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Federal Register / Vol. 47, No. 167 / Friday, August 27, 1982 / Notices 
designated by the institution as 
proprietary under Section VI-E-1 will be 
issued only after consultation with the 
institution as to the content of the 
notice. 
VI-D. Requests for Exemptions and 
Approvals. Requests for exemptions or 
other approvals required by the 
Guidelines should be requested by 
following the procedures set forth in the 
appropriate sections in Parts I-IV of the 
Guidelines. 
In order to ensure protection for 
proprietary data, any ijublic notice 
regarding a request for an exemption or 
other approval which is designated by 
the institution as proprietary under 
Section VI-E-1 will be issued only after 
consultation with the institution as to 
the content of the notice. 
VI-E. Protection of Proprietary Data. 
In general, the Freedom of Information 
Act requires Federal agencies to make 
their records available to the public 
upon request However, this requirement 
does not apply to, among other things, 
“trade secrets and commercial and 
financial information obtained from a 
person and privileged or conndential." 
18 U.S.C 1905, in turn makes it a crime 
for an officer or employee of the United 
States or any Federal department or 
agency to publish, divulge, disclose, or 
make known "in any marmer or to any 
extent not authorized by law any 
information coming to him in the course 
of his employment or official duties or 
by reason of any examination or 
investigation made by, or return, report 
or record made to or filed with, such 
department or agency or officer or 
employee thereof, which information 
concerns or relates to the trade secrets, 
[or processes ... of any person, firm, 
partnership, corporation, or 
association." This provision applies to 
all employees of the Federal 
Government, including special 
Government employees. Members of the 
Recombinant DNA Advisory Committee 
are “special Government employees." 
VI-E-1. In submitting information to 
NIH for purposes of complying 
voluntarily with the Guidelines, an 
institution may designate those items of 
information which the institution 
believes constitute trade secrets or 
privileged or confidential commercial or 
financial information. 
Vl-E-2. If NIH receives a request 
under the Freedom of Information Act 
for information so designated, NIH will 
promptly contact the institution to 
secure its views as to whether the 
information (or some portion) should be 
released. 
VI-E-3. If the NIH decides to release 
this information (or some portion] in 
response to a Freedom of Information 
request or otherwise, the institution will 
be advised; and the actual release will 
not be made until the expiration of 15 
days after the institution is so advised, 
except to the extent that earlier release, 
in the judgement of the Director, NIH, is 
necessary to protect against an 
imminent hazard to the public or the 
environment. 
VI-E-4. Presubmission Review. 
VI-E-4-a. Any institution not 
otherwise covered by the Guidelines, 
which is considering submission of data 
or information voluntarAy to NIH, may 
request presubmission review of the 
records involved to determine whether, 
if the records are submitted, NIH will or 
will not make part or all of the records 
available upon request under the 
Freedom of Information Act. 
VI-E-4-b. A request for 
presubmission review should be 
submitted to ORDA, along with the 
records involved. These records must be 
clearly marked as being the property of 
the institution, on loan to NIH solely for 
the purpose of making, a determination 
under the Freedom of information Act. 
ORDA will then seek a determination 
from the HHS Freedom of Information 
Officer, the responsible official under 
HHS regulations (45 CFR Part 5), as to 
whether the records involved (or some 
p'ortion) are or are not available to 
members of the public under the 
Freedom of Information Act. Pending 
such a determination, the records will 
be kept separate from ORDA files, will 
be considered records of the institution 
and not ORDA, and will not be received 
as part of ORDA files. No copies will be 
made of the records. 
VI-E-4-C. ORDA will inform the 
institution of the HHS Freedom of 
Information Officer’s determination and 
follow the institution's instructions as to 
whether some or all of^e records 
involved are to be returned to the 
institution or to become a part of ORDA 
files. If the institution instructs ORDA to 
return the records, no copies or 
summaries of the records willjie made 
or retained by HHS, NIH, or ORDA. 
VI-E-4-d. The HHS Freedom of 
Information Officer’s determination will' 
represent that official’s judgement, as of 
the time of the determination, as to 
whether the records involved tor some 
portion) would be exempt from 
disclosure under the Freedom of 
Information Act, if at the time of the 
determination the records were in 
ORDA files and a request were received 
from them under the Act. 
Appendix A. — Exemptions Under III-D- 
4 
Section III-D-4 states that exempt 
from these Guidelines are “certain 
specified recombinant DNA molecules 
that consist entirely of DNA segments 
from different species that exchange 
DNA by known physiological processes, 
though one or more of the segments may 
be a synthetic equivalent. A list of such 
exchangers will be prepared and 
periodically revised by the Director, 
NIH, with advice of the RAC, after 
appropriate notice and opportunity for 
public comment. (See Section IV-C>-l-b- 
(l)-(c).) Certain classes are exempt as of 
publication of these Revised Guidelines. 
The list is in Appendix A.” 
Under Section III-D-4 of these 
Guidelines are recombinant DNA 
molecules that are: (1) Composed 
entirely of DNA segments from one or 
more of the organisms within a sublist 
and (2) to be propagated in any of the 
organisms within a sublist. 
(Classification of Bergey’s Manual of 
Determinative Bacteriology, eighth 
edition. R. E. Buchanan and N. E. 
Gibbons, editors. Williams and Wilkins 
Company: Baltimore, 1974.) 
Sublist A 
1. Genus Escherichia 
2. Genua Shigella 
3. Genus Salmonella (including Arizona) 
4. Genua Enterobacter 
5. Genus Citrobacter (including Levinea) 
6. Genus Klebsiella 
7. Genua Erwinia 
8. Pseudomonas aeruginosa. Pseudomonas 
putida and Pseudomonas fhurescens 
9. Serratia marcescens 
10. Yersinia enterocolitica 
Sublist B 
1. Bacillus subtilis 
2. Bacillus licheniformis 
3. Bacillus pumilus 
4. Bacillus globigii 
5. Bacillus niger 
6. Bacillus nato 
7. Bacillus amyloliquefaciens 
8. Bacillus aterrimus 
Sublist C 
1. Streptomyces aureofaciens 
2. Streptomyces rimosus 
3. Streptomyces coelicolor 
Sublist D 
1. Streptomyces griseus 
2. Streptomyces cyaneus 
3. Streptomyces venezuelae 
Sublist E 
One way transfer of Streptococcus mutons or 
Streptococcus lactis DNA into 
Streptococcus sanguis. 
Sublist F 
1. Streptococcus sanguis 
2. Streptococcus pneumoniae 
3. Streptococcus faecalis 
4. Streptococcus pyogenes 
[10] 
