Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 16815 

Background and Purpose 

We published a notice of proposed 

rulemaking (NPRM) in the Federal 

Register on February 12, 2009 (74 FR 

7022), entitled ‘‘Regulated Navigation 

Areas; Bars Along the Coasts of Oregon 

and Washington.’’ In it we stated that 

we did not plan to hold a public 

meeting, but that we welcomed requests 

explaining why one would be beneficial 

(74 FR 7023). We received several such 

requests and have concluded that a 

public meeting would aid this 

rulemaking. Therefore, we are 

publishing this notice. 

In the NPRM, we propose to establish 

Regulated Navigation Areas (RNA) 

covering specific bars along the coasts of 

Oregon and Washington that will 

include procedures for restricting and/ 

or closing those bars as well as 

additional safety requirements for 

recreational and small commercial 

vessels operating in the RNAs. The 

RNAs are necessary to help ensure the 

safety of the persons and vessels 

operating in those hazardous bar areas. 

The RNAs will do so by establishing 

clear procedures for restricting and/or 

closing the bars and mandating 

additional safety requirements for 

recreational and small commercial 

vessels operating in the RNAs when 

certain conditions exist. 

You may view the NPRM in our 

online docket, in addition to supporting 

documents prepared by the Coast 

Guard, including an ‘‘Environmental 

Analysis Checklist’’ and RNA Fact 

Sheets for recreational, passenger, and 

commercial fishing vessels, and 

comments submitted thus far by going 

to http://www.regulations.gov. Once 

there, select the Advanced Docket 

Search option on the right side of the 

screen, insert USCG–2008–1017 in the 

Docket ID box, press Enter, and then 

click on the item in the Docket ID 

column. You may also visit the Docket 

Management Facility in Room W12–140 

on the ground floor of the Department 

of Transportation West Building, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590, between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

holidays. We have an agreement with 

the Department of Transportation to use 

the Docket Management Facility. 

We encourage you to participate in 

this rulemaking by submitting 

comments either orally at the meetings 

or in writing. If you bring written 

comments to the meetings, you may 

submit them to Coast Guard personnel 

specified at the meetings to receive 

written comments. These comments 

will be submitted to our online public 

docket. All comments received will be 

posted without change to http:// 

www.regulations.gov and will include 

any personal information you have 

provided. 

Comments submitted after the 

meetings must reach the Coast Guard on 

or before April 19, 2009. If you submit 

a comment online via http:// 

www.regulations.gov, it will be 

considered received by the Coast Guard 

when you successfully transmit the 

comment. If you fax, hand deliver, or 

mail your comment, it will be 

considered as having been received by 

the Coast Guard when it is received at 

the Docket Management Facility. 

Anyone can search the electronic 

form of comments received into any of 

our dockets by the name of the 

individual submitting the comment (or 

signing the comment, if submitted on 

behalf of an association, business, labor 

union, etc.). You may review a Privacy 

Act notice regarding our public dockets 

in the January 17, 2008, issue of the 

Federal Register (73 FR 3316). 

Information on Service for Individuals 

With Disabilities 

For information on facilities or 

services for individuals with disabilities 

or to request special assistance at the 

public meeting, contact LCDR Emily 

Saddler at the telephone number or 

e-mail address indicated under the FOR

FURTHER INFORMATION CONTACT section of 

this notice. 

Public Meeting 

The Coast Guard will hold a public 

meeting regarding its ‘‘Regulated 

Navigation Areas; Bars Along the Coasts 

of Oregon and Washington’’ proposed 

rule on Tuesday, April 14, 2009, from 

6 p.m. to 9 p.m, at The Loft at the Red 

Building, 20 Basin Street, Astoria, OR 

97103, telephone 503–325–2223, and on 

Wednesday, April 15, 2009, from 6 p.m. 

to 9 p.m., at The Embarcadero Resort 

Hotel & Marina, 1000 SE Bay Blvd., 

Newport, OR 97365, telephone 541– 

265–8521 or 1–800–547–4779. 

We plan to have an official transcript 

of the meetings prepared and will make 

that transcript available through a link 

in our online docket. 

Dated: March, 30, 2009. 

J.P. Currier, 

Rear Admiral, U.S. Coast Guard, Commander, 

Thirteenth Coast Guard District. 

[FR Doc. E9–8266 Filed 4–7–09; 8:45 am] 

BILLING CODE 4910–15–P 

NATIONAL SCIENCE FOUNDATION 

45 CFR Part 612 

RIN 3145–AA52 

Notice of Proposed Rulemaking and 

Opportunity for Comment 

AGENCY: National Science Foundation. 

ACTION: Notice of proposed rulemaking 

and opportunity for comment. 

SUMMARY: This document sets forth 

proposed revisions of the Foundation’s 

regulations under the Freedom of 

Information Act (FOIA). The new FOIA 

provisions implement the Openness 

Promotes Effectiveness in our National 

Government Act of 2007, or the OPEN 

Government Act of 2007, Public Law 

110–175. 

DATES: Submit comments on or before 

May 13, 2009. 

ADDRESSES: Address all comments 

concerning this proposed rule to the 

Office of the General Counsel, National 

Science Foundation, 4201 Wilson 

Boulevard, Suite 1265, Arlington, VA 

22230. You may also send comments by 

facsimile transmission to (703) 292– 

9041, or send them electronically 

through the Federal Government’s onestop rulemaking Web site at http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Leslie A. Jensen, Legal Analyst, Office of 

the General Counsel, National Science 

Foundation, telephone 703–292–8060 

and e-mail ljensen@nsf.gov. 

SUPPLEMENTARY INFORMATION: 

Availability of Records and 

Information (45 CFR part 612) (FOIA 

Regulations) 

This revision of part 612 implements 

the new provisions of the Openness 

Promotes Effectiveness in our National 

Government Act of 2007, or the OPEN 

Government Act of 2007, Public Law 

110–175. No changes to the Act’s nine 

exemptions were made. The 

amendments address a range of 

procedural issues impacting FOIA 

administration, including the 

codification of several provisions of 

Executive Order 13392, Improving 

Agency Disclosure of Information. 

Clarifications or minor procedural 

changes are found at § 612.3(a), (b), (f) 

and (g) (Requirements for making 

requests), § 612.4(a) (Responding to 

requests), § 612.5 (c)(1) and (2) (Timing 

of Response to Requests), § 612.6 (a), (b), 

(c)(1) (Processing requests) and 

§ 612.10(c)(iii) (Fees). 

For purposes of the Regulatory 

Flexibility Act (5 U.S.C. 601), the 

proposed rule will not have a significant 

16816 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 

economic effect on a substantial number 

of small entities; the proposed rule 

addresses the procedures to be followed 

when submitting or responding to 

requests for information under the 

Freedom of Information Act. For 

purposes of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4) the 

proposed rule would not significantly or 

uniquely affect small governments and 

would not result in increased 

expenditures by State, local, and tribal 

governments, or by the private sector, of 

$100 million or more. For purposes of 

Executive Order 12866, the proposed 

rule is not a significant regulatory action 

requiring review by the Office of 

Management and Budget. For the 

purposes of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 35) it has been 

determined that this proposed 

rulemaking does not impose any 

reporting or recordkeeping requirement 

on the public. 

List of Subjects in 45 CFR Part 612 

Administrative practice and 

procedure: Freedom of information. 

For the reasons stated in the 

preamble, the National Science 

Foundation proposes to amend 45 CFR 

chapter VI by revising part 612 as 

follows: 

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 Responding to requests. 

612.5 Timing of responses to requests. 

612.6 Processing 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. 

§ 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 routinely 

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 

Foundation also makes discretionary 

disclosures of records or information 

otherwise exempt under the FOIA 

whenever disclosure would not 

foreseeably harm an interest protected 

by a FOIA exemption. This policy, 

however, does not 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 regulations at part 613, 

and this part. 

§ 612.2 Public reading room. 

(a) The Foundation maintains a public 

reading room located in the NSF Library 

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 printers available for 

public use in accessing records. Also 

available for public inspection and 

copying are current subject matter 

indexes of reading room records. 

(b) Information about FOIA and 

Privacy at NSF and copies of frequently 

requested FOIA releases are available 

Online at http://www.nsf.gov/pubinfo/ 

foia.html. Most NSF policy documents, 

staff instructions, manuals, and other 

publications that affect a member of the 

public, are available in electronic form 

through the ‘‘Documents’’ option on the 

tool bar on NSF’s Home Page on the 

Internet at http://www.nsf.gov. 

§ 612.3 Requirements for making requests. 

(a) Where to send a request. The 

National Science Foundation has one 

Agency component. You may make a 

FOIA request for records of the National 

Science Foundation by writing directly 

to the FOIA Officer, Office of the 

General Counsel, National Science 

Foundation, 4201 Wilson Boulevard, 

Suite 1265, Arlington, VA 22230. For 

records maintained by the NSF Office of 

the Inspector General (OIG), a 

designated Agency component, you may 

write directly to the Office of Inspector 

General, National Science Foundation, 

4201 Wilson Boulevard, Suite 1135, 

Arlington, VA 22230. The Agency FOIA 

officer and the OIG component will also 

forward requests as appropriate. 

Requests may also be sent by facsimile 

to the Agency FOIA Officer on (703) 

292–9041 or by e-mail to foia@nsf.gov; 

or, as appropriate to the OIG component 

via Fax on (703) 292–9158. 

(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 

envelope and in the letter, or in a 

facsimile 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 chargeable under the Foundation’s 

fee schedule as described in § 612.10. 

(c)(1) If you are making a request for 

records about yourself and the records 

are not contained in a Privacy Act 

system 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 

individual, either a written 

authorization signed by that individual 

in accordance with § 613.2(f) permitting 

disclosure of those records to you, or 

proof that that individual is deceased 

(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 information 

about each record sought, such as the 

date, title or name, author, recipient, 

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 reduced or 

eliminated. If NSF determines that your 

request does not reasonably describe 

records, you will be advised what 

additional information is needed to 

perfect your request or why your request 

is otherwise insufficient. 

(e) Agreement to pay fees. Your 

request must state that you will 

promptly 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)). 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 16817 

(f) Receipt date. A request that meets 

the requirements of this section will be 

considered received on the date it is 

received by the Office of the General 

Counsel or 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 date the search 

begins. 

(g) 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. NSF publications 

are available in print. To request one or 

more print publications (http:// 

www.nsf.gov/publications/obtain.jsp), 

you may: 

(1) Fill out Web-based order form. 

http://www.nsf.gov/publications/ 

orderpub.jsp. 

(2) Contact NSF Publications at (703) 

292–PUBS (7827). 

(3) Send a letter with the publication 

number(s) clearly stated to: NSF 

Publications, National Science 

Foundation, 4201 Wilson Boulevard, 

Suite P–60, Arlington, VA 22230. 

§ 612.4 Responding to 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 central 

office for administering these 

regulations. For records maintained by 

the Office of Inspector General, that 

Office will control incoming requests 

made directly or referred to it, dispatch 

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 

action offices, monitor compliance, 

consult with action offices on 

disclosure, approve necessary 

extensions, dispatch 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 

another agency has a substantial 

interest, it may decide that the other 

agency 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 

appropriate. 

(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. 

(c) Notice of referral. Whenever the 

Foundation refers all or any part of the 

responsibility for responding to a 

request 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 

information otherwise exempt. 

§ 612.5 Timing of responses to requests. 

(a) In general. NSF ordinarily will 

initiate processing of requests according 

to their order of receipt. 

(b) Time for response. The 

Foundation will make reasonable effort 

to act on a request within 20 days of 

when a request is received by the OGC 

or the OIG or perfected (excluding the 

date of receipt, weekends, and legal 

holidays). A request is perfected when 

you have reasonably described the 

records sought under § 612.3(d), agreed 

to pay fees chargeable 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 

circumstances’’ as defined in the FOIA, 

the FOIA Officer or the OIG component 

will notify the requester as soon as 

practicable in writing 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 Officer 

or the OIG component will provide the 

requester with an opportunity either to 

modify the request so that it may be 

processed within the time limits or to 

arrange an agreed upon alternative time 

period with the FOIA Officer or the OIG 

component for processing the request or 

a modified request. 

(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 expedited 

processing. 

(2) Requests and appeals will be given 

expedited treatment whenever it is 

determined that a requester has 

demonstrated compelling need by 

presenting: 

(i) Circumstances in which the lack of 

expedited treatment could reasonably be 

expected to pose an imminent threat to 

the life or physical safety of an 

individual; or 

(ii) An urgency to inform the public 

about an actual or alleged Federal 

government activity, if made by a 

person primarily engaged in 

disseminating information. 

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 activity or 

occupation is information 

dissemination, though it need not be his 

or her sole occupation. Such requester 

also must establish a particular urgency 

to inform the public about the 

government activity involved in the 

request, beyond the public’s right to 

know about government activity 

generally, and that the information 

sought has particular value that would 

be lost if not disseminated quickly. 

(3) Within ten calendar days of receipt 

of a request for expedited processing, 

the FOIA Officer or OIG component will 

decide whether to grant it, and will 

notify 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 denied, any appeal of that 

decision will be acted on expeditiously. 

§ 612.6 Processing requests. 

(a) Acknowledgment of requests. Each 

request is assigned a tracking number 

and the requester is advised of this 

FOIA number, the receipt date and the 

estimated date of action on the request. 

(b) Grants of requests. Once the 

Foundation makes a determination to 

grant a request in whole or in part, it 

will notify 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, the location and the FOIA 

Exemption under which the deletion is 

made. 

(c) Denials of requests. (1) Denials of 

FOIA requests will be made by the 

Office of the General Counsel, the Office 

of the Inspector General, or such other 

office as may be designated by the 

Director. The response letter will briefly 

set forth the reasons for the denial, 

including any FOIA exemption(s) 

applied by the Foundation or the OIG in 

denying the request. It will also provide 

the name and title or position of the 

16818 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 

person responsible for the denial, will 

inform the requester of the right to 

appeal, and will, where appropriate, 

include an estimate of the volume of 

any requested materials withheld. An 

estimate need not be provided when the 

volume is otherwise indicated through 

deletions on records disclosed in part, 

or if providing an estimate would harm 

an interest protected by an applicable 

exemption. 

(2) Requesters can appeal an agency 

determination to withhold all or part of 

any requested record; a determination 

that a requested record does not exist or 

cannot be located; a determination 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 

following types of records or 

information may be withheld as exempt 

in full or in part from mandatory public 

disclosure: 

(1) Exemption 1—5 U.S.C. 552(b)(1). 

Records specifically authorized and 

properly classified pursuant to 

Executive Order to be kept secret in the 

interest 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 

information 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 exempt 

from disclosure include, but are not 

limited to: 

(i) Operating rules, guidelines, 

manuals on internal procedure, 

schedules and methods utilized by NSF 

investigators, inspectors, auditors and 

examiners. 

(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 

positions were applicable. They may 

also be exempt pursuant to other 

provisions of this section. 

(iii) Information relating to position 

management and manpower utilization, 

such as internal staffing plans, 

authorizations or controls, or involved 

in determination of the qualifications of 

candidates for employment, 

advancement, or promotion including 

examination questions and answers. 

(iv) Computer software, the release of 

which would allow circumvention of a 

statute or NSF rules, regulations, orders, 

manuals, directives, instructions, or 

procedures; or the integrity and security 

of data systems. 

(3) Exemption 3—5 U.S.C. 552(b)(3). 

Records specifically exempted from 

disclosure by another statute that either 

requires that the information be 

withheld in such a way that the agency 

has no discretion in the matter; or 

establishes particular criteria for 

withholding or refers to particular types 

of information to be withheld. Examples 

of records exempt from disclosure 

include, but are not limited to: 

(i) Trade secrets, processes, 

operations, style of work, or apparatus; 

or the confidential statistical data, type, 

amount, or source of any income, 

profits, losses, or expenditures of any 

person, firm, partnership, corporation or 

association, 18 U.S.C. 1905; 

(ii) Records that disclose any 

invention in which the Federal 

Government owns or may own a right, 

title, or interest (including a 

nonexclusive license), 35 U.S.C. 205; 

(iii) Contractor proposals not 

specifically set forth or incorporated by 

reference into a contract, 41 U.S.C. 

253b(m); 

(iv) 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 

financial information obtained from a 

person, and privileged or confidential. 

Information subject to this exemption is 

that customarily held in confidence by 

the originator(s), including nonprofit 

organizations and their employees. 

Release of such information is likely to 

cause substantial harm to the 

competitive position of the originator or 

submitter, or impair the Foundation’s 

ability to obtain such information in the 

future. NSF will process information 

potentially exempted from disclosure by 

Exemption 4 under § 612.8. Examples of 

information exempt from disclosure 

include, but are not limited to: 

(i) Information received in 

confidence, such as grant applications, 

fellowship applications, and research 

proposals prior to award; 

(ii) Confidential scientific and 

manufacturing processes or 

developments, and technical, scientific, 

statistical data or other information 

developed by a grantee. 

(iii) Technical, scientific, or statistical 

data, and commercial or financial 

information privileged or received in 

confidence from an existing or potential 

contractor or subcontractor, in 

connection with bids, proposals, or 

contracts, concerning contract 

performance, income, profits, losses, 

and expenditures, as well as trade 

secrets, inventions, discoveries, or other 

proprietary data. When the provisions of 

41 U.S.C. 253b(m) or 41 U.S.C. 423 are 

met, certain proprietary and source 

selection information may also be 

withheld under Exemption 3. 

(iv) Confidential proprietary 

information submitted on a voluntary 

basis. 

(v) Statements or information 

collected in the course of inspections, 

investigations, 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 

information normally considered 

confidential or privileged. 

(5) Exemption 5—5 U.S.C. 552(b)(5). 

Inter-agency or intra-agency memoranda 

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 considered for 

release if it can be reasonably segregated 

and is not otherwise exempt. Examples 

of records exempt from disclosure 

include, but are not limited to: 

(i) Reports, memoranda, 

correspondence, work papers, minutes 

of meetings, and staff papers, containing 

evaluations, advice, opinions, 

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 consultant or 

advisory capacity; 

(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 private 

interests or impede legitimate 

government functions; 

(iii) Trade secret or other confidential 

research development, or commercial 

information owned by the Government, 

where premature release is likely to 

affect the Government’s negotiating 

position or other commercial interest; 

(iv) Records prepared for use in 

proceedings before any Federal or State 

court or administrative body; 

(v) Evaluations of and comments on 

specific grant applications, research 

projects or proposals, or potential 

contractors and their products, whether 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 16819 

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, 

recommendations, 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 financial 

plan and supporting papers; 

(viii) Those portions of official reports 

of inspection, reports of the Inspector 

General, audits, investigations, or 

surveys pertaining to safety, security, or 

the internal management, 

administration, 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 

invasion of personal privacy. The 

exemption applies to living persons and 

to family members of a deceased person 

identified in a record. 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 may 

be disclosed to others with the subject’s 

written consent. Examples of records 

exempt from disclosure include, but are 

not limited to: 

(i) Reports, records, and other 

materials pertaining to individual cases 

in which disciplinary or other 

administrative 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 relied upon as precedent. 

(ii) Records compiled to evaluate or 

adjudicate the suitability of candidates 

for employment, and the eligibility of 

individuals (civilian or contractor 

employees) for security clearances, or 

for access to classified information. 

(iii) Reports and evaluations which 

reflect upon the qualifications or 

competence of individuals. 

(iv) Personal information such as 

home addresses and telephone and 

facsimiles numbers, private e-mail 

addresses, social security numbers, 

dates of birth, marital status and the 

like. 

(v) The exemption also applies when 

the fact of the existence or nonexistence 

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 

purposes, 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 proceedings; 

(B) Would deprive a person of the 

right to a fair trial or an impartial 

adjudication; 

(C) Could reasonably be expected to 

constitute an unwarranted invasion of 

personal privacy of a living person, or 

family members of a deceased person 

identified in a record; 

(D) Could reasonably be expected to 

disclose the identity of a confidential 

source, including a source within the 

Federal Government, or a State, local, or 

foreign agency or authority, or any 

private institution, that furnished 

information 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 

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 

(F) Could reasonably be expected to 

endanger the life or physical safety of 

any individual. 

(ii) Examples of records exempt 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 

individuals investigated for alleged 

irregularities 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 governmentwide public suspension or debarment 

has occurred. 

(C) Information obtained in 

confidence, expressed or implied, in the 

course of a criminal investigation by the 

NSF Officer of the Inspector General. 

(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 

examination, operating, or condition 

reports prepared by, on behalf of, or for 

the use of any agency responsible for the 

regulation or supervision of financial 

institutions. 

(9) Exemption 9—5 U.S.C. 552(b)(9). 

Records containing geological and 

geophysical information and data, 

including maps, concerning wells. 

(b) Deletion of exempt portions and 

identifying details. Any reasonably 

segregable portion of a record will be 

provided to requesters 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(s) 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: 

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 

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, 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 

16820 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 

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 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); 

(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 

seeking to prevent the disclosure of 

business information, 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, Arlington, VA 22230. You 

must make your appeal in writing and 

it must be received 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 and the denial together 

with any written argument you wish to 

submit. 

(b) Responses to appeals. A written 

decision on your appeal will be made by 

the General Counsel. A decision 

affirming an adverse determination in 

whole or in part will contain a 

statement of the reason(s) for the 

affirmance, including any FOIA 

exemption(s) applied, and will inform 

you of the FOIA provisions for court 

review of the decision. If the adverse 

determination is reversed 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 sending 

copies of requested records to a 

requester. 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 

request 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 include 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 because NSF has reasonable 

cause to doubt a requester’s stated use, 

NSF will provide the requester a 

reasonable opportunity to submit 

further clarification. 

(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 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 machinery. Not 

included in direct costs are overhead 

expenses such as the costs of space and 

heating or lighting of the facility 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 

example, 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 

reproducible by NSF, with reasonable 

effort, in the requested form or format. 

(4) Educational institution means a 

preschool, a public or private 

elementary or secondary school, an 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 16821 

institution of undergraduate higher 

education, an institution of graduate 

higher education, an institution of 

professional 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 operated 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 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 or to promote any 

particular product or industry, 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 

publish or broadcast news to the public. 

The term ‘‘news’’ means information 

that is about current events or that 

would be of current interest to the 

public. Examples of news media entities 

include television or radio stations 

broadcasting to the public at large and 

publishers 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 

organization. A publication contract 

would be the clearest proof, but the 

Agency or the OIG, as appropriate, shall 

also look to the past publication record 

of a requester in making this 

determination. To be in this category, a 

requester must not be seeking the 

requested records for a commercial use. 

However, a request for records 

supporting the news-dissemination 

function of the requester shall not be 

considered to be for a commercial use. 

(7) Review means the examination of 

a record located in response to a request 

in order to determine whether any 

portion of it is exempt from disclosure. 

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 exemptions. 

(8) Search means the process of 

looking for and retrieving records or 

information responsive to a request. It 

includes page by page or line by line 

identification of information within 

records and also includes reasonable 

efforts 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. 

(c) Fees. In responding to FOIA 

requests, 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 

requests made by educational 

institutions, noncommercial scientific 

institutions, 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. 

Whenever 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 

professional/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 

conducted (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 

include the cost of computer operations 

for that portion of operating time that is 

directly attributable to searching for 

records responsive to a FOIA request 

and operator/programmer salary (i.e., 

basic pay plus 16 percent) apportionable 

to the search. When NSF can establish 

a reasonable agency-wide average rate 

for computer operating costs and 

operator/programmer 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, 

including 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 

commercial use request. Review fees 

will be charged only for the initial 

record review—in other words, the 

review done when NSF determines 

whether an exemption 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 

subsequently determined not to apply 

may be reviewed again to determine 

whether any other exemption not 

previously considered applies; the costs 

of that review are chargeable where it is 

made necessary by a change of 

circumstances. Review fees will be 

charged at the salary rate (basic pay plus 

16%) of the employee(s) performing the 

review. 

(d) Limitations on charging fees. (1) 

No search fee will be charged for 

requests by educational institutions, 

noncommercial 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 together. 

This means that noncommercial 

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. 

16822 Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 

(e) Notice of anticipated fees in excess 

of $25.00. When NSF determines or 

estimates that the fees to be charged 

under this section will exceed $25.00, it 

will notify the requester of the actual or 

estimated 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 

estimated readily, NSF will advise the 

requester 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 

considered perfected and further work 

will not be done until the requester 

agrees to pay the anticipated total fee. 

Any such agreement should be 

memorialized in writing. A notice under 

this paragraph will offer the requester 

an opportunity to discuss the matter 

with Foundation personnel in order to 

reformulate the request to meet the 

requester’s needs at a lower cost, if 

possible. If a requester fails to respond 

within 60 days of notice of actual or 

estimated 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 section, 

when NSF chooses as a matter of 

administrative discretion to provide a 

requested special service—such as 

certifying 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 requester. 

(g) Charging interest. NSF may charge 

interest on any unpaid bill starting on 

the 31st day following the date of billing 

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 

received 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 

procedures, 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 aggregate 

those requests and charge accordingly. 

NSF may presume that multiple 

requests of this type made within a 30- 

day period have been made in order to 

avoid fees. Where requests are separated 

by a longer period, NSF will aggregate 

them only where there exists a solid 

basis for determining that aggregation is 

warranted under all the circumstances 

involved. Multiple requests involving 

unrelated matters will not be aggregated. 

(i) Advance payments. (1) For 

requests other than those described in 

paragraphs (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. 

Payment 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 

estimates 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 

receives 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 

requester 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 

advance payment or payment due under 

paragraph (i)(2) or (3) of this section, the 

request will not be considered perfected 

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 schedule programs, NSF will 

inform requesters 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 understanding of 

the operations or activities of the 

government and is not primarily 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: Whether 

the subject of the requested records 

concerns ‘‘the operations or activities of 

the government.’’ The subject of the 

requested records must concern 

identifiable 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 

information to be disclosed: Whether 

disclosure is ‘‘likely to contribute’’ to an 

understanding of government operations 

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 

domain, in either duplicative or 

substantially 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 

understanding of the subject by the 

public likely to result from disclosure: 

Whether disclosure of the requested 

information 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 

requester. A requester’s expertise in the 

subject area and ability and intention to 

effectively convey information to the 

public will be considered. A 

representative of the news media as 

defined in paragraph (b)(6) of this 

section will normally be presumed to 

satisfy this consideration. 

(iv) The significance of the 

contribution to public understanding: 

Whether disclosure is likely to 

contribute ‘‘significantly’’ to public 

understanding of government operations 

or activities. The public’s understanding 

of the subject in question must be 

enhanced by the disclosure to a 

significant extent as compared to the 

level of public understanding existing 

prior to the disclosure. NSF will make 

no value judgments about whether 

information that would contribute 

significantly to public understanding of 

the operations or activities of the 

government is ‘‘important’’ 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 

Federal Register / Vol. 74, No. 69 / Monday, April 13, 2009 / Proposed Rules 16823 

requester has a commercial interest that 

would be furthered by the requested 

disclosure. NSF will consider any 

commercial interest of the requester 

(with reference to the definition of 

‘‘commercial use’’ in paragraph (b)(1) of 

this section), 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 

information regarding this 

consideration. 

(ii) The primary interest in disclosure: 

Whether any 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.’’ 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 interest 

will be the interest primarily served by 

disclosure to that requester. Disclosure 

to data brokers or others who merely 

compile and market government 

information for direct economic 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 

reduction 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 construed 

to entitle any person, as of right, to any 

service or to the disclosure of any record 

to which such person is not entitled 

under the FOIA. 

Dated: April 7, 2009. 

Amy Northcutt, 

Deputy General Counsel. 

[FR Doc. E9–8262 Filed 4–10–09; 8:45 am] 

BILLING CODE 7555–01–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 19 and 52 

[FAR Case 2006–005; Docket 2009–0014; 

Sequence 1] 

RIN 9000–AL18 

Federal Acquisition Regulation; FAR 

Case 2006–005, HUBZone Program 

Revisions 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Proposed rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) are proposing to amend the 

Federal Acquisition Regulation (FAR) to 

implement revisions to the Small 

Business Administration’s HUBZone 

Program as a result of revisions to the 

Small Business Administration’s 

regulations. 

DATES: Interested parties should submit 

written comments to the FAR 

Secretariat on or before June 12, 2009 to 

be considered in the formulation of a 

final rule. 

ADDRESSES: Submit comments 

identified by FAR case 2006–005 by any 

of the following methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2006–005’’ under 

the heading ‘‘Comment or Submission’’. 

Select the link ‘‘Send a Comment or 

Submission’’ that corresponds with FAR 

Case 2006–005. Follow the instructions 

provided to complete the ‘‘Public 

Comment and Submission Form’’. 

Please include your name, company 

name (if any), and ‘‘FAR Case 2006– 

005’’ on your attached document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VIR), 1800 F Street, NW., Room 4041, 

ATTN: Hada Flowers, Washington, DC 

20405. 

Instructions: Please submit comments 

only and cite FAR case 2006–005 in all 

correspondence related to this case. All 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: 

Rhonda Cundiff, Procurement Analyst, 

at (202) 501–0044 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the FAR Secretariat at (202) 501–4755. 

Please cite FAR case 2006–005. 

SUPPLEMENTARY INFORMATION: 

A. Background 

On May 24, 2004, the Small Business 

Administration (SBA) published a final 

rule in the Federal Register at 69 FR 

29411, and on August 30, 2005, an 

interim rule at 70 FR 51243 amending 

its HUBZone regulations at 13 CFR Part 

126 to implement the Small Business 

Reauthorization Act of 2000, the 

Consolidated Appropriations Act, 2005, 

and other various policy changes. This 

rule proposes to amend the FAR, as 

follows, to implement changes in the 

HUBZone regulations: 

• FAR 19.1303(d), Status as a 

qualified HUBZone small business 

concern; 52.219–3, Notice of Total 

HUBZone Set-Aside; and 52.219–4, 

Notice of Price Evaluation Preference for 

HUBZone Small Business Concerns, are 

revised to stipulate that to be eligible for 

a HUBZone contract, a HUBZone small 

business concern must be a HUBZone 

small business concern both at the time 

of its initial offer and at the time of 

contract award. SBA revised the 

HUBZone regulations to require 

HUBZone small business concerns to 

‘‘certify,’’ at the time of their initial 

offers and again at the time of contract 

award, their HUBZone small business 

concern status. While the SBA 

regulations use the term ‘‘certify,’’ the 

certification is intended to be a 

‘‘representation’’ as used in the FAR. 

Small business concern offerors are 

already required to ‘‘represent’’ their 

HUBZone small business concern status 

at the time of their initial offer. 

• FAR 52.219–3 and 52.219–4 are 

revised to add a requirement that the 

HUBZone concern provide to the 

contracting officer a copy of the notice 

required by 13 CFR 126.501 if material 

changes occur before award that could 

affect its HUBZone eligibility. 

• The performance of work 

requirements of sections 52.219–3 and 

52.219–4 are revised to be consistent 

with the SBA HUBZone regulations. 

Alternate I would be used if there are 

not at least two HUBZones that can 

meet the 50 percent requirement. FAR 

19.1308, Performance of work 

requirements (limitations on 

subcontracting), is also revised to reflect 

the changes in the performance of work 

requirements. 

• The definition of ‘‘HUBZone 

contract,’’ which is used in the SBA