60470 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Proposed Rules 

20. Add a new undesignated centered 

heading and § 416.1870 to read as 

follows: 

Who Is Considered a Student for 

Purposes of the Student Earned Income 

Exclusion 

§ 416.1870 Effect of being considered a 

student. 

If we consider you to be a student, we 

will not count all of your earned income 

when we determine your SSI eligibility 

and benefit amount. If you are an 

ineligible spouse, ineligible parent or an 

essential person for deeming purposes 

and we consider you to be a student, we 

will not count all of your income when 

we determine how much of your income 

to deem. Section 416.1110 tells what we 

mean by earned income. Section 

416.1112(c)(3) tells how much of your 

earned income we will not count. 

Section 416.1161(a)(27) explains how 

the student earned income exclusion 

applies to deemors. 

21. Add a new § 416.1872 to read as 

follows: 

§ 416.1872 Who is considered a student. 

We consider you to be a student if you 

are under 22 years old and you regularly 

attend school or college or training that 

is designed to prepare you for a paying 

job as described in § 416.1861(a) 

through (e). 

22. Add a new § 416.1874 to read as 

follows: 

§ 416.1874 When we need evidence that 

you are a student. 

We need evidence that you are a 

student if you are under age 22 and you 

expect to earn over $65 in any month. 

Section 416.1861(g) explains what 

evidence we need. 

[FR Doc. 05–20803 Filed 10–17–05; 8:45 am] 

BILLING CODE 4191–02–P 

DEPARTMENT OF THE INTERIOR 

National Indian Gaming Commission 

25 CFR Part 517 

RIN 3141–AA21 

Freedom of Information Act 

Procedures 

AGENCY: National Indian Gaming 

Commission, Interior. 

ACTION: Proposed rule. 

SUMMARY: The purpose of this document 

is to propose to amend the procedures 

followed by the National Indian Gaming 

Commission (Commission) when 

processing a request under the Freedom 

of Information Act (FOIA), as amended 

so that the Commission will be in 

compliance with the provisions of the 

amendment. 

DATES: Written comments on this 

proposed rule must be received by 

November 17, 2005. 

ADDRESSES: Comment may be mailed to 

the National Indian Gaming 

Commission, FOIA Officer, 1441 L 

Street, NW., Suite 9100, Washington, 

DC 20005, delivered to that address 

between 8:30 a.m. and 5:30 p.m., 

Monday through Friday, or faxed to 

(202) 632–7066 (this is not a toll free 

number). Comments may be inspected 

between 9 a.m. and noon and between 

2 p.m. and 5 p.m., Monday through 

Friday, at the above address. 

FOR FURTHER INFORMATION CONTACT: 

Jeannie McCoy at (202) 632–7003 or by 

fax (202) 632–7066 (these numbers are 

not toll free). 

SUPPLEMENTARY INFORMATION: The 

Indian Gaming Regulatory Act (IGRA), 

enacted on October 17, 1988, 

established the National Indian Gaming 

Commission (Commission). Congress 

enacted the FOIA in 1966 and last 

modified it with the Electronic Freedom 

of Information Act Amendments of 

1996. This amendment addresses FOIA 

reading rooms and those documents 

available electronically, agency backlogs 

of requests, change in fees, and 

preservation of records among other 

things. The proposed changes will bring 

the Commission in compliance with the 

FOIA, as amended. 

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 

could be deemed impacts within the 

scope of the Act. For this reason, the 

Commission has concluded that the 

proposed rule will not have a significant 

impact on those small entities subject to 

the rule. 

Unfunded Mandates Reform Act: The 

Commission is an independent 

regulatory agency, and, as such, is not 

subject to the Unfunded Mandates 

Reform Act. Even so, the Commission 

has determined that this final rule does 

not impose an unfunded mandate on 

State, local, or tribal governments, or on 

the private sector, of more than $100 

million per year. Thus, it is not a 

‘‘significant regulatory action’’ under 

the Unfunded Mandates Reform Act, 2 

U.S.C. 1501 et seq. Furthermore, this 

proposal will not have a unique effect 

on tribal governments. 

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. 

Paperwork Reduction Act: The 

proposed rule does not contain any 

information collection requirements for 

which OMB approval under the 

Paperwork Reduction Act (44 U.S.C. 

3501–3520) would be required. 

National Environmental Policy Act: 

The Commission has determined that 

this 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. 

Dated: October 7, 2005. 

Philip N. Hogen, 

Chairman, National Indian Gaming 

Commission. 

List of Subjects in 25 CFR Part 517 

Freedom of information. 

Accordingly for the reasons set forth 

above, 25 CFR part 517 is proposed to 

be revised 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. 

The authority citation continues to 

read as follows: 

Authority: 5 U.S.C. 552, as amended. 

§ 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) as amended. These 

regulations provide procedures by 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Proposed Rules 60471 

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. 

§ 517.2 Public Reading Room. 

Records that are required to be 

maintained by the Commission shall be 

available for public inspection and 

copying at 1441 L Street, NW., Suite 

9100 Washington, DC. Reading room 

records created on or after November 1, 

1996, shall be made available 

electronically via the Web site. 

§ 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 provided to 

the government by a submitter that 

arguably contains material exempt from 

disclosure under Exemption 4 of the 

FOIA, because disclosure could 

reasonably be expected to cause 

substantial competitive harm. 

(c) Direct costs mean those 

expenditures by the Commission 

actually incurred in searching for and 

duplicating records in response to the 

FOIA request. Direct costs include the 

salary of the employee or employees 

performing the work (the basic rate of 

pay for the employee plus a percentage 

of that rate to cover benefits) and the 

cost of operating duplicating machinery. 

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 document necessary 

to fulfill the FOIA request. Such copies 

can take the form of, among other 

things, paper copy, microfilm, audiovisual materials, or machine readable 

documentation. 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 or secondary 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. 

(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 all books, papers, 

maps, photographs, machine readable 

materials, or other documentary 

materials, regardless of physical form or 

characteristics, made or received by the 

Commission under Federal law or in 

connection with the transaction of 

public business and preserved or 

appropriate for preservation by the 

Commission or its legitimate successor 

as evidence of the organization, 

functions, policies, decisions, 

procedures, operations, or other 

activities of the Government or because 

of the informational value of data in 

them. Library and museum material 

made or acquired and preserved solely 

for reference or exhibition purposes, 

extra copies of documents preserved 

only for convenience of reference, and 

stocks of publications and of processed 

documents are not included. 

(i) Representative of the news media 

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. 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 newsdissemination 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 § 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. 

§ 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 

should be sent to the National Indian 

Gaming Commission, Attn: FOIA 

Officer, 1441 L Street, NW., Suite 9100, 

Washington, DC 20005. Requests may be 

mailed, dropped off in person, or faxed 

to (202) 632–7066 (not a toll free 

number). If the requester is making a 

60472 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Proposed Rules 

request for records about himself/ 

herself, the requester should see 25 CFR 

515.3 for additional information. If the 

requester is making a request for records 

about another individual, the requester 

must provide either a written 

authorization signed by that individual 

authorizing disclosure of the records to 

the requester or provide proof that the 

individual is deceased (for example, a 

copy of the death certificate or a copy 

of the obituary). 

(b) 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. 

(c) 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 § 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. 

(d) Types of records not available. 

The FOIA does not require the 

Commission to: 

(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. 

§ 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) Consultations and referrals. (1) 

When a requested record has been 

created by another Federal Government 

agency that record shall be referred to 

the originating agency for direct 

response to the requester. The requester 

shall be informed of the referral. As this 

is not a denial of a FOIA request, no 

appeal rights accrue to the requester. 

(2) When a requested record is 

identified as containing information 

originating with another Federal 

Government agency, the record shall be 

referred to the originating agency for 

review and recommendation on 

disclosure. 

§ 517.6 Timing of responses to requests. 

(a) In general. The FOIA Officer 

ordinarily shall respond to requests 

according to their order of receipt. 

(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. 

Request 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 or telephone, whichever is more 

efficient in each case. 

(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. 

(3) If the FOIA Officer has a 

reasonable basis to conclude that a 

requester or group of requesters has 

divided a request into a series of 

requests on a single subject or related 

subjects to avoid fees, the requests may 

be aggregated and fees charged 

accordingly. Multiple requests involving 

unrelated matters will not be aggregated. 

(4) If no initial determination has 

been made at the end of the 20 day 

period provided for in paragraph (a)(1) 

of this section, including any extension, 

the requester may appeal the action to 

the FOIA Appeals Officer. 

(5) If the FOIA Officer determines that 

another agency is responsible for the 

records, the FOIA Officer shall refer 

such records to the appropriate agency 

for direct response to the requester. The 

FOIA Officer shall inform the requester 

of the referral and of the name and 

address of the agency or agencies to 

which the request has been referred. 

(d) 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 once any fees charged under 

§ 517.9 have been paid in full. 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. 

(e) Denial of requests. When the FOIA 

Officer determines that access to 

requested records should be denied, the 

FOIA Officer shall notify the requester 

of the denial, the grounds for the denial, 

and the procedures for appeal of the 

denial. 

(f) Expedited processing of request. 

The FOIA Officer must determine 

whether to grant the request for 

expedited processing within (10) 

calendar days of its receipt. Requests 

will receive expedited processing if one 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Proposed Rules 60473 

of the following compelling needs is 

met: 

(1) 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 

(2) 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. 

§ 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 FOIA Officer, 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 an 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 because 

disclosure could reasonably be expected 

to cause substantial competitive harm. 

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) 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. 

(d) 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. 

(e) Notice of lawsuit. If the requester 

files a lawsuit seeking to compel 

disclosure of confidential commercial 

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. 

(f) 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. 

§ 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. An appeal must be received no 

later than thirty (30) working days after 

notification of denial of access 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 initial denial. 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 initial 

denial to have been in error. The appeal 

shall be addressed to the National 

Indian Gaming Commission, Attn: FOIA 

Appeals Officer, 1441 L Street, NW., 

Suite 9100, Washington, DC 20005. 

(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 denial of access to the requested 

records, the FOIA Appeals Officer shall 

notify the requester of the determination 

and his/her right to obtain judicial 

review in the appropriate Federal 

district court. 

§ 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 

60474 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Proposed Rules 

the charging of fees is limited under 

paragraph (d) 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) Copies. The FOIA Officer shall 

charge $0.15 per page for copies of 

documents up to 8 1⁄2 × 14. For copies 

prepared by computer, the FOIA Officer 

will charge actual costs of production of 

the computer printouts, including 

operator time. For other methods of 

reproduction, the FOIA Officer shall 

charge the actual costs of producing the 

documents. 

(2) Searches. (i) Manual searches. 

Whenever feasible, the FOIA Officer 

will charge at the salary rate (basic pay 

plus a 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. The 

Commission is not required to alter or 

develop programming to conduct 

searches. 

(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 

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 

§ 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 institution 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 recover 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) Charges for unsuccessful searches. 

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. 

(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, and the 

implementing procedures 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. 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Proposed Rules 60475 

(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 

the 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 

representatives for the purpose of 

reformulating the request so as to meet 

the requester’s needs at a reduced cost. 

[FR Doc. 05–20624 Filed 10–17–05; 8:45 am] 

BILLING CODE 7565–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Parts 1 and 301 

[REG–114371–05] 

RIN 1545–BE43 

Disregarded Entities; Employment and 

Excise Taxes 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: This document contains 

proposed regulations under which 

qualified subchapter S subsidiaries and 

single-owner eligible entities that 

currently are disregarded as entities 

separate from their owners for federal 

tax purposes would be treated as 

separate entities for employment tax 

and related reporting requirement 

purposes. These regulations also 

propose to treat such disregarded 

entities as separate entities for purposes 

of certain excise taxes reported on 

Forms 720, 730, 2290, and 11–C; excise 

tax refunds or payments claimed on 

Form 8849; and excise tax registrations 

on Form 637. These proposed 

regulations would affect disregarded 

entities and the owners and employees 

of disregarded entities in the payment 

and reporting of federal employment 

taxes. These regulations also would 

affect disregarded entities and their 

owners in the payment and reporting of 

certain Federal excise taxes and in 

registration and claims related to certain 

Federal excise taxes. 

DATES: Written or electronic comments 

and requests for a public hearing must 

be received by January 17, 2006. 

ADDRESSES: Send submissions to: 

CC:PA:LPD:PR (REG–114371–05), room 

5203, Internal Revenue Service, P.O. 

Box 7604, Ben Franklin Station, 

Washington, DC 20044. Submissions 

may be hand delivered Monday through 

Friday between the hours of 8 a.m. and 

4 p.m. to: CC:PA:LPD:PR (REG–114371–

05), Courier’s Desk, Internal Revenue 

Service, 1111 Constitution Avenue NW., 

Washington, DC. Alternatively, 

taxpayers may submit electronic 

comments directly to the IRS Internet 

site at http://www.irs.gov/regs or via the 

Federal eRulemaking Portal at http:// 

www.regulations.gov (IRS and REG–

114371–05). 

FOR FURTHER INFORMATION CONTACT: 

Concerning the proposed regulations, 

John Richards at (202) 622–6040 (on the 

employment tax provisions) or Susan 

Athy at (202) 622–3130 (on the excise 

tax provisions); concerning the 

submission of comments or requests for 

a hearing, Robin Jones at (202) 622–7180 

(not toll-free numbers). 

SUPPLEMENTARY INFORMATION: 

Background 

1. Disregarded Entities 

Under the Internal Revenue Code 

(Code) and its regulations, qualified 

subchapter S subsidiaries (QSubs) 

(under section 1361(b)(3)(B)) and certain 

single-owner eligible entities (under 

§§ 301.7701–1 through 301.7701–3 of 

the Procedure and Administration 

Regulations) are disregarded as entities 

separate from their owners 

(‘‘disregarded entities’’). The 

disregarded entity rules of section 

1361(b)(3)(A) and §§ 301.7701–1 

through 301.7701–3 apply for all 

purposes of the Code, including 

employment and excise taxes. 

2. Employment Taxes 

Employers are required to deduct and 

withhold income and Federal Insurance 

Contributions Act (FICA) taxes from 

their employees’ wages under sections 

3402(a) and 3102(a), and are separately 

liable for their share of FICA taxes as 

well as for Federal Unemployment Tax 

Act (FUTA) taxes under sections 3111 

and 3301 (the withholding, FICA and 

FUTA taxes are collectively referred to 

herein as employment taxes). Sections 

3403, 3102(b), 3111, and 3301 provide 

that the employer is the person liable for 

the withholding and payment of 

employment taxes. In addition, the 

employer is required to make timely tax 

deposits, file employment tax returns, 

and issue wage statements (Forms W–2) 

to employees (collectively, other 

employment tax obligations). An 

employer is generally defined as the 

person for whom an individual 

performs services as an employee. 

Sections 3401(d), 3121(d), and 3306(a). 

Because a disregarded entity is not 

recognized for Federal tax purposes, the 

owner of the disregarded entity is 

treated as the employer for purposes of 

employment tax liabilities and all other 

employment tax obligations related to 

wages paid to employees performing 

services for the disregarded entity. 

If an entity is disregarded for Federal 

tax purposes under section 

1361(b)(3)(A) or §§ 301.7701–1 through 

301.7701–3, Notice 99–6 (1999–1 C.B. 

321) provides that employment taxes 

and other employment tax obligations 

with respect to employees performing 

services for the disregarded entity may 

be satisfied in one of two ways: (1) 

Calculation and payment of all 

employment taxes and satisfaction of all 

other employment tax obligations with 

respect to employees performing 

services for the disregarded entity by its 

owner under the owner’s name and 

employer identification number (EIN); 

or (2) separate calculation and payment 

of all employment taxes and satisfaction 

of all other employment tax obligations 

by the disregarded entity with respect to 

employees performing services for the 

disregarded entity by the disregarded 

entity under its own name and EIN. The 

notice states that ultimate liability for 

employment taxes remains with the 

owner of the disregarded entity 

regardless of which alternative is 

chosen. 

3. Excise Taxes 

A. Liability for Excise Taxes 

Liability for federal excise taxes is 

imposed on certain transactions and 

activities under the following chapters 

of the Internal Revenue Code (Code). 

Chapter 31 imposes retail excise taxes 

on the sale or use of special fuels 

(section 4041); the use of fuel in 

commercial transportation on inland 

waterways (section 4042); and the sale 

of heavy trucks and trailers (section 

4051). 

Chapter 32 imposes manufacturers 

excise taxes on the sale of gas guzzler 

automobiles (section 4064); the sale of 

highway-type tires (section 4071); the 

removal, entry, or sale of taxable fuel