[Federal Register: July 28, 2009 (Volume 74, Number 143)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 515
Privacy Act Procedures
AGENCY: National Indian Gaming Commission, Department of the Interior.
ACTION: Notice of proposed rulemaking.
SUMMARY: The purpose of this document is to propose to amend the
procedures followed by the National Indian Gaming Commission
(Commission) when processing a request under the Privacy Act of 1974.
The proposed amendments make the following changes to the current
regulations. Section 515.3 changes the address of the Commission,
provides a list of items to include in requests to the Commission, and
provides the necessary requirements for third party requests. Section
515.4 includes the Commission policy for dealing with other agencies
and designates an individual responsible for making initial Privacy Act
determinations. Section 515.5 explains what constitutes an adverse
determination. Section 515.6 changes the time for appeals of adverse
determinations from 180 days to 30 days. Section 515.8 details when the
Commission is required to provide an accounting of the records it
discloses. Finally, Section 515.12 updates the list of records that are
exempt from disclosure under the Privacy Act.
DATES: Written comments on this proposed rule must be received on or
before September 11, 2009.
ADDRESSES: Comments may be mailed to the National Indian Gaming
Commission, FOIA/PA Officer, 1441 L Street, NW., Suite 9100,
Washington, DC 20005, delivered to that address between 8:30 a.m. and
5:30 p.m., Monday through Friday, or faxed to (202) 632-7066 (this is
not a toll free number). Comments may be inspected between 9 a.m. and
noon and between 2 p.m. and 5 p.m., Monday through Friday, at the above
address. Comments may also be submitted electronically at http://
www.regulations.gov or e-mailed to firstname.lastname@example.org.
FOR FURTHER INFORMATION CONTACT: Jeannie McCoy 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. Congress enacted the Privacy Act, Public Law 93-579, 5
U.S.C. 552a, in 1974. The Commission originally adopted Privacy Act
procedures on January 22, 1993. Now, the Commission has decided that
the procedures need to be updated.
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. For this reason, the Commission has concluded that
the proposed 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, 2 U.S.C. 1501 et seq.
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
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.
List of Subjects in 25 CFR Part 515
Administrative practice and procedure, Privacy, Reporting and
Accordingly for the reasons set forth above, the Commission is
proposing to revise Part 515 of Title 25 to read as follows:
PART 515--PRIVACY ACT PROCEDURES
515.1 Purpose and scope.
515.3 Request for access to records.
515.4 Responsibility for responding to requests.
515.5 Responses to requests for access to records.
515.6 Appealing denials of access.
515.7 Request for amendment or correction of records.
515.8 Requests for an accounting of record disclosure.
515.11 General exemptions [Reserved]
515.12 Specific exemptions.
Authority: 5 U.S.C. 552a.
Sec. 515.1 Purpose and scope.
This part contains the regulations the National Indian Gaming
Commission (Commission) follows in implementing the Privacy Act of
regulations should be read together with the Privacy Act, which
provides additional information about records maintained on
individuals. These regulations apply to all records in systems of
records maintained by the Commission that are retrieved by an
individual's name or personal identifier. They describe the procedures
by which individuals may request access to records about themselves,
request amendment or correction of those records, and request an
accounting of disclosures of those records by the Commission. The
Commission shall also process all Privacy Act requests for access to
records under the Freedom of Information Act (FOIA), 5 U.S.C. 552,
which gives requesters maximum disclosure.
Sec. 515.2 Definitions.
For the purposes of this part:
(a) Individual means a citizen of the United States or an alien
lawfully admitted for permanent residence.
(b) Maintain means store, collect, use, or disseminate.
(c) Record means any item, collection, or grouping of information
about an individual that is maintained by the Commission, including
education, financial transactions, medical history, and criminal or
employment history, and that contains the individual's name, or
identifying number, symbol, or other identifier assigned to the
individual, such as social security number, finger or voice print, or
(d) System of records means a group of any records under the
control of the Commission from which information is retrieved by the
name of the individual or by some identifying number, symbol, or other
identifier assigned to the individual.
(e) Routine use means use of a record for a purpose that is
compatible with the purpose for which it was collected.
(f) Working day means a Federal workday that does not include
Saturdays, Sundays, or Federal holidays.
Sec. 515.3 Request for access to records.
(a) How made and addressed. You may make a request to the
Commission for access to records about yourself. Your request may be
made in writing to the Commission at 1441 L Street, NW., Suite 9100,
Washington, DC 20005, or in person during the hours of 9 a.m. to noon
and 2 p.m. to 5 p.m., Monday through Friday.
(b) Description of records sought. You must describe the records
sought in enough detail to enable Commission personnel to locate the
system of records containing them with a reasonable amount of effort.
Whenever possible, your request should describe the records sought, the
time periods in which you believe they were compiled, and the name or
identifying number of each system of records in which you believe they
(c) Agreement to pay fees. If you make a Privacy Act request for
access to records it shall be considered an agreement by you to pay all
applicable fees charged under Sec. 515.9, up to $25.00. When making a
request you may specify a willingness to pay a greater or lesser
(d) Verification of identity. When you make a request for access to
records about yourself, you must verify your identity. You must state
your full name, current address, and date and place of birth. You must
sign your request and your signature must either be notarized or
submitted under 28 U.S.C. 1746, which is a law that permits statements
to be made under penalty of perjury as a substitute for notarization.
(e) Verification of guardianship. When you make a request as a
parent or guardian for records pertaining to another individual you
(1) The identity of the individual who is the subject of the record
by stating the name, current address, date and place of birth of the
(2) Your own identity, as required in paragraph (d) of this
(3) That you are the parent or guardian of the individual and proof
of such relationship by providing a birth certificate showing your
parentage or a court order establishing guardianship.
(f) Verification in the case of third party information requests.
If you are making a request for records concerning an individual on
behalf of that individual, you must provide a statement from the
individual verifying the identity of the individual as provided in
paragraph (d) of this section. You must also provide a statement from
the individual certifying the individual's agreement that records
concerning the individual may be released to you.
Sec. 515.4 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 Commission shall inform you of that date.
(b) Authority to grant or deny requests. The officer designated by
the Chairman of the Commission shall make initial determinations either
to grant or deny in whole or in part access to 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 unless otherwise instructed by the originating
agency. This is not a denial of a Privacy Act request and thus no
appeal rights accrue to the requester.
(2) When a requested record contains information originating with
another Federal Government agency, the record shall be referred to the
originating agency for review and recommendation on disclosure. The
originating agency shall respond to the Commission with its
recommendation. The Commission shall not release any such record
without prior consultation with the originating agency.
Sec. 515.5 Response to requests for access to records.
(a) Acknowledgement of requests. Requests for a determination under
Sec. 515.3(a) of this part shall be acknowledged by the Commission
within 10 working days after the date on which the Commission receives
(b) Grants of requests for access. Once the Commission makes a
determination to grant a request for access in whole or in part, it
shall notify you in writing, informing you of any fees charged for the
request. Once fees are paid, the Commission will release the records to
you. If a request is made in person, the Commission will disclose the
records to you in a manner not unreasonably disruptive of its
operations. A written record will be made of the disclosure. If you are
accompanied by another individual, you must authorize in writing any
discussion of the records in the presence of the other person.
(c) Adverse determinations of requests for access. If the
Commission makes an adverse determination denying a request for access
in any respect, it shall notify you of that determination in writing.
Adverse determinations or denial of requests consist of: A
determination to withhold any requested record in whole or in part; a
determination that a requested record does not exist or cannot be
located; a determination that the requested record is not a record
subject to the Privacy Act; a determination on any disputed fee matter;
and a denial of request for expedited processing. The notification
letter shall be signed by the Chairman of the Commission or the
Chairman's designee and include:
(1) The name and title of the person responsible for the denial;
(2) A brief statement of the reason(s) for the denial, including
any Privacy Act exemption(s) applied to the denial;
(3) A statement that the denial may be appealed under Sec. 515.6
and a description of the requirements of Sec. 515.6.
Sec. 515.6 Appealing denials of access.
(a) Appeals. If your request for access has been denied in whole or
in part, you may appeal the decision to the Commission no later than 30
business days after the adverse decision is rendered. The appeal shall
be in writing and describe the determination decision that is being
appealed. Mark both the appeal letter and envelope ``Privacy Act
(b) Responses to appeals. The decision on your appeal will be made
in writing within 30 business days of receipt of the appeal by the
Commission. For good cause shown, however, the Commission may extend
the 30 business day period. You shall be promptly notified of such
extension and the anticipated date of a decision. A decision affirming
an adverse determination in whole or in part will include a brief
statement of the reason(s) for the determination, including any Privacy
Act exemption(s) applied, and will inform you of the Privacy Act
provisions for court review of the decision. If the adverse
determination is reversed in whole or in part, you will be notified in
a written decision and your request will be reprocessed in accordance
with that appeal decision. You shall also be advised of your right to
institute a civil action in a Federal district court for judicial
review of the decision.
(c) When appeal is required. If you wish to seek review by a court
of any adverse determination or denial of a request, you must first
appeal it under this section.
Sec. 515.7 Request for amendment or correction of records.
(a) Amendment. You may make a request for an amendment or
correction to a Commission record about you by writing directly to the
Privacy Act Officer. Your request should identify each particular
record in question, state the amendment or correction that you seek,
and state why you believe that the record is not accurate, relevant,
timely, or complete. You may include any documentation you think would
(b) Privacy Act Officer Response. The Privacy Act Officer shall,
not later than 10 working days after receipt of a request for an
amendment or correction of a record, acknowledge receipt of your
request and notify you whether your request is granted or denied. If
your request is granted in whole or in part, the Privacy Act Officer
shall describe the amendment or correction made and shall advise you of
your right to obtain a copy of the amended or corrected record. If the
request is denied in whole or in part, the Privacy Act Officer shall
send you a letter signed by the Chairman of the Commission or the
Chairman's designee stating:
(1) The reason(s) for the denial; and
(2) The procedure for appeal of the denial under paragraph (c) of
this section, including the name and address of the official who will
act on your appeal.
(c) Appeals. You may appeal a denial of a request for an amendment
or correction in the same manner as a denial of a request for access to
records in Sec. 515.6. If your appeal is denied, you shall be advised
of your right to file a Statement of Disagreement as described in
paragraph (d) of this section and of your right under the Privacy Act
for court review of the decision.
(d) Statement of Disagreement. If your appeal under this section is
denied in whole or in part, you have the right to file a Statement of
Disagreement that states your reason(s) for disagreeing with the
Commission's denial of your request for an amendment or correction.
Statements of Disagreement must be concise, must clearly identify each
part of any record that is disputed, and should be no longer than one
typed page for each fact disputed. Your Statement of Disagreement shall
be placed in the system of records in which the disputed record is
maintained and the record shall be marked to indicate a Statement of
Disagreement has been filed.
(e) Notification of amendment, correction, or disagreement. Within
30 working days of the amendment or correction of the record, the
Commission shall notify all persons, organizations, or agencies to
which it previously disclosed the record, if an accounting of that
disclosure was made, that the record has been amended or corrected. If
you filed a Statement of Disagreement, the Commission shall append a
copy of it to the disputed record whenever the record is disclosed and
may also append a concise statement of its reason(s) for denying the
request to amend the record.
(f) Records not subject to amendment. Section 515.12 lists the
records that are exempt from amendment or correction.
Sec. 515.8 Requests for an accounting of record disclosure.
(a) How made and addressed. Except where accountings of disclosures
are not required to be kept (as stated in paragraph (b) of this
section), you may make a request for an accounting of any disclosure
that has been made by the Commission to another person, organization,
or agency of any record about you. This accounting contains the date,
nature and purpose of each disclosure, as well as the name and address
of the person, organization, or agency to which the disclosure was
made. Your request for an accounting should identify each particular
record in question and should be made in writing to the Commission.
(b) Where accountings are not required. The Commission is not
required to provide an accounting to you where they relate to:
(1) Disclosures for which accountings are not required to be kept,
such as disclosures that are made to employees within the agency and
disclosures that are made under the FOIA;
(2) Disclosures made to law enforcement agencies for authorized law
enforcement activities in response to written requests from those law
enforcement agencies specifying the law enforcement activities for
which the disclosures are sought; or
(3) Disclosures made from law enforcement systems of records that
have been exempted from accounting requirements.
(c) Appeals. You may appeal a denial of a request for an accounting
within 30 business days after the adverse decision is rendered in the
same manner as a denial of a request for access to records in Sec.
515.6 and the same procedures will be followed.
Sec. 515.9 Fees.
The Commission shall not charge you for the costs of making a
search for a record or the costs of reviewing the record. When the
Commission makes a copy of a record as a necessary part of reviewing
the record, the Commission shall not charge you for the cost of making
that copy. Otherwise, the Commission may charge a fee sufficient to
cover the cost of duplicating a copy for you.
Sec. 515.10 Penalties.
Any person who makes a false statement in connection with any
request for a record, or an amendment thereto, under this part, is
subject to the penalties prescribed in 18 U.S.C. 494 and 495.
Sec. 515.11 General exemptions. [Reserved]
Sec. 515.12 Specific exemptions.
(a) The following systems of records are exempt from 5 U.S.C.
552a(c)(3), (d), (e)(1) and (f):
(1) Indian Gaming Individuals Records System.
(2) Management Contract Individuals Record System.
(b) The exemptions under paragraph (a) of this section apply only
to the extent that information in these systems is subject to exemption
under 5 U.S.C. 552a(k)(2). When compliance would not appear to
interfere with or adversely affect the overall responsibilities of the
Commission, with respect to licensing of key employees and primary
management officials for employment in an Indian gaming operation, the
applicable exemption may be waived by the Commission.
(c) Exemptions from the particular sections are justified for the
(1) From 5 U.S.C. 552a(c)(3), because making available the
accounting of disclosures to an individual who is the subject of a
record could reveal investigative interest. This would permit the
individual to take measures to destroy evidence, intimidate potential
witnesses, or flee the area to avoid the investigation.
(2) From 5 U.S.C. 552a(d), (e)(1), and (f) concerning individual
access to records, when such access could compromise classified
information related to national security, interfere with a pending
investigation or internal inquiry, constitute an unwarranted invasion
of privacy, reveal a sensitive investigative technique, or pose a
potential threat to the Commission or its employees or to law
enforcement personnel. Additionally, access could reveal the identity
of a source who provided information under an express promise of
(3) From 5 U.S.C. 552a(d)(2), because to require the Commission to
amend information thought to be incorrect, irrelevant, or untimely,
because of the nature of the information collected and the length of
time it is maintained, would create an impossible administrative and
investigative burden by continually forcing the Commission to resolve
questions of accuracy, relevance, timeliness, and completeness.
(4) From 5 U.S.C. 552a(e)(1) because:
(i) It is not always possible to determine relevance or necessity
of specific information in the early stages of an investigation.
(ii) Relevance and necessity are matters of judgment and timing in
that what appears relevant and necessary when collected may be deemed
unnecessary later. Only after information is assessed can its relevance
and necessity be established.
(iii) In any investigation the Commission may receive information
concerning violations of law under the jurisdiction of another agency.
In the interest of effective law enforcement and under 25 U.S.C.
2716(b), the information could be relevant to an investigation by the
(iv) In the interviewing of individuals or obtaining evidence in
other ways during an investigation, the Commission could obtain
information that may or may not appear relevant at any given time;
however, the information could be relevant to another investigation by
Dated: June 21, 2009.
Philip N. Hogen,
[FR Doc. E9-17745 Filed 7-27-09; 8:45 am]
BILLING CODE 7565-01-P