cating the records sought. Requesters must reasonably describe the records sought. Moreover, in the case of such a request, NASA will not consider a request for waiver or reduction of fees based upon an assertion that disclosure would be in the public interest. Commercial use requesters are not entitled to 2 hours of free search time nor to 100 free pages of reproduction of documents.

(b) Educational and noncommercial scientific institition requesters. NASA 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 being made is authorized by and under the auspices of a qualifying institution and that the records are not being sought for a commercial use, but are being sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a noncommercial scientific institution) research. Requesters must reasonably describe the records sought.

(c) Requesters who are representatives of the news media. NASA shall provide documents to requesters in this category for the cost of reprcduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, a requester must demonstrate that he/she meets the criteria in § 1206.101(o) of this part, and his/her request must not be made for a commercial use. Requesters must reasonably sought.

describe the records

(d) All other requesters. NASA shall charge requesters who do not fit into any of the categories mentioned in this section, fees which recover the full direct reasonable cost of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first 2 hours of search time shall be furnished without charge. Moreover, requests from individuals for records about themselves located in NASA's systems of records will continue to be processed under the fee provisions of the Privacy Act of 1974, which permits fees only for reproduction. Re

questers must reasonably describe the records sought.

§1206.702 Waiver or reduction of fees.

The burden is always on the requester to provide the evidence to qualify him/her for a fee waiver or reduction.

(a) NASA shall furnish documents without charge or at reduced charges in accordance with 5 U.S.C. 552(a)(4)(A)(iii), provided that: (1) 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 (2) it is not primarily in the commercial interest of the requester.

(b) Where these two statutory requirements are satisfied, based upon information supplied by the requester or otherwise made known to NASA, the FOIA fee shall be waived or reduced. Where one or both of these requirements is not satisfied, a fee waiver or reduction is not warranted under the statute.

(c) In determining whether disclosure is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government, the following considerations shall be applied:

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

(2) Whether the disclosure is "likely to contribute" to an understanding of government operations or activities;

(3) Whether disclosure of the requested information will contribute to "public understanding"; and

(4) Whether the disclosure is likely to contribute "significantly" to public understanding of government operations or activities.

(d) In determining whether disclosure of the information "is not primarily in the commercial interest of the requester," the following consideration shall be applied:

(1) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and if so,

(2) 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."

§1206.703 Aggregation of requests.

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 NASA has reason to believe that a requester or 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, NASA will aggregate any such requests and charge accordingly. NASA will consider that multiple requests made within a 30-day period were so intended, unless there is evidence to the contrary. Where the relevant time period exceeds 30 days, NASA will not assume such a motive, unless there is evidence to the contrary. In no case will NASA aggregate multiple requests on unrelated subjects from one requester.

§ 1206.704 Advance payments.

(a) NASA will not require a requester to make an advance payment, i.e., payment before work is commenced or continued on a request, unless:

(1) NASA estimates or determines that the allowable charges are likely to exceed $250. NASA will 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 in a timely fashion (within 30 days of billing), then NASA may require the requester to pay the full amount owed plus any applicable interest as provided below (see § 1206.706(a)), or demonstrate that he/she has, in fact, paid the fee, and to make an advance payment of the full amount of the estimated fee before the agency begins to process a

new request or a pending request from that requester.

(b) When NASA acts under paragraphs (a) (1) and (2) of this section, the administrative time limits will begin only after NASA has received the fee payments described in paragraph (a) of this section.

§1206.705 Form of payment.

Payment by mail shall be made by check or money order payable to the "National Aeronautics and Space Administration" and sent to the NASA office which processed the request.

§1206.706 Nonpayment of fees.

(a) Interest to be charged. Requesters are advised that should they fail to pay the fees assessed, they may be charged interest on the amount billed starting on the 31st day following the day on which the billing was sent. Interest will be at the rate prescribed in section 3717 of Title 31 U.S.C.

(b) Applicability of Debt Collection Act of 1982 (Pub. L. 97-365). Requesters are advised that if full payment is not received within 60 days after the billing was sent, the procedures of the Debt Collection Act may be invoked 14 CFR 1261.407-1261.409). These procedures include three written demand letters at not more than 30-day intervals, disclosure to a consumer reporting agency, and the use of a collection agency, where appropriate.

Subpart 8-Failure to Release Records to the Public

§ 1206.800 Failure to release records to the public.

(a) Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the FEDERAL REGISTER under § 1206.200(a) and not so published.

(b) A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied upon, used, or cited as precedent by NASA against any member of the public only if it has been indexed and

either made available or published as provided by § 1206.200(b) or if the member of the public has actual and timely notice of the terms thereof.

(c) Failure to make available an agency record required to be made available under this part could provide the jurisdictional basis for a suit against NASA under 5 U.S.C. 552(a)(4) (B) through (G), which provides as follows:

(B) On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.

(C) Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made, unless the court otherwise directs for good cause shown.

(D) Except as to cases the court considers of greater importance, proceedings before the district court, as authorized by this subsection, and appeals therefrom, take precedence on the docket over all cases and shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way.

(E) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.

(F) Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Civil Service Commission shall promptly initiate a preceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Commission, after investigation and consideration of the evi

dence submitted, shall submit its findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer of employee or his representative. The administrative authority shall take the corrective action that the Commission recommends.

(G) In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.

Subpart 9-Annual Report

§ 1206.900 Requirements for annual report.

On or before March 1 of each calendar year, NASA shall submit a report covering the preceding calendar year to the Speaker of the House of Representatives and President of the Senate for referral to the appropriate committees of the Congress. The report shall include the following information:

(a) The number of determinations made by NASA not to comply with requests for records made to the Agency under Subpart 6 of this part and the reasons for each such determination;

(b) The number of appeals made by persons under Subpart 6 of this part, the result of such appeals, and the reason for the action upon each appeal that results in a denial of information;

(c) The names and titles or positions of each person responsible for the denial of records requested under this part, and the number of instances of participation for each;

(d) The results of each proceeding conducted pursuant to 5 U.S.C. 552(a)(4) (B) through (G) (see § 1206.800(c)), including a report of the disciplinary action taken against the officer or employee who was primarily responsible for for improperly withholding records or an explanation of why disciplinary action was not taken;

(e) A copy of the current version of this Part 1206 and any other rules or regulations made by NASA regarding 5 U.S.C. 552;

(f) A copy of the current fee schedule and the total amount of fees col

Sec.

1207.702 Procedures for administrative dis

ciplinary hearing.

1207.703 Appeal from initial decision. 1207.704 Administrative sanctions.

Subpart H-Post-Employment Regulations

1207.800 Scope of subpart.

1207.801 Exemption for scientific and technological communications.

AUTHORITY: Ethics in Government Act of 1978, as amended by Pub. L. 96-19 and Pub. L. 96-28; EO 11222; 18 U.S.C. 201-219; 5 CFR Parts 734, 735, 737, 738, and 755.

SOURCE: 52 FR 22755, June 16, 1987, unless otherwise noted.

Subpart A-General Provisions

§ 1207.100 Scope of part.

The provisions of this Part 1207 prescribe regulations for the maintenance of the high ethical standards of conduct required of NASA employees in carrying out their duties and responsibilities.

§ 1207.101 Applicability.

The provisions of this part are applicable to:

(a) All regular officers and employees of NASA (referred to as “employees").

(b) All civilian and military personnel of other Government agencies regularly detailed to NASA (also referred to as "employees"); however, disciplinary action may be effected against such civilian or military personnel only by the parent employing agency or military service.

§ 1207.102 Definitions.

(a) A Key Official is any officer or employee who is in a position that required the filing of a public financial disclosure report in accordance with Title II of the Ethics in Government Act of 1978 (see § 1207.404) or who is in one of the following positions: astronaut, astronaut candidate, procurement officer, or chief counsel.

(b) The Office of Government Ethics is an office created within the Office of Personnel Management by statute (the Ethics in Government Act of 1978) and charged with the responsi

bility to oversee ethics matters in the Executive Branch.

(c) The term particular matter is not defined in the statutes, but is used in context as follows: any proceed

ing, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest or other particular matter. See 5 CFR 737.5 for examples.

(d) The term personally and substantially is not defined in the statutes, but examples of personal and substantial involvement include participation through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise...

(e) The term official responsibility is defined by statute to mean the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and either personally or through subordinates, to approve, disapprove, or otherwise direct Government action.

§ 1207.103 General ethical standards of conduct.

(a) Misuse of public position. (1) Each employee will refrain from any use of official position which is motivated by, or has the appearance of being motivated by, the desire for private gain for himself/herself or other persons.

(2) If an employee acquires information in the course of performing Government duties that is not generally available to those outside the Government, the employee will not use this information to further a private interest or for the special benefit of a business or other entity in which the employee has a financial or other interest. See § 1207.402 for guidance on what constitutes a financial interest.

(3) An employee will not use a Government position in any way to coerce, or give the appearance of coercing, another person to provide any financial benefit to the employee or to other persons.

(4) An employee will avoid any action, whether or not specifically prohibited by law or regulation (including this regulation), which might result in or create the appearance of:

(i) Using public office for private gain;

(ii) Giving preferential treatment to any organization or person;

(iii) Impeding Government efficiency or economy;

(iv) Losing independence or impartiality of action;

(v) Making a Government decision outside official channels; or

(vi) Affecting adversely the confidence of the public in the integrity of the Government.

(b) Use of government property. An employee will not directly or indirectly use or allow the use of Government property of any kind, including property leased to the Government, for other than officially approved activities. An employee has an affirmative duty to protect and conserve Government property, including equipment, supplies, and other property entrusted or issued to the employee.

(c) Indebtedness. The indebtedness of NASA employees is considered to be essentially a matter of their own concern. Except as otherwise provided by law, NASA will not be placed in the position of acting as a collection agency or of determining the validity or amount of contested debts. Nevertheless, NASA employees are expected to honor in a proper and timely manner debts which are acknowledged by the employee to be valid or which have been reduced to final judgment by a court, and to make or adhere to satisfactory arrangements for the settlement of such debts. In accordance with Pub. L. 93-647 (42 U.S.C. 659), NASA may become involved in the attachment of NASA employees' wages or salary for enforcement of child support and alimony obligations. In accordance with 5 U.S.C. 5514, NASA may deduct indebtedness to the United States from employees' pay. Employees are also expected to meet their responsibilities for payment of Federal, state, and local taxes. For the purpose of this paragraph, in a proper and timely manner means in a manner which does not cause undue disruption to NASA operations and which NASA determines does not, under the circumstances, reflect adversely NASA as the employing agency.

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