July 28, 2009

Privacy Act Procedures

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.
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[Federal Register: July 28, 2009 (Volume 74, Number 143)]
[Proposed Rules]               
[Page 37180-37183]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28jy09-13]                         

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DEPARTMENT OF THE INTERIOR

National Indian Gaming Commission

25 CFR Part 515

RIN 3141-AA21

 
Privacy Act Procedures

AGENCY: National Indian Gaming Commission, Department of the Interior.

ACTION: Notice of proposed rulemaking.

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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 pacomments@nigc.gov.

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 
enterprises.
    Paperwork Reduction Act: The proposed rule does not contain any 
information collection requirements for which the Office of Management 
and Budget approval under the Paperwork Reduction Act (44 U.S.C. 3501-
3520) would be required.
    National Environmental Policy Act: The Commission has determined 
that the proposed rule does not constitute a major Federal Action 
significantly affecting the quality of the human environment and that 
no detailed statement is required pursuant to the National 
Environmental Policy Act of 1969.

List of Subjects in 25 CFR Part 515

    Administrative practice and procedure, Privacy, Reporting and 
recordkeeping.

    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

Sec.
515.1 Purpose and scope.
515.2 Definitions.
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.
515.9 Fees.
515.10 Penalties.
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 
1974. These

[[Page 37181]]

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 
photograph.
    (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 
are kept.
    (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 
amount.
    (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 
must establish:
    (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 
individual;
    (2) Your own identity, as required in paragraph (d) of this 
section;
    (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 
the request.
    (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:

[[Page 37182]]

    (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 
Appeal.''
    (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 
be helpful.
    (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.

[[Page 37183]]

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 
following reasons:
    (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 
confidentiality.
    (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 
Commission.
    (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 
the Commission.

    Dated: June 21, 2009.
Philip N. Hogen,
Chairman.
Norman DesRosiers,
Vice Chairman.
[FR Doc. E9-17745 Filed 7-27-09; 8:45 am]

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