20006 Federal Register / Vol. 71, No. 75 / Wednesday, April 19, 2006 / Rules and Regulations 

Authority: 5 U.S.C. 301; 19 U.S.C. 2, 66, 

1202 (General Note 3(i), Harmonized Tariff 

Schedule of the United States), 1623, 1624, 

1646a. 

Sections 101.3 and 101.4 also issued 

under 19 U.S.C. 1 and 58b; 

* * * * * 

§ 101.3 [Amended] 

■ 2. The list of ports in § 101.3(b)(1) is 

amended by adding, in alphabetical 

order under the state of Virginia, ‘‘New 

River Valley’’ in the ‘‘Ports of entry’’

column and ‘‘CBP Dec. 06–10’’ in the 

‘‘Limits of Port’’ column. 

PART 122—AIR COMMERCE 

REGULATIONS 

■ 1. The general authority for part 122 

continues to read as follows: 

Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66, 

1431, 1433, 1436, 1448, 1459, 1590, 1594, 

1623, 1624, 1644, 1644a, 2071 note. 

* * * * * 

§ 122.15 [Amended] 

■ 2. The list of user fee airports at 19 

CFR 122.15(b) is amended by removing 

‘‘Dublin, Virginia’’ from the ‘‘Location’’

column and, on the same line, ‘‘New 

River Valley Airport’’ from the ‘‘Name’’

column. 

Dated: April 11, 2006. 

Michael Chertoff, 

Secretary. 

[FR Doc. 06–3694 Filed 4–18–06; 8:45 am] 

BILLING CODE 9111–14–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 

Commissionl, Interior. 

ACTION: Final rule. 

SUMMARY: The purpose of this document 

is 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 to FOIA. 

DATES: Effective Date: These regulations 

take effect May 19, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Jeannie McCoy, FOIA Officer, 1441 L 

Street, NW., Suite 9100, Washington, 

DC 20005 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 changes will bring the 

Commission in compliance with the 

FOIA, as amended. 

Regulatory Flexibility Act: The 

Commission certifies that the 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 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 

rule will not have a unique effect on 

tribal governments. 

Small Business Regulatory 

Enforcement Fairness Act: The rule is 

not a major rule under 5 U.S.C. 804(2), 

the Small Business Regulatory 

Enforcement Fairness Act. The 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 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 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. 

Comments: In response to our Notice 

of Proposed Rulemaking, published 

October 18, 2005 (70 FR 60470), we 

received comments from three separate 

Tribes. The comments from these three 

Tribes were identical. 

Comment: The commenter casts doubt 

on the NIGCs status as an independent 

regulatory agency by arguing that, based 

on the NIGC’s recent partnership with 

the Department of Justice, the NIGC 

might not be an independent regulatory 

agency. This comment was made in 

response to the agency’s assertion that it 

is not subject to the Unfunded Mandates 

Reform Act. 

Response: To the extent you have 

called into question the independence 

of the agency, we disagree. Although 

established ‘‘within the Department of 

the Interior,’’ Congress deemed the 

Commission to be an ‘‘independent 

Federal regulatory authority,’’ 25 U.S.C. 

2702(3), and the Courts agree: Sac and 

Fox Nation v. Norton, 240 F.3d 1250, 

1265 n.12 (10th Cir. 2001) (‘‘Although 

the Commission is nominally part of the 

Department of the Interior, the Secretary 

conceded at oral argument that the 

Commission functions as an 

independent entity.’’). Several courts 

have held as much. See also United 

States ex rel. Hall v. Tribal Dev. Corp., 

49 F.3d 1208 (7th Cir. 1995) (the NIGC 

is a ‘‘three-member independent agency 

within the Department of the Interior’’); 

United States ex rel. Mosay v. Buffalo 

Bros. Management, 20 F.3d 739 (7th Cir. 

1994) (‘‘Congress enacted the Indian 

Gaming Regulatory Act, which 

establishes a three-member independent 

agency within the Department of the 

Interior, the National Indian Gaming 

Commission, to supervise Indian 

gambling.’’); United Keetoowah Band of 

Cherokee Indians v. Oklahoma, 927 

F.2d 1170 (10th Cir. 1991) (‘‘Gaming 

over which the federal government 

holds jurisdiction is subject to the 

supervision of a[n] * * * independent 

regulatory authority, the National Indian 

Gaming Commission’’). 

Comment: The commenter was 

concerned that the definition of 

‘‘Requester’’ included an, ‘‘Indian 

Tribe’’ thereby requiring Tribes to pay 

the same fees as other requestors. 

Additionally, they inquire if Tribes 

could be exempt from the FOIA entirely. 


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Response: The inclusion of ‘‘Indian 

tribe’’ in the definition of ‘‘Requestor’’ is 

not a change to our current regulations. 

Tribes have always been considered 

requestors for the purposes of FOIA. 

Comment: The commenter was 

concerned that the NIGC did not consult 

with Tribes in accordance with 

Executive Order 13715 and President 

Bush’s Memorandum for the Heads of 

Executive Departments and Agencies, 

dated September 23, 2004, as well as the 

NIGC’s own Government to Government 

Tribal Consultation Policy. 

Response: Since the amendments to 

the regulations were simply updating 

agency information as well as to 

formally implement the Electronic 

Freedom of Information Act 

Amendments of 1996, the Commission 

did not feel it necessary to waste time 

and resources meeting with every Tribe 

in the United States. Additionally, as an 

independent regulatory agency, 

Executive Order 13715 is not applicable. 

Commenter: The commenter 

questions what authority the NIGC has 

to waive tribal sovereignty for Debt 

Collection Act purposes. 

Response: This rule does purport to 

waive tribal sovereignty. 

Dated: April 13, 2006. 

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 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 

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 


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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 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. 

§ 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 

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 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. 

(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 


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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 

Sec. 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 

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 


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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 

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 81⁄2 x 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 

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 institution requesters. The 


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Federal Register / Vol. 71, No. 75 / Wednesday, April 19, 2006 / Rules and Regulations 20011 

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. 

(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 § 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. 06–3712 Filed 4–18–06; 8:45 am] 

BILLING CODE 7565–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[CGD05–05–130] 

RIN 1625–AA08 

Special Local Regulations for Marine 

Events; Chesapeake Bay; Correction 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule; 

correction. 

SUMMARY: The Coast Guard published a 

document in the Federal Register on 

March 9, 2006 (71 FR 12132), 

establishing special local regulations 

during the ‘‘Volvo Ocean Race 2005–

2006’’, sailboat races to be held on the 

Chesapeake Bay in the vicinity east of 

Gibson Island, Maryland, and near the 

William Preston Lane Jr. Memorial 

(Chesapeake Bay) Bridge. The document 

contained incorrect coordinates to 

describe the regulated area. 

DATES: The correction to this rule is 

effective April 29, 2006. The rule itself 

is effective April 29 through May 7, 

2006. 

FOR FURTHER INFORMATION CONTACT: 

Dennis Sens, Recreational Boating 

Safety Specialist, Fifth Coast Guard 

District, telephone 757–398–6204, Fax 

757–398–6203. 

SUPPLEMENTARY INFORMATION: In FR Doc. 

06–2204 appearing on page 12132 in the 

Federal Register of March 9, 2006, the 

following correction is made: 

PART 100—[AMENDED] 

§ 100.35–T05–130 [Corrected] 

■ 1. On page 12134, in the third column, 

and on page 12135, in the first column, 

in § 100.35–T05–130 Chesapeake Bay, 

near Annapolis, MD, in amendment (2), 

revise paragraph (a)(2) to read as 

follows: ‘‘(2) The second segment for the 

‘‘Leg 6 Re-Start’’ is a rectangle-shaped 

area, approximately six nautical miles 

long and 1.5 nautical miles wide, 

bounded by a line drawn from a 

position at latitude, 38°54′21′′ N, 

longitude 076°26′42′′ W, thence easterly 

to a position at latitude 38°53′42′′ N, 

longitude 076°24′48′′ W, thence 

northerly to a position at latitude 

38°59′40′′ N, longitude 076°21′42′′ W, 

thence westerly to a position at latitude 

39°00′05′′ N, longitude 076°23′33′′ W, 

thence southerly to a position at latitude 

38°54′21′′ N, longitude 076°26′42′′ W, 

the point of origin. The spectator areas 

will be designated around the perimeter 

of the race course and marked by picket 

boats and inflatable buoys. No 

spectators will be allowed within the 

actual race course. 

S.G. Venckus, 

Chief, Office of Regulations and 

Administrative Law. 

[FR Doc. 06–3713 Filed 4–18–06; 8:45 am] 

BILLING CODE 4910–15–U 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[COTP St. Petersburg 06–063] 

RIN 1625–AA00 

Safety Zone; Tampa, FL 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone on 

the waters of Tampa Bay, Florida in the 

vicinity of the Gandy Bridge, while 

bridge repairs are made. This rule is 

necessary to ensure the safety of the 

construction workers and mariners on 

the navigable waters of the United 

States. 


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