This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

48205 

Vol. 82, No. 199 

Tuesday, October 17, 2017 

NATIONAL INDIAN GAMING 

COMMISSION 

25 CFR Part 517 

RIN 3141–AA21 

Freedom of Information Act 

Procedures 

AGENCY: National Indian Gaming 

Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The purpose of this document 

is to propose amendments to the 

procedures followed by the National 

Indian Gaming Commission 

(Commission) when processing a 

request under the Freedom of 

Information Act, as amended. These 

changes will serve to update certain 

Commission information, conform to 

changes made in the FOIA 

Improvements Act of 2016, and 

streamline how the Commission 

processes its Freedom of Information 

Act requests. 

DATES: Written comments on this 

proposed rule must be received on or 

before November 16, 2017. 

ADDRESSES: You may send comments by 

any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: FOIAComments@nigc.gov. 

• Fax: 202–632–7066. 

• Mail: National Indian Gaming 

Commission, 1849 C Street NW., MS 

1621, Washington, DC 20240. 

• Hand Delivery: National Indian 

Gaming Commission, 90 K Street NE., 

Suite 200, Washington, DC 20002, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Lawson at (202) 632–7003 or by 

fax (202) 632–7066 (these numbers are 

not toll free). 

SUPPLEMENTARY INFORMATION: 

I. Comments Invited 

Interested parties are invited to 

participate in this proposed rulemaking 

by submitting such written data, views, 

or arguments as they may desire. 

Comments that provide the factual basis 

supporting the views and suggestions 

presented are particularly helpful in 

developing reasoned regulatory 

decisions on the proposal. 

II. Background 

The Indian Gaming Regulatory Act 

(IGRA), enacted on October 17, 1988, 

established the National Indian Gaming 

Commission. Congress enacted the 

Freedom of Information Act (FOIA) in 

1966. The Commission originally 

adopted Freedom of Information Act 

procedures on August 23, 1993. These 

procedures were subsequently amended 

once on April 19, 2006. Since that time, 

the United States Congress has amended 

the FOIA twice, the Commission has 

changed the location of its headquarters 

office and streamlined the way it 

processes its FOIA requests. These 

proposed amendments serve to 

incorporate the aforementioned changes 

into the Commission’s regulations. 

III. Regulatory Matters 

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. 

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. 

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. 

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. 

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 the Office of Management and 

Budget approval under the Paperwork 

Reduction Act (44 U.S.C. 3501–3520) 

would be required. 

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. 

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 


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Indian tribes. The Changes proposed in 

this NPRM 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 on these changes. The 

Commission, though, requests and 

welcomes any and all tribal comments 

to this NPRM. 

List of Subjects in 25 CFR Part 517 

Administrative practice and 

procedure, Freedom of information. 

■ For the reasons set forth in the 

preamble, the Commission proposes to 

revise 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. 

§ 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. 

§ 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 

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 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, audiovisual 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. 

(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) 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 newsdissemination function shall not be 

considered to be for a commercial use. 

(i) 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. 

(j) 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 


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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. 

(k) 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. 

(l) 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. 

(m) 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 

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 FOIARequests@

nigc.gov or submitted through the 

Commission’s Web site. 

(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 § 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: 

(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) 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 


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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 

§ 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. 

§ 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 

§ 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 

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. 


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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. 

§ 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 

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. 

§ 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 


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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 

FOIARequests@nigc.gov or through the 

NIGC’s Web site. 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. 

§ 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 81⁄2 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 

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 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. 


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(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 § 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. 

Dated: October 10, 2017. 

Jonodev O. Chaudhuri, 

Chairman. 

Kathryn Isom-Clause, 

Vice Chair. 

E. Sequoyah Simermeyer, 

Associate Commissioner. 

[FR Doc. 2017–22393 Filed 10–16–17; 8:45 am] 

BILLING CODE 7565–01–P 


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