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When the cost of the search (including the operator time and the cost of operating the computer to process a request) equals the equivalent dollar amount of two hours of the salary of the person performing the search, i.e., the operator, NSF shall begin assessing charges for computer search. [52 FR 43074, Nov. 9, 1987]

§ 612.11 Fees to be charged-categories of requesters.

There are four categories of FOIA requesters: Commercial use requesters; educational and non-commercial scientific institutions; representatives of the news media; and all other requesters. The Act prescribes specific levels of fees for each of these categories:

(a) Commercial use requesters. When a request for documents for commerIcial use is received, NSF shall assess charges which recover the full direct cost of searching for, reviewing for release, and duplicating the records sought. Requesters must reasonably describe the records sought. Commercial use requesters are not entitled to two hours of free search time nor 100 free pages of reproduction of documents. NSF may recover the cost of searching for and reviewing records even if there is ultimately no disclosure of records (see paragraph (b) of this section.

(b) Educational and non-commercial scientific institution requesters. NSF shall provide documents to requesters in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requesters must show that the request is being made as authorized by and under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a non-commercial scientific institution) research. Requesters must reasonably describe the records sought.

(c) Requesters who are representatives of the news media. NSF shall provide documents to requesters in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion

in this category a requester must meet the criteria in § 612.6.1 j of this part, and his other request must not be made for a commercial use. In reference to this class of requester, a request for records supporting the news dissemination function of the requester shall not be considered to be a request that is for a commercial use. Requesters must reasonably describe the records sought.

(d) All other requesters. NSF shall charge requesters who do not fit into any of the categories above fees which recover the full reasonable direct cost of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first two hours of search time shall be furnished without charge. Moreover, requests from record subjects for records about themselves filed in NSF's systems of records will continue to be treated under the fee provisions of the Privacy Act of 1974 which permit fees only for reproduction. Requesters must reasonably describe the records sought.

[52 FR 43075, Nov. 9, 1987]

§ 612.12 Administrative actions to improve assessment and collection of fees.

NSF shall ensure that procedures for assessing and collecting fees are applied consistently and uniformly by all components. To do so, NSF amends its FOIA regulations to conform to the provisions of this Fee Schedule and Guidelines, especially including the following elements:

(a) Charging interest-notice and rate. NSF may begin assessing interest charges on an unpaid bill starting on the 31st day following the day on which the billing was sent. NSF shall ensure that their accounting procedures are adequate to properly credit a requester who has remitted the full amount within the time period. The fact that the fee has been received by the agency, even if not processed, will suffice to stay the accrual of interest. Interest will be at the rate prescribed in section 3717 of Title 31 U.S.C. and will accrue from the date of the billing.

(b) Charges for unsuccessful search. NSF may assess charges for time spent searching, even if NSF fails to locate the records or if records located are determined to be exempt from disclosure. In practice, if NSF estimates that search charges are likely to exceed $25, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated. Such a notice shall offer the requester the opportunity to confer with agency personnel with the object of reformulating the request to meet his or her needs at a lower cost.

(c) Aggregating requests. Except for requests that are for a commercial use, NSF shall not charge for the first two hours of search time or for the first 100 pages of reproduction. However, a requester may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees. When NSF reasonably believes that a requester or, on rare occasions, a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, NSF may aggregate any such requests and charge accordingly. One element to be considered in determining whether a belief would be reasonable is the time period in which the requests have occurred. For example, it would be reasonable to presume that multiple requests of this type made within a relatively short period had been made to avoid fees. For requests made over a longer period, however, such a presumption becomes harder to sustain and NSF should have a basis for determining that aggregation is warranted in such cases.

(d) Advance payments. NSF shall not require a requester to make an advance payment, i.e., payment before work is commenced or continued on a request, unless:

(1) The NSF estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250. Then, NSF should notify the requester of the likely cost and obtain satisfactory assurance of full payment where the requester has a history of prompt payment of FOIA

fees, or require an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment; or

(2) A requester has previously failed to pay a fee charged in a timely fashion (i.e. within 30 days of the date of the billing), NSF may require the requester to pay the full amount owed plus any applicable interest as provided above or demonstrate that he has, in fact, paid the fee, and to make an advance payment of the full amount of the estimated fee before the NSF begins to process a new request or a pending request from that requester.

(e) When NSF acts under paragraph (d) (1) or (2) of this section, the administrative time limits prescribed in subsection (a)(6) of the FOIA (i.e., 10 working days from receipt of initial requests and 20 working days from receipt of appeals from initial denial, plus permissible extensions of these time limits) will begin only after NSF has received fee payments described above.

[52 FR 43076, Nov. 9, 1987]

8612.13 Waivers or reductions.

(a) Employees of the National Science Foundation are encouraged to waive fees whenever the statutory fee waiver standard is met. However, employees are expected to respect the balance drawn in the statute, safeguarding federal funds by granting waivers or reductions only where it is determined that the following statutory standard is satisfied:

Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.

(b) NSF will employ the following six factors in determining when FOIA fees should be waived or reduced:

(1) The subject of the request: Whether the subject of the requested records concerns "the operations or activities of the government";

(2) The informative value of the information to be disclosed: whether the

§ 613.1

disclosure is "likely to contribute" to an understanding of government operations or activities;

(3) The contribution to an understanding of the subject by the general public likely to result from disclosure: Whether disclosure of the requested information will contribute to "public understanding";

(4) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute "significantly" to public understanding of government operations or activities;

(5) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so

(6) The primary interest in disclosure: Whether the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is "primarily in the commercial interest of the requester."

(c) NSF will use U.S. Department of Justice policy guidance in applying the foregoing factors.

[52 FR 43076, Nov. 9, 1987]

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menting the Privacy Act are contained or will be contained in NSF Circulars.

§ 613.2 Procedures for notification of existence of records pertaining to individuals.

(a) The systems of records, as defined in the Privacy Act of 1974, maintained by the National Science Foundation are listed annually in the FEDERAL REGISTER as required by that Act. Any person who wishes to know whether a system of records contains a record pertaining to him may either appear in person at the NSF Division of Administrative Services at 1800 G Street, NW., Washington, DC 20550, on work days between the hours of 8:30 a.m. and 5:00 p.m. or may write to the NSF Privacy Act Officer, Assistant Director for Administration, National Science Foundation, Washington, DC 20550, it is recommended that requests be made in writing, since in many cases it will take several days to ascertain whether a record exists.

(b) Requests for notification of the existence of a record should specifically identify the system of records involved and should state, if the requester is other than the individual to whom the record pertains, the relationship of the requester to that individual. (Note that requests will not be honored by the Foundation pursuant to the Privacy Act unless made (1) by the individual to whom the record pertains, (2) by such individual's parent if the individual is a minor, or (3) by such individual's legal guardian if the individual has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction). In cases where the NSF Notice of the System appearing in the FEDERAL REGISTER states that the system location is decentralized the special instruction in such notice pertaining to "Notification" and "Access" and "Content" must be followed.

(c) The Foundation will attempt to respond to a request as to whether a record exists within 10 working days from the time it receives the request or from the time any required identification is established, whichever is later.

[40 FR 44510, Sept. 26, 1975, as amended at 49 FR 37595, Sept. 25, 1984]

§ 613.3 Procedures for requests for access to or disclosure of records pertaining to an individual.

(a) Any person may request review of records pertaining to him by appearing at the NSF Division of Administrative Services at 1800 G Street, NW., Washington, DC on work days between the hours of 8:30 a.m. and 5:00 p.m. or by writing to the NSF Privacy Act Officer, Assistant Director for Administration, NSF, Washington, D.C. 20550. (See paragraphs (b) and (c) of this section, for identification requirements.) The request should specifically identify the systems of records involved, and the request should include any special information specified in the notice of the system under "Notification" and "Access and Contest." The Foundation will strive either to make the record available within 15 working days of the request or to inform the requester of the need for additional identification or the tendering of fees (as specified in § 613.4(e)) within 15 working days; except that if the request for access was not preceded by a notification request as provided in § 613.2, then the 15-day period shall not begin until after such time as it has been determined that the record exists.

(b) In the case of persons making requests by appearing at the Foundation the amount of personal identification required will of necessity vary with the sensitivity of the record involved. Except as indicated below reasonable identification such as employment identification cards, drivers licenses, credit cards will normally be accepted as sufficient evidence of identity in the absence of any indications to the contrary. Records in the following systems of records, however, are considered to contain relatively sensitive and/or detailed personal information

Employment Inquiries and Background Information;

Applicants to Committee on the Challenges and Modern Society Fellowship Program (NATO);

Confidential Statements of Employment and Financial Interests; Congressional Contact Files;

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Nominees for and Recipients of the Alan T. Waterman Award Nomination File.

Accordingly, with respect to requests for records in these systems the Foundation reserves the right to require sufficient identification to identify positively the individual making the request. This might involve independent verification by the Foundation as by phone calls to determine whether an individual has made a request, personal identification by Foundation employees who know the individual, or such other means as are considered appropriate under the circumstances.

(c) A written request will be honored only if it contains the following certification before a duly commissioned notary public of any state or territory (or similar official if the request is made outside the United States):

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(S) My commission expires However, where the record requested is contained in any of the systems of records listed in paragraph (b) of this section, the Foundation reserves the right to require additional identification and/or to independently verify to its satisfaction the identity of the requester.

(d) Charges for copies of records will be at the rate of $0.10 per photocopy of each page. Where records are not susceptible to photo-copying, e.g., punch cards, magnetic tapes or oversize materials, the amount charged will be actual cost as determined on a case-by-case basis. Only one copy of each record requested will be supplied. No charge will be made unless the charge as computed above would exceed $3.00 for each request or related series of requests. If a fee in excess of $25.00 would be required, the requester shall be notified and the fee must be tendered before the records will be copied.

(e) The procedures of paragraphs (a) through (d) of this section shall also apply to requests made pursuant to 5 U.S.C. 552a(c)(3) that accountings made under 5 U.S.C. 552a(c)(1) be made available.

[40 FR 44510, Sept. 26, 1975, as amended at 42 FR 8639, Feb. 11, 1977; 49 FR 37596, Sept. 25, 1984]

§ 613.4 Correction of records.

(a) Any individual is entitled to request amendments of records pertain

ing to him pursuant to 5 U.S.C. 552a(d)(2). Such a request shall be made in writing and addressed to the Privacy Act Officer, Assistant Director for Administration, National Science Foundation, Washington, DC 20550.

(b) The request should specify the record and systems of records involved, and should specify the exact correction desired and state that the request is made pursuant to the Privacy Act. An edited copy of the record showing the desired correction is desirable. Within 10 working days of the receipt of a properly addressed request (or within 10 working days of the time the Privacy Act Officer becomes aware that a particular communication not addressed as prescribed above is a request for correction of a record under the Privacy Act), the Privacy Act Officer shall acknowledge receipt of the request.

(c) The Privacy Act Officer upon the receipt of such a request shall promptly confer with the Directorate or office within the Foundation responsible for the record. In the event it is felt that correction is not warranted in whole or in part, the matter shall be brought to the attention of the General Counsel. If, after review by the General Counsel and discussion with the requester if deemed helpful, it is determined that correction as requested is not warranted, a letter shall be sent by the Privacy Act Officer to the requester denying his request and/or explaining what correction might be made if agreeable to the requester. This letter shall set forth the reasons for the refusal to honor the request for correction. It shall also inform him of his right to appeal this decision and include a description of the appeals procedure set forth in paragraph (d) of this section. Such letter or notification that the desired correction will be made shall normally be sent within 30 working days of the receipt of a properly addressed request (or within 30 working days of the time the Privacy Act Officer becomes aware that a particular communication not addressed as prescribed above is a request for correction of a record under the Privacy Act).

(d) An appeal may be taken from an adverse determination under para

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