Ex Parte Asandei

Patent Trial and Appeal Board

Apr 20, 2015

12052947 (P.T.A.B. Apr. 20, 2015)

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.

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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.

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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

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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.

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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)

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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).

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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

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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.

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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.

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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

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(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.”).

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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.

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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

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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);

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(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:”

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□ 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

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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

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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.

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(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

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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.

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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.

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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.

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(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

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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

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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.

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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.

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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,

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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.

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Fig. 1
Figure 1 depicts a general schematic of
the synthesis of graft copolymers

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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

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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

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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,

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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.

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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

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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.

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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

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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).

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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

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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? YES D NO D IF YES, LIST ACRONYM(S)
D AN ACCOMPLISHMENT-BASED RENEWAL
NAME OF ORGANIZATION TO WHICH AWARD SHOULD BE MADE ADDRESS OF AWARDEE ORGANIZATION, INCLUDING 9 DIGIT ZIP CODE
CODE (IF KNOWN)
NAME OF PERFORMING ABOVE ADDRESS OF IZATION,IF DIFFERENT, II~L,LUUII'"''
(IF KNOWN)
IS AWARDEE ORGANIZATION (Check All That Apply)
(See GPG II.D.1 For Definitions) D FOR-PROFIT ORGANIZATION DSMALL BUSINESS DMINORITY BUSINESS DWOMAN-OWNED BUSINESS
TITLE OF PROPOSED PROJECT
PROPOSED DURA STARTING DATE SHOW
IF APPLICABLE
CHECK APPROPRIATE BOX(ES) IF THIS PROPOSAL INCLUDES ANY OF THE ITEMS LISTED BELOW
DBEGINNING INVESTIGATOR (GPG I.A.3) D VERTEBRATE ANIMALS (GPG II.D.12) IACUC App. Date
D DISCLOSURE OF LOBBYING ACTIVITIES (GPG II.D.1) D HUMAN SUBJECTS (GPG II.D.12)
D PROPRIETARY & PRIVILEGED INFORMATION (GPG I.B, II.D.7) Exemption Subsection __or IRB App. Date
D NATIONAL ENVIRONMENTAL POLICY ACT (GPG II.D.10) D INTERNATIONAL COOPERATIVE ACTIVITIES: COUNTRY/COUNTRIES
D HISTORIC PLACES (GPG II.D.10)
D SMALL GRANT FOR EXPLOR. RESEARCH (SGER) (GPG II.D.12) D FACILITATION FOR SCIENTISTS/ENGINEERS WITH DISABILITIES (GPG V.G.)
D RESEARCH OPPORTUNITY AWARD (GPG V.H)
PI/PD DEPARTMENT PI/PD POSTAL ADDRESS
PI/PDNAME
CO-PI/PD
CO-PI/PD
CO-PI/PD
CO-PI/PD
NSF Form 1207 (1 Page 1 of2
CERTIFICATION PAGE

Certification for Principal Investigators and Co-Princ.ipal.lnvestigators
I certify to the best of my knowledge that:
(1) the statements herein (excluding scientific hypotheses and scientific opinions) are true and complete, and
(2) the text and graphics herein as well as any accompanying publications or other documents, unless otherwise indicated, are the original work of the
signatories or individuals working under their supervision. I agree to accept responsibility for the scientific conduct of the project and to provide the
required project reports if an award is made as a result of this proposal.
I understand that the willful provision of false information or concealing a material fact in this proposal or any other communication submitted to NSF is a
criminal offense (U.S.Code, Title 18, Section 1001).
Name (Typed) Signature Social Security No.* Date
PI/PO
Co-PI/PO
Co-PI/PO
Co-PI/PO
Co-PI/PO
Certification for Authorized Organizational Representative or Individual Applicant
By signing and submitting this proposal, the individual applicant or the authorized official of the applicant institution is: (1) certifying that statements made herein
are true and complete to the best of his/her knowledge; and (2) agreeing to accept the obligation to comply with NSF award terms and conditions if an award is
made as a result of this application. Further, the applicant is hereby providing certifications regarding Federal debt status, debarment and suspension, drug-free
workplace, and lobbying activities (see below), as set forth in the Grant Proposal Gtiidf!i'(6PG), NSF 00-2. Willful provision of false information in this applica­
and its supporting documents or in reports required under an ensuing award is a Criminal offense (U.S. Code, Title 18, Section 1001).
In addition, if the applicant institution employs more than fifty persons, the authorized official ofthe applicant institution is certifying that the institution has
implemented a written and enforced conflict of interest policy that is consistent with the provisions of Grant Policy Manual Section 510; that to the best of his/her
knowledge, all financial disclosures required by that conflict of interest policy have been made; and that all identified conflicts of interest will have been
satisfactorily managed, reduced or eliminated prior to the institution's expenditure of any funds under the award, in accordance with the institution's conflict of
interest policy. Conflicts that cannot be satisfactorily managed, reduced or eliminated must be disdosed to NSF.
Debt and Debarment Certifications (If answer "yes" to either, please provide explanation.)
Is the organization delinquent on any Federal debt?
vesD NoD
Is the organization or its principals presently debarred, suspended, proposed for debarment, declared ineligible,
or voluntarily excluded from covered transactions by any Federal Department or agency?
vesD NoD
Certification Regarding Lobbying
This certification is required for an award of a Federal contract, grant or cooperative agreement exceeding $100,000 and for an award of a Federal loan or
a commitment providing for the United States to insure or guarantee a loan exceeding $150,000.
Certification for Contracts, Grants, Loans and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in
connection with the awarding of any federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative
agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
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(3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers including
subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this
certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the
required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
AUTHORIZED ORGANIZATIONAL REPRESENTATIVE SIGNATURE DATE
NAMEITITLE (TYPED)
TELEPHONE NUMBER IELECTRONIC MAIL ADDRESS IFAX NUMBER
'SUBMISSION OF SOCIAL SECURITY NUMBERS IS VOLUNTARY AND WilL NOT AFFECT THE ORGANIZATION'S ELIGIBILITY FOR AN AWARD. HOWEVER, THEY ARE AN
INTEGRAL PART OF THE NSF INFORMATION SYSTEM AND ASSIST IN PROCESSING THE PROPOSAL. SSN SOLICITED UNDER NSF ACT OF 1950, AS AMENDED.
Page 2 of2
DO NOT DUPLICATE THIS PAGE AS PART OF THE PROPOSAL
Every prospective grantee must complete the section on certification on the Cover Sheet (NSF Form 1207 (Rev. 10/99) submitted with each proposal.
Instructions for the two certifications are below:
INSTRUCTIONS ON CERTIFICATION OF NON·DELINQUENCY BY APPLICANTS FOR FEDERAL ASSISTANCE
The certification of non-delinquency applies
only to the organization requesting financial
assistance and not to the individual Principal
Investigator.
For the purposes of this certification, the
following definitions of delinquency apply:
Direct loans - a debt more than 31 days
past due on a scheduled payment
Grants - recipients of a "Notice of Grants
Cost Disallowance" who have not repaid the
disallowed amount or who have not resolved
the disallowance.
Guaranteed and Insured loans - recipi­
ents of a loan guaranteed by the Federal
Government that the Federal Government
has repurchased from a lender because the
borrower breached the loan agreement and
is in default.
Examples of debts include delinquent taxes,
audit disallowances, guaranteed and direct
student loans, housing loans, farm loans,
business loans, Department of Education
institutional loans, benefit overpayments and
other miscellaneous administrative debts.
INSTRUCTIONS ON CERTIFICATION REGARDING DEBARMENT AND SUSPENSION
1. By sIgning and submitting this
proposal, the prospective primary partiCipant
is providing the certification set out below.
2. The inability of a person to provide
the certification required below will not
necessarily result in denial of participation in
this covered transaction. The prospective
participant shall submit an explanation of why
it cannot provide the certification set out
below. The certification or explanation will be
considered in connection with the department
or agency's determination whether to enter
into this transaction. However, failure of the
prospective primary participant to furnish a
certification or an explanation shall disqualify
such person from participation in this trans­
action.
3. The certification in this clause is any
material representation of fact upon which
reliance was placed when the department or
agency determined to enter into this transac­
tion. If it is later determined that the pro­
spective primary participant knowingly
rendered an erroneous certification, in
addition to other remedies available to the
Federal Government, the department or
agency may terminate this transaction for
cause of default.
4. The prospective primary participant
shall provide immediate written notice to the
department or agency to whom this proposal
is submitted if at any time the prospective
primary participant learns that its certification
was erroneous when submitted or has
(1) The prospective primary participant
certifies to the best of its knowledge and
belief, that it and its principals:
(a) Are not presently debarred, suspended,
proposed for debarment, declared ineligible,
or voluntarily excluded from covered transac­
tions by any Federal department or agency:
(b) Have not within a three-year period
preceding this proposal been convicted of or
had a civil judgment rendered against them
for commission of fraud or a criminal offense
in connection with obtaining, attempting to
become erroneous by reason of changed
circumstances.
5. The terms covered transaction,
debarred, suspended ineligible, lower tier­
covered transaction, participant, person,
primary covered transaction, principal,
proposal, and voluntarily excluded, as used
in this clause, have the meanings set out in
the Definitions and Coverage sections of the
rules implementing Executive Order 12549.
You may contact the department or agency
to which this proposal is being submitted for
assistance in obtaining a copy of those
regulations.
6. The prospective primary participant
agrees by submitting this proposal that,
should the proposed covered transaction be
entered into, it shall not knowingly enter into
any lower tier covered transaction with a
person who is debarred, suspended, de­
clared ineligible, or voluntarily excluded from
participation in this covered transaction,
unless authorized by the department or
agency entering into this transaction.
7. The prospective primary participant
further agrees by submitting this proposal
that it will include the clause titled "Certifica­
tion Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion - Lower
Tier Covered Transaction," provided by the
department or agency entering into this
covered transaction, without modification, in
all lower tier covered transactions.
CERTIFICATION
obtain, or performing a public (Federal, State
or local) transaction or contract under a public
transaction; violation of Federal or State
antitrust statutes or commission of embez­
zlement, theft, forgery, bribery, falsification or
destruction of records, making false state­
ments, or receiving stolen property;
(c) Are not presently indicted for or otherwise
criminally or civilly charged by a govemmental
entity (Federal, State or local) with commis­
sion of any of the offenses enumerated in
paragraph (1 )(b) of this certification; and
8. A participant in a covered transaction
may rely upon a certification of a prospective
participant in a lower tier covered transaction
that it is not debarred, suspended, ineligible,
or voluntarily excluded from the covered
transaction, unless it knows that the certifica­
tion is erroneous. A participant may decide
the method and frequency by which it
determines the eligibility of its principals.
Each participant may, but is not required to,
check the Nonprocurement List.
9. Nothing contained in the foregoing
shall be construed to require establishment
of a system of records in order to render in
good faith the certification required by this
clause. The knowledge and information of a
participant is not required to exceed that
which is normally possessed by a prudent
person in the ordinary course of business
dealings.
10. Except for transactions authorized
under paragraph 6 of these instructions, if a
participant in a covered transaction knowingly
enters into a lower tier covered transaction
with a person who is suspended, debarred,
ineligible, or voluntarily excluded from
participation in this transaction, in addition to
other remedies available to the Federal
Government, the department or agency may
terminate this transaction for cause or
default.
(d) Have not within a three-year period
preceding this application/proposal had one or
more public transactions (Federal, State or
local) terminated for cause or default.
(2) Where the prospective primary participant
is unable to certify to any of the statements in
this certification, such prospective participant
shall attach an explanation to this proposal.
Instructions for Certification
1. By signing the NSF Proposal Cover Sheet, NSF Form 1207, and submitting this proposal, the grantee is providing the certifications
set out below.
2. 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

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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
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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
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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
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"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
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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
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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
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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").
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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
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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.

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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
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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
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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"
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(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.
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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).
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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)

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(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.
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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
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