        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 70
        [AZ056-OPP; FRL-7086-6]
        Clean Air Act Proposed Full Approval of Operating Permit Programs; Maricopa County Environmental Services Department, Arizona

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          EPA is proposing to approve revisions to the Maricopa County Environmental Services Department (Maricopa or District) operating permit program. The Maricopa operating permit program was submitted in response to the directive in the 1990 Clean Air Act (CAA) Amendments that permitting authorities develop, and submit to EPA, programs for issuing operating permits to all major stationary sources and to certain other sources within the permitting authorities' jurisdiction. EPA granted interim approval to the Maricopa operating permit program on October 30, 1996 (61 FR 55910). The District has revised its program to satisfy the conditions of the interim approval and this action proposes approval of those revisions and certain other revisions made since interim approval was granted. EPA is proposing full approval of the Maricopa operating permits program based on the revisions submitted on September 7, 2001.

          DATES:
          Comments on the program revisions discussed in this proposed action must be received in writing by November 19, 2001.

          ADDRESSES:
          Written comments on this action should be addressed to Gerardo Rios, Acting Chief, Permits Office, Air Division (AIR-3), EPA Region IX, 75 Hawthorne Street, San Francisco, California, 94105. You can inspect copies of Maricopa's submittal and other supporting documentation relevant to this action during normal business hours at the Air Division of EPA Region 9, 75 Hawthorne Street, San Francisco, California, 94105. You may also see copies of the submitted title V program at the following location:
          Maricopa County Environmental Services Department, Air Quality Division, 1001 North Central Avenue, Suite 201, Phoenix, Arizona 85004.

          FOR FURTHER INFORMATION CONTACT:

          Ginger Vagenas, EPA Region IX, Permits Office (AIR-3), U.S. Environmental Protection Agency, Region IX, (415) 744-1252 or vagenas.ginger@epa.gov.

        SUPPLEMENTARY INFORMATION:
        This section provides additional information by addressing the following questions:

          I. What is the operating permit program?
          II. What is EPA's proposed action?
          III. What are the program changes that EPA is approving?
          IV. What is the effect of this proposed action?

        I. What Is the Operating Permit Program?
        The CAA Amendments of 1990 required all District and local permitting authorities to develop operating permit programs that met certain federal criteria. In implementing the operating permit programs, permitting authorities require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. The focus of the operating permit program is to improve compliance by issuing each source a permit that consolidates all of the applicable CAA requirements into a federally enforceable document. By consolidating all of the applicable requirements for a facility, the source, the public, and the permitting authorities can more easily determine what CAA requirements apply and how compliance with those requirements is determined.

        Sources required to obtain an operating permit under this program include “major” sources of air pollution and certain other sources specified in the CAA or in EPA's implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain permits. Examples of major sources include those that have the potential to emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen oxides ( NOX), or particulate matter (PM10); those that emit 10 tons per year of any single hazardous air pollutant (specifically listed under the CAA); or those that emit 25 tons per year or more of a combination of hazardous air pollutants (HAPs). In areas that are not meeting the national ambient air quality standards for ozone, carbon monoxide, or particulate matter, major sources are defined by the gravity of the nonattainment classification. For example, in ozone nonattainment areas classified as “serious,” major sources include those with the potential of emitting 50 tons per year or more of volatile organic compounds or nitrogen oxides.
        II. What Is EPA's Proposed Action?

        Because the operating permit program originally submitted by Maricopa substantially, but not fully, met the criteria outlined in the implementing regulations codified at 40 Code of Federal Regulations (CFR) part 70, EPA granted interim approval to the program in a rulemaking published on October 30, 1996 (61 FR 55910). The interim approval notice described the conditions that had to be met in order for the Maricopa program to receive full approval. Today's Federal Register notice describes the changes Maricopa has made to its operating permit program to correct conditions and obtain full approval.

        EPA is proposing full approval of the operating permits program submitted by Maricopa based on the revisions submitted on September 7, 2001. These revisions satisfactorily address the program deficiencies identified in EPA's October 30, 1996 rulemaking. See 61 FR 55910. EPA is also proposing to approve, as a title V operating permit program revision, certain additional changes to the rules that have been made since Maricopa was granted interim approval. The interim approval issues, Maricopa's corrections, and the additional changes EPA is proposing to approve are described below under the section entitled, “What are the program changes that EPA is approving?”
        III. What Are the Program Changes That EPA Is Approving?
        A. Corrections to Interim Approval Issues
        In its October 30, 1996 rulemaking, EPA made full approval of Maricopa's operating permit programs contingent upon the correction of a number of interim approval issues. Each issue, along with the District's correction, is described below.

          1. Rule deficiency: Maricopa's definition of “Building, Structure, Facility, or Installation” includes the caveat that, “[p]roperties shall not be considered contiguous if they are connected only by property upon which is located equipment utilized solely in transmission of electrical energy.” This language, which is linked to the District's definition of stationary source, is not consistent with the stationary source definition in § 70.2. In order to correct this deficiency, EPA required that the district delete the language from Regulation I, Rule 100, section 224 (the definition of “Building, Structure, Facility, or Installation”).

          Rule change: The “Building, Structure, Facility, or Installation” definition has been revised to correct the deficiency. The definition now reads: “All the pollutant-emitting equipment and activities that belong to the same industrial grouping, that are located on one or more contiguous or adjacent properties, and that are under the control of the same person or persons under common control, except the activities of any vessel. Pollutant emitting activities shall be considered as part of the same industrial grouping if they belong to the same “Major Group” as described in the “Standard Industrial Classification Manual, 1987.”

          2. Rule deficiency: Regulation I, Rule 100, section 251.2 (part of the definition of “major source”) did not clearly require that fugitive emissions of HAPs be included when determining a source's potential to emit. In order to correct the deficiency, the definition needed to be revised so that it would be clear that fugitive emissions of HAPs must be considered in determining whether the source is major for purposes of both the 10 ton per year and 25 ton per year HAP major source thresholds. See 40 CFR 70.2.

          Rule change: The definition of major source has been revised to correct the deficiency. It now defines a major source under section 112 of the CAA to include, “for pollutants other than radionuclides, any stationary source that emits, or has the potential to emit, in the aggregate and including fugitive emissions, 10 tons per year or more of any hazardous air pollutant which has been listed pursuant to section 112(b) of the CAA, 25 tons per year of any combination of such hazardous air pollutants * * *. ” (Emphasis added.)

          3. Rule deficiency: Part 70 requires that certain records must be retained for five years. See § 70.6(a)(3)(ii)(B). In order to ensure this provision is implemented, EPA required that Regulation I, Rule 100, section 505 be revised to clarify that for title V sources, records of all required monitoring data and support information must be retained for a period of five years, as provided in Regulation II, Rule 210, section 302.1(d)(2).

          Rule change: Maricopa has resolved this issue by amending Regulation I, Rule 100, section 505 to require that “[i]nformation and records required by applicable requirements and copies of summarizing reports recorded by the owner and/or operator and submitted to the Control Officer shall be retained by the owner and/or operator for 5 years after the date on which the information is recorded or the report is submitted. Non-title V sources may retain such information, records, and reports for less than 5 years, if otherwise allowed by these rules.”

          4. Rule deficiency: In order to ensure that the permits are available to the public, EPA required that Maricopa revise Regulation I, Rule 100, section 506 to clarify that for title V sources, all permits, including all elements of permit content specified in Rule 210, section 302, shall be available to the public, as provided in Regulation II, Rule 200, section 411.1. See § 70.4(b)(3)(viii).

          Rule change: Regulation I, Rule 100 now specifies under section 402.1 that “[t]he Control Officer shall make all permits, including all elements required to be in the permit under rule 210 (Title V Permit Provisions) of these rules and Rule 220 (Non-Title V Permit Provisions) of these rules, available to the public.”

          5. Rule deficiency: In its interim approval, EPA noted that Maricopa's provisions regarding applicability needed to be clarified. In order to correct these deficiencies, EPA required that Maricopa revise Regulation II, Rule 200, section 312.2 to define when sources become subject to the requirements of Title V. In addition, EPA required that the District revise section 312.5 to require existing sources that do not hold a valid installation or operating permit to submit an application within 12 months of becoming subject to the requirements of title V.

          Rule change: Maricopa added a new section 312.2 to Regulation II, Rule 200. The rule now reads, “[f]ollowing November 29, 1996, the effective date of the Environmental Protection Agency's (EPA's) final interim approval of Maricopa County's Title V permit program, a source becomes subject to the requirements of the Title V permit program, when the source meets the applicability requirements as provided in this rule.” Regulation II, Rule 200, section 312.5(c) has been amended to require that “[a]ll sources in existence on the date these rules become effective and not holding a valid installation permit and/or a valid operating permit issued by the Control Officer, which have not applied for a Title V permit pursuant to these rules, shall submit to the Control Officer a title V permit application no more than 12 months after becoming subject to title V permit requirements.”

          6. Rule deficiency: In its initial program, Maricopa's Regulation II, Rule 210, section 301.5(g) allowed any emissions source, equipment, or item listed under Regulation II, Rule 200, section 303.4(c) to be treated as “insignificant.” That is, applicants were not required to provide emissions data regarding the items listed under 303.4(c). Part 70 does allow certain equipment to be treated in this manner, but requires that the list be part of the approved title V program (§ 70.5(c)) and that the permitting authority submit a demonstration that the activities are truly insignificant. See § 70.4(b)(2). Maricopa's failure to provide a demonstration that the activities listed in Regulation II, Rule 200, section 303.4(c) are insignificant was identified by EPA as an interim approval issue. EPA noted that Maricopa could correct the deficiency by removing from the list any activities that are subject to a unit-specific applicable requirement or by adding emissions cut-offs or size limitations to ensure that the listed activities are below any applicability thresholds for applicable requirements.

          Rule changes: To correct the deficiency, Maricopa has submitted a demonstration and made changes to the following rules: (1) Regulation I, Rule 100, section 200.58; (2) Regulation II, Rule 200, section 308.1; (3) Regulation II, Rule 210, section 301.4(h); and (4) appendix D.
        The first change is the addition of a definition of insignificant activity at Regulation I, Rule 100 section 200.58. It specifies that in order to be treated as an insignificant activity, an activity, process, or emissions unit cannot emit more than two tons per year of a regulated air pollutant, one-half ton per year of a hazardous air pollutant, and may not be subject to a source-specific applicable requirement. In addition, the activity must either be listed in appendix D or approved by the District and EPA as meeting the criteria for treatment as an insignificant activity.
        The second change, at Regulation II, Rule 200, section 308.1, sets out how insignificant activities may be addressed in applications. Insignificant activities may be listed and generally grouped, and detailed information about the activities need not be supplied. It also provides that in its application a source may request that certain activities be treated as insignificant. Finally, it includes a caveat that, notwithstanding the provisions of the rules regarding insignificant activities, the following types of information may not be omitted from any application: information needed to determine the applicability of or to impose any requirement; information needed to determine the compliance status of the source; or information needed to determine the amount of fees the source must pay.
        The third change, at Regulation II, Rule 210, section 301.4(h), occurs in the District's provisions regarding permit application processing procedures. It requires that, to be complete, an application must include a listing of insignificant activities.
        The fourth change is the inclusion of appendix D, which is a list of activities that the District has determined may be treated as insignificant in accordance with the criteria set out in the definition of insignificant activity in Regulation I, Rule 100. It also reiterates the provisions of Regulation II, Rule 200, section 308.1 that require the applicant provide all information necessary to determine the applicability of requirements, to determine compliance, and to impose fees. The District included in its submittal a demonstration that the listed activities qualify for treatment as insignificant.

          7. Rule deficiency: Section 70.6(a)(8) requires that title V permits contain a provision that “no permit revision shall be required under any approved economic incentives, marketable permits, emissions trading and other similar programs or processes for changes that are provided for in the permit.” Regulation II, Rule 210, section 302.1(j) included this exact provision but also included a sentence that negated this provision. EPA required that Maricopa either delete or revise the negating sentence to make the rule consistent with part 70.

          Rule change: The problematic sentence has been deleted from the District's rule.

          8. Rule deficiency: Section 70.4(b)(12) allows sources to make changes within a permitted facility without requiring a permit revision, if the changes are not modifications under any provision of title I of the Act and the changes do not exceed the emissions allowable under the permit. The District's rules provided for such permit conditions but did not restrict the allowable changes to those that are not modifications under title I of the Act and those that do not exceed the emissions allowable under the permit. Maricopa was required to revise Regulation II, Rule 210, section 302.1(n) to add these conditions. In addition, EPA required that Maricopa revise this provision to specify that the notice required by sections 403.4 and 403.5 will also describe how the increases and decreases in emissions will comply with the terms and conditions of the permit. See § 70.4(b)(12).

          Rule change: Regulation II, Rule 210, section 302.1(n) has been revised to correct the deficiency by including the following language: “Changes made under this subsection shall not include modifications under any provision of title I of the Act and may not exceed emissions allowable under the permit. The terms and conditions shall include notice that (1) conforms to subsection 403.4 and subsection 403.5 of this rule and (2) describes how the increases or decreases in emission will comply with the terms and conditions of the permit.”

          9. Rule deficiency: Maricopa's Regulation II, Rule 210, section 404.1(e) provided that equipment removal that does not result in an increase in emissions could be processed as an administrative permit amendment. Equipment removal, even if it does not result in an increase in emissions, is not similar to the types of changes that EPA has included in the part 70 definition of “administrative permit amendment.” In some cases removal of equipment, such as monitoring equipment, will require processing as a significant permit revision. In other situations removal of equipment may qualify for processing as a minor permit revision or possibly for treatment under the operational flexibility provisions. See §§ 70.7(d) and 70.7(e)(4). In order to correct the deficiency, EPA required that Maricopa remove this provision from the list of changes that may be processed as administrative amendments.

          Rule change: Section 404.1(e) of Regulation II, Rule 210 has been deleted.

          10. Rule deficiency: The following language was included in Maricopa's Regulation II, Rule 210, section 405.1(c) as an exception to the prohibition against allowing case-by-case determinations to be processed as minor permit revisions:
        “* * * other than a determination of RACT pursuant to Rule 241, Section 302 of these rules * * *.”

        The definition of RACT in section 272 of Rule 100 states that, “RACT for a particular facility, other than a facility subject to Regulation III, is determined on a case-by-case basis * * *” Rule 241 is not in Regulation III, so RACT determinations made pursuant to this rule are done so on a case-by-case basis. Excepting RACT determinations from the prohibition against processing case-by-case determinations through the minor permit revision process violates the requirement of § 70.7(e)(2)(i)(A)(3). To correct this deficiency, EPA required that exception for case-by-case RACT determinations be deleted from the rule.

          Rule change: The specified language has been deleted.

          11. Rule deficiency: Section 70.7(h)(1) requires that permitting authorities provide public notice of certain types of permit actions. In addition to requiring newspaper notices and mailing list notification, part 70 includes a requirement that notice be provided “by other means if necessary to assure adequate notice to the affected public.” Because Maricopa's rules lacked such a provision, EPA required that the District revise Regulation II, Rule 210, section 408 to include it.

          Rule change: Section 408.3(c) has been added. It requires that “[t]he Control Officer shall give notice by any other means if necessary to assure adequate notice to the affected public.”
        B. Other Changes
        The rules the District has submitted for EPA approval incorporate extensive changes other than those necessary to correct interim approval deficiencies. Because of time constraints, we have limited our review to those sections that include interim approval issues. In this action EPA is, where possible, proposing to approve as a title V operating permit program revision additional program changes that are included in sections that were revised to correct interim approval issues or are relied upon or cross-referenced by those sections. EPA is not taking action on rules or sections that are not listed in Table 1, below.
        One of these changes requires special explanation. Paragraph (c) of Maricopa's definition of major source lists source categories that must count fugitives. Maricopa revised subparagraph xxvii to read: “All other stationary source categories regulated by a standard promulgated as of August 7, 1980 under section 111 or 112 of the Act, but only with respect to those air pollutants that have been regulated for that category.” Emphasis added. The addition of this 1980 cutoff date restricts the types of sources that are required to count fugitives towards the major source threshold, which is inconsistent with the current version of part 70. EPA has, however, proposed a revision to part 70's major source definition that will incorporate the 1980 cutoff date. See 60 FR 45530 (August 31, 1995). We are therefore proposing to approve the District's definition of major source contingent upon EPA finalization of revisions to 40 CFR part 70 that will make the change approvable. If EPA does not finalize the changes to part 70 described above, Maricopa's major source definition will conflict with the operative version of part 70 and we will be unable to approve it. The remedy to one of Maricopa's interim approval issues (described above under III.A.2) resides within that same definition, so if we are barred from approving Maricopa's new major source definition because of the 1980 date, we will be unable to grant full approval to Maricopa's title V program. As a result, Maricopa would lose its authority to implement its title V operating permits program on December 1, 2001, and part 71 would be in effect.
        Maricopa made a number of additional changes to the rules that implement their part 70 program, many of which were non-substantive (e.g., recodifications) or apply only to non-title V sources. A general description of the more substantive changes we are proposing to approve follows. For more detail on the all of the changes, refer to the technical support document.
        Maricopa added new provisions to its rules that address the concept of trivial activities. EPA's title V implementation guidance document, “White Paper for Streamlined Development of Part 70 Permit Applications,” (July 10, 1995) explains that the inherent flexibility in § 70.5(c) “encompasses the idea that certain activities are clearly trivial (i.e., emissions units and activities with specific applicable requirements and with extremely small emissions) can be omitted from the application even if they are not included on a list of insignificant activities approved in a State's part 70 program pursuant to § 70.5(c).” Maricopa's treatment of trivial activities matches that of EPA's guidance. EPA is therefore proposing to approve the District's provisions regarding trivial activities.
        In addition to the change that corrects an interim approval issue related to public availability of information (described above under II.A.4), Maricopa has made other changes to its provisions that pertain to the confidentiality of records and has amended the definition of trade secret. The revised confidentiality of information procedures, in conjunction with the revised definition of trade secret, include the following key elements: (1) The presumption is that information is public unless a source notifies the Control Officer in writing that it is making a claim of confidentiality; (2) information cannot be withheld from the Control Officer; and (3) emissions information cannot be considered confidential. EPA finds these additional changes to Maricopa's confidentiality provisions and to the definition of trade secret to be consistent with § 70.4(b)(3)(viii) and therefore approvable.
        The emergency provisions that implement § 70.6(g) have been modified by the District to include a requirement that in the event of an emergency a source must notify the Control Officer by telephone as soon as possible. The rule did not previously require telephone notification, and this change ensures that the District will be notified more promptly than would have been the case under the older version of the rule.
        Maricopa has also added language that clarifies that sources must obtain an air quality permit before beginning to construct. Because Maricopa's title V and preconstruction permitting programs are merged into a unitary permitting system, this approach is consistent with part 70.
        IV. What Is the Effect of This Proposed Action?
        Maricopa has adopted and submitted rule changes and requested program revisions that address the issues identified in EPA's interim approval and are described above. The rules proposed for approval today listed in Table 1.

          Table 1

            Rule No.
            Rule title and specific sections proposed for approval
            Adoption date

            Regulation I, Rule 100
            General Provisions and Definitions— • The following provisions from § 200 Definitions:
              § 200.26 “Building, Structure, Facility, or Installation”
              § 200.58 “Insignificant Activity”
              § 200.60 “Major Source”
              § 200.107 “Trade Secret”
               § 200.108 “Trivial Activity”
              • § 402, Confidentiality of Information
              • § 500 Monitoring of Records

            8/22/01

            Regulation I, Rule 130
            Emergency Provisions
            7/26/00

            Regulation II Rule 200
            Permit Requirements • § 308—Standards for Applications
              • § 312—Transition from Installation and Operating Permit Program to Unitary Permit Program

            8/22/01

            Regulation II, Rule 210
            Title V Permit Provisions • § 301.4(h)
              • § 302.1(j)
              • § 302.1(n)
              • § 404—Administrative Permit Amendments
              • § 405.1
              • § 408—Public Participation

            2/7/01

            Appendix D
            List of Insignificant Activities
            8/22/01

            Appendix E
            List of Trivial Activities
            8/22/01

        As noted above, Maricopa has adopted and submitted the required changes and has fulfilled the conditions of the interim approval granted on October 30, 1996 (61 FR 55910). EPA is therefore proposing full approval of the Maricopa operating permit program, contingent on EPA finalizing its proposed change to the part 70 definition of major source.
        Request for Public Comments
        EPA requests comments on the program revisions discussed in this proposed action. Copies of the Maricopa submittal and other supporting documentation used in developing the proposed full approval are contained in docket files maintained at the EPA Region 9 office. The docket is an organized and complete file of all the information submitted to, or otherwise considered by, EPA in the development of this proposed full approval. The primary purposes of the docket are: (1) To allow interested parties a means to identify and locate documents so that they can effectively participate in the approval process, and (2) to serve as the record in case of judicial review. EPA will consider any comments received in writing by November 19, 2001.
        Administrative Requirements

        Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities because it merely approves District law as meeting federal requirements and imposes no additional requirements beyond those imposed by District law. This rule does not contain any unfunded mandates and does not significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) because it proposes to approve pre-existing requirements under District law and does not impose any additional enforceable duties beyond that required by District law. This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it will not have substantial direct effects on the Districts, on the relationship between the national government and the Districts, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999). The rule merely proposes to approve existing requirements under District law, and does not alter the relationship or the distribution of power and responsibilities between the District and the Federal government established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) or Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001), because it is not a significantly regulatory action under Executive Order 12866. This action will not impose any collection of information subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., other than those previously approved and assigned OMB control number 2060-0243. For additional information concerning these requirements, see 40 CFR part 70. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
        In reviewing District operating permit programs submitted pursuant to Title V of the Clean Air Act, EPA will approve District programs provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. In this context, in the absence of a prior existing requirement for the District to use voluntary consensus standards (VCS), EPA has no authority to disapprove a District operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program , to use VCS in place of a District program that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

          List of Subjects in 40 CFR Part 70
          Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.

          Dated: October 5, 2001.
          Keith Takata,
          Acting Regional Administrator, Region IX.

      [FR Doc. 01-26264 Filed 10-17-01; 8:45 am]
      BILLING CODE 6560-50-P


        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 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, audio-visual materials, or electronic records (e.g., compact discs or USB flash drives). The copies provided shall be in a form that is reasonably usable by the requester.
            (e) Educational institution refers to a preschool, a public or private elementary school, an institute of undergraduate higher education, an institute of graduate higher education, an institute of professional education, or an institute of vocational education which operates a program of scholarly research. To qualify for this category, the requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought to further scholarly research.
            (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 news-dissemination 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 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 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. 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 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.

            (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