for such eligibility or if it brings itself into compliance with this regulation and provides reasonable assurance that it will fully comply with this regulation.

(2) Any applicant or recipient adversely affected by an order entered pursuant to paragraph (f) of this section may at any time request the responsible Foundation official to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or recipient has met the requirements of paragraph (g)(1) of this section. If the responsible Foundation official determines that those requirements have been satisfied, he shall restore such eligibility.

(3) If the responsible Foundation official denies any such request, the applicant or recipient may submit a request for a hearing in writing, specifying why it believes such official to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record, in accordance with rules of procedure issued by the responsible Foundation official. The applicant or recipient will be restored to such eligibility if it proves at such a hearing that it satisfied the requirements of paragraph (g)(1) of this section. While proceedings under this paragraph are pending, the sanctions imposed by the order issued under paragraph (f) of this section shall remain in effect.

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 51 FR 22939, June 24, 1986]

8611.11 Judicial review.

Action taken pursuant to section 602 of the Act is subject to judicial review as provided in section 603 of the Act.

§ 611.12 Effect on other regulations; forms and instructions.

(a) Effect on other regulations. All regulations, orders, or like directions heretofore issued by any officer of the Foundation which impose requirements designed to prohibit any discrimination against individuals on the ground of race, color, or national origin under any program to which this part applies, and which authorize

the suspension or termination of or refusal to grant or to continue Federal financial assistance to any applicant for or recipient of such assistance under such program for failure to comply with such requirements, are hereby superseded to the extent that such discrimination is prohibited by this part, except that nothing in this part shall be deemed to relieve any person of any obligation assumed or imposed under any such superseded regulation, order, instruction, or like direction prior to the effective date of this part. Nothing in this part, however, supersedes any of the following (including future amendments thereof): (1) Executive Order 11246 and regulation issued thereunder, or (2) any other orders, regulations, or instructions, insofar as such orders, regulations, or instructions prohibit discrimination on the ground of race, color, or national origin in any program or situation to which this part is inapplicable, or prohibit discrimination on any other ground.

(b) Forms and instructions. Each responsible Foundation official shall issue and promptly make available to interested persons forms and detailed instructions and procedures for effectuating this part as applied to programs to which this part applies and for which he is responsible.

(c) Supervision and coordination. The Director may from time to time assign to officials of other departments or agencies of the Government, with the consent of such departments or agencies, responsibilities in connection with the effectuation of the purposes of Title VI of the Act and this part (other than responsibility for final decision as provided in § 611.10), including the achievement of effective coordination and maximum uniformity within the Foundation and within the Executive Branch of the Government in the application of Title VI and this regulation to similar programs and in similar situations. Any action taken, determination made, or requirement imposed by an official of another Department or agency acting pursuant to an assignment of responsibility under this subsection shall have the same effect as though such action

had been taken by the responsible official of this agency.

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973]

8 611.13 Definitions.

As used in this part:

(a) The term "Foundation" means the National Science Foundation, and includes each of its organizational units.

(b) The term "Director" means the Director of the National Science Foundation.

(c) The term "responsible Foundation official" with respect to any program receiving Federal financial assistance means the Director or other official of the Foundation designated by the Director.

(d) The term "United States" means the States of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and the territories and possessions of the United States, and the term "State" means any one of the foregoing.

(e) The term "Federal financial assistance" includes (1) grants and loans of Federal funds, (2) the grant or the donation of Federal property and interests in property, (3) the detail of Federal personnel, (4) the sale and lease of, and the permission to use (on other than a casual or transient basis), Federal property or any interest in such property without consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient, and (5) any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.

(f) The term "program" includes any program, project, or activity involving the provision of services, financial aid, or other benefits to individuals (including education or training, health, housing, or other services, whether provided through employees of the recipient of Federal financial assistance or provided by others through contracts or other arrangements with the recipient, and including work opportu

nities and cash or loan or other assistance to individuals), or for the provision of facilities for furnishing services, financial aid or other benefits to individuals. The services, financial aid, or other benefits provided under a program receiving Federal financial assistance shall be deemed to include any services, financial aid, or other benefits provided with the aid of Federal financial assistance or with the aid of any non-Federal funds, property, or other resources required to be expended or made available for the program to meet matching requirements or other conditions which must be met in order to receive the Federal financial assistance, and to include any services, financial aid, or other benefits provided in or through a facility provided with the aid of Federal financial assistance or such non-Federal resources.

(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, expansion, renovation, remodeling, alteration 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 organization, or other entity or any individual, in any State, to whom Federal financial assistance is extended, directly or through another recipient, for any program, including any successor, assign, or transferee thereof, but such term does not include any ultimate beneficiary under any such program.

(i) The term "primary recipient" means any recipient which is authorized or required to extend Federal financial assistance to another recipient for the purpose of carrying out a program.

(j) The term "applicant” means one who submits an application, request, or plan required to be approved by a responsible Foundation official, or by a primary recipient, as a condition to eligibility for Federal financial assistance, and the term "application" means such an application, request, or plan.

This part establishes procedures for the National Science Foundation (NSF) to implement the provisions of the Administrative Procedure Act (5 U.S.C. 552(a)) relating to the availability to the public of records of NSF. [40 FR 12793, Mar. 21, 1975]

§ 612.2 Information policy.

(a) Subject to the policies set forth below, NSF will make the fullest possible disclosure of information to any person who requests information, without unnecessary expense or delay. The Deputy Director, NSF, may, in particular instances except where prohibited by law, order disclosure in the public interest of records exempt from

'All the above programs listed are conducted pursuant to authority contained in the National Science Foundation Act of 1950, as amended, 42 U.S.C. 1861 through 1875.

mandatory disclosure under § 612.9 of this regulation.

(b) A collection of NSF policy documents, staff instructions, and of agency opinions and orders in the adjudication of cases, with respective indices, shall be physically located in the National Science Foundation library at 1800 G Street, NW., Washington, DC where they will be available for inspection by the public during regular working hours on Monday through Friday. Copies of such documents shall be furnished in accordance with these regulations.

(c) The Assistant Director for Administration (AD/A) shall be responsible for maintaining, publishing, distributing and making available for inspection and copying the current indexes and supplements thereto which are required by 5 U.S.C. 552(a)(2). Such indexes shall promptly be published, quarterly or more frequently, unless the ADA determines by order published in the FEDERAL REGISTER that the publication would be unnecessary. The fee for furnishing copies of indexes and supplements shall not exceed the direct cost of duplication.

[40 FR 12793, Mar. 21, 1975, as amended at 49 FR 23049, June 4, 1984; 49 FR 37595, Sept. 25, 1984]

§ 612.3 Procedures applicable to the public-requests and appeals.

(a) Publications excluded. For the purpose of public requests for records the term "record" does not include publications which are available to the public in the FEDERAL REGISTER, or by sale or free distribution. Such publications may be obtained from the Government Printing Office, the National Technical Information Service, the NSF Mail and Distribution Unit or NSF grantees or contractors. Requests for such publications will be referred to or the requester informed of the appropriate source. The booklet, Publications of the National Science Foundation, which is available without charge from the Mail and Distribution Unit, National Science Foundation, Washington, DC 20550, identifies Annual Reports, Descriptive Brochures, Program Announcements, Science Resources Studies, Special Studies, and

Periodicals descriptive of Foundation activities, policies, and procedures, sets forth the cost of each, and tells how copies may be obtained.

(b) Form of request. A request need not be in any particular format, but it (1) must be in writing, (2) must be clearly identified both on the envelope and in the letter as a Freedom of Information Act or FOIA request, (3) must describe the records sought with sufficient specificity to permit identification, and (4) must state that the requester promptly will pay the fees chargeable under this regulation, Provided however, That when the requester places an inadequate limit on the amount he will pay or the requester has failed to make payment for previous requests, the notice of determination whether or not to comply with the request will be furnished within ten days as provided in § 612.7 of this regulation but no copies will be furnished until appropriate payment is received except in cases when fees have been waived or reduced in accordance with § 612.6(e). If the requester desires a waiver or reduction of fees, the requester may so request either at the time the request for information is submitted or after the Foundation notifies the requester of the amount of fees involved. If a request for a waiver or reduction of fees is made, the requester should include a statement why furnishing the information should be considered as primarily benefiting the general public.

(c) Place of request. Any request for a record under FOIA shall be addressed to the National Science Foundation, Office of Legislative and Public Affairs, 1800 G Street, NW., Washington, DC 20550. A request which meets the requirements of paragraph (a) of this section and is properly addressed shall be deemed received on the date of arrival in the NSF mailroom.

(d) Time for appeal. A person whose request has been denied or partially denied may initiate an appeal by filing a request for review within ten days of the receipt of the denial, Saturdays, Sundays, legal public holidays, and the date of receipt excluded.

(e) Form of appeal. The appeal shall include a copy of the written request

and the denial together with any written argument the requester wishes to submit, and shall be signed by the requester.

(f) To whom appeal is made. An appeal shall be addressed to the Deputy Director, National Science Foundation, 1800 G Street, NW., Washington, DC 20550.

(g) Decisions on appeal. Decisions on appeal shall be made by the Deputy Director in writing within 20 days (excepting the date of receipt, Saturdays, Sundays, and legal public holidays) from receipt of the appeal. If the decision is in favor of the requester it shall order the record made available promptly to the requester. If adverse to the requester in whole or in part it shall briefly state the reasons and notify the requester that he may seek judicial review of the decision pursuant to paragraph (4) of section 552(a), Title 5, United States Code.

[40 FR 12793, Mar. 21, 1975, as amended at 49 FR 23049, June 4, 1984]

§ 612.4 Copies of records.

If a requested record is to be disclosed, a copy will be furnished the requester as promptly as possible provided payment of fees has been arranged for or waived pursuant to § 612.6. Records will not be released for copying.

[49 FR 23049, June 4, 1984]

§ 612.5 Creation of records.

A record will not be created by compiling selected items from other documents at the request of a member of the public nor will a record be created by analysis, computation or other processing specifically for the requesting party. If such analysis or computation is available in the form of a record, copies shall be made available as provided in this regulation.

[40 FR 12793, Mar. 21, 1975]

8 612.6 [Reserved]

8612.7 Agency actions on receipt of a properly presented request for record. (a) Monitoring of requests. The NSF Office of Legislative and Public Affairs, or such other office as may be

designated by the Director will serve as central office for internal administration of these regulations. The Office of Legislative and Public Affairs, or such other office as may be designated by the Director will control incoming requests, assign them to appropriate action offices, monitor compliance, consult with action offices on disclosure, approve unavoidable extensions, dispatch denial letters, and maintain administrative records.

(b) Time for response. The Foundation will seek to take appropriate agency action on a request within 10 days of its receipt (excepting the date of receipt, Saturdays, Sundays, and legal public holidays). If the record may exist only in a retired file which has been placed in storage or there is otherwise a need to search for and collect the requested records from field facilities or other establishments that are separate from the Foundation, NSF shall immediately notify the requester by letter that the record has been ordered from storage (or is otherwise being sought) and that the time limit for acting on the request is extended by the length of time required to obtain the record. The letter will also give the date on which a determination is expected to be dispatched. If the request seeks а voluminous amount of separate and distinct records requiring an unusual length of time for search, collection, and appropriate examination, and determination on the request cannot be made within 10 working days after agency receipt, NSF shall within such ten-day period furnish to the requester written notice extending the period for not more than ten working days. This notice shall set forth the reasons for such extension and the date on which a determination is expected to be dispatched. If the record has not been obtained and examined and notice of the determination whether to comply with the request has not been given by the last day of the period as extended, the requester shall be notified on that last day that the request is denied because the record has not yet been found and examined. Such denial shall state that NSF will reconsider the denial as soon as the search and examination is complete, which should be within a specifi

cally stated number of days, but that the requester may, if he wishes, file an administrative appeal as provided in § 612.3 of this regulation. This same procedure for extending the period shall be followed if the nature of the record requires consultation with another agency having a substantial interest in the determination of the request or requires consultation among two or more components of NSF having substantial subject-matter interest therein.

(c) When the requested record is a successful proposal that was submitted to the Foundation, the Foundation will normally contact the organization that submitted the proposal before releasing it in order to ask whether that organization wishes portions of the proposal withheld under any applicable exemptions. (The Foundation does not normally release pending proposals or unsuccessful proposals in any case.)

(d) Denial of request. No written request for record shall be denied except by the Director of the Office of Legislative and Public Affairs, or such other office as may be designated by the Director. Notice of the denial of a request shall briefly set forth the reasons therefor which shall be based solely upon one or more of the exemptions specified in § 612.9 of this regulation. Each notice of denial also shall set forth the names and title or positions of each person responsible for the denial and shall inform the requester of the right to appeal as provided in § 612.3 of the regulation.

(e) Oral requests. Nothing in these regulations shall be deemed to preclude NSF from honoring oral requests for information where feasible, but if the requester is dissatisfied with the disposition of such a request, he shall be asked to put the request in writing.

[40 FR 12793, Mar. 21, 1975, as amended at 49 FR 23050, June 4, 1984]

8612.8 Records not available.

(a) Exemptions. The following types of records are not normally available for inspection and copying:

(1) Records specifically authorized and in fact properly classified pursu