[Federal Register Volume 71, Number 75 (Wednesday, April 19, 2006)]
[Rules and Regulations]
[Pages 20006-20011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3712]


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DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission

25 CFR Part 517

RIN 3141-AA21


Freedom of Information Act Procedures

AGENCY: National Indian Gaming Commissionl, Interior.

ACTION: Final rule.

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SUMMARY: The purpose of this document is to amend the procedures 
followed by the National Indian Gaming Commission (Commission) when 
processing a request under the Freedom of Information Act (FOIA), as 
amended so that the Commission will be in compliance with the 
provisions of the amendment to FOIA.

DATES: Effective Date: These regulations take effect May 19, 2006.

FOR FURTHER INFORMATION CONTACT: Jeannie McCoy, FOIA Officer, 1441 L 
Street, NW., Suite 9100, Washington, DC 20005 at (202) 632-7003 or by 
fax (202) 632-7066 (these numbers are not toll free).

SUPPLEMENTARY INFORMATION: The Indian Gaming Regulatory Act (IGRA), 
enacted on October 17, 1988, established the National Indian Gaming 
Commission (Commission). Congress enacted the FOIA in 1966 and last 
modified it with the Electronic Freedom of Information Act Amendments 
of 1996. This amendment addresses FOIA reading rooms and those 
documents available electronically, agency backlogs of requests, change 
in fees, and preservation of records among other things. The changes 
will bring the Commission in compliance with the FOIA, as amended.
    Regulatory Flexibility Act: The Commission certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). The factual basis for this certification is as follows: This 
rule is procedural in nature and will not impose substantive 
requirements that could be deemed impacts within the scope of the Act. 
For this reason, the Commission has concluded that the rule will not 
have a significant impact on those small entities subject to the rule.
    Unfunded Mandates Reform Act: The Commission is an independent 
regulatory agency, and, as such, is not subject to the Unfunded 
Mandates Reform Act. Even so, the Commission has determined that this 
final rule does not impose an unfunded mandate on State, local, or 
tribal governments, or on the private sector, of more than $100 million 
per year. Thus, it is not a ``significant regulatory action'' under the 
Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq. Furthermore, this 
rule will not have a unique effect on tribal governments.
    Small Business Regulatory Enforcement Fairness Act: The rule is not 
a major rule under 5 U.S.C. 804(2), the Small Business Regulatory 
Enforcement Fairness Act. The rule will not result in an annual effect 
on the economy of more than $100 million per year; a major increase in 
costs or prices for consumers, individual industries, Federal, State, 
or local government agencies, or geographic regions; or significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of U.S. based enterprises.
    Paperwork Reduction Act: The rule does not contain any information 
collection requirements for which OMB approval under the Paperwork 
Reduction Act (44 U.S.C. 3501-3520) would be required.
    National Environmental Policy Act: The Commission has determined 
that this rule does not constitute a major Federal Action significantly 
affecting the quality of the human environment and that no detailed 
statement is required pursuant to the National Environmental Policy Act 
of 1969.
    Comments: In response to our Notice of Proposed Rulemaking, 
published October 18, 2005 (70 FR 60470), we received comments from 
three separate Tribes. The comments from these three Tribes were 
identical.
    Comment: The commenter casts doubt on the NIGCs status as an 
independent regulatory agency by arguing that, based on the NIGC's 
recent partnership with the Department of Justice, the NIGC might not 
be an independent regulatory agency. This comment was made in response 
to the agency's assertion that it is not subject to the Unfunded 
Mandates Reform Act.
    Response: To the extent you have called into question the 
independence of the agency, we disagree. Although established ``within 
the Department of the Interior,'' Congress deemed the Commission to be 
an ``independent Federal regulatory authority,'' 25 U.S.C. 2702(3), and 
the Courts agree: Sac and Fox Nation v. Norton, 240 F.3d 1250, 1265 
n.12 (10th Cir. 2001) (``Although the Commission is nominally part of 
the Department of the Interior, the Secretary conceded at oral argument 
that the Commission functions as an independent entity.''). Several 
courts have held as much. See also United States ex rel. Hall v. Tribal 
Dev. Corp., 49 F.3d 1208 (7th Cir. 1995) (the NIGC is a ``three-member 
independent agency within the Department of the Interior''); United 
States ex rel. Mosay v. Buffalo Bros. Management, 20 F.3d 739 (7th Cir. 
1994) (``Congress enacted the Indian Gaming Regulatory Act, which 
establishes a three-member independent agency within the Department of 
the Interior, the National Indian Gaming Commission, to supervise 
Indian gambling.''); United Keetoowah Band of Cherokee Indians v. 
Oklahoma, 927 F.2d 1170 (10th Cir. 1991) (``Gaming over which the 
federal government holds jurisdiction is subject to the supervision of 
a[n] * * * independent regulatory authority, the National Indian Gaming 
Commission'').
    Comment: The commenter was concerned that the definition of 
``Requester'' included an, ``Indian Tribe'' thereby requiring Tribes to 
pay the same fees as other requestors. Additionally, they inquire if 
Tribes could be exempt from the FOIA entirely.

[[Page 20007]]

    Response: The inclusion of ``Indian tribe'' in the definition of 
``Requestor'' is not a change to our current regulations. Tribes have 
always been considered requestors for the purposes of FOIA.
    Comment: The commenter was concerned that the NIGC did not consult 
with Tribes in accordance with Executive Order 13715 and President 
Bush's Memorandum for the Heads of Executive Departments and Agencies, 
dated September 23, 2004, as well as the NIGC's own Government to 
Government Tribal Consultation Policy.
    Response: Since the amendments to the regulations were simply 
updating agency information as well as to formally implement the 
Electronic Freedom of Information Act Amendments of 1996, the 
Commission did not feel it necessary to waste time and resources 
meeting with every Tribe in the United States. Additionally, as an 
independent regulatory agency, Executive Order 13715 is not applicable.
    Commenter: The commenter questions what authority the NIGC has to 
waive tribal sovereignty for Debt Collection Act purposes.
    Response: This rule does purport to waive tribal sovereignty.

    Dated: April 13, 2006.
Philip N. Hogen,
Chairman, National Indian Gaming Commission.

List of Subjects in 25 CFR Part 517

    Freedom of information.


0
Accordingly for the reasons set forth above, 25 CFR part 517 is to be 
revised to read as follows:

PART 517--FREEDOM OF INFORMATION ACT PROCEDURES

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

    The authority citation continues to read as follows:

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


Sec.  517.1  General provisions.

    This part contains the regulations the National Indian Gaming 
Commission (Commission) follows in implementing the Freedom of 
Information Act (FOIA) (5 U.S.C. 552) as amended. These regulations 
provide procedures by which you may obtain access to records compiled, 
created, and maintained by the Commission, along with procedures the 
Commission must follow in response to such requests for records. These 
regulations should be read together with the FOIA, which provides 
additional information about access to records maintained by the 
Commission.


Sec.  517.2  Public reading room.

    Records that are required to be maintained by the Commission shall 
be available for public inspection and copying at 1441 L Street, NW., 
Suite 9100 Washington, DC. Reading room records created on or after 
November 1, 1996, shall be made available electronically via the Web 
site.


Sec.  517.3  Definitions.

    (a) Commercial use requester means a requester seeking information 
for a use or purpose that furthers the commercial, trade, or profit 
interests of himself or the person on whose behalf the request is made, 
which can include furthering those interests through litigation. In 
determining whether a request properly belongs in this category, the 
FOIA Officer shall determine the use to which the requester will put 
the documents requested. Where the FOIA Officer has reasonable cause to 
doubt the use to which the requester will put the records sought, or 
where that use is not clear from the request itself, the FOIA Officer 
shall contact the requester for additional clarification before 
assigning the request to a specific category.
    (b) Confidential commercial information means records provided to 
the government by a submitter that arguably contains material exempt 
from disclosure under Exemption 4 of the FOIA, because disclosure could 
reasonably be expected to cause substantial competitive harm.
    (c) Direct costs mean those expenditures by the Commission actually 
incurred in searching for and duplicating records in response to the 
FOIA request. Direct costs include the salary of the employee or 
employees performing the work (the basic rate of pay for the employee 
plus a percentage of that rate to cover benefits) and the cost of 
operating duplicating machinery. Direct costs do not include overhead 
expenses, such as the cost of space, heating, or lighting of the 
facility in which the records are stored.
    (d) Duplication refers to the process of making a copy of a 
document necessary to fulfill the FOIA request. Such copies can take 
the form of, among other things, paper copy, microfilm, audio-visual 
materials, or machine readable documentation. The copies provided shall 
be in a form that is reasonably usable by the requester.
    (e) Educational institution refers to a preschool, a public or 
private elementary or secondary school, an institute of undergraduate 
higher education, an institute of graduate higher education, an 
institute of professional education, or an institute of vocational 
education which operates a program of scholarly research. To qualify 
for this category, the requester must show that the request is 
authorized by and is made under the auspices of a qualifying 
institution and that the records are not sought for a commercial use, 
but are sought to further scholarly research.
    (f) Freedom of Information Act Officer means the person designated 
by the Chairman to administer the FOIA.
    (g) Non-commercial scientific institution refers to an institution 
that is not operated on a ``commercial'' basis as that term is used in 
paragraph (a) of this section, and which is operated solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry. To qualify for 
this category, the requester must show that the request is authorized 
by and is made under the auspices of a qualifying institution and that 
the records are not sought for a commercial use, but are sought to 
further scholarly research.
    (h) Record means all books, papers, maps, photographs, machine 
readable materials, or other documentary materials, regardless of 
physical form or characteristics, made or received by the Commission 
under Federal law or in connection with the transaction of public 
business and preserved or appropriate for preservation by the 
Commission or its legitimate successor as evidence of the organization, 
functions, policies, decisions, procedures, operations, or other 
activities of the Government or because of the informational value of 
data in them. Library and museum material made or acquired and 
preserved solely for reference or exhibition purposes, extra copies of 
documents preserved only for convenience of reference, and stocks of 
publications and of processed documents are not included.
    (i) Representative of the news media means any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term ``news'' means information 
that is about current events or that would be of current interest to 
the public. For a ``freelance journalist'' to be regarded as working 
for a news organization, the requester must demonstrate a solid basis 
for expecting publication through that organization, such as a 
publication contract. Absent

[[Page 20008]]

such showing, the requester may provide documentation establishing the 
requester's past publication record. To qualify for this category, the 
requester must not be seeking the requested records for a commercial 
use. However, a request for records supporting a news-dissemination 
function shall not be considered to be for a commercial use.
    (j) Requester means any person, including an individual, Indian 
tribe, partnership, corporation, association, or public or private 
organization other than a Federal agency, that requests access to 
records in the possession of the Commission.
    (k) Review means the process of examining a record in response to a 
FOIA request to determine if any portion of that record may be withheld 
under one or more of the FOIA Exemptions. It also includes processing 
any record for disclosure, for example, redacting information that is 
exempt from disclosure under the FOIA. Review time includes time spent 
considering any formal objection to disclosure made by a business 
submitter under Sec. 517.7 (c). Review time does not include time spent 
resolving general legal or policy issues regarding the use of FOIA 
Exemptions.
    (l) Search refers to the time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within a document and also includes 
reasonable efforts to locate and retrieve information from records 
maintained in electronic form or format. The FOIA Officer shall ensure 
that searches are conducted in the most efficient and least expensive 
manner reasonably possible.
    (m) Submitter means any person or entity who provides information 
directly or indirectly to the Commission. The term includes, but is not 
limited to, corporations, Indian tribal governments, state governments 
and foreign governments.
    (n) Working day means a Federal workday that does not include 
Saturdays, Sundays, or Federal holidays.


Sec.  517.4  Requirements for making requests.

    (a) How to make a FOIA request. Requests for records made pursuant 
to the FOIA must be in writing. Requests should be sent to the National 
Indian Gaming Commission, Attn: FOIA Officer, 1441 L Street, NW., Suite 
9100, Washington, DC 20005. Requests may be mailed, dropped off in 
person, or faxed to (202) 632-7066 (not a toll free number). If the 
requester is making a request for records about himself/herself, the 
requester should see 25 CFR 515.3 for additional information. If the 
requester is making a request for records about another individual, the 
requester must provide either a written authorization signed by that 
individual authorizing disclosure of the records to the requester or 
provide proof that the individual is deceased (for example, a copy of 
the death certificate or a copy of the obituary).
    (b) Description of records sought. Requests for records shall 
describe the records requested with as much specificity as possible to 
enable Commission employees to locate the information requested with a 
reasonable amount of effort.
    (c) Agreement to pay fees. Requests shall also include a statement 
indicating the maximum amount of fees the requester is willing to pay 
to obtain the requested information, or a request for a waiver or 
reduction of fees. If the requester is requesting a waiver or reduction 
of fees the requester must include justification for such waiver or 
reduction (see Sec. 517.9 (c) for more information). If the request for 
a fee waiver is denied, the requester will be notified of this decision 
and advised that fees associated with the processing of the request 
will be assessed. The requester must send an acknowledgment to the FOIA 
Officer indicating his/her willingness to pay the fees. Absent such 
acknowledgment within the specified time frame, the request will be 
considered incomplete, no further work shall be done, and the request 
will be administratively closed.
    (d) Types of records not available. The FOIA does not require the 
Commission to:
    (1) Compile or create records solely for the purpose of satisfying 
a request for records;
    (2) Provide records not yet in existence, even if such records may 
be expected to come into existence at some future time; or
    (3) Restore records destroyed or otherwise disposed of, except that 
the FOIA Officer must notify the requester that the requested records 
have been destroyed or disposed.


Sec.  517.5  Responsibility for responding to requests.

    (a) In general. In determining which records are responsive to a 
request, the Commission ordinarily will include only records in its 
possession as of the date it begins its search for records. If any 
other date is used, the FOIA Officer shall inform the requester of that 
date.
    (b) Authority to grant or deny requests. The FOIA Officer shall 
make initial determinations either to grant or deny in whole or in part 
a request for records.
    (c) Consultations and referrals. (1) When a requested record has 
been created by another Federal Government agency that record shall be 
referred to the originating agency for direct response to the 
requester. The requester shall be informed of the referral. As this is 
not a denial of a FOIA request, no appeal rights accrue to the 
requester.
    (2) When a requested record is identified as containing information 
originating with another Federal Government agency, the record shall be 
referred to the originating agency for review and recommendation on 
disclosure.


Sec.  517.6  Timing of responses to requests.

    (a) In general. The FOIA Officer ordinarily shall respond to 
requests according to their order of receipt.
    (b) Multitrack processing. (1) The FOIA Officer may use multi-track 
processing in responding to requests. Multi-track processing means 
placing simple requests requiring rather limited review in one 
processing track and placing more voluminous and complex requests in 
one or more other tracks. Request in either track are processed on a 
first-in/first-out basis.
    (2) The FOIA Officer may provide requesters in its slower track(s) 
with an opportunity to limit the scope of their requests in order to 
qualify for faster processing within the specified limits of faster 
track(s). The FOIA Officer will do so either by contacting the 
requester by letter or telephone, whichever is more efficient in each 
case.
    (c) Initial determinations. (1) The FOIA Officer shall make an 
initial determination regarding access to the requested information and 
notify the requester within twenty (20) working days after receipt of 
the request. This 20 day period may be extended if unusual 
circumstances arise. If an extension is necessary, the FOIA Officer 
shall promptly notify the requester of the extension, briefly stating 
the reasons for the extension, and estimating when the FOIA Officer 
will respond. Unusual circumstances warranting extension are:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of records which are demanded in a single request; or
    (iii) The need for consultation with another agency having a 
substantial interest in the determination of the

[[Page 20009]]

request, which consultation shall be conducted with all practicable 
speed.
    (2) If the FOIA Officer decides that an initial determination 
cannot be reached within the time limits specified in paragraph (c)(1) 
of this section, the FOIA Officer shall notify the requester of the 
reasons for the delay and include an estimate of when a determination 
will be made. The requester will then have the opportunity to modify 
the request or arrange for an alternative time frame for completion of 
the request.
    (3) If the FOIA Officer has a reasonable basis to conclude that a 
requester or group of requesters has divided a request into a series of 
requests on a single subject or related subjects to avoid fees, the 
requests may be aggregated and fees charged accordingly. Multiple 
requests involving unrelated matters will not be aggregated.
    (4) If no initial determination has been made at the end of the 20 
day period provided for in paragraph (a)(1) of this section, including 
any extension, the requester may appeal the action to the FOIA Appeals 
Officer.
    (5) If the FOIA Officer determines that another agency is 
responsible for the records, the FOIA Officer shall refer such records 
to the appropriate agency for direct response to the requester. The 
FOIA Officer shall inform the requester of the referral and of the name 
and address of the agency or agencies to which the request has been 
referred.
    (d) Granting of requests. When the FOIA Officer determines that the 
requested records shall be made available, the FOIA Officer shall 
notify the requester in writing and provide copies of the requested 
records in whole or in part once any fees charged under Sec. 517.9 have 
been paid in full. Records disclosed in part shall be marked or 
annotated to show the exemption applied to the withheld information and 
the amount of information withheld unless to do so would harm the 
interest protected by an applicable exemption. If a requested record 
contains exempted material along with nonexempt material, all 
reasonable segregable material shall be disclosed.
    (e) Denial of requests. When the FOIA Officer determines that 
access to requested records should be denied, the FOIA Officer shall 
notify the requester of the denial, the grounds for the denial, and the 
procedures for appeal of the denial.
    (f) Expedited processing of request. The FOIA Officer must 
determine whether to grant the request for expedited processing within 
(10) calendar days of its receipt. Requests will receive expedited 
processing if one of the following compelling needs is met:
    (1) The requester can establish that failure to receive the records 
quickly could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual; or
    (2) The requester is primarily engaged in disseminating information 
and can demonstrate that an urgency to inform the public concerning 
actual or alleged Federal Government activity exists.


Sec.  517.7  Confidential commercial information.

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

[[Page 20010]]

that disclosure of the information would result in competitive harm; or
    (5) The designation made by the submitter in accordance with this 
part appears obviously frivolous. When the FOIA Officer determines that 
a submitter was frivolous in designating information as confidential, 
the FOIA Officer must provide the submitter with written notice of any 
final administrative disclosure determination within a reasonable 
number of days prior to the specified disclosure date, but no 
opportunity to object to disclosure will be offered.


Sec.  517.8  Appeals.

    (a) Right of appeal. The requester has the right to appeal to the 
FOIA Appeals Officer any adverse determination.
    (b) Notice of appeal. (1) Time for appeal. An appeal must be 
received no later than thirty (30) working days after notification of 
denial of access or after the time limit for response by the FOIA 
Officer has expired. Prior to submitting an appeal any outstanding fees 
associated with FOIA requests must be paid in full.
    (2) Form of appeal. An appeal shall be initiated by filing a 
written notice of appeal. The notice shall be accompanied by copies of 
the original request and initial denial. To expedite the appellate 
process and give the requester an opportunity to present his/her 
arguments, the notice should contain a brief statement of the reasons 
why the requester believes the initial denial to have been in error. 
The appeal shall be addressed to the National Indian Gaming Commission, 
Attn: FOIA Appeals Officer, 1441 L Street, NW., Suite 9100, Washington, 
DC 20005.
    (c) Final agency determinations. The FOIA Appeals Officer shall 
issue a final written determination, stating the basis for its 
decision, within twenty (20) working days after receipt of a notice of 
appeal. If the determination is to provide access to the requested 
records, the FOIA Officer shall make those records immediately 
available to the requester. If the determination upholds the denial of 
access to the requested records, the FOIA Appeals Officer shall notify 
the requester of the determination and his/her right to obtain judicial 
review in the appropriate Federal district court.


Sec.  517.9  Fees.

    (a) In general. Fees pursuant to the FOIA shall be assessed 
according to the schedule contained in paragraph (b) of this section 
for services rendered by the Commission in response to requests for 
records under this part. All fees shall be charged to the requester, 
except where the charging of fees is limited under paragraph (d) of 
this section or where a waiver or reduction of fees is granted under 
paragraph (c) of this section. Payment of fees should be by check or 
money order made payable to the Treasury of the United States.
    (b) Charges for responding to FOIA requests. The following fees 
shall be assessed in responding to requests for records submitted under 
this part, unless a waiver or reduction of fees has been granted 
pursuant to paragraph (c) of this section:
    (1) Copies. The FOIA Officer shall charge $0.15 per page for copies 
of documents up to 8\1/2\ x 14. For copies prepared by computer, the 
FOIA Officer will charge actual costs of production of the computer 
printouts, including operator time. For other methods of reproduction, 
the FOIA Officer shall charge the actual costs of producing the 
documents.
    (2) Searches. (i) Manual searches. Whenever feasible, the FOIA 
Officer will charge at the salary rate (basic pay plus a percent for 
benefits) of the employee or employees performing the search. However, 
where a homogenous class of personnel is used exclusively in a search 
(e.g. all administrative/clerical or all professional/executive), the 
FOIA Officer shall charge $4.45 per quarter hour for clerical time and 
$7.75 per quarter hour for professional time. Charges for search time 
less than a full hour will be in increments of quarter hours.
    (ii) Computer searches. The FOIA Officer will charge the actual 
direct costs of conducting computer searches. These direct costs shall 
include the cost of operating the central processing unit for that 
portion of operating time that is directly attributable to searching 
for requested records, as well as the costs of operator/programmer 
salary apportionable to the search. The Commission is not required to 
alter or develop programming to conduct searches.
    (3) Review fees. Review fees shall be assessed only with respect to 
those requesters who seek records for a commercial use under paragraph 
(d)(1) of this section. Review fees shall be assessed at the same rates 
as those listed under paragraph (b)(2)(i) of this section. Review fees 
shall be assessed only for the initial record review, for example, 
review undertaken when the FOIA Officer analyzes the applicability of a 
particular exemption to a particular record or portion thereof at the 
initial request level. No charge shall be assessed at the 
administrative appeal level of an exemption already applied.
    (c) Statutory waiver. Documents shall be furnished without charge 
or at a charge below that listed in paragraph (b) of this section where 
it is determined, based upon information provided by a requester or 
otherwise made known to the FOIA Officer, that disclosure of the 
requested information is in the public interest. Disclosure is in the 
public interest if it is likely to contribute significantly to public 
understanding of government operations and is not primarily for 
commercial purposes. Requests for a waiver or reduction of fees shall 
be considered on a case by case basis. In order to determine whether 
the fee waiver requirement is met, the FOIA Officer shall consider the 
following six factors:
    (1) The subject of the request. Whether the subject of the 
requested records concerns the operations or activities of the 
government;
    (2) The informative value of the information to be disclosed. 
Whether the disclosure is likely to contribute to an understanding of 
government operations or activities;
    (3) The contribution to an understanding of the subject by the 
general public likely to result from disclosure. Whether disclosure of 
the requested information will contribute to public understanding;
    (4) The significance of the contribution to public understanding. 
Whether the disclosure is likely to contribute significantly to public 
understanding of government operations or activities;
    (5) The existence and magnitude of commercial interest. Whether the 
requester has a commercial interest that would be furthered by the 
requested disclosure; and, if so
    (6) The primary interest in disclosure. Whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large, in comparison with the public interest in disclosure, that 
disclosure is primarily in the commercial interest of the requester.
    (d) Types of requesters. There are four categories of FOIA 
requesters: Commercial use requesters, educational and non-commercial 
scientific institutional requesters; representative of the news media; 
and all other requesters. These terms are defined in Sec. 517.3. The 
following specific levels of fees are prescribed for each of these 
categories:
    (1) Commercial use requesters. The FOIA Officer shall charge 
commercial use requesters the full direct costs of searching for, 
reviewing, and duplicating requested records.
    (2) Educational and non-commercial scientific institution 
requesters. The

[[Page 20011]]

FOIA Officer shall charge educational and non-commercial scientific 
institution requesters for document duplication only, except that the 
first 100 pages of copies shall be provided without charge.
    (3) News media requesters. The FOIA Officer shall charge news media 
requesters for document duplication costs only, except that the first 
100 pages of paper copies shall be provided without charge.
    (4) All other requesters. The FOIA Officer shall charge requesters 
who do not fall into any of the categories in paragraphs (d)(1) through 
(3) of this section fees which recover the full reasonable direct costs 
incurred for searching for and reproducing records if that total costs 
exceeds $15.00, except that the first 100 pages and the first two hours 
of manual search time shall not be charged. To apply this term to 
computer searches, the FOIA Officer shall determine the total hourly 
cost of operating the central processing unit and the operator's salary 
(plus 16 percent for benefits). When the cost of the search equals the 
equivalent dollar amount of two hours of the salary of the person 
performing the search, the FOIA Officer will begin assessing charges 
for the computer search.
    (e) Charges for unsuccessful searches. Ordinarily, no charges will 
be assessed when requested records are not found or when records 
located are withheld as exempt. However, if the requester has been 
notified of the estimated cost of the search time and has been advised 
specifically that the requested records may not exist or may be 
withheld as exempt, fees may be charged.
    (f) Charges for interest. The FOIA Officer may assess interest 
charges on an unpaid bill, accrued under previous FOIA request(s), 
starting the 31st day following the day on which the bill was sent to 
you. A fee received by the FOIA Officer, even if not processed, will 
result in a stay of the accrual of interest. The Commission shall 
follow the provisions of the Debt Collection Act of 1982, as amended, 
and the implementing procedures to recover any indebtedness owed to the 
Commission.
    (g) Aggregating requests. The requester or a group of requesters 
may not submit multiple requests at the same time, each seeking 
portions of a document or documents solely in order to avoid payment of 
fees. When the FOIA Officer reasonably believes that a requester is 
attempting to divide a request into a series of requests to evade an 
assessment of fees, the FOIA Officer may aggregate such request and 
charge accordingly.
    (h) Advance payment of fees. Fees may be paid upon provision of the 
requested records, except that payment may be required prior to that 
time if the requester has previously failed to pay fees or if the FOIA 
Officer determines the total fee will exceed $250.00. When payment is 
required in advance of the processing of a request, the time limits 
prescribed in Sec.  517.6 shall not be deemed to begin until the FOIA 
Officer has received payment of the assessed fee.
    (i) Payment of fees. Where it is anticipated that the cost of 
providing the requested record will exceed $25.00 after the free 
duplication and search time has been calculated, and the requester has 
not indicated in advance a willingness to pay a fee greater than 
$25.00, the FOIA Officer shall promptly notify the requester of the 
amount of the anticipated fee or a portion thereof, which can readily 
be estimated. The notification shall offer the requester an opportunity 
to confer with agency representatives for the purpose of reformulating 
the request so as to meet the requester's needs at a reduced cost.

[FR Doc. 06-3712 Filed 4-18-06; 8:45 am]
BILLING CODE 7565-01-P