Freedom of Information Act Procedures, 3591-3599 [2018-01433]

Agencies

• National Indian Gaming Commission

[Federal Register Volume 83, Number 18 (Friday, January 26, 2018)]
[Rules and Regulations]
[Pages 3591-3599]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-01433]


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NATIONAL INDIAN GAMING COMMISSION

25 CFR Part 517

RIN 3141-AA21


Freedom of Information Act Procedures

AGENCY: National Indian Gaming Commission.

ACTION: Final rule.

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SUMMARY: This rule amends the procedures followed by the National 
Indian Gaming Commission when processing a request under the Freedom of 
Information Act, as amended. These amendments update certain Commission 
information, conform to changes made in the Freedom of Information Act 
Improvements Act of 2016, and streamline how the Commission processes 
its Freedom of Information Act requests.

DATES: This rule is effective on February 26, 2018.

FOR FURTHER INFORMATION CONTACT: Tana Fitzpatrick at (202) 632-7003 or 
by fax (202) 632-7066 (these numbers are not toll free).

SUPPLEMENTARY INFORMATION:

I. Background
II. Contents of Final Rule
III. Responses to Comments
IV. Regulatory Matters
    A. Regulatory Flexibility Act
    B. Unfunded Mandates Reform Act
    C. Takings
    D. Civil Justice Reform
    E. Small Business Regulatory Enforcement Fairness Act
    F. Paperwork Reduction Act
    G. National Environmental Policy Act
    H. Tribal Consultation

I. Background

    In 1966, Congress enacted the Freedom of Information Act (FOIA). 
Later, on October 17, 1988, Congress enacted the Indian Gaming 
Regulatory Act (IGRA), which established the National Indian Gaming 
Commission (Commission). On August 23, 1993, the Commission adopted 
FOIA procedures and, on April 19, 2006, subsequently amended its FOIA 
procedures. Since that time, the United States Congress has amended the 
FOIA twice, and the Commission has changed the location of its 
headquarters office and streamlined the way it processes its FOIA 
requests.
    On October 17, 2017, the Commission published a proposed rule (82 
FR 48205) that proposed changes to the Commission's regulations and 
requested public comments for 30 days. This final rule implements the 
proposed changes and responds to public comments received on the 
proposed rule. This rule updates the location of the Commission's 
headquarters, conforms to changes made in the FOIA Improvements Act of 
2016, and streamlines how the Commission processes its FOIA requests.

II. Contents of Final Rule

    This rule finalizes updates in each section of the Commission's 
FOIA regulations. Under 25 CFR 517.1, General provisions, the 
Commission incorporates revisions providing that requests for 
information under this part may also be simultaneously processed under 
the Privacy Act regulation under 25 CFR part 515. Additionally, under 
25 CFR 517.2, Public reading room, the Commission updates its 
headquarters to its new address.
    This rule also updates certain definitions under 25 CFR 517.3 to 
conform to case law and statutory requirements. The Commission made the 
following changes:
    (1) Changed definition of `record.' The Commission revised the 
definition because the present definition of `record' is too narrow 
based on the Supreme Court's interpretation of what constitutes a 
`record' under FOIA;
    (2) Expanded `representatives of the news media' to comport with 
the FOIA's definition;

[[Page 3592]]

    (3) Updated `confidential commercial information' to be consistent 
with case law;
    (4) Updated `direct costs' to incorporate statutory and OMB 
guidelines;
    In addition, this rule updates the definition of `duplication' to 
incorporate newer technologies and references to electronic records.
    Section 517.4, Requirements for making requests, includes 
additional updates, as well. Section 517.4 updates include providing an 
electronic means of submitting FOIA requests and clarifying language 
for NIGC's search criteria. Finally, this section notifies requesters 
of their right to obtain the records they seek in their preferred form 
or format.
    This rule updates section 517.5, Responsibility for responding to 
requests, by amending the standard the Commission uses when referring 
or consulting with another federal agency by providing the Commission's 
FOIA Office with broader discretion. In addition, the present Sec.  
517.6(d) is now Sec.  517.5(c), which has been updated to remove a 
provision that suggests that requesters are required to make advance 
payments for FOIA requests. This rule also includes a modified 
provision under the new Sec.  517.5(d), presently located under 25 CFR 
517.6(e), which now defines `adverse determination' and requires the 
Commission to inform the requester of dispute resolution services. 
Finally, Sec.  517.5 now includes a new provision for `coordination', 
which is designed to protect the personal privacy interests of certain 
individuals.
    This rule incorporates several updates to Sec.  517.6, Timing of 
responses to requests. First, the Commission must now notify the 
requester of his or her right to seek dispute resolution services from 
the Office of Government Information Services, which is now consistent 
with the FOIA Improvements Act of 2016. Second, this section expands 
methods of communication to include electronic methods. Finally, this 
rule removes duplicative timeline information in this section and 
inserts requirements for expedited review that codify provisions under 
FOIA.
    Section 517.7, Confidential commercial information, is updated to 
include the requirements of Executive Order 12600, Pre-disclosure 
Notification Procedures for Confidential Commercial Information. Exec. 
Order No. 12600, 52 FR 23781 (June 23, 1987). Section 517.7(a) is 
revised to state that when a submitter provides confidential commercial 
information to the Commission, rather than solely the FOIA Officer, 
then the FOIA Officer shall provide notice of a FOIA request or 
administrative appeal encompassing the confidential commercial 
information if required to be disclosed under FOIA. Section 517.7(b) is 
amended to remove `substantial harm' as there is more than one standard 
for allowing information to be withheld under FOIA. Additionally, Sec.  
517.7(c) is amended to allow the FOIA Officer additional flexibility in 
determining whether to notify a submitter, particularly on whether or 
not other FOIA exemptions may apply to their request.
    Section 517.8, Appeals, is updated to lengthen the amount of time a 
requester has to appeal an adverse agency determination from 30 working 
days after notification to 90 days after the date of the adverse 
determination. In addition, this section is amended to include a notice 
of the availability of dispute resolution services. Section 517.8 also 
updates the methods by which the Commission accepts appeals by 
including an option for electronic submission of appeals. Finally, this 
section now includes the addition of an exhaustion requirement, stating 
that requesters must generally seek an administrative appeal prior to 
filing a complaint in federal court.
    Last, Sec.  517.9, Fees, is updated to conform to requirements of 
the FOIA Improvements Act of 2016 that restrict when agencies are 
permitted to charge fees when statutory timelines are not met. This 
section is also updated to include references to additional methods of 
duplication and a statement that the requester may select the form or 
format in which a record is provided. Section 517.9(b)(2) is amended to 
include a reference to 16% as the appropriate percentage for benefits, 
on top of the employee's basic pay, being charged for search fees. 
Additionally, Sec.  517.9(b)(2)(ii) is amended by removing language 
stating that the Commission is not required to alter or develop 
programming to conduct computer searches. Finally, this section now 
includes a reference to the Commission's debt collection regulations.

III. Responses to Comments

A. Removal of the Definition `Record'

    Commenters on the proposed rule expressed concern for the removal 
of the definition `record.' Commenters noted that the term `record' is 
used throughout the regulation and `describes what is being sought in a 
FOIA request.' Commenters also stated that federal agencies have the 
discretion to adopt their own definitions of `record,' including the 
Department of Interior. Finally, commenters suggest the Commission re-
insert its present definition of `record,' as it adequately describes 
the scope of materials that can be requested under FOIA.
    Response: The Commission agrees with commenters that a definition 
of ``record'' is needed, but disagrees that the current definition 
should be maintained because the present definition does not adequately 
encompass the Supreme Court's interpretation of `record' for the 
purposes of FOIA requests. The current regulation uses the definition 
of record from the Federal Records Act (FRA), 44 U.S.C.A. section 3301. 
However, under Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-145 
(1989), the Supreme Court construed agency records requested under FOIA 
to be (1) either created or obtained by an agency and (2) under agency 
control at the time the request is made. Although the Supreme Court's 
definition overlaps with the FRA definition, Congress created the FRA 
for record management purposes and not for purposes of providing the 
public information on public policy, as is the purpose of FOIA. Thus, 
if information is under the control of the agency, it will be subject 
to the FOIA regardless of whether it would otherwise be `appropriate 
for preservation.' See Department of Justice, FOIA Update Vol. II, No. 
1: What is an ``Agency Record?'' (January 1, 1980).
    Rather than maintain the current definition, then, the Commission 
adopts a definition of `record' that reflects these considerations.

IV. Regulatory Matters

A. Regulatory Flexibility Act

    The Commission certifies that the proposed rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The 
factual basis for this certification is as follows: This rule is 
procedural in nature and will not impose substantive requirements that 
would be considered impacts within the scope of the Act.

B. Unfunded Mandates Reform Act

    The Commission is an independent regulatory agency, and, as such, 
is exempt from the Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq.

C. Takings

    In accordance with Executive Order 12630, the Commission has 
determined that this proposed rule does not have significant takings 
implications. A takings implication assessment is not required.

[[Page 3593]]

D. Civil Justice Reform

    In accordance with Executive Order 12988, the Commission has 
determined that the rule does not unduly burden the judicial system and 
meets the requirements of sections 3(a) and 3(b)(2) of the Executive 
Order.

E. Small Business Regulatory Enforcement Fairness Act

    The proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. The proposed rule 
will not result in an annual effect on the economy of more than $100 
million per year; a major increase in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions; or significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
U.S. based enterprises.

F. Paperwork Reduction Act

    The proposed rule does not contain any information collection 
requirements for which the Office of Management and Budget approval 
under the Paperwork Reduction Act (44 U.S.C. 3501-3520) would be 
required.

G. National Environmental Policy Act

    The Commission has determined that the proposed rule does not 
constitute a major Federal Action significantly affecting the quality 
of the human environment and that no detailed statement is required 
pursuant to the National Environmental Policy Act of 1969.

H. Tribal Consultation

    The National Indian Gaming Commission is committed to fulfilling 
its tribal consultation obligations--whether directed by statute or 
administrative action such as Executive Order (E.O.) 13175 
(Consultation and Coordination with Indian Tribal Governments)--by 
adhering to the consultation framework described in its Consultation 
Policy published July 15, 2013. The NIGC's consultation policy 
specifies that it will consult with tribes on Commission Action with 
Tribal Implications, which is defined as: Any Commission regulation, 
rulemaking, policy, guidance, legislative proposal, or operational 
activity that may have a substantial direct effect on an Indian tribe 
on matters including, but not limited to the ability of an Indian tribe 
to regulate its Indian gaming; an Indian Tribe's formal relationship 
with the Commission; or the consideration of the Commission's trust 
responsibilities to Indian tribes. The changes proposed in this final 
rule do not fall into any of those categories. Many of the changes are 
required by law and those that are not are being done to improve our 
FOIA process, which affects the public in general. Accordingly, the 
Commission did not consult with tribal governments on these changes. 
The Commission, though, requested and welcomed any and all tribal 
comments to the final rule.

List of Subjects in 25 CFR Part 517

    Administrative practice and procedure, Freedom of information.


0
For the reasons set forth in the preamble, the Commission revises 25 
CFR part 517 to read as follows:

PART 517--FREEDOM OF INFORMATION ACT PROCEDURES

Sec.
517.1 General provisions.
517.2 Public reading room.
517.3 Definitions.
517.4 Requirements for making requests.
517.5 Responsibility for responding to requests.
517.6 Timing of responses to requests.
517.7 Confidential commercial information.
517.8 Appeals.
517.9 Fees.

    Authority:  5 U.S.C. 552


Sec.  517.1   General provisions.

    This part contains the regulations the National Indian Gaming 
Commission (Commission) follows in implementing the Freedom of 
Information Act (FOIA), 5 U.S.C. 552. These regulations provide 
procedures by which you may obtain access to records compiled, created, 
and maintained by the Commission, along with procedures the Commission 
must follow in response to such requests for records. These regulations 
should be read together with the FOIA, which provides additional 
information about access to records maintained by the Commission. 
Requests made by individuals for records about themselves under the 
Privacy Act of 1974, 5 U.S.C. 552(a), are processed in accordance with 
the Commission's Privacy Act regulations, 25 CFR part 515, as well as 
under this part.


Sec.  517.2   Public reading room.

    Records that are required to be maintained by the Commission shall 
be available for public inspection and copying at 90 K Street NE, Suite 
200, Washington, DC 20002. Reading room records created on or after 
November 1, 1996, shall be made available electronically via the 
Commission's website.


Sec.  517.3   Definitions.

    (a) Commercial use requester means a requester seeking information 
for a use or purpose that furthers the commercial, trade, or profit 
interests of himself or the person on whose behalf the request is made, 
which can include furthering those interests through litigation. In 
determining whether a request properly belongs in this category, the 
FOIA Officer shall determine the use to which the requester will put 
the documents requested. Where the FOIA Officer has reasonable cause to 
doubt the use to which the requester will put the records sought, or 
where that use is not clear from the request itself, the FOIA Officer 
shall contact the requester for additional clarification before 
assigning the request to a specific category.
    (b) Confidential commercial information means records or 
information provided to the government by a submitter that arguably 
contains material exempt from disclosure under Exemption 4 of the FOIA.
    (c) Direct costs mean those expenditures by the Commission actually 
incurred in searching for and duplicating (and, in the case of 
commercial use requests, reviewing) records in response to the FOIA 
request. Direct costs include the salary of the employee or employees 
performing the work (i.e., the basic rate of pay for the employee plus 
16 percent of that rate to cover benefits) and the cost of operating 
computers and other electronic equipment, such as photocopiers and 
scanners. Direct costs do not include overhead expenses, such as the 
cost of space, heating, or lighting of the facility in which the 
records are stored.
    (d) Duplication refers to the process of making a copy of a record, 
or the information contained in it, necessary to respond to a FOIA 
request. Such copies can take the form of, among other things, paper 
copy, microfilm, audio-visual materials, or electronic records (e.g., 
compact discs or USB flash drives). The copies provided shall be in a 
form that is reasonably usable by the requester.
    (e) Educational institution refers to a preschool, a public or 
private elementary school, an institute of undergraduate higher 
education, an institute of graduate higher education, an institute of 
professional education, or an institute of vocational education which 
operates a program of scholarly research. To qualify for this category, 
the requester must show that the request is authorized by and is 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.

[[Page 3594]]

    (f) Freedom of Information Act Officer means the person designated 
by the Chairman to administer the FOIA.
    (g) Non-commercial scientific institution refers to an institution 
that is not operated on a ``commercial'' basis as that term is used in 
paragraph (a) of this section, and which 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 qualify for 
this category, the requester must show that the request is authorized 
by and is 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.
    (h) Record means an agency record that is either created or 
obtained by an agency and is under agency control at the time of the 
FOIA request.
    (i) Representative of the news media means any person or entity 
that gathers information of potential interest to a segment of the 
public, uses editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. 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 that broadcast ``news'' to the public at 
large and publishers of periodicals that disseminate ``news'' and make 
their products available for purchase by or free distribution to the 
general public, including news organizations that disseminate solely on 
the internet. For a ``freelance journalist'' to be regarded as working 
for a news organization, the requester must demonstrate a solid basis 
for expecting publication through that organization, such as a 
publication contract. Absent such showing, the requester may provide 
documentation establishing the requester's past publication record. To 
qualify for this category, the requester must not be seeking the 
requested records for a commercial use. However, a request for records 
supporting a news-dissemination function shall not be considered to be 
for a commercial use.
    (j) Requester means any person, including an individual, Indian 
tribe, partnership, corporation, association, or public or private 
organization other than a Federal agency, that requests access to 
records in the possession of the Commission.
    (k) Review means the process of examining a record in response to a 
FOIA request to determine if any portion of that record may be withheld 
under one or more of the FOIA Exemptions. It also includes processing 
any record for disclosure, for example, redacting information that is 
exempt from disclosure under the FOIA. Review time includes time spent 
considering any formal objection to disclosure made by a business 
submitter under Sec.  517.7(c). Review time does not include time spent 
resolving general legal or policy issues regarding the use of FOIA 
Exemptions.
    (l) Search refers to the time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within a document and also includes 
reasonable efforts to locate and retrieve information from records 
maintained in electronic form or format. The FOIA Officer shall ensure 
that searches are conducted in the most efficient and least expensive 
manner reasonably possible.
    (m) Submitter means any person or entity who provides information 
directly or indirectly to the Commission. The term includes, but is not 
limited to, corporations, Indian tribal governments, state governments 
and foreign governments.
    (n) Working day means a Federal workday that does not include 
Saturdays, Sundays, or Federal holidays.


Sec.  517.4   Requirements for making requests.

    (a) How to make a FOIA request. Requests for records made pursuant 
to the FOIA must be in writing. Requests may be mailed, dropped off in 
person, or faxed to (202) 632-7066 (not a toll free number). Requests 
that are dropped off in person should be made at 90 K Street NE, Suite 
200, Washington, DC 20002 during the hours of 9 a.m. to 12 noon and 2 
p.m. to 5 p.m. Requests that are mailed should be sent to NIGC Attn: 
FOIA Officer, 1849 C Street NW, Mail Stop #1621, Washington, DC 20240. 
Requests may also be sent via electronic mail addressed to 
[email protected] or submitted through the Commission's website.
    (b) First person requests for records. If the requester is making a 
request for records about himself/herself, the requester must provide 
verification of identity. Verification requirements are described in 25 
CFR 515.3.
    (c) Requests for records about another individual. If the requester 
is making a request for records about another individual, the requester 
may receive greater access by submitting either a notarized 
authorization signed by that individual, a declaration made in 
compliance with the requirements set forth in 28 U.S.C. 1746 by that 
individual authorizing disclosure of the records to the requester or by 
submitting proof that the individual is deceased (for example, a copy 
of the death certificate or a copy of the obituary).
    (d) Description of records sought. Requests for records shall 
describe the records requested with as much specificity as possible to 
enable Commission employees to locate the information requested with a 
reasonable amount of effort. Whenever possible, the request should 
describe the subject matter of the records sought, the time periods in 
which the records were generated, and any tribe or tribal gaming 
facility with which they were associated. Before submitting a request, 
requesters may contact the Commission's FOIA contact or FOIA Public 
Liaison to discuss the records being sought and receive assistance 
describing the records. If after receiving a request the FOIA Officer 
determines that it does not reasonably describe the records sought, the 
FOIA Officer must inform the requester of what additional information 
is needed or why the request is otherwise insufficient. Requesters who 
are attempting to reformulate or modify such a request may discuss 
their request with the Commission's FOIA contact or FOIA Public 
Liaison. If a request does not reasonably describe the records sought, 
the agency's response to the request may be delayed.
    (e) Agreement to pay fees. Requests shall also include a statement 
indicating the maximum amount of fees the requester is willing to pay 
to obtain the requested information, or a request for a waiver or 
reduction of fees. If the requester is requesting a waiver or reduction 
of fees the requester must include justification for such waiver or 
reduction (see Sec.  517.9(c) for more information). If the request for 
a fee waiver is denied, the requester will be notified of this decision 
and advised that fees associated with the processing of the request 
will be assessed. The requester must send an acknowledgment to the FOIA 
Officer indicating his/her willingness to pay the fees. Absent such 
acknowledgment within the specified time frame, the request will be 
considered incomplete, no further work shall be done, and the request 
will be administratively closed.
    (f) Form or format of records requested. Requesters may specify 
their preferred form or format (including electronic formats) for the 
records sought. The Commission will accommodate such requests where the 
record is readily reproducible in that form or format.
    (g) Types of records not available. The FOIA does not require the 
Commission to:

[[Page 3595]]

    (1) Compile or create records solely for the purpose of satisfying 
a request for records;
    (2) Provide records not yet in existence, even if such records may 
be expected to come into existence at some future time; or
    (3) Restore records destroyed or otherwise disposed of, except that 
the FOIA Officer must notify the requester that the requested records 
have been destroyed or disposed.


Sec.  517.5   Responsibility for responding to requests.

    (a) In general. In determining which records are responsive to a 
request, the Commission ordinarily will include only records in its 
possession as of the date it begins its search for records. If any 
other date is used, the FOIA Officer shall inform the requester of that 
date.
    (b) Authority to grant or deny requests. The FOIA Officer shall 
make initial determinations either to grant or deny in whole or in part 
a request for records.
    (c) Granting of requests. When the FOIA Officer determines that the 
requested records shall be made available, the FOIA Officer shall 
notify the requester in writing and provide copies of the requested 
records in whole or in part. Records disclosed in part shall be marked 
or annotated to show the exemption applied to the withheld information 
and the amount of information withheld unless to do so would harm the 
interest protected by an applicable exemption. If a requested record 
contains exempted material along with nonexempt material, all 
reasonable segregable material shall be disclosed.
    (d) Adverse Determinations. If the FOIA Officer makes an adverse 
determination denying a request in any respect, it must notify the 
requester of that adverse determination in writing. Adverse 
determinations include decisions that: The requested record is exempt 
from release, in whole or in part; the request does not reasonably 
describe the records sought; the information requested is not a record 
subject to the FOIA; the requested record does not exist, cannot be 
located, or has been destroyed; or the requested record is not readily 
reproducible in the form or format sought by the requester; denials 
involving fees or fee waiver matters; and denials of requests for 
expedited processing.
    (e) Content of adverse determination. Any adverse determination 
issued by the FOIA Officer must include:
    (1) A brief statement of the reasons for the adverse determination, 
including any FOIA exemption applied by the agency in denying access to 
a record unless to do so would harm the interest protected by an 
applicable exemption;
    (2) An estimate of the volume of any records or information 
withheld, such as the number of pages or other reasonable form of 
estimation, although such an estimate is not required if the volume is 
otherwise indicated by deletions marked on records that are disclosed 
in part or if providing an estimate would harm an interest protected by 
an applicable exemption;
    (3) A statement that the adverse determination may be appealed 
under Sec.  517.8 of this part and a description of the appeal 
requirements; and
    (4) A statement notifying the requester of the assistance available 
from the Commission's FOIA Public Liaison and the dispute resolution 
services offered by the Office of Government Information Services.
    (f) Consultation, referral, and coordination. When reviewing 
records located in response to a request, the FOIA Officer will 
determine whether another agency of the Federal Government is better 
able to determine whether the record is exempt from disclosure under 
the FOIA. As to any record determined to be better suited for review by 
another Federal Government agency, the FOIA Officer must proceed in one 
of the following ways.
    (1) Consultation. When records originating with the Commission 
contain information of interest to another Federal Government agency, 
the FOIA Officer should typically consult with that other entity prior 
to making a release determination.
    (2) Referral. (i) When the FOIA Officer believes that a different 
Federal Government agency is best able to determine whether to disclose 
the record, the FOIA Officer should typically refer the responsibility 
for responding to the request regarding that record to that agency. 
Ordinarily, the agency that originated the record is presumed to be the 
best agency to make the disclosure determination. If the Commission and 
another Federal Government agency jointly agree that the agency 
processing the request is in the best position to respond regarding the 
record, then the record may be handled as a consultation.
    (ii) Whenever the FOIA Officer refers any part of the 
responsibility for responding to a request to another agency, he or she 
must document the referral, maintain a copy of the record that it 
refers, and notify the requester of the referral.
    (iii) After the FOIA Officer refers a record to another Federal 
Government agency, the agency receiving the referral shall make a 
disclosure determination and respond directly to the requester. The 
referral of a record is not an adverse determination and no appeal 
rights accrue to the requester by this act.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the agency to which the 
referral would be made could harm an interest protected by an 
applicable exemption, such as the exemptions that protect personal 
privacy interests. For example, if the FOIA Officer in responding to a 
request for records on a living third party locates records originating 
with a criminal law enforcement agency, and if the existence of that 
law enforcement interest in the third party was not publicly known, 
then to disclose that law enforcement interest could cause an 
unwarranted invasion of the personal privacy of the third party. In 
such instances, in order to avoid harm to an interest protected by an 
applicable exemption, the FOIA Officer should coordinate with the 
originating agency to obtain its views on whether the record may be 
disclosed. The FOIA Officer should then convey the determination as to 
whether the record will be released to the requester.


Sec.  517.6   Timing of responses to requests.

    (a) In general. The FOIA Officer ordinarily shall respond to 
requests according to their order of receipt. All statutory and 
regulatory timelines will commence on the date that the request is 
received by the Commission's Headquarters FOIA Office that is 
designated to receive requests in Sec.  517.4(a). In instances of 
requests misdirected to Commission field offices, the response time 
will commence on the date that the request is received by the 
Commission's Headquarters FOIA Office, but in any event no later than 
10 working days after the request is first received by any Commission 
office.
    (b) Multitrack processing. (1) The FOIA Officer may use multi-track 
processing in responding to requests. Multi-track processing means 
placing simple requests requiring rather limited review in one 
processing track and placing more voluminous and complex requests in 
one or more other tracks. Requests in either track are processed on a 
first-in/first-out basis.
    (2) The FOIA Officer may provide requesters in its slower track(s) 
with an opportunity to limit the scope of their requests in order to 
qualify for faster processing within the specified limits of faster 
track(s). The FOIA Officer will do so either by contacting the 
requester by letter, telephone, electronic mail, or facsimile whichever 
is more efficient in

[[Page 3596]]

each case. When providing a requester with the opportunity to limit the 
scope of their request, the FOIA Officer shall also advise the 
requester of the availability of the Commission's FOIA Public Liaison 
to aid in the resolution of any dispute arising between the requester 
and the Commission as well as the requester's right to seek dispute 
resolution services from the Office of Government Information Services.
    (c) Initial determinations. (1) The FOIA Officer shall make an 
initial determination regarding access to the requested information and 
notify the requester within twenty (20) working days after receipt of 
the request. This 20 day period may be extended if unusual 
circumstances arise. If an extension is necessary, the FOIA Officer 
shall promptly notify the requester of the extension, briefly stating 
the reasons for the extension, and estimating when the FOIA Officer 
will respond. Unusual circumstances warranting extension are:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of records which are demanded in a single request; or
    (iii) The need for consultation with another agency having a 
substantial interest in the determination of the request, which 
consultation shall be conducted with all practicable speed.
    (2) If the FOIA Officer decides that an initial determination 
cannot be reached within the time limits specified in paragraph (c)(1) 
of this section, the FOIA Officer shall notify the requester of the 
reasons for the delay and include an estimate of when a determination 
will be made. The requester will then have the opportunity to modify 
the request or arrange for an alternative time frame for completion of 
the request. To assist in this process, the FOIA Officer shall advise 
the requester of the availability of the Commission's FOIA Public 
Liaison to aid in the resolution of any disputes between the requester 
and the Commission, and notify the requester of his or her right to 
seek dispute resolution services from the Office of Government 
Information Services.
    (3) If no initial determination has been made at the end of the 20 
day period provided for in paragraph (c)(1) of this section, including 
any extension, the requester may appeal the action to the FOIA Appeals 
Officer.
    (d) Expedited processing of request. (1) A requester may make a 
request for expedited processing at any time.
    (2) When a request for expedited processing is received, the FOIA 
Officer must determine whether to grant the request for expedited 
processing within ten (10) calendar days of its receipt. Requests will 
receive expedited processing if one of the following compelling needs 
is met:
    (i) The requester can establish that failure to receive the records 
quickly could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual; or
    (ii) The requester is primarily engaged in disseminating 
information and can demonstrate that an urgency to inform the public 
concerning actual or alleged Federal Government activity exists.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. As a matter of 
administrative discretion, the FOIA Officer may waive the formal 
certification requirement.
    (4) Administrative appeals of denials of expedited processing will 
be given expeditious consideration. If the denial of expedited 
processing is upheld by the FOIA Appeals Officer, that decision is 
immediately subject to judicial review in the appropriate Federal 
district court.


Sec.  517.7   Confidential commercial information.

    (a) Notice to submitters. The FOIA Officer shall, to the extent 
permitted by law, provide a submitter who provides confidential 
commercial information to the Commission, with prompt notice of a FOIA 
request or administrative appeal encompassing the confidential 
commercial information if the Commission may be required to disclose 
the information under the FOIA. Such notice shall either describe the 
exact nature of the information requested or provide copies of the 
records or portions thereof containing the confidential commercial 
information. The FOIA Officer shall also notify the requester that 
notice and opportunity to object has been given to the submitter.
    (b) Where notice is required. Notice shall be given to a submitter 
when:
    (1) The information has been designated by the submitter as 
confidential commercial information protected from disclosure. 
Submitters of confidential commercial information shall use good faith 
efforts to designate, either at the time of submission or a reasonable 
time thereafter, those portions of their submissions they deem 
protected from disclosure under Exemption 4 of the FOIA. Such 
designation shall be deemed to have expired ten years after the date of 
submission, unless the requester provides reasonable justification for 
a designation period of greater duration; or
    (2) The FOIA Officer has reason to believe that the information may 
be protected from disclosure under Exemption 4 of the FOIA.
    (c) Where notice is discretionary. If the FOIA Officer has reason 
to believe that information submitted to the Commission may be 
protected from disclosure under any other exemption of the FOIA, the 
FOIA Officer may, in his or her discretion, provide the submitter with 
notice and an opportunity to object to the release of that information.
    (d) Opportunity to object to disclosure. The FOIA Officer shall 
afford a submitter a reasonable period of time to provide the FOIA 
Officer with a detailed written statement of any objection to 
disclosure. The statement shall specify all grounds for withholding any 
of the information under any exemption of the FOIA, and if Exemption 4 
applies, shall demonstrate the reasons the submitter believes the 
information to be confidential commercial information that is exempt 
from disclosure. Whenever possible, the submitter's claim of 
confidentiality shall be supported by a statement or certification by 
an officer or authorized representative of the submitter. In the event 
a submitter fails to respond to the notice in the time specified, the 
submitter will be considered to have no objection to the disclosure of 
the information. Information provided by the submitter that is received 
after the disclosure decision has been made will not be considered. 
Information provided by a submitter pursuant to this paragraph may 
itself be subject to disclosure under the FOIA.
    (e) Notice of intent to disclose. The FOIA Officer shall carefully 
consider a submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose the information 
requested. Whenever the FOIA Officer determines that disclosure is 
appropriate, the FOIA Officer shall, within a reasonable number of days 
prior to disclosure, provide the submitter with written notice of the 
intent to disclose which shall include a statement of the reasons for 
which the submitter's objections were overruled, a description of the 
information to be disclosed, and a specific disclosure date. The FOIA 
Officer shall also notify the requester that the requested records will 
be made available.
    (f) Notice of lawsuit. If the requester files a lawsuit seeking to 
compel disclosure of confidential commercial

[[Page 3597]]

information, the FOIA Officer shall promptly notify the submitter of 
this action. If a submitter files a lawsuit seeking to prevent 
disclosure of confidential commercial information, the FOIA Officer 
shall notify the requester.
    (g) Exceptions to the notice requirements under this section. The 
notice requirements under paragraphs (a) and (b) of this section shall 
not apply if:
    (1) The FOIA Officer determines that the information should not be 
disclosed pursuant to Exemption 4 and/or any other exemption of the 
FOIA;
    (2) The information lawfully has been published or officially made 
available to the public;
    (3) Disclosure of the information is required by law (other than 
the FOIA);
    (4) The information requested is not designated by the submitter as 
exempt from disclosure in accordance with this part, when the submitter 
had the opportunity to do so at the time of submission of the 
information or within a reasonable time thereafter, unless the agency 
has substantial reason to believe that disclosure of the information 
would result in competitive harm; or
    (5) The designation made by the submitter in accordance with this 
part appears obviously frivolous. When the FOIA Officer determines that 
a submitter was frivolous in designating information as confidential, 
the FOIA Officer must provide the submitter with written notice of any 
final administrative disclosure determination within a reasonable 
number of days prior to the specified disclosure date, but no 
opportunity to object to disclosure will be offered.


Sec.  517.8   Appeals.

    (a) Right of appeal. The requester has the right to appeal to the 
FOIA Appeals Officer any adverse determination.
    (b) Notice of Appeal--(1) Time for appeal. To be considered timely, 
an appeal must be postmarked, or in the case of electronic submissions, 
transmitted, no later than ninety (90) calendar days after the date of 
the response or after the time limit for response by the FOIA Officer 
has expired. Prior to submitting an appeal any outstanding fees 
associated with FOIA requests must be paid in full.
    (2) Form of appeal. An appeal shall be initiated by filing a 
written notice of appeal. The notice shall be accompanied by copies of 
the original request and adverse determination. To expedite the 
appellate process and give the requester an opportunity to present his/
her arguments, the notice should contain a brief statement of the 
reasons why the requester believes the adverse determination to have 
been in error. Requesters may submit appeals by mail, facsimile, or 
electronically. Appeals sent by mail shall be addressed to the National 
Indian Gaming Commission, Attn: FOIA Appeals Officer, 1849 C Street NW, 
Mailstop #1621, Washington, DC 20240. Appeals may also be submitted via 
electronic mail at [email protected] or through the NIGC's website. 
To facilitate handling, the requester should mark both the appeal 
letter and envelope, or subject line of the electronic transmission 
``Freedom of Information Act Appeal.''
    (c) Final agency determinations. The FOIA Appeals Officer shall 
issue a final written determination, stating the basis for its 
decision, within twenty (20) working days after receipt of a notice of 
appeal. If the determination is to provide access to the requested 
records, the FOIA Officer shall make those records immediately 
available to the requester. If the determination upholds the adverse 
determination, the FOIA Appeals Officer shall notify the requester of 
the determination, the ability to obtain mediation services offered by 
the Office of Government Information Services as a non-exclusive 
alternative to litigation, and the right to obtain judicial review in 
the appropriate Federal district court.
    (d) When appeal is required. Before seeking review by a court of 
the FOIA Officer's adverse determination, a requester generally must 
first submit a timely administrative appeal.


Sec.  517.9   Fees.

    (a) In general. Fees pursuant to the FOIA shall be assessed 
according to the schedule contained in paragraph (b) of this section 
for services rendered by the Commission in response to requests for 
records under this part. All fees shall be charged to the requester, 
except where the charging of fees is limited under paragraph (d) or (e) 
of this section or where a waiver or reduction of fees is granted under 
paragraph (c) of this section. Payment of fees should be by check or 
money order made payable to the Treasury of the United States.
    (b) Charges for responding to FOIA requests. The following fees 
shall be assessed in responding to requests for records submitted under 
this part, unless a waiver or reduction of fees has been granted 
pursuant to paragraph (c) of this section:
    (1) Duplication. The FOIA Officer will honor a requester's 
preference for receiving a record in a particular form or format where 
he or she can readily reproduce the record in the form or format 
requested. When photocopies are supplied, the FOIA Officer shall charge 
$0.15 per page for copies of documents up to 8\1/2\ x 14. For copies of 
records produced on tapes, compact discs, or other media, the FOIA 
Officer shall charge the direct costs of producing the copy, including 
operator time. Where paper documents must be scanned in order to comply 
with a requester's preference to receive the records in electronic 
format, the requester must also pay the direct costs associated with 
scanning those materials. For other methods of reproduction, the FOIA 
Officer shall charge the actual direct costs of producing the 
documents.
    (2) Searches--(i) Manual searches. Whenever feasible, the FOIA 
Officer will charge at the salary rate (basic pay plus 16% percent for 
benefits) of the employee or employees performing the search. However, 
where a homogenous class of personnel is used exclusively in a search 
(e.g., all administrative/clerical or all professional/executive), the 
FOIA Officer shall charge $4.45 per quarter hour for clerical time and 
$7.75 per quarter hour for professional time. Charges for search time 
less than a full hour will be in increments of quarter hours.
    (ii) Computer searches. The FOIA Officer will charge the actual 
direct costs of conducting computer searches. These direct costs shall 
include the cost of operating the central processing unit for that 
portion of operating time that is directly attributable to searching 
for requested records, as well as the costs of operator/programmer 
salary apportionable to the search. For requests that require the 
creation of a new computer program to locate requested records, the 
Commission will charge the direct costs associated with such program's 
creation. The FOIA Officer must notify the requester of the costs 
associated with creating such a program, and the requester must agree 
to pay the associated costs before the costs may be incurred.
    (3) Review fees. Review fees shall be assessed only with respect to 
those requesters who seek records for a commercial use under paragraph 
(d)(1) of this section. Review fees shall be assessed at the same rates 
as those listed under paragraph (b)(2)(i) of this section. Review fees 
shall be assessed only for the initial record review, for example, 
review undertaken when the FOIA Officer analyzes the applicability of a 
particular exemption to a particular record or portion thereof at the 
initial request level. No charge shall be assessed at the 
administrative appeal level of an exemption already applied.
    (c) Statutory waiver. Documents shall be furnished without charge 
or at a

[[Page 3598]]

charge below that listed in paragraph (b) of this section where it is 
determined, based upon information provided by a requester or otherwise 
made known to the FOIA Officer, that disclosure of the requested 
information is in the public interest. Disclosure is in the public 
interest if it is likely to contribute significantly to public 
understanding of government operations and is not primarily for 
commercial purposes. Requests for a waiver or reduction of fees shall 
be considered on a case by case basis. In order to determine whether 
the fee waiver requirement is met, the FOIA Officer shall consider the 
following six factors:
    (1) The subject of the request. Whether the subject of the 
requested records concerns the operations or activities of the 
government;
    (2) The informative value of the information to be disclosed. 
Whether the disclosure is likely to contribute to an understanding of 
government operations or activities;
    (3) The contribution to an understanding of the subject by the 
general public likely to result from disclosure. Whether disclosure of 
the requested information will contribute to public understanding;
    (4) The significance of the contribution to public understanding. 
Whether the disclosure is likely to contribute significantly to public 
understanding of government operations or activities;
    (5) The existence and magnitude of commercial interest. Whether the 
requester has a commercial interest that would be furthered by the 
requested disclosure; and, if so
    (6) The primary interest in disclosure. Whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large, in comparison with the public interest in disclosure, that 
disclosure is primarily in the commercial interest of the requester.
    (d) Types of requesters. There are four categories of FOIA 
requesters: Commercial use requesters, educational and non-commercial 
scientific institutional requesters; representative of the news media; 
and all other requesters. These terms are defined in Sec.  517.3. The 
following specific levels of fees are prescribed for each of these 
categories:
    (1) Commercial use requesters. The FOIA Officer shall charge 
commercial use requesters the full direct costs of searching for, 
reviewing, and duplicating requested records.
    (2) Educational and non-commercial scientific institutions 
requesters. The FOIA Officer shall charge educational and non-
commercial scientific institution requesters for document duplication 
only, except that the first 100 pages of copies shall be provided 
without charge.
    (3) News media requesters. The FOIA Officer shall charge news media 
requesters for document duplication costs only, except that the first 
100 pages of paper copies shall be provided without charge.
    (4) All other requesters. The FOIA Officer shall charge requesters 
who do not fall into any of the categories in paragraphs (d)(1) through 
(3) of this section fees which cover the full reasonable direct costs 
incurred for searching for and reproducing records if that total costs 
exceeds $15.00, except that the first 100 pages and the first two hours 
of manual search time shall not be charged. To apply this term to 
computer searches, the FOIA Officer shall determine the total hourly 
cost of operating the central processing unit and the operator's salary 
(plus 16 percent for benefits). When the cost of the search equals the 
equivalent dollar amount of two hours of the salary of the person 
performing the search, the FOIA Officer will begin assessing charges 
for the computer search.
    (e) Restrictions on charging fees. (1) Ordinarily, no charges will 
be assessed when requested records are not found or when records 
located are withheld as exempt. However, if the requester has been 
notified of the estimated cost of the search time and has been advised 
specifically that the requested records may not exist or may be 
withheld as exempt, fees may be charged.
    (2) If the Commission fails to comply with the FOIA's time limits 
for responding to a request, it may not charge search fees or, in cases 
where records are not sought for commercial use and the request is made 
by an educational institution, non-commercial scientific institution, 
or representative of the news media, duplication fees, except as 
described in paragraphs (e)(2)(i)-(iii) of this section.
    (i) If the FOIA Officer determines that unusual circumstances, as 
defined by the FOIA, apply and provides timely written notice to the 
requester in accordance with the FOIA, then a failure to comply with 
the statutory time limit shall be excused for an additional 10 days.
    (ii) If the FOIA Officer determines that unusual circumstances, as 
defined by the FOIA, apply and more than 5,000 pages are necessary to 
respond to the request, then the Commission may charge search fees and 
duplication fees, where applicable, if the following steps are taken. 
The FOIA Officer must:
    (A) Provide timely written notice of unusual circumstances to the 
requester in accordance with the FOIA and
    (B) Discuss with the requester via written mail, email, or 
telephone (or made not less than three good-faith attempts to do so) 
how the requester could effectively limit the scope of the request in 
accordance with 5 U.S.C. 552(a)(6)(B)(ii).
    (iii) If a court determines that exceptional circumstances exist, 
as defined by the FOIA, then a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (f) Charges for interest. The FOIA Officer may assess interest 
charges on an unpaid bill, accrued under previous FOIA request(s), 
starting the 31st day following the day on which the bill was sent to 
you. A fee received by the FOIA Officer, even if not processed will 
result in a stay of the accrual of interest. The Commission shall 
follow the provisions of the Debt Collection Act of 1982, as amended, 
its implementing procedures, and the Commission's debt collection 
regulations located in 25 CFR part 513 to recover any indebtedness owed 
to the Commission.
    (g) Aggregating requests. The requester or a group of requesters 
may not submit multiple requests at the same time, each seeking 
portions of a document or documents solely in order to avoid payment of 
fees. When the FOIA Officer reasonably believes that a requester is 
attempting to divide a request into a series of requests to evade an 
assessment of fees, the FOIA Officer may aggregate such request and 
charge accordingly.
    (h) Advance payment of fees. Fees may be paid upon provision of the 
requested records, except that payment may be required prior to that 
time if the requester has previously failed to pay fees or if the FOIA 
Officer determines that total fee will exceed $250.00. When payment is 
required in advance of the processing of a request, the time limits 
prescribed in Sec.  517.6 shall not be deemed to begin until the FOIA 
Officer has received payment of the assessed fee.
    (i) Payment of fees. Where it is anticipated that the cost of 
providing the requested record will exceed $25.00 after the free 
duplication and search time has been calculated, and the requester has 
not indicated in advance a willingness to pay a fee greater than 
$25.00, the FOIA Officer shall promptly notify the requester of the 
amount of the anticipated fee or a portion thereof, which can readily 
be estimated. The notification shall offer the requester an opportunity 
to confer with agency

[[Page 3599]]

representatives for the purpose of reformulating the request so as to 
meet the requester's needs at a reduced cost.

    Dated: January 12, 2018.
Jonodev O. Chaudhuri,
Chairman.
Kathryn Isom-Clause,
Vice Chair.
E. Sequoyah Simermeyer,
Associate Commissioner.
[FR Doc. 2018-01433 Filed 1-25-18; 8:45 am]
 BILLING CODE 7565-01-P