ether the fee waiver requirement is et, the FOLA Officer shall consider e following six factors: (1) The subject of the request. Whether e subject of the requested records ncerns the operations or activities of e government; (2) The informative value of the inforation to be disclosed. Whether the disosure is likely to contribute to an unerstanding of government operations ractivities; (3) The contribution to an understandg of the subject by the general public kely to result from disclosure. Whether isclosure of the requested information ill contribute to public understand1g: (4) The significance of the contribution • public understanding. Whether the isclosure is likely to contribute sigificantly to public understanding of overnment operations or activities; (5) The existence and magnitude of comnercial 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 identifled 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, representatives of the news media, and all other requesters. These terms are defined in §517.2. Specific levels of fees are prescribed below 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 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 reduplication questers for document 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 above categories fees which recover the full reasonable direct costs incurred for searching for and reproducing records if that total cost 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 will 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 charge will be assessed when requested records are not found or when the 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 on the 31st day following the day on which the bill was sent to the requester. 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 and the implementing procedures to recover any indebtedness owed to the Commission. (g) Aggregating requests. A 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 Commission reasonably believes that a requester is attempting to divide a request into a series of requests to evade an assessment of fees, the Commission 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. When payment is required in advance of the processing of a request, the time limits prescribed in §517.6 shall not be deemed to begin until the FOIA Officer has received payment of the assessed fee. (i) Payment of fees. Where it is anticipated that the cost of providing the requested record will exceed $25.00 after the free duplication and search time has been calculated, and the requester has not indicated in advance a willingness to pay a fee greater than $25.00, the FOIA Officer shall promptly notify the requester of the amount of the anticipated fee or a portion thereof, which can readily be estimated. The notification shall offer the requesting party 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. $519.2 Designation of an agent by a management contractor or a tribal operator. By written notification to the Commission, a management contractor or a tribal operator shall designate an agent for service of any official determination, order, or notice of violation § 519.3 Methods of service. (a) The Chairman shall serve any official determination, order, or notice of violation by: (1) Delivering a copy to a designated agent; (2) Delivering a copy to the person who is the subject of the official determination, order, or notice of violation; (3) Delivering a copy to the individual who, after reasonable inquiry, appears to be in charge of the gaming operation that is the subject of the official determination, order, or notice of violation; (4) Mailing to the person who is the subject of the official determination, order, or notice of violation or to his or her designated agent at the last known address. Service by mail is complete upon mailing; or (5) Transmitting a facsimile to the person who is the subject of the official determination, order, or notice of violation or to his or her designated agent at the last known facsimile number. Service by facsimile is complete upon transmission. (b) Delivery of a copy means: Handing it to the person or designated agent (or attorney for either); leaving a copy at the person's, agent's or attorney's office with a clerk or other person in charge thereof; if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. (c) Service shall not be deemed incomplete because of refusal to accept. $519.4 Copy of any official determination, order, or notice of violation. The Commission shall transmit a copy of any official determination, order, or notice of violation to the tribal chairman, the designated tribal agent under §519.1, and to the relevant tribal gaming authority. The Commission shall transmit such copy as expe ditiously as possible. Service under $519.3 shall not depend on a copy being sent to the appropriate tribal chairman, the designated tribal agent or to the relevant tribal gaming authority. SUBCHAPTER B-APPROVAL OF CLASS II AND CLASS III ORDINANCES AND RESOLUTIONS $522.1 Scope of this part. This part applies to any gaming ordinance or resolution adopted by a tribe after February 22, 1993. Part 523 of this chapter applies to all existing gaming ordinances or resolutions. (58 FR 5810, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993] 1522.2 Submission requirements. A tribe shall submit to the Chairman all of the following information with a request for approval of a class II or class III ordinance or resolution: (a) One copy on 81⁄2" x 11" paper of an ordinance or resolution certified as authentic by an authorized tribal official and that meets the approval requirements in §522.4(b) or 522.6 of this part; (b) A description of procedures to conduct or cause to be conducted background investigations on key employees and primary management officials and to ensure that key employees and primary management officials are notified of their rights under the Privacy Act as specified in §556.2 of this chapter: (c) A description of procedures to issue tribal licenses to primary management officials and key employees; (d) Copies of all tribal gaming regulations; (e) When an ordinance or resolution concerns class III gaming, a copy of the tribal-state compact or procedures as prescribed by the Secretary; (f) A description of procedures for resolving di putes between the gaming public and the tribe or the management contractor; (g) Des.gnation of an agent for service under §519.1 of this chapter; and (h) Identification of a law enforcement agency that will take fingerprints and a description of procedures for conducting a criminal history check by a law enforcement agency. Such a criminal history check shall include a check of criminal history records information maintained by the Federal Bureau of Investigation. [58 FR 5810, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993] §522.3 Amendment. (a) Within 15 days after adoption, a tribe shall submit for the Chairman's approval any amendment to an ordinance or resolution. (b) A tribe shall submit for the Chairman's approval any amendment to the submissions made under §§ 522.2(b) No later than 90 days after the submission to the Chairman under §522.2 of this part, the Chairman shall approve the class II ordinance or resolution if the Chairman finds that (a) A tribe meets the submission requirements contained in §522.2 of this part; and (b) The class II ordinance or resolution provides that (1) The tribe shall have the sole proprietary interest in and responsibility for the conduct of any gaming operation unless it elects to allow individually owned gaming under either § 522.10 or § 522.11 of this part; (2) A tribe shall use net revenues from any tribal gaming or from any individually owned games only for one or more of the following purposes: (i) To fund tribal government operations or programs; (ii) To provide for the general welfare of the tribe and its members (if a tribe elects to make per capita distributions, the plan must be approved by the Secretary of the Interior under 25 U.S.C. 2710(b)(3)); (iii) To promote tribal economic development; (iv) To donate to charitable organizations; or (v) To help fund operations of local government agencies; (3) A tribe shall cause to be conducted independent audits of gaming operations annually and shall submit the results of those audits to the Commission; (4) All gaming related contracts that result in purchases of supplies, services, or concessions for more than $25,000 in any year (except contracts for professional legal or accounting services) shall be specifically included within the scope of the audit conducted under paragraph (b)(3) of this section; (5) A tribe shall perform background investigations and issue licenses for key employees and primary management officials according to requirements that are at least as stringent as those in parts 556 and 558 of this chapter; No later than 90 days after the submission to the Chairman under §522.2 of this part, the Chairman shall approve the class III ordinance or resolution if (a) A tribe follows the submission requirements contained in §522.2 of this part; (b) The ordinance or resolution meets the requirements contained in § 522.4(b) (2), (3), (4), (5), (6), and (7) of this part: and (c) The tribe shall have the sole proprietary interest in and responsibility for the conduct of any gaming operation unless it elects to allow individually owned gaming under §522.10 of this part. § 522.7 Disapproval of a class III ordi nance. (a) Notwithstanding compliance with the requirements of §522.6 of this part and no later than 90 days after a submission under §522.2 of this part, the Chairman shall disapprove an ordinance or resolution and notify a tribe of its right of appeal under part 524 of this chapter if the Chairman determines that (1) A tribal governing body did not adopt the ordinance or resolution in compliance with the governing documents of a tribe; or (2) A tribal governing body was significantly and unduly influenced in the adoption of the ordinance or resolution by a person having a direct or indirect financial interest in a management contract, a person having management responsibility for a management contract, or their agents. (b) A disapproval shall be effective immediately unless appealed under part 524 of this chapter. $522.8 Publication of class III ordinance and approval. The Chairman shall publish a class III tribal gaming ordinance or resolution in the FEDERAL REGISTER along with the Chairman's approval thereof. § 522.9 Substitute approval. If the Chairman fails to approve or disapprove an ordinance or resolution submitted under §522.2 of this part within 90 days after the date of submission to the Chairman, a tribal ordinance or resolution shall be considered to have been approved by the Chairman but only to the extent that such ordinance or resolution is consistent with the provisions of the Act and this chapter. $522.10 Individually owned class II and class III gaming operations other than those operating on September 1, 1986. For licensing of individually owned gaming operations other than those operating on September 1, 1986 (addressed under § 522.11 of this part), a tribal ordinance shall require: (a) That the gaming operation be licensed and regulated under an ordinance or resolution approved by the Chairman; (b) That income to the tribe from an individually owned gaming operation be used only for the purposes listed in §522.4(b)(2) of this part; (c) That not less than 60 percent of the net revenues be income to the Tribe; (d) That the owner pay an assessment to the Commission under §514.1 of this chapter; (e) Licensing standards that are at least as restrictive as those established by State law governing similar gaming within the jurisdiction of the surrounding State; and (f) Denial of a license for any person or entity that would not be eligible to receive a State license to conduct the same activity within the jurisdiction of the surrounding State. State law standards shall apply with respect to purpose, entity, pot limits and hours of operation. § 522.11 Individually owned class II gaming operations operating on September 1, 1986. For licensing of individually owned gaming operations operating on September 1, 1986, under §502.3(e) of this chapter, a tribal ordinance shall contain the same requirements as those in § 522.10(a)–(d) of this part. § 522.12 Revocation of class III gaming. A governing body of a tribe, in its sole discretion and without the approval of the Chairman, may adopt an ordinance or resolution revoking any prior ordinance or resolution that authorizes class III gaming. (a) A tribe shall submit to the Chairman on 81⁄2" x 11" paper one copy of any revocation ordinance or resolution certified as authentic by an authorized tribal official. (b) The Chairman shall publish such ordinance or resolution in the FEDERAL REGISTER and the revocation provided by such ordinance or resolution shall take effect on the date of such publication. (c) Notwithstanding any other provision of this section, any person or entity operating a class III gaming operation on the date of publication in the FEDERAL REGISTER under paragraph (b) of this section may, during a one-year period beginning on the date of publication, continue to operate such operation in conformance with a tribalstate compact. (d) A revocation shall not affect (1) Any civil action that arises during the one-year period following publication of the revocation; or (2) Any crime that is committed during the one-year period following publication of the revocation. E 793 |