a public system of higher education; or (ii) A local educational agency (as de fined in 20 U.S.C. 7801), system of voca tional education, or other school sys tem; (3)(i) An entire corporation, partner ship, or other private organization, or an entire sole proprietorship (A) If assistance is extended to such corporation, partnership, private orga nization, or sole proprietorship as a whole; or (B) Which is prinCipally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (ii) The entire plant or other com parable, geographically separate facil ity to which Federal financial assist ance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or (4) Any other entity which is estab lished by two or more of the entities described in paragraph (f)(1), (2), or (3) of this section. (g) The term facility includes all or any portion of structures, equipment, or other real or personal property or interests therein, and the provision of facilities includes the construction, ex pansion, renovation, remodeling, alter ation or acquisition of facilities. (h) The term reCipient means any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organi zation, or other entity or any indi Vidual, in any State, to whom Federal financial assistance is extended, di rectly or through another reCipient, in cluding any successor, assign, or trans feree thereof, but such term does not include any ultimate beneficiary. (1) The term primary recipient means any recipient which is authorized or re quired to extend Federal financial as sistance to another recipient. 45 CFR Ch. VI (10-1-08 Edition) (j) The term applicant means one who submits an application, request, or plan required to be approved by a re sponsible Foundation 'official, or by a primary recipient, as a condition to eligibility for Federal financial assist ance, and the term application means such an application, request, or plan. [29 FR 16305, Dec. 4, 1964, as amended at 68 FR 51382, Aug. 26, 2003] ApPENDIX A TO PART 611 Statutory Provisions under which the Na tional Science Foundation provides Federal financial assistance: The National Science Foundation Act of 1950, as amended (42 U.S.C. 1861-1875). [38 FR 17986, July 5, 1973, as amended at 59 FR 37437, July 22, 1994] PART 612-AVAILABILlTY OF RECORDS AND INFORMATION Sec. 612.1 General provisions. 612.2 Public reading room. 612.3 Requirements for making requests. 612.4 Processing 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. SOURCE: 65 FR 11741, Mar. 6, 2000, unless otherwise noted. § 612.1 General provisions. This part contains the rules that the National Science Foundation follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. Information rou tinely 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 Foun dation also makes discretionary disclo sures of records or information other wise exempt under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemp tion. This policy, however, does not 120 National Science Foundation 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 reg ulations at part 613 of this chapter, and this part. § 612.2 Public reading room. (a) The Foundation maintains a pub lic reading room located in the NSF Li brary 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 print ers available for public use in accessing records. Also available for public in spection and copying are current sub ject matter indexes of reading room records. (b) Information about FOIA and Pri vacy at NSF and copies of frequently requested FOIA releases are available online at www.ns/.gov/pubin/ol/oia.html. Most NSF policy documents, staff in structions, manuals, and other publica tions that affect a member of the pub lic, 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. § 612.3 Requirements for making re quests. (a) Where to send a request. You may make a FOIA request for records of the National Science Foundation by writ ing directly to the FOIA Officer, Office of the General Counsel, National Science Foundation, 4201 Wilson Boule vard, Suite 1265, Arlington, VA 22230. For records maintained by the NSF Of fice of the Inspector General (OIG) , you may write directly to the Office of In spector 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 bye-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 §612.3 envelope and in the letter, or in a fac simile 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 de scribed in §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 sys tem 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 in dividual, either a written authorization signed by that individual in accordance with §613.2(f) of this chapter permit ting disclosure of those records to you, or proof that that individual is de ceased (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 informa tion about each record sought, such as the date, title or name, author, recipi ent, 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 re duced or eliminated. If NSF determines that your request does not reasonably describe records, you will be advised what additional information is needed 121 §612.4 to perfect your request or why your re quest is otherwise insufficient. (e) Agreement to pay fees. Your re quest must state that you will prompt ly 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 §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 § 612.10(1)). (f) Receipt date. A request that meets the requirements of this section will be considered received on the date it is re ceived by the Office of the General Counselor 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 close of busi ness (5:00pm) on the date of receipt. (g) Publications excluded. For the pur pose of public requests for records the term "record" does not include publi cations which are available to the pub lic 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 Publica tions Clearinghouse PO Box 218, Jessup, MD 20794-0218, or through NSF's Home Page on the World Wide Web at www.nsf.gov "Documents." Re quests for such publications will be re ferred to or the requester informed of the appropriate source. § 612.4 Processing 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 cen tral office for administering these reg ulations. For records maintained by the Office of Inspector General, that Office w1ll control incoming requests made directly or referred to it, dis patch 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 45 CFR Ch. VI (10-1-08 Edition) action offices, monitor compliance, consult with action offices on disclo sure, approve necessary extensions, dis patch 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 an other agency has a substantial inter est, it may decide that the other agen cy of the Federal Government is better able to determine whether the record should or should not be released under the FOIA. (1) If the Foundation determines that it is the agency best able to process the record in response to the request, then it will do so, after consultation with the other interested agencies where ap propriate. (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 sub mitted 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 mat ters, 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 re quest 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 infor mation otherwise exempt. § 612.5 Timing of responses to re quests. (a) In general. NSF ordinarily will initiate processing of requests accord ing to their order of receipt. 122 National Science Foundation (b) Time for response. The Foundation will seek to take appropriate agency action within 20 days of when a request is received or is perfected (excluding the date of receipt, weekends, and legal holidays), whichever is later. A request which otherwise meets the require ments of §612.3 is perfected when you have reasonably described the records sought und~r §612.3(d), and agreed to pay fees under §612.3(c), or otherwise met the fee requirements under §612.10. (c) Unusual circumstances. (1) Where the time limits for processing a request cannot be met because of unusual cir cumstances, as defined in the FOrA, the FOIA Officer will notify the re quester as soon as practicable in writ ing 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 Offi cer will provide the requester with an opportunity either to modify the re quest so that it may be processed with in 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 re quest. (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 expe dited processing. (2)(i) Requests and appeals will be given expedited treatment whenever it is determined that a requester has demonstrated compelling need by pre senting: CA) Circumstances in which the lack of expedited treatment could reason ably be to pose an imminent threat to life or physical safety of an individual; or (B) An urgency to inform the public about an actual or alleged Federal gov ernment activity, if made by a person primarily engaged in disseminating in formation. (li) 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 ac tivity or occupation is information dis semination, though it need not be his §612.6 or her sole occupation. Such requester also must establish a particular ur gency to inform the public about the government activity involved in the re quest, beyond the public's right to know about government activity gen erally, and that the information sought has particular value that would be lost if not disseminated quickly. (3) Within ten calendar days of re ceipt of a request for expedited proc essing, the FOIA Officer or OIG will de cide whether to grant it, and will no tify 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 de nied, any appeal of that decision will be acted on expeditiously. § 612.6 Responses to requests. Ca) Acknowledgment of requests. The FOIA Officer will ordinarily send an ac knowledgment of a FOIA request only if it is anticipated that a determina tion on release will not be possible within 20 working days. Cb) Grants of requests. Once the Foun dation makes a determination to grant a request in whole or in part, it will no tify 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 infor mation deleted where practicable. (c) Denials of requests. (1) Denials of FOIA requests will be made by the Of fice of the General Counsel, the Office of the Inspector General, or such other office as may be designated by the Di rector. The response letter will briefly set forth the reasons for the denial, in cluding any FOIA exemption(s) applied by the Foundation in denying the re quest. It will also provide the name and title or position of the person respon sible for the denial, will inform the re quester of the right to appeal, and will, where appropriate, include an estimate of the volume of any requested mate rials withheld. An estimate need not be provided when the volume is otherwise indicated through deletions on records 123 §612.7 disclosed in part, or if providing an es timate would harm an interest pro tected by an applicable exemption. (2) Requesters can appeal an agency determination to withhold all or part of any requested record; a determina tion that a requested record does not exist or cannot be located; a deter mination 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 §612.9). §612.7 Exemptions. (a) Exemptions from disclosure. The fol lowing types of records or information may be withholdable as exempt in full or in part from mandatory public dis closure: (1) Exemption 1-5 U.S.C. 552(b)(1). Records specifically authorized and properly classified pursuant to Execu tive Order to be kept secret in the in terest 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 in forma tion 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 normally exempt from disclosure include, but are not limited to: (D Operating rules, guidelines, manu als on internal procedure, schedules and methods utilized by NSF investiga tors, inspectors, auditors and exam iners. (li) 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 pOSi tions were applicable. They may also be exempt pursuant to other provisions of this section. 45 CFR Ch. VI 00-1-08 Edition) (iii) Information relating to position management and manpower utiliza tion, such as internal staffing plans, authorizations or controls, or involved in determination of the qualifications of candidates for employment, ad vancement, or promotion including ex amination questions and answers. (iv) Computer software, the release of which would allow circumvention of a statute or NSF rules, regulations, or ders, manuals, directives. instructions, or procedures; or the integrity and se curity of data systems. (3) Exemption 3-5 U.S.C. 552(b)(3). Records speCifically exempted from disclosure by another statute that ei ther requires that the information be withheld in a such way that the agency has no discretion in the matter; or es tablishes particular criteria for with holding or refers to particular types of information to be withheld. Examples of records exempt from disclosure in clude, but are not limited to: (i) Records that disclose any inven tion in which the Federal Government owns or may own a right, title, or in terest (including a nonexclusive li cense), 35 U.S.C. 205; (li) Contractor proposals not specifi cally set forth or incorporated by ref erence into a contract, 41 U.S.C. 253b(m); (iii) 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 finan cial information obtained from a per son, and privileged or confidential. In formation subject to this exemption is that customarily held in confidence by the originator(s), including nonprofit organizations and their employees. Re lease of such information is likely to cause substantial harm to the competi tive position of the originator or sub mitter, or impair the Foundation's ability to obtain such information in the future. NSF will process informa tion potentially exempted from disclo sure by Exemption 4 under § 612.8. Ex amples of records or information nor mally exempt from disclosure include, but are not limited to: 124 National Science Foundation (i) Information received in con fidence, such as grant applications, fel lowship applications, and research pro posals prior to award; (ii) Confidential scientific and manu facturing processes or developments, and technical, scientific, statistical data or other information developed by a grantee. (iii) Technical, scientific, or statis tical data, and commercial or financial information privileged or received in confidence from an existing or poten tial contractor or subcontractor, in connection with bids, proposals, or con tracts, concerning contract perform ance, income, profits, losses, and ex penditures, as well as trade secrets, in ventions, discoveries, or other propri etary data. When the prOVisions of 41 U.S.C. 253b(m) or 41 U.S.C. 423 are met, certain proprietary and source selec tion information may also be withheld under Exemption 3. (iv) Confidential proprietary infor mation submitted on a voluntary basis. (v) Statements or information col lected in the course of inspections, in vestigations, 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 in formation normally considered con fidential or privileged. (5) Exemption 5-5 U.S.C. 552(b)(5). Inter-agency or intra-agency memo randa 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 con sidered for release if it can be reason ably segregated and is not otherwise exempt. Examples of records exempt from disclosure include, but are not limited to: (i) Those portions of reports, memo randa, correspondence, workpapers, minutes of meetings, and staff papers, containing evaluations, advice, opin ions, 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 con sultant or advisory capacity; (11) Advance information on proposed NSF plans to procure, lease, or other wise acquire, or dispose of materials, §612.7 real estate, facilities, services or func tions, when such information would provide undue or unfair competitive advantage to private interests or im pede legitimate government functions; (iii) Trade secret or other confiden tial research development, or commer cial information owned by the Govern ment, where premature release is like ly to affect the Government's negoti ating position or other commercial in terest; (iv) Records prepared for use in pro ceedings before any Federal or State court or administrative body; (v) Evaluations of and comments on specific grant applications, research projects or proposals, or potential con tractors 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, rec ommendations, evaluations, decisions, or studies conducted or supported by NSF; (vii) Proposed budget requests, and supporting prOjections used or arising in the preparation andior execution of a budget; proposed annual and multi year policy, priorities, program and fi nancial plan and supporting papers; (viii) Those portions of official re ports of inspection, reports of the In spector General, audits, investigations, or surveys pertaining to safety, secu rity, or the internal management, ad ministration, 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 inva sion of personal privacy. The exemp tion may apply to protect the privacy of living persons and of living close survivors of a deceased person identi fied in a record. Information in such files which is not otherwise exempt from disclosure pursuant to other pro visions 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 con sent. Examples of records exempt from 125 §612.7 disclosure include, but are not limited to: (1) Reports, records, and other mate rials pertaining to individual cases in which disciplinary or other administra tive 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 re lied upon as precedent. (H) Records compiled to evaluate or adjudicate the suitability of candidates for employment, and the eligibility of individuals (civilian or contractor em ployees) for security clearances, or for access to classified information. (iii) Reports and evaluations which reflect upon the qualifications or com petence of individuals. (iv) Personal information such as home addresses and telephone and fac similes numbers, private e-mail ad dresses, social security numbers, dates of birth, marital status and the like. (v) The exemption also applies when the fact of the existence or nonexist. ence 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 pur poses, 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 pro ceedings; (B) Would deprive a person of the right to a fair trial or an impartial ad judication; (C) Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a living person, or living close survivors of a deceased per son identified in a record; (D) Could reasonably be expected to disclose the identity of a confidential source, including a source within the 45 CFR Ch. VI (10-1-08 Edition) Federal Government, or a State, local, or foreign agency or authority, or any private institution, that furnished in formation 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 inves tigations or prosecutions, or would dis close guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be ex pected to risk circumvention of the law, or (F) Could reasonably be expected to endanger the life or physical safety of any individual. (it) Examples of records normally ex empt 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 individ uals investigated for alleged irregular ities 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 con fidence, expressed or implied, in the course of a criminal investigation by the NSF Officer of the Inspector Gen eral. (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 ex amination, operating, or condition re ports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of finan cial institutions. (9) Exemption 9-5 U.S.C. 552(b)(9). Records containing geological and geo phYSical information and data, includ ing maps, concerning wells. 126 National Science Foundation (b) Deletion of exempt portions and identifying details. Any reasonably seg regable portion of a record will be pro vided to requesters after deletion of the portions which are exempt. Whenever any final opinion, order, or other mate rials required to be made available re lates to a private party or parties and the release of the name(s) or other identifying details will constitute a clearly unwarranted invasion of per sonal privacy, the record shall be pub Ushed or made available with such identifying details left blank, or shall be published or made available with ob viously 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. § 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 com mercial or financial information ob tained by the Foundation from a sub mitter that may be protected from dis closure under Exemption 4 of the FOIA and §612.7(a)(4). (2) Submitter means any person or en tity from whom the Foundation ob tains business information, directly or indirectly. The term includes corpora tions; state, local, and tribal govern ments; and foreign governments. (c) Designation of business information. A submitter of business information must use good faith efforts to des ignate, by appropriate markings, either at the time of submission or at a rea sonable time thereafter, any portions of its submission that it considers to be protected from disclosure under Ex emption 4. These designations will ex pire ten years after the date of the sub mission unless the submitter requests, and provides justification for, a longer designation period. (d) Notice to submitters. The Founda tion will provide a submitter with §612.8 prompt written notice of a FOIA re quest or administrative appeal that seeks its business information wher ever required under this section, in order to give the submitter an oppor tunity to object to disclosure of any specified portion of that information under paragraph (f) of this section. The notice shall either describe the busi ness information requested or include copies of the requested records or record portions containing the infor mation. (e) Where notice is required. Notice will be given to a submitter wherever: (1) The information has been des ignated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or (2) The Foundation has reason to be lieve that the information may be pro tected from disclosure under Exemp tion 4. (f) Opportunity to object to disclosure. NSF will allow a submitter a reason able time, consistent with statutory requirements, to respond to the notice described in paragraph (d) of this sec tion. If a submitter has any objection to disclosure, it must submit a detailed written statement. The statement must specify all grounds for with holding 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 re spond within the time specified in the notice, the submitter will be consid ered to have no objection to disclosure of the information. Information pro vided by a submitter under this para graph 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 non disclosure in deciding whether to dis close business information. Whenever it decides to disclose business informa tion 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; 127 §612.9 (2) A description of the business in formation 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 Cd) and (g) of this section will not apply if: (1) The Foundation determines that the information should not be disclosed (the Foundation protects from disclo sure to third parties information about specifiC unfunded applications, includ ing 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 ac cordance with the requirements of Ex ecutive Order 12600 (3 CFR, 1988 Comp., p. 235); or (4) The designation made by the sub mitter under paragraph (c) of this sec tion 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. (1) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of business infor mation, the Foundation will promptly notify the submitter(s). Whenever a submitter files a lawsuit seeking to prevent the disclosure of business in formation, the Foundation will notify the requester(s). § 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, Ar lington, VA 22230. You must make your appeal in writing and it must be re ceived 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 45 CFR Ch. VI (10-1-08 Edition) and the denial together with any writ ten argument you wish to submit. (b) Responses to appeals. A written de cision on your appeal will be made by the General Counsel. A decision affirm ing an adverse determination in whole or in part will contain a statement of the reason(s) for the affirmance, in cluding any FOrA exemption(s) ap plied, and will inform you of the FOIA provisions for court review of the deci sion. If the adverse determination is re versed 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. §612.10 Fees (a) In general. NSF will charge for processing requests under the FOrA 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 send ing copies of requested records to a re quester. 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 re quest 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 in clude 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 be cause NSF has reasonable cause to doubt a requester's stated use, NSF will provide the requester a reasonable opportunity to submit further clari fication. (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 128 National Science Foundation 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 machin ery. Not included in direct costs are overhead expenses such as the costs of space and heating or lighting of the fa cility 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 ex ample, 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 re producible by NSF, with reasonable ef fort, in the requested form or format. (4) Educational institution means a preschool, a public or private elemen tary or secondary school, an institu tion of undergraduate higher edu cation, an institution of graduate high er education, an institution of profes sional 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 oper ated 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 cat egory, a requester must show that the request is authorized by and made under the auspices of a qualifying in stitution and that the records are not sought for a commercial use or to pro mote any particular product or indus try, 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 pub lish or broadcast news to the public. §612.10 The term news means information that is about current events or that would be of current interest to the public. Ex amples of news media entities include television or radio stations broad casting to the public at large and pub lishers 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 or ganization. A publication contract would be the clearest proof, but NSF will also look to the past publication record of a requester in making this de termination. To be in this category, a requester must not be seeking the re quested records for a commercial use. However, a request for records sup porting the news dissemination func tion of the requester will not be consid ered to be for a commercial use. (7) Review means the examination of a record located in response to a re quest in order to determine whether any portion of it is exempt from disclo sure. 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 §612.8, but does not include time spent resolving general legal or policy issues regarding the application of exemp tions. (8) Search means the process of look ing for and retrieving records or infor mation responsive to a It in cludes page by page or by line identification of information within records and also includes reasonable ef forts 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. 129 §612.10 (c) Fees. In responding to FOIA re quests, 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 re quests made by educational institu tions, noncommercial scientific insti tutions, 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. (li) Manual searches for records. When ever 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 profes sional/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 con ducted (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 in clude the cost of operating the central processing unit (CPU) for that portion of operating time that is directly at tributable to searching for records re sponsive to a FOIA request and oper ator/programmer salary (i.e., basic pay plus 16 percent) apportionable to the search. When NSF can establish a rea sonable agency-wide average rate for CPU operating costs and operator/pro grammer 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, in 45 CFR Ch. VI (10-1-08 Edition) eluding 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 com mercial use request. Review fees will be charged only for the initial record review-in other words, the review done when NSF determines whether an ex emption 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 subse quently determined not to apply may be reviewed again to determine wheth er any other exemption not previously considered applies; the costs of that re view are chargeable where it is made necessary by a change of cir cumstances. Review fees will be charged at the salary rate (basic pay plus 16%) of the employee(s) per forming the review. (d) Limitations on charging fees. (1) No search fee will be charged for requests by educational institutions, non commercial 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 (it) 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 to gether. This means that noncommer cial 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 esti mates that the fees to be charged under 130 National Science Foundation this section will exceed $25.00, it will notify the requester of the actual or es timated 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 esti mated readily, NSF will advise the re quester 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 consid ered perfected and further work will not be done until the requester agrees to pay the anticipated total fee. Any such agreement should be memorial ized in writing. A notice under this paragraph will offer the requester an opportunity to discuss the matter with Foundation personnel in order to refor mulate the request to meet the re quester's needs at a lower cost, if pos sible. If a requester fails to respond within 60 days of notice of actual or es timated 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 sec tion, when NSF chooses as a matter of administrative discretion to provide a requested special service-such as certi fying 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 re quester. (g) Charging interest. NSF may charge interest on any unpaid bill starting on the 31st day following the date of bill ing 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 re ceived 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 proce dures, including the use of consumer reporting agencies, collection agencies, and offset. (h) Aggregating requests. Where NSF reasonably believes that a requester or a group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees, the agency may aggre gate those requests and charge accord ingly. NSF may presume that multiple §612.10 requests of this type made within a 30 day period have been made in order to avoid fees. Where requests are sepa rated by a longer period, NSF will ag gregate them only where there exists a solid basis for determining that aggre gation is warranted under all the cir cumstances involved. Multiple requests involving unrelated matters will not be aggregated. (i) Advance payments. (1) For requests other than those described in para graphs (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. Pay ment 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 esti mates 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 re ceives 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 re quester 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 ad vance payment or payment due under paragraph (i)(2) or (3) of this section, the request will not be considered per fected 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 131 §612.10 schedule programs, NSF will inform re questers 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 un derstanding of the operations or activi ties of the government and is not pri marily in the commercial interest of the requester. (2) To determine whether the first fee waiver requirement is met, NSF will consider the following factors: (1) The subject of the request: Wheth er the subject of the requested records concerns "the operations or activities of the government." The subject of the requested records must concern identi fiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated. (11) The informative value of the in formation to be disclosed: Whether dis closure is "likely to contribute" to an understanding of government oper ations 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 do main, in either duplicative or substan tially 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 under standing of the subject by the public likely to result from disclosure: Whether disclosure of the requested in formation 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 re quester. A requester's expertise in the subject area and ability and intention 45 CFR Ch. VI (10-1-08 Edition) to effectively convey information to the public will be considered. A rep resentative of the news media as de fined in paragraph (b)(6) of this section will normally be presumed satisfy this consideration. (iv) The Significance of the contribu tion to public understanding: Whether disclosure is likely to contribute "sig nificantly" to public understanding of government operations or activities. The public's understanding of the sub ject in question must be enhanced by the disclosure to a significant extent as compared to the level of public under standing existing prior to the disclo sure. NSF will make no value judg ments about whether information that would contribute significantly to pub lic understanding of the operations or activities of the government is "im portant" 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 re quester has a commercial interest that would be furthered by the requested disclosure. NSF will consider any com mercial interest of the requester (with reference to the definition of "com mercial use" in paragraph (b)(l) of this section), or of any person on whose be half 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 infor mation regarding this consideration. (ii) The primary interest in disclo sure: Whether any identified commer cial interest of the requester is suffi ciently large, in comparison with the public interest in disclosure, that dis closure is "primarily in the commer cial 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 in terest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others 132 Notional Science Foundation who merely compile and market gov ernment information for direct eco nomic 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 reduc tion of fees should address the factors listed in paragraphs (k) (2) and (3) of this section, insofar as they apply to each request. § 612.11 Other rights and services. Nothing in this part will be con strued to entitle any person, as of right, to any service or to the disclo sure of any record to which such person Is not entitled under the FOIA. 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, SOURCE: 70 FR 43068, July 26, 2005, unless otherwise noted. § 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 sys tems of records maintained by NSF that are retrieved by an individual's name or personal identifier. They de scribe the procedures by which individ uals, as defined in the Privacy Act, 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 pro vided 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 FED ERAL REGISTER. §613.2 § 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 Founda tion 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 Foun dation's Privacy Act Officer of the General Counsel. Written requests should be sent to the NSF Privacy Act Officer, National Science Foundation, 4201 Wilson Boulevard, Suite 1265, Ar lington, 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) re trieval 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 reason able amount of effort. Providing infor mation 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 proc eSSing of your request. NSF publishes notices in the FEDERAL REGISTER that describe the systems of records main tained by the Foundation. The Office of the Federal Register publishes a bien nial "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/su~docs/acesl Privacy Act.shtml. (c) Verification of identity. When re questing access to records about your self, NSF requires that you verify your identity in an appropriate fashion. In dividuals appearing in person should be prepared to show reasonable picture identification such as driver's license, government or other employment iden tification card, or passport. Written re quests must state your full name and current address. you must sign your re quest and your signature must either be notarized, or submitted by you under 28 U.S.C. 1746, a law that permits 133 Appeal 2013-006801 Application 12/052,947 Appendix 8 NSF Grant Proposal Guide (GPG) (NSF 04-23), effective for proposals Submitted on or after 1 September 2004 (pages 1–3, 6–10, 13, 26, and 50–51) (July 2004) NATIONAL SCIENCE FOUNDATION Office of Budget, Finance & Award Management 4201 Wilson Boulevard Arlington, VA 22230 Dear Colleagues: We have published a revision to the NSF Grant Proposal Guide (GPG) (NSF 04-23) that is effective for proposals submitted on or after September 1, 2004. This revision: • provides potential proposers with a description of the various categories of funding opportunities utilized by NSF to generate proposals, as well as the appropriate scenarios in which each are used; • incorporates new descriptive information on the types of submissions that may be required under NSF program solicitations, as well as the rationale for their use; and • implements enhanced capabilities in FastLane for submission of proposal file updates. Other sections have been revised, as appropriate, to update the GPG to ensure consistency with current NSF policies, practices or procedures. A summary of significant changes is provided to assist the user in navigating through these changes. The GPG is available electronically on the NSF Website. Organizations or individuals unable to access the GPG electronically may order paper copies (maximum of 5 per request) by any of the following means: • sending an e-mail to: pubs@nsf.gov (Web Ordering Form Location: http://www.nsf.gov/pubs/start.htm); • phoning: (703) 292-7827 or (703) 292-PUBS; or • sending a request by mail to: NSF Publications 4201 Wilson Boulevard, Suite P-60 Arlington, VA 22230 Please address any questions or comments regarding the GPG to the Policy Office, Division of Institution & Award Support, at (703) 292-8243 or bye-mail to policy@nsf.gov. Thomas N. Cooley Chief Financial Officer & Director, Office of Budget, Finance & Award Management About the National Science Foundation The National Science Foundation (NSF) is an independent Federal agency created by the National Science Foundation Act of 1950, as amended (42 USC 1861-75). The Act states the purpose of the NSF is "to promote the progress of science; [and] to advance the national health, prosperity, and welfare by supporting research and education in all fields of science and engineering." From those first days, NSF has had a unique place in the Federal Government: it is responsible for the overall health of science and engineering across all disciplines. In contrast, other Federal agencies support research focused on specific missions such as health or defense. The Foundation also is committed to ensuring the nation's supply of scientists, engineers, and science and engineering educators. NSF funds research and education in most fields of science and engineering. It does this through grants and cooperative agreements to more than 2,000 colleges, universities, K-12 school systems, businesses, informal science organizations and other research organizations throughout the US. The Foundation accounts for about one-fourth of Federal support to academic institutions for basic research. NSF receives approximately 40,000 proposals each year for research, education and training projects, of which approximately 11,000 are funded. In addition, the Foundation receives several thousand applications for graduate and postdoctoral fellowships. The agency operates no laboratories itself but does support National Research Centers, user facilities, certain oceanographic vessels and Antarctic research stations. The Foundation also supports cooperative research between universities and industry. US participation in international scientific and engineering efforts, and educational activities at every academic level. NSF is structured much like a university, with grants-funding divisions for the various disciplines and fields of science and engineering and for science, math, engineering and technology education. NSF also uses a variety of management mechanisms to coordinate research in areas that cross traditional disciplinary boundaries. The Foundation is assisted by advisors from the scientific and engineering communities who serve on formal committees or as ad hoc reviewers of proposals. This advisory system, which focuses on both program directions and specific proposals, involves approximately 50,000 scientists and engineers each year. NSF staff members who are experts in a certain field or area make award recommendations; proposers get unattributed verbatim copies of peer reviews. Grantees are wholly responsible for conducting their project activities and preparing the results for publication. Thus, the Foundation does not assume responsibility for such findings or their interpretation. NSF welcomes proposals on behalf of all qualified scientists, engineers and educators. The Foundation strongly encourages women, minorities and persons with disabilities to participate fully in its programs. In accordance with Federal statutes, regulations and NSF policies, no person on grounds of race, color. age, sex, national origin or disability shall be excluded from partiCipation in, be denied the benefits of, or be subjected to discrimination, under any program or activity receiving financial assistance from NSF, although some programs may have special requirements that limit eligibility. Facilitation Awards for Scientists and Engineers with Disabilities provide funding for special assistance or equipment to enable persons with disabilities to work on NSF-supported projects. See Chapter II, Section 0.2 for instructions regarding preparation of these types of proposals. The National Science Foundation has Telephonic Device for the Deaf (TOO) and Federal Information Relay Service (FIRS) capabilities that enable individuals with hearing impairments to communicate with the Foundation about NSF programs, employment or general information. TOO may be accessed at (703) 292-5090 and (800) 281-8749, FIRS at (800) 877-8339. The National Science Foundation Information Center may be reached at (703) 292-5111. July, 2004NSF 04·23 2 Foreword General information about NSF programs may be found in the NSF Guide to Programs. Additional information about special requirements of individual NSF programs may be obtained from the appropriate Foundation program offices. Information about most program deadlines and target dates for proposals appears in the NSF E-Bul/etin, an electronic publication available at http://www.nsf.gov/home/ebulletin/. Program deadline and target date information also appears in individual program announcements and solicitations and on relevant NSF Divisional Websites. A listing of all upcoming deadlines, sorted by date and by program area, is available on the I\JSF Website at http://www.nsf.gov/home/deadline/deadline.htm. NSF generally utilizes grants in support of research and education in science, mathematics, engineering and technology. In cases where assistance projects require substantial NSF technical or managerial involvement during the performance period, NSF uses cooperative agreements. While this Guide is generally applicable to both types of assistance awards, cooperative agreements may include different or additional requirements. For detailed information about the award and administration of NSF grants and cooperative agreements, proposers and grantees may refer to the NSF Grant Policy Manual (GPM), available electronically on the NSF Website. The Manual is a compendium of basic NSF policies and procedures for use by the grantee community and NSF staff. Any questions or comments regarding the GPG should be addressed to the Policy Office, Division of Institution & Award Support, at (703) 292-8243 or bye-mail to policy@nsf.gov. Catalog of Federal Domestic Assistance NSF programs fall under the following categories in the latest Catalog of Federal Domestic Assistance (CFDA) issued by the Office of Management and Budget and the General Services Administration: 47.041 -- Engineering Grants 47.049 -- Mathematical and Physical Sciences 47.050 -- Geosciences 47.070 -- Computer and Information Science and Engineering 47.074 -- Biological Sciences 47.075 -- Social, Behavioral and Economic Sciences 47.076 -- Education and Human Resources 47.078 -- Office of Polar Programs A listing of NSF Divisions, by CFDA number, is available on the NSF Website. July, 2004NSF 04-23 3 Table of Contents I. Introduction ................................................................................................................................. 10 A. Overview ............................................................................................................................... 10 B. NSF Programs and Funding Opportunities .......................................................................... 10 C. Categories of Funding Opportunities .................................................................................... 10 1. Dear Colleague LeHer. ............................................................................................. 10 2. Program Description ................................................................................................ 11 3. Program Announcement. ......................................................................................... 11 4. Program Solicitation ................................................................................................. 11 D. Types of Submissions ........................................................................................................... 12 1. LeHer of Intent .......................................................................................................... 12 2. Preliminary Proposal ................................................................................................ 12 a. Invite/Not Invite ........................................................................................... 12 b. Encourage/Discourage ............................................................................... 13 3. Full Proposal ............................................................................................................ 13 Proprietary or Privileged Information ....................................................................... 13 E. Who May Submit Proposals ................................................................................................. 14 Categories of Proposers ....................................................................................................... 14 F. When to Submit Proposals ................................................................................................... 15 G. How to Submit Proposals ..................................................................................................... 15 1. Electronic Requirements .......................................................................................... 15 Special instructions for proposals that contain high-resolution graphics or other graphics where exact color representations are required for proper interpretation by the reviewer ......................................................................................................... 15 2. Submission Instructions ........................................................................................... 16 3. Proposal Receipt. ..................................................................................................... 16 H. Proposal Processing ............................................................................................................. 16 II. Proposal Preparation Instructions ................................................................................................. 17 A. Conformance with Instructions for Proposal Preparation ..................................................... 17 B. Format of the Proposal ......................................................................................................... 17 1. Proposal Pagination Instructions ............................................................................. 17 2. Proposal Margin and Spacing Requirements .......................................................... 17 C. Proposal Contents ................................................................................................................ 18 1. Single-Copy Documents .......................................................................................... 18 a. Information About PrincipaUnvestigators/Project Directors and co-Principal Investigators/co-Project Directors ........................................... 18 b. Deviation Authorization ............................................................................... 18 c. List of Suggested Reviewers or Reviewers Not to Include ......................... 18 d. Proprietary or Privileged Information .......................................................... 19 e. Proposal Certifications ................................................................................ 19 2. Sections of the Proposal .......................................................................................... 19 a. Cover Sheet ................................................................................................ 19 b. Project Summary ........................................................................................ 21 c. Table of Contents ....................................................................................... 21 d. Project Description ...................................................................................... 22 (i) Content .......................................................................................... 22 (ii) Page Limitations and Inclusion of Universal Resource Locators (URLs) within the Project Description ............................................ 22 (iii) Results from Prior NSF Support .................................................... 22 (iv) Unfunded Collaborations ............................................................... 23 (v) Group Proposals ............................................................................ 23 (vi) Proposals for Renewed Support .................................................... 23 e. References Cited ........................................................................................ 23 f. Biographical Sketch(es) .............................................................................. 23 Senior Personnel ........................................................................... 23 July. 2004 NSF 04-23 6 (a) Professional Preparation .................................................. 24 (b) Appointments .................................................................... 24 (c) Publications ...................................................................... 24 (d) Synergistic Activities ......................................................... 24 (e) Collaborators & Other Affiliations ..................................... 24 Collaborators and Co-Editors ........................................... 24 Graduate and Postdoctoral Advisors ................................ 24 Thesis Advisor and Postgraduate-Scholar Sponsor. ........ 24 Oi) Other Personnel ............................................................................. 25 (iii) Equipment Proposals .................................................................... 25 g. Budget. ........................................................................................................ 25 (i) Salaries and Wages ....................................................................... 25 (a) Policies.............................................................................. 25 (b) Procedures ....................................................................... 26 (c) Confidential Budgetary Information .................................. 26 (ii) Fringe Benefits ............................................................................... 26 (iii) Equipment...................................................................................... 27 (iv) Travel ............................................................................................. 27 (a) General ............................................................................. 27 (b) Domestic Travel. ............................................................... 27 (c) Foreign TraveL. ................................................................. 27 (v) Participant Support ........................................................................ 27 (vi) Other Direct Costs ......................................................................... 28 (a) Materials and Supplies ..................................................... 28 (b) Publication/Documentation/Dissemination ....................... 28 (c) Consultant Services .......................................................... 28 (d) Computer Services ........................................................... 28 (e) Subawards ........................................................................ 28 (f) Other ................................................................................. 28 (vii) Total Direct Costs .......................................................................... 29 (viii) Indirect Costs ................................................................................. 29 (ix) Total Direct and Indirect Costs ...................................................... 29 (x) Residual Funds .............................................................................. 29 (xi) Amount of This Request ................................................................ 29 (xii) Cost Sharing .................................................................................. 29 (a) Statutory Cost Sharing Requirement... ............................. 29 (b) Cost Sharing Requirements Under NSF Program Solicitations....................................................................... 30 (xiii) Unallowable Costs ......................................................................... 30 (a) Entertainment ................................................................... 31 (b) Meals and Coffee Breaks ................................................. 31 (c) Alcoholic Beverages ......................................................... 31 h. Current and Pending Support ..................................................................... 31 i. Facilities, Equipment and Other Resources ............................................... 31 j. Special Information and Supplementary Documentation ........................... 31 k. Appendices ................................................................................................. 32 D. Special Guidelines ................................................................................................................ 32 1. Small Grants for Exploratory Research (SGER) Proposals .................................... 32 2. Facilitation Awards for Scientists and Engineers with Disabilities (FASED) ........... 33 3. Collaborative Proposals ........................................................................................... 34 4. Proposals for Equipment ......................................................................................... 35 5. Proposals Involving Vertebrate Animals .................................................................. 36 6. Proposals Involving Human Subjects ...................................................................... 37 7. Proposals for Conferences, Symposia and Workshops .......................................... 37 8. Proposals to Support International Travel ............................................................... 38 9. Proposals for Doctoral Dissertation Research ......................................................... 38 NSF 04·23 7 July, 2004 III. NSF Proposal Processing and Review .......................................................................................... 39 A. Review Criteria ...................................................................................................................... 39 What is the intellectual merit of the proposed activity? ......................................................... 39 What are the broader impacts of the proposed activity? ...................................................... 39 B. Proposal File Updates ........................................................................................................... 40 C. Revisions to Proposals Made During the Review Process ................................................... 40 D. Award Recommendation ...................................................................................................... 41 E. Copies of Reviews ................................................................................................................ 41 IV. Withdrawals, Returns and Declinations ........................................................................................ 42 A. Withdrawals .......................................................................................................................... 42 B. Return Without Review ......................................................................................................... 43 C. Declinations .......................................................................................................................... 43 D. Reconsideration .................................................................................................................... 43 E. Resubmission ....................................................................................................................... 43 V. The Award and Continued Support ............................................................................................... 44 A. Types of NSF Grants ............................................................................................................ 44 Effective/Expiration Dates and Preaward Costs ................................................................... 44 B. Additional Support ................................................................................................................. 44 1. Incremental Funding ................................................................................................ 44 2. Renewal Proposals .................................................................................................. 44 Traditional Renewal ................................................................................................. 45 Accomplishment-Based Renewal ............................................................................ 45 3. Two-Year Extensions for Special Creativity ............................................................ 45 4. Supplemental Funding ............................................................................................. 45 C. No-Cost Extensions .............................................................................................................. 46 1. Grantee-Authorized Extension ................................................................................. 46 2. NSF-Approved Extension ........................................................................................ 46 VI. Grant Administration Highlights .................................................................................................... 47 A. General Requirements .......................................................................................................... 47 B. Grantee Responsibilities and Federal Requirements ........................................................... 47 C. Prior Approval Requirements ................................................................................................ 47 D. Transfer of PI ........................................................................................................................ 48 E. Equipment ............................................................................................................................. 49 F. Excess Government Property ............................................................................................... 49 G. Suspension or Termination of Grants ................................................................................... 49 H. Grant Reports ....................................................................................................................... 49 1. Annual and Final Project Reports ............................................................................ 49 2. Quarterly and Final Expenditure Reports ................................................................ 50 I. Sharing of Findings, Data and Other Research Products .................................................... 50 J. Acknowledgement of Support and Disclaimer ...................................................................... 50 K. Release of Grantee Proposal Information ............................................................................ 50 L. Legal Rights to Intellectual Property ..................................................................................... 51 Appendix A: Proposal Preparation Checklist .................................................................................. 52 Appendix B: Potentially Disqualifying Conflicts of Interest........................................................... 54 Appendix C: Drug-Free Workplace Certification ............................................................................. 55 Appendix D: Debarment and Suspension Certification.................................................................. 57 Appendix E: Lobbying Certification ................................................................................................. 59 NSF 04-23 8 July, 2004 Appendix F: Definitions of Categories of Personnel ...................................................................... 60 Privacy Act and Public Burden Statements ............................................................................................... 61 NSF 04-23 9 July, 2004 I. Introduction A. OVERVIEW The Grant Proposal Guide (GPG) provides guidance for the preparation and submission of proposals to NSF. Contact with NSF program personnel prior to proposal preparation is encouraged. Some NSF programs have program solicitations that modify the general provisions of this Guide, and, in such cases, the guidelines provided in the solicitation must be followed. (See Section CA below for further information on NSF program solicitations. ) The Foundation considers proposals submitted by organizations on behalf of individuals or groups for support in most fields of research. Interdisciplinary proposals also are eligible for consideration. NSF does not normally support technical assistance, pilot plant efforts, research requiring security classification, the development of products for commercial marketing. or market research for a particular project or invention. Research with disease-related goals, including work on the etiology, diagnosis or treatment of physical or mental disease, abnormality, or malfunction in human beings or animals, is normally not supported. Animal models of such conditions or the development or testing of drugs or other procedures for their treatment also are not eligible for support. However, research in bioengineering, with diagnosis- or treatment-related goals, that applies engineering principles to problems in biology and medicine while advancing engineering knowledge is eligible for support. Bioengineering research to aid persons with disabilities also is eligible. Research proposals to the Biological Sciences Directorate (not proposals for conferences or workshops) cannot be duplicates of proposals to any other Federal agency for simultaneous consideration. The only exceptions to this rule are: (1) when the proposers and program officers at relevant Federal agencies have previously agreed to jOint review and possible joint funding of the proposal; or (2) proposals for Pis who are beginning investigators (individuals who have not been a principal investigator (PI)1 or co-principal investigator (co-PI) on a Federally funded award with the exception of doctoral dissertation, postdoctoral fellowship or research planning grants). For proposers who qualify under this latter exception, the box for "Beginning Investigator" must be checked on the proposal Cover Sheet. B. NSF PROGRAMS AND FUNDING OPPORTUNITIES The NSF Website provides the most comprehensive source of information on NSF Directorates (including contact information), programs and funding opportunities. Use of this Website by potential proposers is strongly encouraged. In addition, the NSF Custom News Service is an information-delivery system designed to keep potential proposers and other interested parties apprised of new NSF funding opportunities and publications, important changes in proposal and award policies and procedures, and upcoming NSF Regional Grants Conferences. Subscribers are informed through e-mail or the user's Web browser each time new publications are issued that match their identified interests. The Custom News Service also is available on NSF's Website at http://www.nsf.gov/home/cns/. Grants.gov provides an additional electronic capability to search for Federal government-wide grant opportunities. NSF funding opportunities may be accessed via this new mechanism. Further information on Grants.gov may be obtained at http://www.grants.gov. C. CATEGORIES OF FUNDING OPPORTUNITIES NSF utilizes a variety of mechanisms to generate proposals. A brief description of each category of funding opportunity follows: 1. Dear Colleague Letter Dear Colleague letters are intended to provide general information to the community, clarify or amend an existing policy or document, or inform the NSF proposer community about upcoming opportunities or special 1As used in this Guide, the term "Principal Investigator" also includes the term "Project Director." NSF 04-23 10 July, 2004 b. EncouragelDiscourage This type of mechanism is used when the NSF decision made on the preliminary proposal is advisory only. This means that submitters of both favorably and unfavorably reviewed preliminary proposals are eligible to submit full proposals. Encourage/Discourage decisions are typically used when the preliminary proposal is very short, focused on the activity to be proposed, and where use of the preliminary proposal is intended to improve the overall quality of the full proposal. The PI and the organization's Sponsored Projects Office will be notified of NSF's decision to either encourage or discourage submission of a full proposal. 3. Full Proposal The full proposal should present the (1) objectives and scientific, engineering, or educational significance of the proposed work; (2) suitability of the methods to be employed; (3) qualifications of the investigator and the grantee organization; (4) effect of the activity on the infrastructure of science, engineering and education; and (5) amount of funding required. It should present the merits of the proposed project clearly and should be prepared with the care and thoroughness of a paper submitted for publication. The requisite proposal preparation instructions are contained in GPG Chapter II. Sufficient information should be provided to enable reviewers to evaluate the proposal in accordance with the two merit review criteria established by the National Science Board. (See GPG Chapter III for additional information on NSF processing and review of proposals.) NSF expects strict adherence to the rules of proper scholarship and attribution. The responsibility for proper attribution and citation rests with authors of a proposal; all parts of the proposal should be prepared with equal care for this concern. Authors other than the PI (or any cO-PI) should be named and acknowledged. Serious failure to adhere to such standards can result in findings of research misconduct. NSF policies and rules on research misconduct are discussed in Grant Policy Manual (GPM) Section 930 as well as in 45 CFR Part 689. The Metric Conversion Act of 1975, as amended, and Executive Order 12770 of 1991 encourage Federal agencies to use the Metric System (SI) in procurement, grants and other business-related activities. Proposers are encouraged to use the Metric System of weights and measures in proposals submitted to the Foundation. Grantees also are encouraged to use metric units in reports, publications and correspondence relating to proposals and awards. that (name of: tSiljl~~ltne Gbvemme'1~ 4Detailed instructions for submission of proprietary or privileged information is available on the FastLane Website at https:llwww.fastlane.nsf.gov/a1/newstan.htm#proprietary . July, 2004NSF 04-23 13 These same principles apply to other types of non-academic organizations, such as research institutes. Since their employment periods are usually annual, salary must be shown under "calendar months." For such persons, "summer salary" is normally inappropriate under an NSF grant. Sometimes an independent institute or laboratory proposes to employ college or university faculty members on a part-time basis. In such cases, the general intent of the policies above apply, so that an individual's total income will not be augmented in ways that would not be possible under a grant to an academic institution. In most circumstances, particularly for institutions of higher education, salaries of administrative or clerical staff are included as part of indirect costs (also known as Facihtles and Administrative Costs (F&A) for Colleges and Universities). Salaries of administrative or clerical staff may be requested as direct costs, however, for a project requiring an extensive amount of administrative or clerical support and where these costs can be readily and specifically identified with the project with a high degree of accuracy. Salaries for administrative or clerical staff shall be budgeted as a direct cost only if this type of cost is consistently treated as a direct cost in like circumstances for all other projects and cost objectives. The circumstances for requiring direct charging of these services must be clearly described in the budget justification. Such costs, if not clearly justified, may be deleted by NSF. (b) Procedures The names of the PI(s), faculty, and other senior personnel and the estimated number of full-time-equivalent academic-year, summer, or calendar-year person-months for which NSF funding is requested and the total amount of salaries per year must be listed. For postdoctoral associates and other professionals, the total number of persons for each position must be listed, with the number of full-time-equivalent person-months and total amount of salaries per year. For graduate and undergraduate students, secretarial, clerical, technical, etc., whose time will be charged directly to the project, only the total number of persons and total amount of salaries per year in each category is required. Salaries requested must be consistent with the organization's regular practices. The budget justification should detail the rates of pay by individual for senior personnel, postdoctoral associates, and other professionals. The budget may request funds for support of graduate or undergraduate research assistants to help carry out the proposed research. Compensation classified as salary payments must be requested in the salaries and wages category. (ii) Fringe Benefits (Line C on the Proposal Budget) If the grantee's usual accounting practices provide that its contributions to employee benefits (social security, retirement, etc.) be treated as direct costs, NSF grant funds may be requested to fund fringe benefits as a direct cost. 21Detailed instructions for submission of confidential budgetary information are available on the FastLane website. July, 2004NSF 04-23 26 2. Quarterly and Final Expenditure Reports Quarterly and final expenditure information is provided by grantees through the Federal Cash Transaction Report, SF 272. The report must be submitted by the grantee's financial officer through the Financial Administration functions in FastLane. Contact the Institutional Ledger Section of the Division of Financial Management for additional information at http://www.nsf.gov/bfa/dfm/cmeab.htm#il pers. I. SHARING OF FINDINGS, DATA AND OTHER RESEARCH PRODUCTS NSF advocates and encourages open scientific communication. NSF expects significant findings from supported research and educational activities to be promptly submitted for publication with authorship that accurately reflects the contributions of those involved. It expects Pis to share with other researchers, at no more than incremental cost and within a reasonable time, the data, samples, physical collections and other supporting materials created or gathered in the course of the work. It also encourages grantees to share software and inventions, once appropriate protection for them has been secured, and otherwise act to make the innovations they embody widely useful and usable. NSF program management will implement these policies, in ways appropriate to field and circumstances, through the proposal review process; through award negotiations and conditions; and through appropriate support and incentives for data cleanup, documentation, dissemination, storage and the like. Adjustments and, where essential, exceptions may be allowed to safeguard the rights of individuals and subjects, the validity of results and the integrity of collections, or to accommodate legitimate interests of investigators. J. ACKNOWLEDGMENT OF SUPPORT AND DISCLAIMER An acknowledgment of NSF support and a disclaimer must appear in publications (including World Wide Web sites) of any material, whether copyrighted or not, based on or developed under NSF-supported projects: "This material is based upon work supported by the National Science Foundation under Grant No. (grantee must enter NSF grant number)." NSF support also must be orally acknowledged during all news media interviews, including popular media such as radiO, television and news magazines. Except for articles or papers published in scientific, technical or professional journals, the following disclaimer must be included: "Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the National Science Foundation." K. RELEASE OF GRANTEE PROPOSAL INFORMATION A proposal that results in an NSF award will be available to the public on request, except for privileged information or material that is personal, proprietary or otherwise exempt from disclosure under law. Appropriate labeling in the proposal aids identification of what may be specifically exempt. (See Chapter I, Section 0.3, The Full Proposal.) Such information will be withheld from public disclosure to the extent permitted by law, including the Freedom of Information Act. Without assuming any liability for inadvertent disclosure, NSF will seek to limit disclosure of such information to its employees and to outside reviewers when necessary for merit review of the proposal, or as otherwise authorized by law. Portions of proposals resulting in grants that contain descriptions of inventions in which either the Government or the grantee owns a right, title, or interest (including. a non-exclusive license) will not normally be made available to the public until a reasonable time has been allowed for filing patent applications. NSF will notify the grantee of receipt of requests for copies of funded proposals so the grantee may advise NSF of such inventions described, or other confidential, commercial or proprietary information contained in the proposal. July, 2004 NSF 04-23 50 A proposal that does not result in an NSF grant will be retained by NSF for a prescribed time (currently five years), but will be released to the public only with the consent of the proposer or to the extent required by law. L. LEGAL RIGHTS TO INTELLECTUAL PROPERTY NSF normally allows grantees to retain principal legal rights to intellectual property developed under its grants. This policy provides incentive for development and dissemination of inventions, software and publications that can enhance their usefulness, accessibility and upkeep. It does not, however, reduce the responsibility of researchers and organizations to make results, data and coilections available to the research community. July, 2004NSF 04-23 51 Appeal 2013-006801 Application 12/052,947 Appendix 9 Department of Justice Freedom of Information Guide (May 2004) FOIA Guide, 2004 Edition: "Reverse" FOlA IalP IDepartment of Justice Page 1 of 19 FOIA GUIDE, 2004 EDITION: "REVERSE" FOIA Freedom of Information Act Guide, May 2004 "Reverse" FOIA The Court of Appeals for the District of Columbia Circuit has defined a "reverse" FOIA action as one in which the "submitter of information -- usually a corporation or other business entity" that has supplied an agency with "data on its policies, operations or products -- seeks to prevent the agency that collected the information from revealing it to a third party in response to the latter's FOIA request. "111 Such "reverse" FOIA challenges have not been strictly limited to those situations involving pending FOIA requests, but on occasion have been brought by parties challenging other types of prospective agency disclosures as well..m An agency's decision to release the information in response to a FOIA request ordinarily will "be grounded either in its view that none of the FOIA exemptions applies, and thus that disclosure is mandatory, or in its belief that release is justified in the exercise of its discretion, even though the information falls within one or more of the statutory exemptions."m Typically, the submitter contends that the requested information falls within Exemption 4 of the FOIA,.Ml but submitters have also challenged, with mixed results, the contemplated disclosure of information that they contended was exempt under other FOIA exemptions as well..!§l (For a further discussion of other such "reverse" FOIA cases, see Exemption 6, Privacy Considerations, above.) Two years ago the District Court for the District of Columbia issued opinions in two reverse FOIA cases involving claims that disclosure would be in violation of the Privacy Act of 1974 . ..i§l.ln one, the court held that the plaintiffs had "properly asserted a cause of action" because the information at issue was protected by Exemption 7(C) of the FOIA and therefore could not be disclosed under the Privacy Act -- inasmuch as that statute generally prohibits public disclosure of Privacy Act-covered information that falls within a FOIA exemption.JZlln the second case -- which was brought after the disclosure had been made -- the court held that the plaintiff could not rely on an alleged violation of the Privacy Act to bring an independent reverse FOIA claim against the agency . .1!ll (See the further discussion of this issue under Exemption 6, Privacy Considerations, above.) In a "reverse" FOIA suit "the party seeking to prevent a disclosure the government itself is otherwise willing to make" assumes the "burden of justifying nondisclosure."Jllll\t1oreover, a challenge to an agency's disclosure decision is reviewed in light of the "basic policy" of the FOIA to "'open agency action to the light of public scrutiny'" and in accordance with the "narrow construction" afforded to the 3/2512015http://www.justice.gov/oip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse" FOIA IOIP IDepartment of Justice Page 2 of 19 FOIA's exemptions.1.1.Qllf the underlying FOIA request is subsequently withdrawn, the basis for the court's jurisdiction will dissipate and the case will be dismissed as moot.l11.l The landmark case in the reverse FOIA area is Chrysler Corp. v. Brown, in which the Supreme Court held that jurisdiction for a reverse FOIA action cannot be based on the FOIA itself "because Congress did not design the FOIA exemptions to be mandatory bars to disclosure" and, as a result, the FOIA "does not afford" a submitter "any right to enjoin agency disclosure."illl. Moreover, the Supreme Court held that jurisdiction cannot be based on the Trade Secrets Actilll. (a broadly worded criminal statute prohibiting the unauthorized disclosure of "practically any commercial or financial data collected by any federal employee from any sou rce".llil) , because it is a criminal statute that does not afford a "private right of action.".i1Ql Instead, the Court found that review of an agency's "decision to disclose" requested records.i1.ID can be brought under the Administrative Procedure Act (APA) . .llZl. Accordingly, reverse FOIA plaintiffs ordinarily argue that an agency's contemplated release would violate the Trade Secrets Act and thus would "not be in accordance with law" or would be "arbitrary and capricious" within the meaning of the APA..i1.ID In Chrysler, the Supreme Court specifically did not address the "relative ambits" of Exemption 4 and the Trade Secrets Act, nor did it determine whether the Trade Secrets Act qualified as an Exemption 3.!1.ln statute . ..@l Almost a decade later, the D.C. Circuit, after repeatedly skirting these difficult issues, "definitively" resolved them.ill.! With regard to the Trade Secrets Act and Exemption 3, the D.C. Circuit held that the Trade Secrets Act does not qualify as an Exemption 3 statute under either of that exemption's subparts, particularly as it acts only as a prohibition against "unauthorized" disclosures . .ill..llndeed, because "agencies conceivably could control the frequency and scope of its application through regulations adopted on the strength of statutory withholding authorizations which do not themselves survive the rigors of Exemption 3," the D.C. Circuit found it inappropriate to classify the Trade Secrets Act as an Exemption 3 statute . .ml (For a further discussion of this point, see Exemption 3, Additional Considerations, above.) In addition, the D.C. Circuit ruled that the scope of the Trade Secrets Act is not narrowly limited to that of its three predecessor statutes and that, instead, its scope is "at least co-extensive with that of Exemption 4. ".@} Thus, information falling within the ambit of Exemption 4 would also fall within the scope of the Trade Secrets Act..i£ID. Accordingly, in the absence of a statute or properly promulgated regulation giving an agency authority to release the information -- which would remove the Trade Secrets Act's disclosure prohibition.i£ID. -- a determination that requested material falls within Exemption 4 is tantamount to a determination that the material cannot be released, because the Trade Secrets Act "prohibits" disclosure.Jm To the ex-tent that information falls outside the scope of Exemption 4, the D.C. Circuit found that there was no need to determine whether it nonetheless still fits within the outer boundaries of the Trade Secrets ActnID. Such a ruling was unnecessary, the court found, because the FOIA itself would provide the necessary authorization to release any information not falling within one of its exemptions.~ Standard of Review 3/2512015http://www.justice.gov/oip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse" FOIA IOIP IDepartment of Justice Page 3 of 19 In Chrysler Corp. v. Brown, the Supreme Court held that the Administrative Procedure Act's predominant scope and standard of judicial review -- review on the administrative record according to an arbitrary and capricious standard should "ordinarily" apply to reverse FOIA actions . ..GQllndeed, the Court of Appeals for the District of Columbia Circuit has strongly emphasized that judicial review in reverse FOIA cases should be based on the administrative record, with de novo review reserved for only those cases in which an agency's administrative procedures were "severely defective. ".ill1 The D.C. Circuit subsequently reaffirmed its position on the appropriate scope of judicial review in reverse FOIA cases, holding that the district court "behaved entirely correctly" when it rejected the argument advanced by the submitter -- that it was entitled to de novo review because the agency's factfinding procedures were inadequate -- and instead confined its review to an examination of the administrative record . .illl The Court of Appeals for the Ninth Circuit, similarly rejecting a submitter's challenge to an agency's factfinding procedures, also has held that judicial review in a reverse FOIA suit is properly based on the administrative record . .ml Review on the administrative record is a "deferential standard of review [that] only requires that a court examine whether the agency's decision was 'based on a consideration of the relevant factors and whether there has been a clear error of judgment."'~ Under this standard "a reviewing court does not substitute its judgment for the judgment of the agency" and instead "simply determines whether the agency action constitutes a clear error of judgment."...Qlll Significantly, "[a]n agency is not required to prove that its predictions of the effect of disclosure are superior"; rather, it "is enough that the agency's position is as plausible as the contesting party's position."...Qllllndeed, as one court has recently held, "[t]he harm from disclosure is a matter of speculation, and when a reviewing court finds that an agency has supplied an equally reasonable and thorough prognosis, it is for the agency to choose between the contesting party's prognosis and its own .....r.m Because judicial review is based on the agency's administrative record, it is vitally important that agencies take care to develop a comprehensive one . ..ill!llndeed, the Court of Appeals for the Seventh Circuit once chastised an agency for failing to develop an adequate record in a reverse FOIA action. Although recognizing that procedures designed to determine the confidentiality of requested records need not be "as elaborate as a licensing," it found that the agency's one-line decision rejecting the submitter's position "validates congressional criticisms of the excessive casualness displayed by some agencies in resolving disputes over the application of exemption 4.".m.l Similarly, the D.C. Circuit has remanded several reverse FOIA cases back to the agency for development of a more complete administrative record. In one, the D.C. Circuit ordered a remand so that it would have the benefit of "one considered and complete statement" of the agency's position on disclosure.~ In another, the D.C. Circuit reversed the decision of the district court, which had permitted an inadequate record to be supplemented in court by an agency affidavit, holding that because the agency had failed at the administrative level to give a reason for its refusal to withhold certain price information, it was precluded from offering a "post-hoc rationalization" for the first time in court . .illl 3/25/2015http://www.justice.gov/oip/foia-guide-2004-edition-reverse-foia ForA Guide, 2004 Edition: "Reverse" FOrA IOIP IDepartment of Justice Page 4 of 19 Likewise, the court ordered a remand after holding that an "agency's administrative decision must stand or fall upon the reasoning advanced by the agency therein" and that an "agency cannot gain the benefit of hindsight in defending its decision" by advancing a new argument once the matter gets to litigation.~ Thus, the D.C. Circuit has emphasized that judicial review in reverse FOIA cases must be conducted on the basis of the "administrative record compiled by the agency in advance of litigation.".illl Of course, agency affidavits that do "no more than summarize the administrative record" have been found to be permissible.ilil. In another case remanded to the agency for further proceedings due to an inadequate record, the D.C. Circuit rejected the argument proffered by the agency that a reverse FOIA plaintiff bears the burden of proving the "non-public availability" of information, finding that it is "far more efficient, and obviously fairer" for that burden to be placed on the party who claims that the information is public.Mlil The D.C. Circuit also upheld the district court's requirement that the agency prepare a document-by-document explanation for its denial of confidential treatment.llli Specifically, the D.C. Circuit found that the agency's burden of justifying its decision "cannot be shirked or shifted to others simply because the decision was taken in a reverse-FOIA rather than a direct FOIA context.".illl. Moreover, it observed, in cases in which the public availability of information is the basis for an agency's decision to disclose, the justification of that position is "inevitably document-specific."illl Similarly, the District Court for the District of Columbia ordered a remand in a case in which the agency "never did acknowledge," let alone "respond to," the submitter's competitive harm argument.illl Rather than order a remand, however, that same district court, in an earlier case, simply ruled against the agency -- even going so far as to permanently enjoin it from releasing the requested information -- on the basis of a record that it found insufficient under the standards of the APA.JQlU Specifically, the court noted that the agency "did not rebut any of the evidence produced" by the submitter, "did not seek or place in the record any contrary evidence, and simply hard] determined" that the evidence offered by the submitter was "insufficient or not credible. "J.ill This, the court found, "is classic arbitrary and capricious action by a government agency ....ill.l When the agency subsequently sought an opportunity to "remedy" those "inadequacies in the record" by seeking a remand, the court declined to order one, reasoning that the agency was "not entitled to a second bite of the apple just because it made a poor decision [for,] if that were the case, administrative law would be a never ending loop from which aggrieved parties would never receive justice.".1§;il This same court -- when later presented with an administrative record that "differ[ed] substantially" from that earlier case and which "rebutted [the submitter's] arguments with detailed analysis" and indicated that the agency had "consulted" experienced individuals who were "intimately familiar with [the submitter's] arguments and evidence" -- readily upheld the agency's disclosure decision.~ When the submitter later sought reconsideration of the court's ruling, contending that the court improperly sustained the agency's decision on the basis of "'secret testimony from anonymous witnesses,'" the court dismissed those contentions as "inapposite and inaccurate," reasoning that "none of the issues before the court concerned the relative prestige of the experts on each party's side."illl Rather, the court held, the 3125/2015http://www.justice.gov/oip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse" FOIA IOIP IDepartment of Justice Page 5 of 19 "more appropriate concern [was] whether [the agency's] factual decisions [were] supported by substantial evidence" in the administrative record . .ffi§l This decision was, nevertheless, abruptly overturned on appeal for what the court of appeals tersely characterized as the agency's "illogical application of the competitive harm test," with no mention made of the extensive evidence in the agency's administrative record..illl Another agency's disclosure determination was readily upheld when it was based on an administrative record that the court found plainly demonstrated that the agency "specifically considered" and "understood" the arguments of the submitter and "provided reasons for rejecting them."J.§.§lln so ruling, the court took note of the "lengthy and thorough" administrative process, during which the agency "repeatedly solicited and welcomed" the submitter's views on whether a FOIA exemption app!ied.J.§.§l This record demonstrated that the agency's action was not arbitrary or capricious . .!2Ql Similarly, when an agency provided a submitter with "numerous opportunities to substantiate its confidentiality claim," afforded it "vastly more than the amount of time authorized" by its regulations, and "explain[ed] its reasons for [initially] denying the confidentiality request," the court found that the agency had "acted appropriately by issuing its final decision denying much of the confidentiality request on the basis that it had not received further substantiation."J§liln so holding, the court specifically rejected the submitter's contention that "it should have received even more assistance" from the agency and held that the agency was "under no obligation to segregate the documents into categories or otherwise organize the documents for review."J!W The court also specifically noted that the agency's acceptance of some of the submitter's claims for confidentiality in this matter "buttresses" the conclusion that its decision was "rational."~ Executive Order 12.600 Administrative practice in potential reverse FOIA situations is generally governed by an executive order issued almost two decades ago. Executive Order 12,600 requires federal agencies to establish certain predisclosure notification procedures which will assist agencies in developing adequate administrative records . .l§£ The executive order recognizes that submitters of proprietary information have certain procedural rights and it therefore requires, with certain exceptions,J§l that notice be given to submitters of confidential commercial information when they mark it as such,Jll!il or more significantly, whenever the agency "determines that it may be required to disclose" the requested data.J§Il When submitters are given notice under this procedure, they must be given a reasonable period of time within which to object to disclosure of any of the requested material.l§lll As one court has emphasized, however, this consultation is "appropriate as one step in the evaluation process, [but1 is not sufficient to satisfy [an agency's] FOIA obligations .....lmll Consequently, an agency is "required to determine for itself whether the information in question should be disclosed."i1!!l 3125/2015http://www.justice.gov/oip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse" FOIA IOIP IDepartment of Justice Page 6 of 19 If the submitter's objection is not, in fact, sustained by the agency, the submitter must be notified in writing and given a brief explanation of the agency's decision . .illl Such a notification must be provided a reasonable number of days prior to a specified disclosure date, which gives the submitter an opportunity to seek judicial relief . ..czll Executive Order 12,600 mirrors the policy guidance issued by the Office of Information and Privacy in 1982,.illl and for most federal agencies it reflects what already had been existing practice . .ilil This executive order predates the decision of the Court of Appeals for the District of Columbia Circuit in Critical Mass Energy Project v. NRC,.illl and thus does not contain any procedures for notifying submitters of voluntarily provided information in order to determine if that information is "of a kind that would customarily not be released to the public by the person from whom it was obtained."lZ2l (For a further discussion of this "customary treatment" standard, see Exemption 4, Applying Critical Mass, above.) As a matter of sound administrative practice, however, agencies should employ procedures analogous to those set forth in Executive Order 12,600 when making determinations under this "customary treatment" standard.111l Accordingly, if an agency is uncertain of the submitter's customary treatment of information, the submitter should be notified and given an opportunity to provide the agency with a description of its treatment -- including any disclosures that are customarily made and the conditions under which such disclosures occur.lZ2l The agency should then make an objective determination as to whether or not the "customary treatment" standard is satisfied.1ZID Of course, in the event a submitter challenges an agency's threshold determination under Critical Mass concerning whether the submission is "required" or "voluntary," the agency should be careful to include in the administrative record a full justification for its position on that issue as well.1I!Ql The procedures set forth in Executive Order 12,600 do not provide a submitter with a formal evidentiary hearing. This is entirely consistent with what has now become well-established law -- i.e., that an agency's procedures for resolving a submitter's claim of confidentiality are not inadequate simply because they do not afford the submitter a right to an evidentiary hearing . .1Il.l.l Agencies should be aware, though, that confusion and litigation can result from using undocumented conversations as a short-cut method of avoiding scrupulous adherence to these submitter-notice procedures . .!!m Similarly. procedures in the executive order do not provide for an administrative appeal of an adverse decision on a submitter's claim for confidentiality. The lack of such an appeal right has not been considered by the D.C. Circuit, but it has been addressed by the District Court for the District of Columbia, which has flatly rejected a submitter's contention that an agency's decision to disclose information "must" be subject to an administrative appeaL...wID The Court of Appeals for the Fourth Circuit had an opportunity to confront this issue in Acumenics Research &Technology v. Department of Justice.~ There, in analyzing Department of Justice regulations which do not provide for an administrative appeal, the Fourth Circuit found that the procedures provided for in the regulations -- namely, notice of the request, an opportunity to submit objections to disclosure, careful consideration of those objections by the agency, and issuance of a written statement describing the reasons why any objections were not http://www.justice.gov/oip/foia-guide-2004-edition-reverse-foia 3/25/2015 FOIA Guide, 2004 Edition: "Reverse" FOIA IOIP IDepartment of Justice Page 7 of 19 sustained -- in combination with a "face-to-face meeting that, in essence, amounted to an opportunity to appeal [the agency's] tentative decision in favor of disclosure," were adequate . ..@Jll The Fourth Circuit, however, expressly declined to render an opinion as to whether the procedures implemented by the regulations alone would have been adequate.l!l§l Likewise, the Court of Appeals for the Ninth Circuit has upheld the adequacy of an agency's factfinding procedures that did not provide for an administrative appeal per se . .!lillin that case, the agency's procedures provided for notice and an opportunity to object to disclosure, for consideration of the objection by the agency, for a written explanation as to why the objection was not sustained, and then for another opportunity for the submitter to provide information in support of its objection.J!l!ll After independently reviewing the record, the Ninth Circuit found that such procedures were adequate and accordingly held that the agency's decision to disclose the information did not require review in a trial de novo.~ 1. CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1133 n.1 (D.C. Cir. 1987); accord Mallinckrodt Inc. v. West, 140 F. Supp. 2d 1,4 (D. D.C. 2000) (declaring that "[i]n a 'reverse FOIA' case, the court has jurisdiction when a party disputes an agency's decision to release information under FOIA"), appeal dismissed voluntarily, No. 00-5330 (D.C. Cir. Dec. 12, 2000); Cortez III Servo Corp. V. NASA, 921 F. Supp. 8, 11 (D. D.C. 1996) (holding that in reverse FOIA actions "courts have jurisdiction to hear complaints brought by parties claiming that an agency decision to release information adversely affects them"), appeal dismissed voluntarily, No. 96-5163 (D.C. Cir. July 3, 1996). 2. See, e.g., AFL-CIO v. FEC, 333 F.3d 168, 172 (D.C. Cir. 2003) (submitter organization challenged, albeit with questionable standing, agency decision to place investigatory file, which included information on individuals, in agency's public reading room); Bartholdi Cable Co. v. FCC, 114 F.3d 274,279 (D.C. Cir. 1997) (submitter challenged agency order requiring it to publicly disclose information, which was issued in context of federal licensing requirements); McDonnell Douglas Corp. V. Widnall, No. 94-0091, slipop. at 13 (D. D.C. Apr. 11, 1994) (submitter challenged agency release decision that was based upon disclosure obligation imposed by Federal Acquisition Regulation (FAR), and McDonnell Douglas Corp. v. Widnall, No. 92-2211, slip op. at 8 (D.D.C. Apr. 11, 1994) (same), cases consolidated on appeal & remanded for further development of the record, 57 F.3d 1162, 1167 (D.C. Cir. 1995); cf. Tripp V. DOD, 193 F. Supp. 2d 229,233 (D. D.C. 2002) (plaintiff challenged disclosure of federal jOb-related information concerning herself, but did so after disclosure already had been made to the media). 3. CNA, 830 F.2d at 1134 n.1; see Alexander & Alexander Servs. v. SEC, No. 92-1112, 1993 WL 439799, at **9,11-12 (D. D.C. Oct. 19, 1993) (agency determined that Exemptions 4, 7(B), and 7(C) did not apply to certain requested information and "chose not to invoke" Exemption 5 for certain other requested information), appeal dismissed, No. 93-5398 (D.C. Cir. Jan. 4, 1996). 4.5 U.S.C. A§ 552(b)(4) (2000). 5. See, e.g., Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1182 (8th Cir. 2000) (agreeing with submitter that Exemption 6 should have been invoked, and 3/2512015http://www.j ustice.gov loip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse" FOIA IOIP IDepartment of Justice Page 8 of 19 ordering permanent injunction requiring agency to withhold requested information); Bartholdi, 114 F.3d at 282 (denying the submitter's request for an injunction based on a claim that agency's balancing of interests under Exemption 6 was "arbitrary or capricious," and holding that "even were [the submitter] correct that its submissions fall within Exemption 6, the [agency] is not required to withhold the information from public disclosure," because the "FOIA's exemptions simply permit, but do not require, an agency to withhold exempted information"); Doe v. Veneman, 230 F. Supp. 2d 739, 747-51 (W.D. Tex. 2002) (agreeing with submitter that Exemption 6 should have been invoked, that the requested information was statutorily protected both under Exemption 3 and the Privacy Act of 1974, 5 U.S.C. A§ 552a (2000), and enjoining disclosure) (appeal pending); I.!:lIm., 193 F. Supp. 2d at 238-39 (dismissing plaintiffs claim that the agency's prior disclosure of information about her somehow "violated" Exemptions 5,6, 7(A), and 7(C); concluding that with the exception of information covered by Exemption 7(C) -- which was found inapplicable to the information at issue -- a plaintiff could "not rely on a claim that a FOIA exemption requires the withholding" of information, inasmuch as the FOIA merely permits withholding but does not "require" it); AFL-CIO v. FEC, 177 F. Supp. 2d. 48, 61-63 (D. D.C. 2001) (agreeing with plaintiffs that the identities of third parties mentioned in an agency's investigative files should have been afforded protection under Exemption 7(C); rejecting the agency's argument that "the public interest in disclosure outweighs the privacy interest" of the named individuals," because the D.C. Circuit "has established a categorical rule" for the protection of such information; and finding the agency's "refusal to apply Exemption 7(C) to bar release" to be "arbitrary, capricious and contrary to law" (citing SafeCard Servs. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991))), affd on other grounds, 333 F.3d 168 (D.C. Cir. 2003); Na Iwi o Na Kupuna v. Dalton, 894 F. Supp. 1397, 1411-13 (D. Haw. 1995) (denying plaintiffs request to enjoin release of information that plaintiff contended was exempt pursuant to Exemptions 3 and 6); Church Universal &Triumphant Inc. v. United States, No. 95-0163, slip op. at 2,3 &n.3 (D.D.C. Feb. 8,1995) (rejecting the submitter's argument "that the documents in question are 'return information' that is protected from disclosure under" Exemption 3, but sua sponte asking the agency "to consider whether any of the materials proposed for disclosure are protected by" Exemption 6); Alexander, 1993 WL 439799, at **10-12 (agreeing with the submitter that Exemption 7(C) should have been invoked, and ordering the agency to withhold additional information; finding that the submitter failed to "timely provide additional substantiation" to justify its claim that Exemption 7(B) applied; and finding that the deliberative process privilege of Exemption 5 "belongs to the governmental agency to invoke or not," and noting the "absence of any record support" suggesting that the agency, "as a general matter, arbitrarily declined to invoke that privilege"). 6. 5 U.S.C. A§ 552a (2000). 7. Recticel Foam Corp. v. United States Dep't of Justice, No. 98-2523, slip op. at 9-10 (D.D.C. Jan. 31,2002) (enjoining disclosure of FBI's criminal investigative files pertaining to plaintiffs), appeal dismissed, No. 02-5118 (D.C. Cir. Apr. 25, 2002); see also Doe, 230 F. Supp. 2d at 751 (recognizing claim that disclosure of the identities of ranchers utilizing livestock-protection collars would be a "violation of' the Privacy Act, after concluding that the "FOIA does not require release of the information"). 3/25/2015http://www.justice.gov/oip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse" FOIA IalP IDepartment of Justice Page 9 of 19 8. I!:iQQ, 193 F. Supp. 2d at 238-40 (rejecting plaintiff's argument that her "reverse" FOIA claim was properly predicated on her "'reverse FOIA' request" that she previously sent to the President and the Attorney General requesting "DOD's compliance with its obligations" under the FOIA and the Privacy Act). 9. Martin Marietta Corp. v. Dalton, 974 F. Supp. 37, 40 nA (D.D.C. 1997); accord Frazee v. United States Forest Serv., 97 F.3d 367, 371 (9th Cir. 1996) (declaring that the "party seeking to withhold information under Exemption 4 has the burden of proving that the information is protected from disclosure"); Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 342 (D.C. Cir. 1989) (explaining that the "statutory policy favoring disclosure requires that the opponent of disclosure" bear the burden of persuasion); TRIFID Corp. v. Nat'llmagery & Mapping Agency, 10 F. Supp. 2d 1087, 1097 (E.D. Mo. 1998) (same); cf. Kan. Gas & Elec. Co. v. NRC, No. 87-2748, slip op. at 4 (D. D.C. July 2, 1993) (holding that submitter's "unsuccessful earlier attempt" to suppress disclosure in state court "effectively restrains it" from raising same arguments again in reverse FOIA action). 10. Martin Marietta, 974 F. Supp. at 40 (quoting United States Dep't of the Air Force v. Rose, 425 U.S. 352,372 (1976); see, e.g., TRIFID, 10 F. Supp. 2d at 1097 (reviewing the submitter's claims in light of the FOIA principle that "[i]nformation in the government's possession is presumptively disclosable unless it is clearly exempt"); Daisy Mfg. Co. v. Consumer Prod. Safety Comm'n, No. 96-5152, 1997 WL 578960, at *1 (W.D. Ark. Feb. 5, 1997) (examining the submitter's claims in light of "the policy of the United States government to release records to the public except in the narrowest of exceptions," and observing that "[o]penness is a cherished aspect of our system of government"), aff'd, 133 F.3d 1081 (8th Cir, 1998). 11, See McDonnell Douglas Corp. v. NASA, No. 95-5288, slip op. at 1 (D.C. Cir. Apr. 1, 1996) (ordering a reverse FOIA case "dismissed as moot in light of the withdrawal of the [FOIA] request at issue"); Gen. Dynamics Corp. v. Dep't of the Air Force, No. 92-5186, slip op. at 1 (D.C. Cir. Sept. 23, 1993) (same); Gulf Oil Corp. v. Brock, 778 F.2d 834, 838 (D.C. Cir. 1985) (same); McDonnell Douglas Corp. v. NASA, 102 F. Supp. 2d 21, 24 (D.D.C.) (dismissing case after underlying FOIA request was withdrawn, which in turn occurred after case already had been decided by D.C. Circuit and was before district court on motion for entry of judgment), reconsideration denied, 109 F, Supp. 2d 27 (D.D.C. 2000); cf. Sterling v. United States, 798 F. Supp. 47, 48 (D.D.C. 1992) (declaring that once a record has been released, "there are no plausible factual grounds for a 'reverse FOIA' claim"), aff'd, No. 93-5264 (D.C. Cir. Mar. 11. 1994). 12.441 U.S. 281,293-94 (1979); accord Campaign for Family Farms, 200 F.3d at 1185 (concluding that an "agency has discretion to disclose information within a FOIA exemption, unless something independent of FOIA prohibits disclosure"); Bartholdi, 114 F.3d at 281 (declaring that the "mere fact that information falls within a FOIA exemption does not of itself bar an agency from disclosing the information"); RSR Corp. v. Browner, 924 F. Supp. 504, 509 (S.D.N.Y. 1996) (holding that the "FOIA itself does not provide a cause of action to a party seeking to enjoin an agency's disclosure of information, even if the information requested falls within one of FOIA's exemptions"), aff'd, No. 96-6186, 1997 WL 134413 (2d Cir. Mar. 26, 1997), affirmance vacated without explanation, No. 96-6186 (2d Cir. Apr. 17, 1997); Kan. Gas, No. 87-2748, slip op. at 3 (D. D.C. July 2, 1993) (finding that any "party seeking to prevent disclosure ... must rely on other sources of law, independent of FOIA, to justify 3/25/2015http://www,justice.gov/oip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse" FOIA IOIP IDepartment of Justice Page 10 of 19 enjoining disclosure"). But see AFL-CIO, 177 F. Supp. 2d at 61-63 (concluding, without evident legal basis because of questionable standing, that due to "categorical" nature of Exemption 7(C), a reverse FOIA plaintiff can state claim that agency's decision not to invoke that exemption is unlawful or arbitrary and capricious); accord:IriIm, 193 F. Supp. 2d at 239 (observing with mistaken imprecision that the district court's decision in AFL-CIO "goes only so far as to say that FOIA prohibits the release of the limited category of [Exemption] 7(C) information"). 13. 18 U.S.C. A§ 1905 (2000). 14. CNA, 830 F.2d at 1140. 15. Chrysler, 441 U.S. at 316-17; accord McDonnell Douglas Corp. v. United States Dep't of the Air Force, 215 F. Supp. 2d 200, 203-04 & n.2 (D.D.C. 2002) (citing Chrysler and dismissing a count of the Complaint alleging a violation of the Trade Secrets Act, n[b]ecause the [Trade Secrets Act] does not create a private right of actionn) (reverse FOIA suit) (appeal pending on other grounds). 16.JJ;Lat318. 17.5 U.S.C. A§A§ 701-06 (2000); see, e.g., CC Distribs. v. Kinzinger, No. 94-1330,1995 WL 405445, at *2 (D. D.C. June 28, 1995) (holding that "neither FOIA nor the Trade Secrets Act provides a cause of action to a party who challenges an agency decision to release information ... [but] a party may challenge the agency's decision" under APA); Comdisco, Inc. v. GSA, 864 F. Supp. 510, 513 (ED. Va. 1994) (finding that the "sole recourse" of a "party seeking to prevent an agency's disclosure of records under FOIA" is review under the APA); Atlantis Submarines Haw., Inc. v. United States Coast Guard, No. 93-00986, slip op. at 5 (D. Haw. Jan. 28, 1994) (concluding that in a reverse FOIA suit, nan agency's decision to disclose documents over the objection of the submitter is reviewable only under" the APA) (denying motion for preliminary injunction), dismissed per stipulation (D. Haw. Apr. 11, 1994); Envtl. Tech.! Inc. v. EPA, 822 F. Supp. 1226, 1228 (ED. Va. 1993) (same). 18. See, e.g., McDonnell Douglas Corp. v. Wid nail, 57 F.3d 1162, 1164 (D.C. Cir. 1995) (holding that the Trade Secrets Act "can be relied upon in challenging agency action that violates its terms as 'contrary to law' within the meaning of' the APA); Acumenics Research & Tech. v. Dep't of Justice, 843 F.2d 800, 804 (4th Cir. 1988) (same); Gen. Elec. Co. v. NRC, 750 F.2d 1394, 1398 (7th CiL 1984) (same); Mallinckrodt. 140 F. Supp. 2d at 4 (declaring that n[a]lthough FOIA exemptions are normally permissive rather than mandatory," the Trade Secrets Act "independently prohibits the disclosure of confidential information"); Cortez, 921 F. Supp. at 11; Gen. Dynamics Corp. v. United States Dep't of the Air Force, 822 F. Supp. 804, 806 (D.D.C. 1992), vacated as moot, No. 92-5186 (D.C. Cir. Sept. 23, 1993); Raytheon Co. v. Dep't of the Navy, No. 89-2481, 1989 WL 550581, at *1 (D. D.C. Dec. 22,1989). 19.5 U.S.C. A§ 552(b)(3). 20.441 U.S. at 319 n.49. 21. CNA, 830 F.2d at 1134. 3/2512015http://www.justice.gov/oip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse" FOIA IOIP IDepartment of Justice Page 11 of 19 22. &at 1141. 23. & at 1139-40. 24. & at 1151; accord Bartholdi, 114 F.3d at 281 (citing CNA and declaring: "[W]e have held that information falling within Exemption 4 of FOIA also comes within the Trade Secrets Act."); Alexander, 1993 WL 439799, at *9; Gen. Dynamics, 822 F. Supp. at 806. But see McDonnell Douglas, 57 F.3d at 1165 n.2 (noting in dicta that "we suppose it is possible that this statement [from CNA] is no longer accurate in light of [the court's] recently more expansive interpretation of the scope of Exemption 4" in Critical Mass Energy Project v. NRC, 975 F.2d 871,879 (D.C. Cir. 1992) (en banc)). 25. See, e.g., Bartholdi, 114 F.3d at 281 (concluding that when information is shown to be protected by Exemption 4, the government is generally "precluded from releasing" it by the Trade Secrets Act); Mallinckrodt, 140 F. Supp. 2d at 4 (declaring that "the Trade Secrets Act affirmatively prohibits the disclosure of information covered by Exemption 4"); McDonnell Douglas Corp. v. NASA, 895 F. Supp. 319, 322 nA (D.D.C. 1995) (finding that because the two provisions are "co-extensive," it is "unnecessary to perform a redundant analysis"), vacated as moot, No. 95-5288 (D.C. Cir. Apr. 1, 1996); Chem. Waste Mgmt., Inc. v. O'Leary, No. 94-2230,1995 WL 115894, at *6 n.1 (noting that the "analysis under either regime is identical"); Raytheon, 1989 WL 550581, at *1. 26. See, e.g., St. Mary's Hosp., Inc. v. Harris, 604 F.2d 407,410 (5th Cir. 1979) (finding that a disclosure made pursuant to a Social Security Administration regulation "was authorized by law within the meaning of the Trade Secrets Act"); RSR, 924 F. Supp. at 512 (finding that Clean Water Act and "regulations promulgated under it permit disclosure" of submitter's "effluent data" and so agency's contemplated disclosure of such data is authorized by law); Jackson v. First Fed. Sav., 709 F. Supp. 887, 890-94 (E.D. Ark. 1989) (concluding that a Federal Home Loan Bank Board regulation was "sufficient [under the Trade Secrets Act] to authorize" the release of certain bank-examination documents); see also Owest Communications Int'l v. FCC, 229 F.3d 1172, 1173 (D.C. Cir. 2000) (finding that a provision of the Communications Act of 1934, 47 U.S.C. A§ 220(f) (2002), "provides sufficient authorization for disclosure of trade secrets," but nevertheless remanding for further proceedings because the agency "failed to explain how its [disclosure order was] consistent with its policy regarding the treatment of confidential [audit] information"); cf. McDonnell Douglas Corp. v. NASA, 180 F.3d 303,306 (D.C. Cir. 1999) (repeatedly noting absence of agency reliance on "any independent legal authority to release" requested information as basis for concluding that it was subject to Trade Secrets Act's disclosure prohibition). See generally Bartholdi, 114 F.3d at 281-82 (rejecting challenge to validity of disclosure regulation for failure to first exhaust issue before agency); S. Hills Health Sys. v. Bowen, 864 F.2d 1084,1093 (3d Cir. 1988) (rejecting challenge to validity of disclosure regulation as unripe). 27. CNA, 830 F.2d at 1151-52; see, e.g., Pac. Architects & Eng'rs v. United States Dep't of State, 906 F.2d 1345, 1347 (9th Cir. 1990) (holding that when release of requested information is barred by Trade Secrets Act, agency "does not have discretion to release it"); Envtl. Tech., 822 F. Supp. at 1228 (concluding that Trade Secrets Act "bars disclosure of information that falls within Exemption 4"); Gen. Dynamics, 822 F. Supp. at 806 (declaring that the Trade Secrets Act "is an 3/25/2015http://www.justice.gov/oip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse" FOIA IOIP IDepartment of Justice Page 12 of 19 independent prohibition on the disclosure of information within its scope"); see also FOIA Update, Vol. VI, No.3, at 3 (discussing Trade Secrets Act bar to discretionary disclosure under Exemption 4). 28. CNA, 830 F.2d at 1152 n.139. 29 . .!.Q.,.; see Frazee, 97 F.3d at 373 (emphasizing that the submitters gave "no reason as to why the Trade Secrets Act should, in their case, provide protection from disclosure broader than the protection provided by Exemption 4 of FOIA" and finding that because the requested document was "not protected from disclosure under Exemption 4," it also was "not exempt from disclosure under the Trade Secrets Act"); Alexander, 1993 WL 439799, at *9 (declaring that "if the documents are not deemed confidential pursuant to Exemption 4, they will not be protected under the Trade Secrets Act"). 30.441 U.S. 281,318 (1979); accord Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1184 (8th Cir. 2000); Reliance Elec. Co. v. Consumer Prod. Safety Comm'n, 924 F.2d 274, 277 (D.C. Cir. 1991); Gen. Dynamics Corp. v. United States Dep't of the Air Force, 822 F. Supp. 804, 806 (D. D.C. 1992), vacated as moot, No. 92-5186 (D.C. Cir. Sept. 23,1993); Davis Corp. v. United States, No. 87-3365, 1988 U.S. Dist. LEX!S 17611, at **5-6 (D. D.C. Jan. 19, 1988); see also McDonnell Douglas Corp. v. NASA, No. 91-3134, transcript at 6 (D. D.C. Jan. 24,1992) (bench order) (recognizing that court has "very limited scope of review"), remanded, No. 92-5342 (D.C. Cir. Feb. 14, 1994). 31. Nat'l Org. for Women v. Social Sec. Admin., 736 F.2d 727, 745 (D.C. Cir. 1984) (per curiam) (McGowan & Mikva, JJ., concurring in result); accord Campaign for Family Farms v. Glickman, 200 F.3d at 1186 n.6; Acumenics Research &Tech. v. United States Dep't of Justice, 843 F.2d 800, 804-05 (4th Cir. 1988); RSR Corp. v. Browner, 924 F. Supp. 504, 509 (S.D.N.Y. 1996), affd, No. 96-6186,1997 WL 134413 (2d Cir. Mar. 26, 1997), affirmance vacated without explanation, No. 96-6186 (2d Cir. Apr. 17, 1997); Comdisco, Inc. v. GSA, 864 F. Supp. 510, 513 (E.D. Va. 1994); Burnside-Ott Aviation Training Ctr. v. United States, 617 F. Supp. 279, 282-84 (S.D. Fla. 1985); ct. Alcolac, Inc. v. Wagoner, 610 F. Supp. 745, 749 (W.O. Mo. 1985) (upholding agency's decision to deny claim of confidentiality as "rational"). But see Carolina Biological Supply Co. v. USDA, No. 93CV00113, slip op. at 4 & n.2 (M.D. N.C. Aug. 2, 1993) (applying de novo review after observing that standard of review issue presented close "judgment call"); Artesian Indus. v. HHS, 646 F. Supp. 1004,1005-06 (D.D.C. 1986) (flatly rejecting position advanced by both parties that it should base its decision on agency record according to arbitrary and capricious standard). 32. CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1162 (D.C. Cir. 1987); see, e.g., TRIFID Corp. v. Nat'llmagery & Mapping Agency, 10 F. Supp. 2d 1087,1092-96 (E.D. Mo. 1998) (finding the agency's factfinding procedures to be adequate when the submitter "received notice of the FOIA request and was given the opportunity to object," and holding that challenges to the brevity of the agency's disclosure decision, the lack of an administrative appeal right, as well as "procedural irregularities" concerning the time period allotted for providing objections, as well as a dispute over the appropriate decision maker, did not justify de novo review); RSR, 924 F. Supp. at 509 (finding the agency's factfinding procedures to be adequate when the submitter was "promptly notified" of the FOIA request and "given an opportunity to object to disclosure" and "to substantiate [those} objections" before the agency decision was 3125/2015http://www.justice,govloip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse" FOIA IOIP IDepartment of Justice Page 13 of 19 made); Comdisco, 864 F. Supp. at 514 (finding the agency's factfinding procedures to be adequate when the submitter was "accorded a full and fair opportunity to state and support its position on disclosure"); see also CC Distribs. v. Kinzinger, No. 94-1330, 1995 WL 405445, at *3 (D.D.C. June 28, 1995) (confining its review to the record when the submitter did "not actually challenge the agency's factfinding procedures," but instead challenged how the agency "applied" those procedures); Chem. Waste Mgmt.. Inc. v. O'Leary, No. 94-2230, 1995 WL 115894, at *6 n.4 (D. D.C. Feb. 28, 1995) (confining its review to the record even when the agency's factfinding itself was found to be inadequate, because the agency's "factfinding procedures" were not challenged). 33. See Pac. Architects & Eng'rs v. United States Dep't of State, 906 F.2d 1345, 1348 (9th Cir. 1990). 34. McDonnell Douglas Corp. v. NASA, 981 F. Supp. 12, 14 (D.D.C. 1997) {quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,416 (1971)), rev'd on other grounds, 180 F.3d 303 (D.C. Cir. 1999); accord Campaign for Family Farms, 200 F.3d at 1187 (likewise quoting Citizens to Preserve Overton Park); McDonnell Douglas Corp. v. United States Dep't of the Air Force, 215 F. Supp. 2d 200, 204 (D. D.C. 2002) (same) (reverse FOIA suit) (appeal pending on other grounds); Mallinckrodt Inc. v. West, 140 F. Supp. 2d 1,4 (D.D.C. 2000) (same), appeal dismissed voluntarily, No. 00-5330 (D.C. Cir. Dec. 12,2000). 35. McDonnell Douglas, 215 F. Supp. 2d at 204; accord Bartholdi Cable Co. v. FCC, 114 F.3d 274, 279 (D.C. Cir. 1997). 36. McDonnell Douglas, 215 F. Supp. 2d at 205; accord CNA, 830 F.2d at 1155 (deferring to agency when presented with "no more than two contradictory views of what likely would ensue upon release of [the] information"). 37. McDonnell Douglas, 215 F. Supp. 2d at 205; accord CNA, 830 F.2d at 1155) (upholding agency's release decision, and finding that agency's "explanations of antiCipated effects were certainly no less plausible than those advanced by" submitter). 38. See Reliance, 924 F.2d at 277 (insisting that the court "cannot properly perform" its review "unless the agency has explained the reasons for its decision"); MCI Worldcom. Inc. v. GSA, 163 F. Supp. 2d 28,30,36 & n.10 (D. D.C. 2001) (ruling against the agency when it "never made any findings" regarding the confidentiality of the requested pricing information and could "not point[] to anything in the administrative record that establishes that the information is not confidential"); see also McDonnell Douglas, 981 F. Supp. at 14 (ordering record supplemented to include "additional comments" provided by submitter as well as agency's "lengthy response" because submitter's comments, though untimely, were considered by agency); McDonnell Douglas Corp. v. NASA, 895 F. Supp. 319, 323-24 (D.D.C. 1995) (ordering the record supplemented after finding that certain documents "specifically referenced" in the submitter's letter to the agency "were improperly omitted from the administrative record" and holding that even though those referenced documents had not been examined by the agency, the letter itself was, and agency "cannot pick and choose what information in the document will be considered"), vacated as moot, No. 95-5288 (D.C. Cir. Apr. 1, 1996); FOIA Post, "Treatment of Unit Prices Under Exemption 4" 3/25/2015http://www.justice.gov1oip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse" FOIA IOIP IDepartment of Justice Page 14 of 19 (posted 5/29/02) (emphasizing importance of conducting submitter notice each time unit prices are requested and carefully documenting agency rationale); FOIA Update, Vol. VIII, No.2, at 1, FOIA Update, Vol. IV, No.4, at 10; FOIA Update, Vol. III, No.3, at 3. Compare McDonnell Douglas, No. 91-3134, transcript at 6 (D. D.C. Jan. 24, 1992) (finding agency's action to be arbitrary and capricious based on insufficient agency record), with Gen. Dynamics, 822 F. Supp. at 806 (deeming agency's action not arbitrary and capricious based upon "lengthy and thorough" administrative record). 39. Gen. Elec. Co. v. NRC, 750 F.2d 1394, 1403 (7th Cir. 1984) (remanding case for elaboration of basis for agency's decision). 40. McDonnell Douglas Corp. v. Widnall, 57 F.3d 1162, 1167 (D.C. Cir. 1995) (inexplicably deeming case to have come to court in "unusual posture" with "confusing administrative record" stemming from "intersection" of FOIA actions and contract award announcements). 41. AT&T Info. Sys. v. GSA, 810 F.2d 1233, 1236 (D.C. Cir. 1987). 42. Data-Prompt. Inc. v. Cisneros, No. 94-5133, slip op. at 3 (D.C. Cir. Apr. 5, 1995). 43. AT&T, 810 F.2d at 1236; see also TRIFID, 10 F. Supp. 2d at 1097 (refusing to consider affidavits proffered by the submitter as they "were not submitted to [the agency} during the administrative process"); CC Distribs., 1995 WL 405445, at "'3 (same); Chem. Waste, 1995 WL 115894, at *6 n.4 (same); Alexander & Alexander Servs. v. SEC, No. 92-1112,1993 WL439799, at"'13 n.9 (D. D.C. Oct. 19, 1993) (same), appeal dismissed, No. 93-5398 (D.C. Cir. Jan. 4, 1996); Gen. Dynamics, 822 F. Supp. at 805 n.1 (same). 44. Hercules, Inc. v. Marsh, 839 F.2d 1027,1030 (4th Cir. 1988); accord McDonnell Douglas Corp. v. EEOC, 922 F. Supp. 235, 238 n.2 (E.D. Mo. 1996) (permitting the submission of an agency affidavit that "helps explain the administrative record"), appeal dismissed, No. 96-2662 (8th Cir. Aug. 29, 1996); Lykes Bros. S.S. Co. v. Pena, No. 92-2780, slip op. at 16 (D.D.C. Sept. 2, 1993) (permitting the submission of an agency affidavit that "merely elaborates" on the basis for the agency decision and "provides a background for understanding the redactions"); see also, e.g., Int'I Computaprint v. United States Dep't of Commerce, No. 87-1848, slip op. at 12 n.36 (D.D.C. Aug. 16, 1988) ("The record in this case has been supplemented with explanatory affidavits that do not alter the focus on the administrative record."). 45. Occidental Petroleum Corp. v. SEC, 873 F.2d 325,342 (D.C. Cir. 1989). 46. ~ at 343-44. 47. ~ at 344. 48.~ 49. Chem. Waste, 1995 WL 115894, at *5. 50. McDonnell Douglas, No. 91-3134, transcript at 5-6, 10 (D.D.C. Jan. 24, 1992). 51. ~at6. 3/2512015http://www.justice.gov/oip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse'! FOIA IOIP IDepartment of Justice Page 15 of 19 52. kL see. e.g., McDonnell Douglas, 922 F. Supp. at 241-42 (declaring an agency to be "arbitrary and capricious" because its "finding that the documents [at issue] were required [to be submitted was] not supported by substantial evidence in the agency record," and elaborating that it was "not at all clear" that the agency "even made a factual finding on [that] issue" and "to the extent" that it "did consider the facts of [the] case, it viewed only the facts favorable to its predetermined position"); Cortez III Servo Corp. v. NASA, 921 F. Supp. 8, 13 (D. D.C. 1996) (declaring an agency decision to be "not in accordance with law" when "[n]either the administrative decision nor the sworn affidavits submitted by the [agency] support the conclusion that [the submitter] was required to provide" the requested information), appeal dismissed voluntarily, No. 96-5163 (D.C. Cir. July 3, 1996). See generally Envtl. Tech., Inc. v. EPA, 822 F. Supp. 1226, 1230 (E.D. Va. 1993) (granting submitter's motion for permanent injunction perfunctorily, without even addressing adequacy of agency record). 53. McDonnell Douglas Corp. v. NASA, 895 F. Supp. 316, 319 (D. D.C. 1995) (permanent injunction ordered to "remaini] in place"), aff'd for agency failure to timely raise argument, No. 95-5290 (D.C. Cir. Sept. 17, 1996). 54. McDonnell Douglas, 981 F. Supp. at 16. 55. McDonnell Douglas Corp. v. NASA, No. 96-2611, slip op. at 3 (D. D.C. May 1, 1998) (quoting submitter's brief), rev'd on other grounds, 180 F.3d 303 (D.C. Cir. 1999). 56 . .kL at 4. 57. McDonnell Douglas Corp. V. NASA, 180 F.3d 303,307 (D.C. Cir. 1999) (dismissing agency's disclosure determination brusquely). 58. Gen. Dynamics, 822 F. Supp. at 807. 59 . .kL at 806. 60. .kL at 807; see, e.g., McDonnell Douglas, 215 F. Supp. 2d at 202-03 (noting that agency "requested comments from" submitter three times, that submitter actually "provided comments eleven times," and that after considering those comments agency "presented reasoned accounts" of its position and so, its "decision to disclose was not arbitrary or capricious"); Atlantis Submarines Haw., Inc. V. United States Coast Guard, No. 93-00986, Slip op. at 10 (D. Haw. Jan. 28, 1994) (finding that the agency "appears to have fully examined the evidence and carefully followed its own procedures," that its decision to disclose "was conscientiously undertaken," and that it thus was not "arbitrary and capricious") (denying motion for preliminary injunction), dismissed per stipulation (D. Haw. Apr. 11, 1994); Source One Mgmt., Inc. v. United States Dep't of the Interior, No. 92-Z-2101 , transcript at 4 (D. Colo. Nov. 10, 1993) (bench order) (declaring that the "Government has certainly been open in listening to" the submitter's arguments "and has made a decision which ... is rational and is not an abuse of discretion and is not arbitrary and capricious"); Lykes Bros., No. 92-2780, slip op. at 15 (D. D.C. Sept. 2, 1993) (noting that the agency "provided considerable opportunity" for the submitters to "contest the proposed disclosures, and provided sufficient reasons on the record for rejecting" the submitters' arguments). 3/25/2015http://www.justice.gov/oip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse" FOIA , OIP , Department of Justice Page 16 of 19 61. Alexander, 1993 WL 439799, at **5-6; see CC Distribs., 1995 WL 405445, at "6 n.2 (ruling that the agency's procedures were adequate when the agency gave the submitter "adequate notice" of the existence of the FOIA request, afforded it "numerous opportunities to explain its position," repeatedly advised it to state its objections "with particularity," and "at least, provided [the submitter] with occasion to make the best case it could"). 62. Alexander, 1993 WL 439799, at **5 & 13 n.5. 63. kl at *13 n.6; accord Daisy Mfg. Co. v. Consumer Prod. Safety Comm'n, No. 96-5152, 1997 WL 578960, at *3 (W.O. Ark. Feb. 5,1997) (finding it significant that the record revealed that the agency had been "careful in its selection of records for release, and in fact [had] denied the release of some records"), affd, 133 F .3d 1081 (8th CiL 1998); Source One, No. 92-Z-21 01, transcript at 4 (D. Colo. Nov. 10, 1993) (noting with approval that "there were certain things that [the agency had] excised"). 64. 3 C.F.R. 235 (1988) (applicable to all executive branch departments and agencies), reprinted in 5 U.S.C. A§ 552 note (2000), and in FOIA Update, Vol. VIII, No.2, at 2-3; see, e.g., Department of Justice FOIA Regulations, 28 C.F.R. A§ 16.8(a)(2) (2004) (defining "submitter" as "any person or entity from whom the Department obtains business information, directly or indirectly"). 65. Exec. Order No. 12,600, A§ 8 (listing six circumstances in which notice is not necessary -- for example, when an agency determines that the requested information should be withheld, or conversely, when it already is public or its release is required by law); FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) (observing that in contrast to the notice that is routinely afforded to submitters of business information, "as a matter of longstanding practice born of practicality, individuals whose personal privacy interests are being protected under the FOIA rarely are aware of that process, let alone involved in it"). 66. Exec. Order No. 12,600, A§ 3 (establishing procedures for submitter marking of information); cf. Homeland Security Act of 2002, 6 U.S.CA A§ 133 (West Supp. 2004) (establishing protection under Exemption 3, 5 U.S.C. A§ 552(b)(3) (2000), for "critical infrastructure information" that is properly marked as such and is voluntarily provided to the Department of Homeland Security); FOIA Post, "Critical Infrastructure Information Regulations Issued by DHS" (posted 2/27/04) (advising of potential governmentwide implementation); FOIA Post, "Homeland Security Law Contains New Exemption 3 Statute" (posted 1127/03) (comparing requirements of statute to those of Executive Order 12,600). 67. Exec. Order No. 12,600, A§ 1; see MCI Worldcom, Inc. v. GSA, 163 F. Supp. 2d 28,37 (D. D.C. 2001) (finding that an agency acted arbitrarily and capriciously when it "failed to follow" its submitter-notice regulations and did not afford the submitter "the opportunity to submit any comments as to how disclosure of the [requested information] would cause [it] substantial competitive harm"); see also FOIA Post, "New McDonnell Douglas Opinion Aids Unit Price Decisionmaking" (posted 1 0/4/02); FOIA Post, "Treatment of Unit Prices Under Exemption 4" (posted 5129/02) (setting forth new guidance on handling requests for unit prices, directing agencies once again to conduct full submitter notice each time unit prices are requested, and advising agencies to carefully evaluate any claims of competitive harm on a case-by-case basis) 3/2512015http;llwww.justice.gov/oip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse ll FOIA IOIP IDepartment of Justice Page 17 of 19 (superseding FOIA Update, Vol. XVIII, No.4, at 1, and FOIA Update, Vol. V, No.4, at 4); FOIA Update, Vol. VIII, No.2, at 1; FOIA Update, Vol. IV, No.4, at 10; FOIA Update, Vol. III, No.3, at 3; cf. Forest Guardians v. United States Forest Serv., No. 99-615, slip op. at 57 (D.N.M. Jan. 29, 2001) (finding that although the agency "failed to undertake procedures required by its own regulations, to engage in sufficient fact finding[,] or to utilize a rational and consistent decision-making process," the court could not "agree" that these facts rendered the agency's conduct "contrary to law" or arbitrary and capricious, because there were "insufficient concrete and uncontested facts" to make a determination on the applicability of any FOIA exemption) (case ultimately settled by the parties and agency agreed to provide notice to affected submitters). But cf. McDonnell Douglas Corp. v. NASA, 895 F. Supp. 319, 323 (D.D.C. 1995) (finding that an agency "simply does not have the authority to require [the submitter] to justify again and again why information, the disclosure of which has been enjoined by a federal court, should continue to be enjoined," and holding that the agency must instead take steps to "have the existing injunction modified or dissolved"), vacated as moot, No. 95-5288 (D.C. Cir. Apr. 1, 1996). See generally OSHA Data/C.I.H., Inc. v. United States Dep't of Labor, 220 F.3d 153, 168 (3d Cir. 2000) (concluding that estimated $1.7 million cost of notifying more than 80,000 submitters was properly charged to requester seeking documents for commercial use). 68. Exec. Order No. 12,600, A§ 4; see McDonnell Douglas, 895 F. Supp. at 328 (holding that submitter is "not denied due process of law just because [agency] regulations do not allow cumulative opportunities to submit justifications and to refute agency decisions"). 69. Lee v. FDIC, 923 F. Supp. 451,455 (S.D.N.Y. 1996). 70. kL accord Exec. Order No. 12,600, A§ 5 (specifically contemplating that after affording notice to submitter agency makes ultimate determination concerning release); see also Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 767 (D.C. Cir. 1974) (concluding that in justifying nondisclosure, the submitter's treatment of the information is not "the only relevant inquiry," and finding that agency must be satisfied that harms underlying exemption are likely to occur). 71. Exec. Order No. 12,600, A§ 5; see TRIFID Corp. v. Nat'llmagery & Mapping Agency, 10 F. Supp. 2d 1087, 1093 (E.D. Mo. 1998) (An "agency's explanation of its decision may be 'curt,'" provided that it "indicate[s] the determinative reason for the action taken."). 72. Exec. Order No. 12,600, A§ 5. 73. See FOIA Update, Vol. III, No.3, at 3 ("OIP Guidance: Submitters' Rights"). 74. See FOIA Update, Vol. IV, No.4, at 1 (describing agency submitter notice practice); see also FOIA Update, Vol. VIII, No.2, at 1 (same). 75.975 F.2d 871 (D.C. Cir. 1992) (en banc). 76. kL at 879. 3/25/2015http://www.justice.gov/oip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse" FOIA IOIP IDepartment of Justice Page 18 of 19 77. See FOIA Update, Vol. Vol. XIV, No.2, at 6-7 ("Exemption 4 Under Critical Mass: Step-By-Step Decisionmaking"); see also id. at 3-5 ("OIP Guidance: The Critical Mass Distinction Under Exemption 4"). 78. See id. at 7; accord Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 244 F.3d 144, 153 (D.C. Cir. 2001) (directing the district court, on remand, to review the submitters' declarations "and any other relevant responses" that they might provide to establish their customary treatment of the requested information). 79. See FOIA Update, Vol. XIV, No.2, at 7. 80. See McDonnell Douglas Corp. v. EEOC, 922 F. Supp. 235, 241-42 (E.D. Mo. 1996) (concluding that the agency's finding that the submission was required was "not supported by substantial evidence," and consequently finding the agency decision to be "contrary to the law"), appeal dismissed, No. 96-2662 (8th Cir. Aug. 29, 1996); Cortez III Servo Corp. v. NASA, 921 F. Supp. 8, 13 (D. D.C. 1996) (explaining that agency's failure to provide "support" for its conclusion that submission was required rendered its decision "not in accordance with law"), appeal dismissed voluntarily, No. 96-5163 (D.C. Cir. July 3, 1996). 81. See CNA Fin. Corp. v. Donovan. 830 F.2d 1132, 1159 (D.C. Cir.1987); Nat'l Org. for Women V. Social Sec. Admin., 736 F.2d 727, 746 (D.C. Cir. 1984) (per curiam) (McGowan & Mikva, JJ., concurring in result); McDonnell Douglas Corp. v. NASA, No. 96-2611, slip op. at4 (D.D.C. May 1,1998), rev'd on other grounds, 180 F.3d 303 (D.C. Cir. 1999). 82. See Fed. Elec.Corp. v. Carlucci. 687 F. Supp. 1,5 (D.D.C. 1988) (involving disappointed bidder who brought action seeking to have solicitation declared void after agency had released its cost data, in absence of submitter objections to release, which submitter claimed was due to "apparent misunderstanding as to what was actually going to be released"), grant of summary judgment to agency affd, 866 F.2d 1530 (D.C. Cir. 1989). 83. Lykes Bros. S.S. Co. v. Pena, No. 92-2780, slip op. at 6 (D.D.C. Sept. 2, 1993); see also TRIFID, 10 F. Supp. 2d at 1093-94 (noting the lack of an appeal provision in the executive order, and concluding that the "absence of an appeal mechanism and a formal mechanism to provide additional information [did] not render [the agency's] procedures defective"). 84. 843 F.2d 800, 805 (4th Cir. 1988). 85·kl 86. kl at 805 nA. 87. See Pac. Architects & Eng'rs v. United States Dep't of State, 906 F.2d 1345, 1348 (9th Cir. 1990). 88·kl 89.kl Go to: Table of Contents 3/25/2015http://www.justice.gov1oip/foia-guide-2004-edition-reverse-foia FOIA Guide, 2004 Edition: "Reverse" FOIA IOIP IDepartment of Justice Page 19 of 19 Updated July 23.2014 3125/2015http://www.justice.gov /oip/foia-guide-2004-edition-reverse-foia Copy with citationCopy as parenthetical citation