4201 Wilson Boulevard, Arlington, VA 22230 or to the Office of the Inspector General, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230. A request which meets the requirements of paragraph (b) of this section and is properly addressed will be deemed received on the date of arrival in the Office of Legislative and Public Affairs or the Office of the Inspector General.

(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, 4201 Wilson Boulevard, Arlington, VA 22230.

(8) 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; 56 FR 47416, Sept. 19, 1991; 59 FR 37438, July 22, 1994]

$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, or has been waived pursuant to §612.13 of this part. Records will not be released for copying.

[56 FR 47416, Sept. 19, 1991]

§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]

§ 612.6 Confidential commercial information-notice.

(a) In general. Commercial information provided to the NSF by a submitter shall not be disclosed pursuant to a Freedom of Information Act request except in accordance with this section.

(b) Definitions. The following definitions are used in reference to this section:

Commercial information means information provided to the NSF by a submitter that arguably is protected from disclosure under section b(4) of the Freedom of Information Act, 5 U.S.C. 552(b)(4) and §612.8(a)(4) of this part.

Submitter means any person, organization, or entity who provides commercial information, directly or indirectly, to the NSF. The term includes, but is not limited to, corporations, state governments and foreign governments.

(c) Designation of commercial information. Submitters of commercial information shall use good-faith efforts to designate, by appropriate markings, either at the time of submission or within a reasonable time thereafter, those portions of their submissions which they deem to be protected from disclosure under 5 U.S.C. 552(b)(4) and §612.8(a)(4) of this part. Such designations shall be deemed to have expired ten years after the date of the submission unless the submitter requests, and provides reasonable justification for, a designation period of greater duration.

(d) Notice to submitters. The NSF shall, to the extent permitted by law, provide a submitter with written notice of a Freedom of Information Act request or administrative appeal encompassing its commercial information wherever required under paragraph (e) of this section, except as pro

vided for in paragraph (f) of this section. Such written notice, given in order to afford the submitter an opportunity to object to disclosure pursuant to paragraph (g) of this section, shall be given within a reasonable time after NSF's receipt of the Freedom of Information Act request or administrative appeal, consistent with statutory requirements, and shall either describe the exact nature of the commercial information requested or provide copies of the records or portions thereof containing the information. The requester also shall be notified that notice and an opportunity to object are being provided to a submitter.

(e) When notice is required. Notice shall be given to a submitter whenever:

(1) The information has been designated in good faith by the submitter as information deemed protected from disclosure under 5 U.S.C. 552(b)(4) and §612.8(a)(4) of this part, or

(2) The NSF has reason to believe that the information may be protected from disclosure under 5 U.S.C. 552(b)(4) and §612.8(a)(4) of this part.

(f) Exceptions to notice requirements. The notice requirements of paragraph (d) of this section shall not apply if:

(1) The NSF determines that the information should not be disclosed;

(2) The information lawfully has been published or has been officially made available to the public;

(3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or

(4) The designation made by the submitter in accordance with paragraph (c) of this section appears obviously frivolous, except that, in such case, the NSF shall send to the submitter written notice of any final administrative decision to disclose commercial information at least ten days prior to a specified disclosure date.

(g) Opportunity to object to disclosure. Through the notice described in paragraph (d) of this section, the NSF shall afford a submitter a reasonable time, consistent with statutory requirements, within which to provide the NSF with a detailed written statement of any objection to disclosure. Such statement shall specify all grounds for withholding any of the information under any exemption of the Freedom of

Information Act and, in the case of 5 U.S.C. 552(b)(4) and §612.8(a)(4) of this part, shall provide a detailed description of why the information is a trade secret or commercial or financial information that is privileged or confidential. This description shall explain why release of commercial or financial information would cause substantial harm to the competitive position of the submitter. Whenever possible, the submitter's claim of confidentiality should be supported by a statement or certification by an officer or authorized representative of the submitter. Information provided by a submitter pursuant to this paragraph may itself be subject to disclosure under the FOIA. When the submitter fails to object within the specified time or the objection appears obviously frivolous, the NSF shall provide the submitter with written notice pursuant to paragraph (f)(4) of this section.

(h) Notice of intent to disclose. The NSF shall consider a submitter's objections and specific grounds for non-disclosure prior to determining whether to disclose confidential information. Whenever the Foundation decides to disclose confidential information over the objection of a submitter, the NSF shall forward to the submitter a written notice which shall include:

(1) A statement of the reasons for which the submitter's disclosure objections wee not sustained;

(2) A description of the confidential information to be disclosed; and

(3) A specified disclosure date. Such notice of intent to disclose shall be forwarded to the submitter at least ten days prior to the specified disclosure date and the requester shall be notified likewise.

(i) Notice of FOIA lawsuit. Whenever a requester brings suit seeking to compel disclosure of confidential information, the NSF shall promptly notify the submitter.

[56 FR 47416, Sept. 19, 1991]

$612.7 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

the central office for internal administration of these regulations. For records maintained by the Office of Inspector General, that Office will control incoming requests made directly to it, dispatch response letters, and maintain administrative records. For all other records maintained by NSF, 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 and other 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 a 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 specifiIcally 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) Records containing commercial information. When the requested record contains confidential commercial information such as a successful proposal that was submitted to NSF, the NSF will normally contact, in accordance with §612.6 of this part, the organization that submitted the record in order to ask whether the submitter wished portions of the records withheld under any applicable exemptions. (The Foundation protects from disclosure pending proposals or unsuccessful proposals in any case.)

(d) Denial of request No written request for records shall be denied except by the Director of the Office of Legislative and Public Affairs, the Office of Inspector General 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 §612.8 of this part. Each notice of denial 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 this part.

(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; 56 FR 47417, Sept. 19, 1991]

§612.8 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 pursuant to Executive Order to be kept secret in the interest of national defense or foreign policy.

(2) Records related solely to the internal personnel rules and practices of NSF. This exemption does not apply to rules relating to the work hours, leave, and working conditions of NSF personnel, or similar matters, to the extent that they can be disclosed without harm to the functions to which they pertain. Examples of exempt records of the type specified in the first sentence of this paragraph include, but are not limited to:

(i) Operating rules, guidelines, manuals on internal procedure, schedules and methods utilized by NSF auditors and examiners;

(ii) Negotiating positions and limitations involved in a negotiation prior to the execution of a contract or the completion of the action to which the negotiating positions or limitations were applicable. They may also be exempt pursuant to other provisions of this section.

(iii) Personnel policies, procedures and instructions, internal staffing plans, requirements, authorizations, controls, and supporting data relating to position management and manpower utilization and information involved in the determination of the qualifications of candidates for employment or advancement.

(3) Records specifically exempted from disclosure by statute such as 18 U.S.C. 1905 which prohibits disclosure of information which concerns or relates to the trade secrets, processes, operations, style of work, or apparatus or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation or association. This also includes records that disclose any invention in which the Federal Government owns or may own a right, title, or interest (including a nonexclusive license) as provided in 35 U.S.C. 205.

(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential. Matter subject to this exemption is that which is customarily held in confidence by the originator without regard to whether or not the originator is, or is not employed by, a nonprofit organization. It includes, but is not limited to:

(i) Information received in confidence, such as grant applications, fellowship applications and research proposals prior to award;

(ii) Statistical data or information if received in confidence from a contractor or potential contractor concerning contract performance, income, profits, losses, and expenditures.

(5) Inter-agency or intra-agency memoranda or letters which would not be available by law to a private party in litigation with NSF. To the extent not so available by law, examples include, but are not limited to:

(i) Reports, memoranda, correspondence, workpapers, minutes of meetings (other than those governed by the Federal Advisory Committee Act), and staff papers prepared for use within NSF or within the Executive Branch of the Government by personnel and consultants of NSF, or any Government agency.

(ii) Advance information on proposed NSF plans to procure, lease, or otherwise acquire, or dispose of materials, real estate, facilities, services or functions, when such information would provide undue or unfair competitive advantage to any person;

(iii) Records prepared for use in proceedings before any Federal or State court or administrative body;

(iv) Evaluations of and comments on specific grant applications, research proposals, or potential contractors, whether made by NSF personnel or by external reviewers acting either individually or in committees;

(v) Preliminary, draft unapproved recommendations, evaluations, and opinions, such as evaluations of invention disclosures, of research projects, and of incomplete studies conducted or supported by NSF;

(vi) Proposed budget requests and supporting projections used or arising in the preparation and/or execution of

a budget; proposed annual and multiyear policy, priorities, program and financial plan and supporting papers.

(6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Information in such files which is not otherwise exempt from disclosure pursuant to other provisions of this section will be released to the subject or to his designated legal representative, and it may be disclosed to others with his written consent. Examples of personnel files exempt from disclosure include, but are not limited to, file containing reports, records and other materials pertaining to individual cases in which disciplinary or other administrative action has been or may be taken. Similar files include reports and evaluations which reflect upon the qualifications or competence of individuals. Opinions and orders resulting from those proceedings shall be disclosed without identifying details if used, cited, or relied upon as precedent.

(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

(i) Could reasonably be expected to interfere with enforcement proceedings,

(ii) Would deprive a person or a right to a fair trial or an impartial adjudication,

(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy,

(iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis,

(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or

(vi) Could reasonably be expected to endanger the life or physical safety of any individual.

(8) Matters contained in or related to examination, operating, or condition reports prepared by, or on behalf of, or for the use of any government agency responsible for the regulation or supervision of financial institutions.

(9) Geological and geophysical information and data (including maps) concerning wells.

(10) Records belonging to another government agency or dealing with subject matter as to which government agency, other than NSF, has exclusive or primary responsibility. Requests for such records shall be promptly forwarded to the appropriate government agency for disposition or for guidance with respect to disposition.

(b) Deletion of exempt portion and identifying details. Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt. Whenever any final opinion, order, or other materials required to be made available relates to a private party or parties and the release of the name or names or other identifying details will constitute a clearly unwarranted invasion of personal privacy, the record shall be published or made available with such identifying details left blank, or shall be published or made available with obviously fictitious substitutes and with a notification such as the following as a preamble:

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.

[40 FR 12793, Mar. 21, 1975, as amended at 47 FR 54943, Dec. 7, 1982. Redesignated at 49 FR 23050, June 4, 1984, and amended at 52 FR 43073, Nov. 9, 1987; 56 FR 47417, Sept. 19, 1991] be charged-defini

§612.9 Fees to be tions.

For the purpose of these Guidelines: (a) All the terms defined in the Freedom of Information Act apply.

(b) A statute specifically providing for setting the level of fees for particular types of records (5 U.S.C. 552(a)(4)(A)(vi)) means any statute that specifically requires a government agency, such as the Government Printing Office (GPO) or the National Technical Information