[Code of Federal Regulations]

[Title 45, Volume 3]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 45CFR612.10]



[Page 128-133]

 

                        TITLE 45--PUBLIC WELFARE

 

                 CHAPTER VI--NATIONAL SCIENCE FOUNDATION

 

PART 612_AVAILABILITY OF RECORDS AND INFORMATION--Table of Contents

 

Sec. 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



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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 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 

NSF will 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 will 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 Sec. 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.



[[Page 130]]



    (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 

operating the central processing unit (CPU) 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 CPU 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.

    (e) Notice of anticipated fees in excess of $25.00. When NSF 

determines or estimates that the fees to be charged under



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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



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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 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 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



[[Page 133]]



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.