[Federal Register: April 19, 2006 (Volume 71, Number 75)]
[Rules and Regulations]
[Page 20006-20011]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19ap06-7]
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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