[Federal Register Volume 60, Number 193 (Thursday, October 5, 1995)]
[Rules and Regulations]
[Pages 52250-52275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24480]
[[Page 52249]]
_______________________________________________________________________
Part II
Department of the Interior
_______________________________________________________________________
Bureau of Indian Affairs
_______________________________________________________________________
25 CFR Part 163
General Forestry Regulations; Final Rule
Federal Register / Vol. 60, No. 193 / Thursday, October 5, 1995 /
Rules and Regulations
[[Page 52250]]
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 163
RIN: 1076-AC44
General Forestry Regulations
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The purpose of this rulemaking action is to revise the General
Forestry Regulations to implement the provisions of the National Indian
Forest Resources Management Act enacted November 28, 1990.
The National Indian Forest Resources Management Act reaffirmed many
aspects of the existing Indian forestry program and established new
program direction for cooperative agreements, forest trespass,
Secretarial recognition of tribal laws pertaining to Indian forest
lands, Indian forestry program assessments, Indian forest land
assistance accounts, tribal forestry programs, Alaska Native technical
assistance and forestry education assistance.
EFFECTIVE DATE: November 6, 1995.
FOR FURTHER INFORMATION CONTACT: Mr. Jim Stires, Forester, Billings
Area Office, Bureau of Indian Affairs, 316 North 26th Street, Billings,
Montana, 59101, Phone (406) 657-6358; or Mr. Terry Virden, Acting
Chief, Division of Forestry, Department of the Interior, Bureau of
Indian Affairs, Division of Forestry, 1849 C Street, NW, Mail Stop 4545
MIB, Washington, DC 20240, Phone (202) 208-6067.
SUPPLEMENTARY INFORMATION:
I. Background
The final rule has been developed with full participation and
consultation of the affected Indian and Alaska Native public. Prior to
drafting the proposed rule, public scoping meetings were announced and
held in Minneapolis, Portland, Phoenix and Anchorage in February and
March, 1991. Input from those meetings was considered and addressed in
the rule. Additional consultation with the affected public was
accomplished while drafting the rule by maintaining close communication
with the Intertribal Timber Council (ITC) and including ITC members on
the project steering committee and in project working groups.
Proposed regulations were published on January 27, 1994, at 59 FR
3952. Following publication, a 60-day public comment period was held
extending through March 28, 1994. Early in the comment period, copies
of the proposed rule and the schedule of planned regional public
comment meetings were provided to tribes and Alaska Native Corporations
to encourage the maximum possible review and critique of the proposed
rule. During the comment period, regional public comment meetings were
held in Phoenix, Minneapolis, Portland, Anchorage, and Fairbanks. A
total of 142 written or oral comments made at public comment meetings
were received from individuals and attorneys representing tribes,
tribal enterprises, and Federal agencies, as well as from individuals
commenting on their own behalf. The comments and the Department's
response are summarized below. Public comments are arranged by section
of the proposed rule as printed in the Federal Register on January 27,
1994.
II. Review of Public Comments
1. Comment: The Regulatory Flexibility Act requires that the
certification of no impact on a substantial number of small entities
must be accompanied by a succinct statement explaining the
certification. The proposed rule did not contain the required
statement.
Response: The statement explaining the certification of no impact
was unintentionally omitted from the Supplementary Information section
of the published proposed rule. The statement explaining the
certification has been included under Part III of the preamble,
Findings and Certifications.
Subpart A--General Provisions
163.1 Definitions
2. Comment: The definition of advance payment should be dropped
since advance payments and advance deposits are essentially used in the
same way.
Response: The rule has not been revised because advance payments
and advance deposits are not the same, are requirements of timber sale
contracts, and must be addressed in regulations establishing policy and
guidance for such contracts.
3. Comment: The 30-day payment requirement in the definition of
advance payments is unnecessary.
Response: The rule has not been revised because the definition is
made in reference to standard timber contracts and provisions of the
definition must conform to the term as used in such contracts.
4. Comment: The definition of bid deposit should include the option
to convert bid deposits to performance bonds and advance payments in
timber sale contracts.
Response: The rule has not been revised because contracts are more
appropriate than regulations for providing specific guidance on the
disposition of bid deposits. The definition of bid deposit in
Sec. 163.1 of the rule does not preclude use of bid deposits for
performance bonds or advance payments if so stipulated in timber
contracts.
5. Comment: The term ``expenditure plan'' used in Sec. 163.25(f) of
the rule should clarify the type of plan required to budget and use
forest management deductions.
Response: The rule has been revised to include a definition of
expenditure plan in Sec. 163.1 to clarify plan requirements.
6. Comment: In the definition of forest or forest land, the phrase
``more or less dense'' is ambiguous and unnecessary.
Response: The rule has not been revised because the wording of the
definition is taken directly from 25 U.S.C. 3103(3) and is appropriate
in the context used.
7. Comment: The definition of forest land management activities in
Sec. 163.1 of the rule should include the comprehensive list of such
activities contained in 25 U.S.C. 3103(4).
Response: The definition of forest land management activities in
Sec. 163.1 of the rule has been revised to include the comprehensive
list of forest land management activities contained in 25 U.S.C.
3103(4) to clarify activities addressed by the rule.
8. Comment: Include a definition of forest officer in Sec. 163.1 of
the rule.
Response: The rule has not been revised because forest officer is
defined in the standard provisions used for all timber sale contracts.
For ready reference, the definition of forest officer is the person of
highest rank assigned to the supervision of forestry work at the Indian
Agency having jurisdiction over the sale area, or his authorized
representative.
9. Comment: The definition of forest products in Sec. 163.1 of the
rule is too broad for use in context with stumpage rate, and,
therefore, may create confusion on basis of payment and accounting for
proceeds from the sale of forest products.
Response: The rule has not been revised because the wording of the
definition is taken directly from 25 U.S.C. 3103(6) and the definition
is intentionally broad to encompass the many products from Indian
forest land.
[[Page 52251]]
10. Comment: The definition of forest management plan in Sec. 163.1
of the rule should be expanded to include language requiring that such
plans meet the objectives of individual land owners in addition to
those of tribes.
Response: The rule has not been revised because the wording of the
definition is taken directly from 25 U.S.C. 3103(5).
11. Comment: The definition of forest management plan in Sec. 163.1
of the rule implies that an integrated resource management plan must be
completed prior to developing a forest management plan. This seems to
contradict Sec. 163.11(b) of the rule which states that a forest
management plan may be developed without an integrated resource
management plan.
Response: The preparation of forest management plans is required by
25 U.S.C. 3104(b)(1). The National Indian Forest Resources Management
Act also requires that forest management plans be consistent with
integrated resource management plans whenever such plans exist.
However, while the act encourages preparation of integrated resource
management plans it does not require them. The rule has not been
revised because it provides clear direction in regards to the
requirements for integrated resource management plans and the forest
management plans in Sec. 163.11 of the rule.
12. Comment: The definition of Indian land in Sec. 163.1 of the
rule is not clear on whether Indian land is only trust land or includes
fee land owned by a tribe.
Response: The rule has not been revised because the wording of the
definition is substantively the same as in 25 U.S.C. 3103(10) and the
language offers clear guidance on the type of land that constitutes
Indian land for the purpose of the rule.
13. Comment: The definition of noncommercial forest land in
Sec. 163.1 of the rule does not adequately define land so categorized.
Response: The definition in Sec. 163.1 of the rule has been revised
to clarify criteria for categorizing forest land as noncommercial. The
revision made emphasizes that such land is incapable of producing
sustainable forest products within the general rotation period but
allows for harvest from such lands.
14. Comment: The definition of productive forest land in Sec. 163.1
of the rule is confusing because it states that such lands are
unavailable for harvest.
Response: The rule has not been revised because the definition of
productive forest land was developed to fit the land classification
system used by the BIA Forestry Program and, therefore, must address
forest land which has productive capacity but has been administratively
withdrawn from the land base identified for management to produce
forest products.
15. Comment: The definition of reservation in Sec. 163.1 of the
rule should specifically include Alaska Native allotments since they
are a separate class of allotments which should be given the same
status as reservations under the rule.
Response: The definition of reservation in Sec. 163.1 of the rule
has been revised to specifically include Alaska Native allotments to
allow regulations in the rule to better address the unique situation of
Alaska Native allotments.
16. Comment: The definition of reservation in Sec. 163.1 of the
rule should be expanded to clarify what lands constitute ``former
reservations in Oklahoma''.
Response: The rule has not been revised because the definition of
reservation in 25 U.S.C. 3103(12) refers to the Oklahoma Indian
Reservations solely as ``former Indian reservations in Oklahoma'' and
that description is adequate to identify such lands for the purpose of
this rule.
17. Comment: The definition of sustained yield in Sec. 163.1 of the
rule should be related to a given level of production rather than a
given intensity of management.
Response: The rule has not been revised because the wording of the
definition is the same as in 25 U.S.C. 3103(14) and the definition is
in harmony with the technical meaning of the term as used by the
forestry profession.
18. Comment: The definition of trespass does not relate to
Sec. 163.29 of the rule and does not capture the intent of 25 U.S.C.
3106, especially in regards to damage resulting from fire.
Response: The definition of trespass in Sec. 163.1 of the rule has
been revised to better encompass the intent of 25 U.S.C. 3106 and
specifically address trespass related to fire.
19. Comment: Is the word ``initiated'' in the definition of tribal
forest enterprise in the rule necessary?
Response: The rule has not been revised because restricting tribal
enterprises to those both ``initiated and organized'' by a
reservation's recognized tribal government appropriately emphasizes the
tribe's role in formation of such enterprises. The requirement of
tribal sole ownership is excluded from the definition to provide tribes
the flexibility needed to initiate and organize tribal forest
enterprise through joint ventures or other business arrangements where
enterprise ownership may not be possible or advantageous.
20. Comment: The definition of woodland in Sec. 163.1 of the rule
does not adequately provide for the classification of lands used for
other than production of wood products.
Response: The definition of woodland in Sec. 163.1 of the rule has
been revised to emphasize that land classified as woodland may produce
any forest product rather than just wood products.
163.3 Scope and Objectives
21. Comment: The objectives enumerated in Sec. 163.3 of the rule
are contradictory and lack specificity.
Response: The rule has not been revised because the objectives must
be broad based to address the wide range of objectives tribes may have
for managing their lands. The objectives are not contradictory in that
tribes and the Secretary would not manage to achieve all objectives on
a given tract of land at one time.
22. Comment: Include a clause requiring ecosystem management in the
objectives enumerated in Sec. 163.3 of the rule.
Response: The rule has not been revised because the concept of
ecosystem management is embodied in the diverse objectives included in
Sec. 163.3 of the rule.
23. Comment: Sec. 163.3(b)(2) of the rule should require that
forest management plans be approved by tribes rather than requiring
their consultation and participation in plan development.
Response: The rule has not been revised because the existing
language appropriately acknowledges the intent of the National Indian
Forest Resources Management Act which is to maintain the Secretary's
trust responsibility on Indian land while emphasizing tribal
sovereignty. Under normal circumstances the Secretary would not approve
a forest management plan in the absence of the tribe's approval;
however, the language in Sec. 163.3(b)(2) of the rule intentionally
maintains discretionary authority to fulfill the Secretary's trust
responsibility.
24. Comment: Objectives enumerated in Sec. 163.3(b)(2) of the rule
should be expanded to provide for the improvement and maintenance of
the road system.
Response: The definition of forest land management activities in
Sec. 163.1 of the rule has been revised to include all such activities
enumerated in 25 U.S.C. 3103(4).
25. Comment: Suggest making the following language changes to
Sec. 163.3 of the rule. In Sec. 163.3(b)(1) change the
[[Page 52252]]
phrase ``in forest management plans by providing'' to ``by the tribe to
provide.'' In Sec. 163.3(b)(4) delete the word ``all'' from the phrase
``all the labor and profit.'' In Sec. 163.3(b)(5) change the term
``natural state'' to ``existing state.'' In Sec. 163.3(b)(7) substitute
``range quality'' for ``grazing,'' ``maintenance and/or improvement''
for ``maintenance and improvement'' and add ``water quality'' to the
list of values.
Response: The rule has not been revised because the objectives in
Sec. 163.3 of the rule are taken directly from 25 U.S.C. 3104.
163.4 Secretarial Recognition of Tribal Laws
26. Comment: Additional guidance is needed in regards to the type
of assistance in the enforcement of tribal laws provided for in
Sec. 163.4(a) of the rule.
Response: The rule has not been revised because guidelines on the
type of law enforcement assistance are intentionally broad to encompass
the wide range of situations which may arise under different tribal
laws.
27. Comment: In Sec. 163.4 of the rule, state that Indian land
shall be considered private land for the purposes of the Endangered
Species Act.
Response: The rule has not been revised because the proposal to
consider Indian land as private land for the purposes of the Endangered
Species Act is outside the scope of these regulations.
Subpart B--Forest Management and Operations
163.11 Forest Management Planning and Sustained Yield Management
28. Comment: In Sec. 163.11(a) of the rule, require that a forest
management plan be prepared every ten years rather than as needed.
Response: The rule has not been revised because requiring forest
management plan preparation and revision as needed rather than at fixed
time intervals gives land owners and land managers flexibility needed
in the forest management planning process.
29. Comment: Sec. 163.11(a) of the rule implies that forest
management planning is reserved for tribal land when it should be for
all Indian land.
Response: Sec. 163.11(a) of the rule has been revised to emphasize
that forest management plans shall be prepared and revised as needed
for all Indian forest land.
30. Comment: What are requirements for integrated resource
management plans in respect to preparation of forest management plans
in Sec. 163.11 of the rule?
Response: The preparation of forest management plans is required by
25 U.S.C. 3104(b)(1). The National Indian Forest Resources Management
Act also requires that forest management plans be consistent with
integrated resource management plans whenever such plans exist.
However, while the act encourages preparation of integrated resource
management plans it does not require them. The rule has not been
revised because it provides clear direction in regards to the
requirements for integrated resource management plans and the forest
management plans in Sec. 163.11 of the rule.
31. Comment: Is it appropriate to require that harvest of forest
products be accomplished under the principle of sustained yield
management in Sec. 163.11(c) of the rule?
Response: The rule has not been revised because 25 U.S.C.
3104(b)(1) requires that sustained yield management be practiced on
Indian forest land. The definition of sustained yield management in the
rule is sufficiently broad to allow the needed flexibility in how this
management requirement is applied.
32. Comment: Sec. 163.11(c) of the rule should require that harvest
schedules achieve a balance between experienced net growth and harvest
rather than between planned net growth and harvest.
Response: Sec. 163.11(c) of the rule has been revised to require
that harvest schedules achieve an approximate balance between net
growth and harvest at the earliest possible time.
33. Comment: Does the requirement to practice sustained yield
management in Sec. 163.11(c) of the rule apply to allotments and small
reservations?
Response: The rule has not been revised because, even though it is
technically more difficult to strictly apply the principles of
sustained yield management to small land areas, it is possible. Also,
25 U.S.C. 3104(b)(1) requires that sustained yield management be
practiced on all Indian forest land, so the requirement does apply to
allotments and small reservations.
34. Comment: Sec. 163.11(c) of the rule should provide for basing
harvest level on silvicultural treatment needs rather than on net
growth.
Response: The rule has not been revised because, while the time
period over which the balancing of growth and harvest may vary
depending on treatment needs, harvest levels should be based on the
objectives of the beneficial owners and growth. The rule does not
preclude consideration of silvicultural treatment needs when harvest
planning but, over the long term, the rule correctly requires that
growth and harvest be in balance.
163.12 Harvesting Restrictions
35. Comment: The term ``forestation'' in Sec. 163.12(a) of the rule
should be changed to ``reforestation'' to comply with standard forestry
terminology.
Response: Sec. 163.12(a) of the rule has been revised to use the
term ``reforestation'' since the intent is to provide for
reestablishing tree cover on land that previously was forested.
36. Comment: The term ``harvest plans'' referred to in
Sec. 163.12(a) of the rule should be defined.
Response: The rule has not been revised because the term ``harvest
plans'' in the context of use in Sec. 163.12(a) is sufficiently
explicit to cover the wide range of operations to be conducted under
the rule.
37. Comment: Language restricting clearcutting to situations when
it is silviculturally good practice in Sec. 163.12(b) of the rule is
confusing because it implies that clearcutting and silviculture are one
and the same.
Response: Sec. 163.12(b) of the rule has been revised to emphasize
that clearcutting and silviculture are not one and the same.
163.13 Indian Tribal Forest Enterprise Operations
38. Comment: How is the term ``Indian owners'' in Sec. 163.13(c) of
the rule different from ``beneficial Indian owners'' used in
Sec. 163.13(a)?
Response: In the context used, the terms are the same. Since
beneficial owner is defined within the rule, the rule has been revised
so that ``beneficial Indian owner'' is used uniformly.
39. Comment: Sec. 163.13(c) of the rule should explicitly require
tribal approval of sales to Indian tribal forest enterprises.
Response: The rule has not been revised because Sec. 163.14 of the
rule requires tribal approval for all sales of tribal timber.
40. Comment: Sec. 163.13(c) of the rule should define Indian owner
for the purpose of timber sales to tribal forest enterprises.
Response: The rule has not been revised because the term Indian
owner is adequately defined in Sec. 163.1 for the purpose of conducting
any timber sale under the rule.
163.14 Sale of Forest Products
41. Comment: Sec. 163.14 of the rule should include more detailed
instruction on timber sale procedures.
Response: The rule has not been revised because policy in
Sec. 163.14 of the
[[Page 52253]]
rule is adequate to establish uniform operating policy for the sale of
Indian forest products. Specific procedural information is more
appropriately a matter for inclusion in the BIA forestry manual.
42. Comment: Sec. 163.14(e) of the rule should use the phrase
``appraised by the Secretary'' rather than ``established by the
Secretary.''
Response: The rule has not been revised because use of the phrase
``established by the Secretary'' gives needed flexibility to procedures
for value determination.
43. Comment: In Sec. 163.14 of the rule, why are sales of forest
products from allotted land subject to tribal economic objectives?
Response: The rule has not been revised because tribal governments
have jurisdiction over all land within reservation boundaries.
44. Comment: Sec. 163.14 of the rule should include specific forest
product sale policy for trust allotments located off reservations.
Response: The rule has not been revised because policy in
Sec. 163.14 of the rule applies to Indian forest land which, by
definition, can include trust allotments located off reservations.
45. Comment: Sec. 163.14(b) of the rule should emphasize the need
for the Secretary's consultation with the beneficial owner(s) in
catastrophic situations where the sale of forest products is necessary
to prevent loss of value.
Response: Sec. 163.14(b) of the rule has been revised to emphasize
the need for consultation in cases where catastrophe necessitates the
sale of Indian forest products.
163.15 Advertisement of Sales
46. Comment: In Sec. 163.15(a) of the rule, add the requirement
that the beneficial Indian owners consent of advertisement be obtained
in sales of forest products to Indian forest enterprises.
Response: The rule has not been revised because the approving
officer has adequate authority to protect allottee economic interests
in sales of forest products to Indian forest product enterprises.
47. Comment: Agency Superintendents at some BIA field office
locations do not have authority to issue advertisements due to
limitations imposed by 10 BIA manual, so the superintendent advertising
authority in Sec. 163.15(a) of the rule could create administrative
problems in the advertisement of sales of forest products.
Response: The rule has not been revised because the intent of the
rule is to establish uniform operating procedures for the national
program, not to tailor the rule to unique BIA field office situations.
48. Comment: Sec. 163.15 of the rule provides for advertising open
market sales of forest products except as provided in Secs. 163.13,
163.14, 163.16, and 163.26. The provision in Sec. 163.14 for other than
advertised sales is not apparent.
Response: The rule has not been revised because the exceptions to
open market advertised sales enumerated in Sec. 163.15 apply to both
procedure and policy and are therefore appropriate.
50. Comment: Forest product threshold values used to establish
forest product advertisement types in Sec. 163.15(a) of the rule are
too low in light of present day forest product values.
Response: The rule has not been revised because values established
for different types of advertisement requirements (e.g. circulars,
posters, newspaper advertisements) are appropriate for thresholds
identified.
163.16 Forest Product Sales Without Advertisement
51. Comment: Sec. 163.16(a) of the rule seems to repeat the
conditions for unadvertised sales of forest products stipulated in
Sec. 163.13(c).
Response: The rule has not been revised because the conditions for
unadvertised sales enumerated in Sec. 163.16(a) are in the context of
any sale of forest products while those in Sec. 163.13(c) are for
unadvertised sales to Indian tribal forest enterprises.
163.17 Deposit with Bid
52. Comment: Does Sec. 163.17 of the rule change the BIA policy
regarding deposits with bids that requires such deposits to be held as
a separate bond in cases where purchasers provide a performance bond
and execute a contract, but fail to perform the contract?
Response: BIA policy in regards to the disposition of bid bonds has
not changed. The intent is to allow the Bureau to retain the bid
deposit on behalf of the beneficial owner(s) of the timber if the
bidder does not furnish the required performance bond, execute the
contract or perform the contract.
53. Comment: The meaning of the term ``escrow account'' in
Sec. 163.17(f) of the rule is unclear.
Response: The rule has not been revised because the term ``escrow
account'' is generally understood to be a third party holding account
and is appropriate in the context used.
54. Comment: Sec. 163.17(b) of the rule should be modified to
delete cash as an acceptable form of deposit.
Response: The rule has not been revised because cash is an
acceptable form of payment for deposit.
55. Comment: The minimum bid deposit of $1,000.00 in
Sec. 163.17(a)(1) of the rule should be deleted because it is believed
to be burdensome to small timber operators.
Response: The rule has not been revised because the bid deposit
requirement is needed to safeguard the interests of the beneficial
Indian owner(s) and such a deposit is an accepted sound business
practice.
56. Comment: The requirement to perform the contract in
Sec. 163.17(d)(3) of the rule is redundant and should be deleted.
Response: The rule has not been revised because failure to perform
the contract may be legitimate grounds for forfeiture of a bid deposit.
57. Comment: Change the title of Sec. 163.17 from Deposit with bid
to Deposit for primary forest products purchased by non-tribal
enterprises.
Response: The rule has not been revised because the title of
Sec. 163.17 accurately describes policy covered in this section of the
rule.
58. Comment: Sec. 163.17 of the rule should allow for tribal forest
enterprises to not submit bid deposits when purchasing trust timber.
Response: The rule has not been revised because Sec. 163.13 Indian
tribal forest enterprise operations of the rule provides sufficient
flexibility to waive requirements for bid deposits in cases where such
deposits would serve no purpose.
163.18 Acceptance and Rejection of Bids
59. Comment: In Sec. 163.18(b) of the rule, the term ``approving
officer'' should be changed to the term ``approving tribal officer'' to
emphasize the role of the tribe in the bid rejection process.
Response: The rule has not been revised because it provides the
approving officer with discretion to consult with the beneficial Indian
owners in the process of determining the course of action when
rejecting a high bid.
163.19 Contracts for the Sale of Forest Products
60. Comment: Sec. 163.19(b) of the rule should specify that
electronic fund transfer (EFT) is the preferred method of payment for
forest products.
[[Page 52254]]
Response: The rule has not been revised because Sec. 163.19(b)
provides for payment by remittance and remittance includes EFT. If EFT
is the preferred method of payment, contracts or permits may so
stipulate.
163.21 Bonds Required
61. Comment: The term ``approving officer'' in Sec. 163.21(a) of
the rule should be changed to ``tribal approving officer'' to emphasize
the tribe's role in the performance bonding process.
Response: The rule has not been revised because it provides the
approving officer with discretion to consult with the beneficial Indian
owners in the process of determining performance bonding requirements.
62. Comment: Sec. 163.21 of the rule should provide for more
flexibility in bonding tribal loggers.
Response: The rule has not been revised because approving officers
have sufficient discretion on bonds to provide the needed flexibility
in bonding tribal loggers.
63. Comment: Sec. 163.21(b)(1) of the rule should be deleted
because of the difficulty in recovering corporate surety bonds.
Response: The provision in the rule allowing for the use of a
corporate surety bond as a legitimate form of bond has not been
revised. However, provisions in 163.21(b) (2) and (3) of the rule
stipulating use of an appropriate power of attorney cause concern
because a power of attorney expires upon death of the principal and can
be revoked by the principal. For this reason, 163.21(b) (2) and (3) of
the rule have been revised to require an appropriate trust instrument
instead of a power of attorney to ensure access to cash or government
securities used as a performance bond. Regardless of which type of
performance bond is offered by a contractor, approving officers have
discretion to determine whether or not they are acceptable for use with
contracts.
163.23 Advance Payment for Timber Products
64. Comment: Sec. 163.23 of the rule should include additional
language that would require agreement between a tribe and their tribal
forest enterprise before advance payments can be required.
Response: The rule has not been revised because advance payments as
provided for in Sec. 163.23(b) are optional on tribal lands, therefore
making a formal agreement unnecessary.
65. Comment: Sec. 163.23 of the rule should not require advance
payments on tribal land.
Response: The rule has not been revised because advance payments as
provided for in 163.23(b) are optional on tribal lands.
163.25 Forest Management Deductions
66. Comment: The provision in Sec. 163.25(f) of the rule which
requires that any forest management deductions not incorporated into an
approved expenditure plan by the end of the fiscal year following the
fiscal year in which the deductions are withheld shall be collected
into the general funds of the U.S. Treasury does not provide a
reasonable time period for tribes to prudently expend such funds and
may result in their loss.
Response: The rule has not been revised because, as stated in the
rule, the provisions set forth in Sec. 163.25(f) of the rule are
required by 25 U.S.C. 413. Sec. 163.25(f) of the rule only requires
that forest management deductions be incorporated into an approved
expenditure plan within the prescribed time period, not that they be
expended, so they may be used prudently.
67. Comment: The term ``summarizing'' should be substituted for the
term ``detailing'' in Sec. 163.25(h) of the rule because ``detailing''
implies too exact a level of reporting.
Response: The rule has not been revised because the exact form of
the report which will be required is more appropriately a matter for
the BIA forestry manual.
68. Comment: Allottees should be given discretionary authority to
decrease or waive collection of forest management deductions in
Sec. 163.25 of the rule.
Response: The rule has not been revised because discretionary
authority for establishing forest management deduction rates is
reserved for the Secretary except where limited by statute.
69. Comment: The 10 percent forest management deduction provided
for in Sec. 163.25(d) of the rule is excessive in light of the high
value of forest product sales from allotments.
Response: The rule has not been revised because, absent tribal
approval and Secretarial action as provided for in Sec. 163.25(e), the
lessor of the percentage in effect on November 1990 or 10 percent must
be collected.
70. Comment: Sec. 163.25 of the rule should require that forest
management deductions collected from allotted land be spent on the land
from which they were earned.
Response: The rule has not been revised because 25 U.S.C. 3105 and
25 U.S.C. 413 do not require that the benefits of forest management
deductions accrue to the specific land from which they were earned and
establishing such a requirement would unnecessarily constrain Indian
forest land management activities.
71. Comment: Provide authority for administrators of allotment
forestry programs to submit expenditure plans and reports in
Sec. 163.25(f)(1) of the rule.
Response: The rule has not been revised because Sec. 163.25(f)(3)
of the rule provides the requested authority in the cases of public
domain and Alaska Native allotments where absence of such authority
could be a problem.
72. Comment: Does Sec. 163.25 of the rule require that forest
management deduction collections cannot exceed agency forestry program
appropriations?
Response: There is no statutory or Sec. 163.25 rule requirement
which limits the amount of forest management deductions collected to an
amount less than an agency's forestry program appropriation.
73. Comment: Does the reporting requirement in Sec. 163.25(h) of
the rule apply to the Yakima tribe?
Response: The reporting requirement in Sec. 163.25(h) of the rule
applies universally.
74. Comment: In regards to Sec. 163.25 of the rule, can a tribe
receive forest management deductions prior to expending its own funds?
Response: Sec. 163.25(f)(1) of the rule provides that approval of
an expenditure plan by an Indian tribe constitutes appropriation of
tribal funds and approval by the Bureau constitutes authority to credit
forest management deductions to tribal accounts.
75. Comment: Sec. 163.25 of the rule should be modified to allow
forest management deductions not incorporated into an approved
expenditure plan to be deposited into an Indian forest land assistance
account.
Response: The rule has not been revised because the absence of an
approved expenditure plan triggers application of the general rule of
25 U.S.C. 413 which requires that such funds be deposited into the U.S.
Treasury as miscellaneous receipts.
76. Comment: 25 U.S.C. 3105 does not allow for waiving forest
management deductions under specified circumstances as provided for
Sec. 163.25(c)(1) of the rule.
Response: The rule has not been revised because the Secretary has
determined that it is not administratively feasible or reasonable to
collect forest management deductions in cases where the total
consideration furnished under a contract, permit or other document for
the sale of forest products is less than $5,001.
[[Page 52255]]
77. Comment: Sec. 163.25(e) states that the Secretary shall
increase the forest management deduction upon receipt of a written
request from a tribe supported by a tribal resolution. Since provisions
of 25 U.S.C. 3105 do not require such an action to be mandatory upon
receipt of the stipulated documents, the Secretary's decision on such
matters should be discretionary.
Response: The rule has been revised to change the word ``shall'' to
``may'' in the first sentence of Sec. 163.25(e) to preserve the
Secretary's discretionary authority on requests to increase forest
management deductions.
78. Comment: Sec. 163.25 of the rule must provide for incorporating
interest earned on forest management deductions into expenditure plans
to ensure that interest income is available for use.
Response: The rule has not been revised because existing Bureau
accounting regulations require that interest earned on forest
management deductions follow principal so interest earned on forest
management deductions may be incorporated into expenditure plans.
79. Comment: The prohibition on withholding forest management
deductions from monies collected or derived from trespass, defaulted
contracts or other civil judgements in Sec. 163.25(c)(2) of the rule
should be deleted because it is appropriate that forest management
deductions be collected on single stumpage value in such cases.
Response: The rule has been revised by deleting Sec. 163.25(c)(2)
of the rule because this recommendation is consistent with past policy
and 25 U.S.C. 3105 does not prohibit the change.
80. Comment: Modify the definition of gross proceeds in
Sec. 163.25(b) of the rule by adding a provision to take into
consideration Indian investments and using formulas and methods
approved by the Secretary for individual locations.
Response: The rule has not been revised because the definition in
Sec. 163.25(b) of the rule accurately reflects the language in 25
U.S.C. 3105(a) which describes gross proceeds of sales of forest
products and the definition is appropriate for establishing uniform
operating procedures for the Indian forestry program.
81. Comment: Sec. 163.25 of the rule should be modified to allow
timber sale special purchaser payments to be added to forest management
deductions so their use can be determined in consultation with tribes.
Response: The rule has not been revised because timber sale special
purchaser payments are required payments for contract specified
activities and, therefore, cannot be commingled with forest management
deductions.
82. Comment: Modify Sec. 163.25(j) of the rule by adding the word
``miscellaneous'' to describe the type of U.S. Treasury receipt
account.
Response: Sec. 163.25(j) of the rule has been revised by adding the
word ``miscellaneous'' before U.S. Treasury receipt account to
emphasize that such funds may not be used to augment any appropriated
fund.
163.26 Forest Product Harvesting Permits
83. Comment: In Secs. 163.26 (b) and (c) of the rule, increase the
annual value of forest products that can be harvested under free use
forest permits to $10,000 and under paid permits to $50,000.
Response: The rule has not been revised because the $5,000 free use
and $25,000 paid permit maximum annual harvest values in the rule
provide sufficient flexibility for the harvest of forest products under
permits.
84. Comment: In Sec. 163.26(d) of the rule, does the condition to
issuance of a special allotment timber harvest permit which requires
terms that protect the Indians' interests conflict with Sec. 163.14(d)
of the rule?
Response: There is no conflict between the two parts of the rule.
Sec. 163.14(d) of the rule requires apprising the beneficial owners of
forest product values and Secretarial approval to sell products at less
than their appraised value. Sec. 163.26(d) of the rule stipulates that
issuance of a special allotment timber harvest permit requires terms
that protect the Indians' interests.
85. Comment: Sec. 163.26 of the rule should provide for issuance of
special allotment timber harvest permits in the case of multiple
owners.
Response: The rule has not been revised because issuance of special
timber harvest permits when there is more than one beneficial owner
would make it difficult or impossible for the Secretary to fulfill the
trust responsibility to all beneficial owners involved in such cases.
163.27 Free-Use Harvesting Without Permits
86. Comment: There should be a $15,000 annual limit on harvest
authority under Sec. 163.27 of the rule.
Response: The rule has not been revised because Sec. 163.27 of the
rule appropriately provides that the limit on products harvested under
the free-use authority be established by the Indian owners and that
products harvested under the authority be limited to personal use.
163.28 Fire Management Measures
87. Comment: Include authority for the Secretary to expend funds
for the procurement of Smokey Bear and other promotional materials
utilized for fire prevention purposes in Sec. 163.28(b) of the rule.
Response: The rule has not been revised because implicit in
Sec. 163.28(b) of the rule which requires the Secretary to conduct a
wildfire prevention program is an authorization to expend funds for
that purpose.
88. Comment: Use of the phrase ``The Secretary will'' rather than
``The Secretary is authorized to'' conduct a wildfire prevention
program in Sec. 163.28(b) of the rule is inappropriate because lack of
funds may prevent the Secretary from being able to conduct the program.
Response: The rule has been revised to make the requested change.
89. Comment: In Sec. 163.28(d) of the rule, require the approval of
the beneficial Indian owners be obtained rather than merely requiring
consultation with the beneficial owners before using fire as a
management tool.
Response: The rule has not been revised because use of fire as a
management tool is carried out under the framework of resource
management plans which must be approved by the Secretary and beneficial
Indian owners.
163.29 Trespass
90. Comment: Sec. 163.29 of the rule should allow the Federal
government to recover the expense of trespass investigation.
Response: Sec. 163.29 of the rule has been revised to provide for
recovering trespass associated expenses of the Federal government and
tribes.
91. Comment: Sec. 163.29(a)(3)(i) of the proposed rule appears to
limit trespass to trees, timber or shrubs. In light of the
comprehensive list of products included in the definition of forest
products in Sec. 163.1 of the rule, such a limitation is inconsistent
with the intent of 25 U.S.C. 3106.
Response: Sec. 163.29 of the rule has been revised to include all
forest products as listed in the definition of forest products in
Sec. 163.1 of the rule to ensure providing for the broad scope of
trespass protection intended by 25 U.S.C. 3106.
92. Comment: Determining trespass damages will be difficult and
controversial if the highest valued product obtainable as called for in
[[Page 52256]]
Sec. 163.29(a)(3)(i) of the proposed rule must be used.
Response: Sec. 163.29 of the rule has been revised to require using
the highest stumpage value of raw materials rather than the highest
valued product obtainable for the purpose of establishing trespass
damages.
93. Comment: Does the Secretary have seizure authority on lands not
under the government's supervision in the absence of a court order as
provided for in Sec. 163.29(e) of the proposed rule?
Response: Indian forest products are real property owned by the
United States in trust for individual Indians and Indian tribes. In the
National Indian Forest Resources Management Act, Congress has directed
the Secretary to promulgate regulations which establish civil penalties
for the commission of forest trespass and provide for collection of the
value of the products. Seizure of forest products owned by the United
States and situated on Indian land is one such civil penalty. The
proposed language regarding seizure of forest products off-reservation
and seizure of property and equipment is too broad and not supported by
law as drafted in the proposed rule. Therefore, the seizure regulations
as drafted in Secs. 163.29 (e), (f) and (g) of the proposed rule have
been revised and clarified to comport with existing federal, tribal and
state law.
94. Comment: Does the Secretary have authority to seize and sell
equipment belonging to someone else in the absence of a court order?
Response: The seizure regulation as drafted in the proposed rule is
too broad and raises questions as to the Secretary's private property
seizure authority both on and off Indian land. Sec. 163.29 of the rule
has been revised to reflect two categories of seizure: Seizure of
trespass Indian forest products on or near Indian land and notice of
possible trespass where such products are not on or near Indian land
and now includes specific notice provisions.
Provisions for seizure of property and equipment situated on or
off-reservation which was used in committing trespass have been deleted
from Sec. 163.29 of the rule because such seizure actions lack Federal
statutory authority. However, if tribal law provides for seizure of
property and equipment situated on-reservation which was used in
committing trespass, tribes may take such action under their own law
and jurisdictional authority.
95. Comment: Sec. 163.29(f) of the proposed rule should confer
trespass enforcement authority upon forest officers rather than on
individuals.
Response: Sec. 163.29 of the rule has been revised to clarify the
term ``individual'' in the context of trespass enforcement.
96. Comment: Sec. 163.29(k) of the proposed rule should affirm
Indian sovereignty over wildlife matters by making it a trespass for
local, state, and Federal government officials to conduct wildlife
studies on Indian land without prior authorization.
Response: The rule has not been revised because the proposal to
make it a trespass for local, state, and Federal government officials
to conduct wildlife studies on Indian land without prior authorization
is outside the scope of these regulations.
97. Comment: To be consistent with the definition of forest
products in Sec. 163.1 of the rule, the phrase ``timber and related
trespass'' in Secs. 163.29(a)(1) and (2) of the proposed rule should be
replaced with the word ``trespass.''
Response: Sec. 163.29 of the rule has been revised to replace the
phrase ``timber and related trespass'' with the term ``trespass.''
98. Comment: Provisions in Secs. 163.29(a)(3) (i) and (ii) of the
proposed rule should be revised to ensure that beneficial Indian owners
receive the full measure of damages, even when long periods of time
have elapsed between a trespass act and its discovery.
Response: Sec. 163.29 of the rule has been revised to capture the
highest stumpage value and provide for interest on such value from the
date of trespass. The interest provision will ensure that beneficial
owners are compensated for time delays which may occur from the time of
taking until recovery of damages.
99. Comment: 25 U.S.C. 3106 authorizes treble damages as the value
of damages for trespass but Secs. 163.29 (a)(3) (i) and (ii) of the
proposed rule provide for double or triple damages depending on
circumstances. Given that 25 U.S.C. 3106 authorized triple damages as
the exclusive remedy for trespass and that providing for two different
levels of damages could cause confusion in damage collection for
trespass, the rule should only provide for a single category of treble
damages.
Response: Sec. 163.29 of the rule has been revised to only provide
for a single category of treble damages.
100. Comment: Sec. 163.29(a)(3)(iii) of the proposed rule should be
revised to provide for interest as a payable cost associated with
damages to ensure that owners are made whole in cases where there is a
long delay between the trespass act and collection of damages.
Response: Sec. 163.29 of the rule has been revised to provide for
the collection of interest as a part of trespass damages.
101. Comment: The last sentence in Sec. 163.29(b) of the proposed
rule requires that penalty damages collected be equitably distributed
among beneficial owners. In the event of underrecovery of civil
penalties, there is no provision to share damages recovered with other
than the beneficial owners. Enforcement agencies will not be able to
recover any payment for reasonable costs associated with detection or
prosecution. Sec. 163.29 of the proposed rule should be revised to
allow for the prorated distribution of collections to both payment of
damages to beneficial owners and payment of reasonable costs to the
enforcement agency.
Response: Sec. 163.29 of the rule has been revised to provide for
sharing of payment for damages between beneficial owners and tribal or
federal enforcement agencies under some circumstances. Historically,
where recovery in trespass is deficient, the United States has foregone
its entitlement to damages in favor of reimbursing beneficial Indian
owners to the greatest extent possible. However, since under the
revised rule the amount due to Indian beneficial owners was expanded to
include the product value plus double-value penalty recoveries, it is
reasonable to provide for paying costs associated with detection and
prosecution to enforcement agencies in situations when beneficial
Indian owners have been fully reimbursed for loss due to trespass. This
is true since part of the increased recovery right is compensatory and
part is a penalty or ``windfall'' recovery.
102. Comment: Sec. 163.29(c) of the proposed rule should specify
how to dispose of damage payments not distributed to owners trespassing
on their own land.
Response: Sec. 163.29 of the rule has been revised to stipulate
that the defaulted share of owners who trespass on their own land shall
go first to any restoration costs resulting from the trespass, second
to law enforcement costs resulting from the trespass, and third to the
reservation forest management deduction account.
103. Comment: Should Sec. 163.29(d) of the proposed rule stipulate
treating civil penalties collected for damages in trespass actions as
proceeds from the sale of forest products from the Indian forest land
upon which the trespass occurred?
Response: The purpose of this rule is to ensure that proceeds
recovered in consequence of trespass remain
[[Page 52257]]
available to pay their fair share of forest management deductions, as
if the trespass products had been harvested under a normal harvest
operation. As drafted in 25 U.S.C. 3106, civil penalties is broadly
defined to include among other things the recovery of compensatory
damages, restoration costs and enforcement costs. As such, gross
proceeds (amount recovered as compensatory damages, less restoration
costs and enforcement costs) should remain subject to applicable forest
management deductions. Restoration costs and enforcement costs are
clearly not the proceeds from sale. Sec. 163.29 of the rule has been
revised to reflect this fact.
104. Comment: Procedures on concurrent civil jurisdiction and
administrative appeals in Sec. 163.29(j) of the proposed rule are
confusing and cumbersome.
Response: The comment references the confusion from a possible dual
remedy when pursuing trespass civil damages in federal or tribal court
and an administrative appeal under 25 CFR part 2 as provided for in
Secs. 163.29 (f) and (g) of the proposed rule. We agree that the
provisions of the proposed rule are cumbersome in this regard and have
revised Sec. 163.29 of the rule so that the administrative appeal
remedy in 25 CFR part 2 only applies to seizure of trespass products
still situated on an Indian reservation, where the seizure is initiated
by federal officials. The revision provides that the remedy for
challenging a federal seizure of trespass Indian products situated on
an Indian reservation is exclusively within agency jurisdiction to
ensure that a judicial proceeding could not proceed until completion of
the 25 CFR part 2 process. The revision does not allow a tribal seizure
through concurrent jurisdiction to be challenged separately through 25
CFR part 2. The revision provides that seizure of trespass forest
products off-reservation is contingent upon other legal authority and
that seizure of property or equipment used in trespass on Indian land
is similarly restricted.
In recognition of this request for clarification of concurrent
jurisdiction, the three categories of seizure have been expanded in the
revision of Sec. 163.29 to provide for dual federal and tribal
procedures.
The comment further addresses the confusion inherent in the
proposed regulation regarding concurrent trespass jurisdiction between
the Bureau and tribes, and suggests redrafting to clarify. Sec. 163.29
of the rule has been revised to clarify the interrelationship of the
tribes and United States as to implementing concurrent jurisdiction,
and the noted confusion has been eliminated. The intent of the revision
is to implement Congress' grant of concurrent jurisdiction to
qualifying tribes to pursue Indian trespass matters. At the suggestion
of the commentor, the revision clarified that a tribe's exercise of the
new, concurrent jurisdiction created through the National Indian Forest
Resources Management Act and these regulations in no way affects any
existing tribal authority to prosecute trespass matters. The revision
provides that in cases where the Secretary defers to a tribe's exercise
of its concurrent jurisdiction, the tribe rather than the United States
would pursue and prosecute any tribal court litigation. In such cases,
the United States would not appear as counsel, although BIA witnesses
would be involved as appropriate. Tribal officials would not be acting
on behalf of the United States, but on behalf of their separate
jurisdiction granted by the National Indian Forest Resources Management
Act. The revision adds further clarification consistent with these
comments providing for discretionary United States' prosecution of
Indian trespass matters in tribal courts in non-deferral situations.
Also, seizure remedies in Sec. 163.29 were revised to separate federal
action from concurrent tribal action.
105. Comment: Sec. 163.29 of the proposed rule should provide
guidance on how to deal with trespass forest products located in
different settings at time of trespass detection.
Response: Traditional judicial remedies are very different for
dealing with trespass forest products located in different settings
(e.g. in the woods, at a mill or buying station or after products have
been converted and sold) at time of trespass detection. Sec. 163.29 of
the rule has been revised to provide more specific guidance on how to
deal with trespass forest products located in different settings.
106. Comment: The provision of Sec. 163.29(a)(1) of the proposed
rule which applies the measure of damages in tribal law before applying
state law is inconsistent with Sec. 163.29(a)(2) of the proposed rule.
Both should provide for the same priority of applicable law.
Response: Sec. 163.29 of the rule has been revised to give tribal
law precedence over state law so that provisions for applicable law for
cases in tribal court and in Federal court are consistent.
107. Comment: What does the term ``enforce'' in the first sentence
of Sec. 163.29(f) of the proposed rule reference?
Response: The term ``enforce'' references the clarifying phrase
``against trespass'' in Sec. 163.29 of the rule.
108. Comment: Sec. 163.29(h) of the proposed rule seems to make the
tribe responsible for the Bureau's regulations. Is this possible?
Response: Sec. 163.29 of the rule allows either a tribe or the
United States to assume control over enforcement/prosecution of a
trespass.
163.31 Insect and Disease Control
109. Comment: Does Sec. 163.31(a) of the rule require that the
Secretary consult with the tribe to initiate insect and disease control
measures on an allotment?
Response: Sec. 163.31(a) of the rule requires that tribes be
consulted in cases where control measures would be initiated on
allotments within the reservation boundary.
163.32 Forest Development
110. Comment: Modify the first sentence in Sec. 163.32 of the rule
to state that both tribes and the Secretary may undertake activities to
improve the productivity of commercial Indian forest land.
Response: The rule has not been revised because the wording of
Sec. 163.32 allows either the Secretary or the tribe to perform forest
land management activities called for by the forest development
program.
111. Comment: Sec. 163.32 of the rule should be modified to
emphasize that forest development activities can be applied to both
timberland and woodland.
Response: The rule has not been revised because Sec. 163.32 states
that forest development pertains to forest land management activities
undertaken on commercial Indian forest land. Since the definition of
Indian forest land includes woodland, no change to emphasize
applicability to woodland is needed.
112. Comment: Sec. 163.32 of the rule should emphasize that forest
land management activities undertaken in the forest development program
be designed to improve sustained production of forest products on
forest lands.
Response: The first sentence of Sec. 163.32 has been revised to
emphasize that forest development activities should be undertaken to
improve the sustainable productivity of commercial Indian forest land.
113. Comment: The last sentence of Sec. 163.32 of the rule should
be modified to include environmental and ecological impact analyses as
determinants in
[[Page 52258]]
establishing priorities for project funding.
Response: The rule has not been revised because Sec. 163.32
provides sufficient flexibility to include determinants appropriate to
a broad range of circumstances which may include environmental and
ecological analysis.
163.33 Administrative Appeals
114. Comment: The commentor requests that Sec. 163.33 of the rule
establish criteria to tighten the legal standing required to file
appeals. Specifically, the commentor suggests limiting standing to file
administrative appeals to the recognized beneficial Indian tribe in the
case of management on tribal trust status lands, to a majority interest
of the heirs in the case of management actions on allotted trust land,
and to timber sale contractors for actions taken in the administration
of the terms of their timber sale contracts.
Response: The authors agree with the commentor in part; however,
the commentor's suggested criteria to limit standing are too
restrictive. Limiting standing to only a majority interest of the heirs
in the case of management actions on allotted trust land is
inappropriate. Instead, legal standing should be based on criteria as
defined by earlier 25 CFR part 2 regulations which require an
interested party to be an entity whose direct and substantive economic
interest is adversely affected by a BIA action. Sec. 163.33 of the rule
has been revised to provide more explicit guidance on parties that have
legal standing in the administrative appeals process.
115. Comment: The commentor requests clarification on Sec. 163.33
of the rule in regards to the impact of staying appeals on contract
execution and performance.
Response: Historically, BIA Area Offices have acted differently in
regards to the issue of staying appeals. Some have allowed disputed
actions to proceed (relief from stay) and others have not allowed
disputed actions to proceed (not halting stay). Sec. 163.33 of the rule
provides that an administrative appeal of an action within these
forestry regulations does not stay that action. To further clarify
policy on staying appeals, Sec. 163.33 of the rule has been revised to
emphasize that appeals filed under 25 CFR part 2 shall not stay any
action unless otherwise directed by the Secretary.
163.34 Environmental Compliance
116. Comment: Sec. 163.34 of the rule should be modified to require
consideration of environmental concerns of Indian communities.
Response: The rule has not been revised because the scoping process
required by the National Environmental Policy Act (NEPA) embodied in
the rule provides for an adequate means to identify and address
environmental concerns of Indian communities.
117. Comment: Sec. 163.34 of the rule should be revised to provide
useful guidance on how to achieve compliance with NEPA by identifying
which program actions usually require environmental impact statements
or environmental assessments and which are normally categorically
excluded from NEPA requirements.
Response: The rule has not been revised because existing
Departmental (516 DM 1-7) and Bureau of Indian Affairs Environmental
Program manuals (30 BIAM Supplemental 1) provide the needed policy
guidance and including the requested guidance is outside the scope of
this rule.
118. Comment: Sec. 163.34 of the rule should require that actions
taken under the rule explicitly require compliance with applicable
tribal environmental laws and regulations rather than merely requiring
use of such laws and regulations for guidance.
Response: Sec. 163.34 of the rule has been revised to emphasize
that actions taken by the Secretary under the regulations in this part
must comply with the National Environmental Policy Act of 1969, Council
on Environmental Quality regulations and applicable tribal laws and
regulations.
163.35 Indian Forest Land Assistance Account
119. Comment: Sec. 163.35 of the rule should provide guidelines to
assure the equitable distribution of funds into forest land assistance
accounts at multi-tribe agencies.
Response: The rule has not been revised because distribution of
funds is a procedural process which is more appropriately addressed in
the BIA forestry manual.
120. Comment: What are acceptable sources of funding for deposit
into Indian forest land assistance accounts addressed in Sec. 163.35 of
the rule?
Response: The rule has not been revised because Sec. 163.35 of the
rule provides the comprehensive list of funding sources which can be
deposited into Indian forest land assistance accounts identified in 25
U.S.C. 3109.
121. Comment: The reference to a tribe's trust fund account in
Sec. 163.35(a) of the rule is technically incorrect. Such accounts
should be referred to as tribal accounts within the trust fund system.
Response: Sec. 163.35(a) of the rule has been revised to reflect
the technically correct accounting terminology.
122. Comment: Modify Sec. 163.35(b) of the rule to reflect the
existence of both forest transportation and general forest land
management accounts.
Response: Sec. 163.35(b) of the rule has been revised to reflect
the existence of both forest transportation and general forest land
management accounts.
123. Comment: Modify Sec. 163.35(c) of the rule to reflect the
existence of both forest transportation and general forest land
management accounts.
Response: Sec. 163.35(c) of the rule has been revised to reflect
the existence of both forest transportation and general forest land
management accounts.
124. Comment: Remove reference to a tribe's organization code in
Sec. 163.35(d) of the rule because such reference is limiting and adds
unnecessary procedural detail to the rule.
Response: The rule has been revised to delete the reference to the
tribe's organization code from Sec. 163.35(c) to clarify the rule by
removing unnecessary procedural detail.
125. Comment: Modify Sec. 163.35(h) of the rule to remove reference
to the annual audit performed by the Secretary to oversee trust funds.
That function is separate and distinct from the 25 U.S.C. 3109
requirement to audit Indian forest land assistance accounts and should
be deleted.
Response: Sec. 163.35(h) of the rule has been revised to delete the
reference to the Secretary's annual audit to oversee trust funds to
clarify the requirement to audit Indian forest land assistance accounts
in 25 U.S.C. 3109.
163.36 Tribal Forestry Program Financial Support
126. Comment: Sec. 163.36 of the rule should provide for giving
category 2 and 3 reservations with Tribal forestry programs a higher
priority in funding.
Response: The rule has not been revised because the funding
allocation system in Secs. 163.36 (f) and (g) provide for equity in
distribution of funds appropriated for tribal forestry program
financial support and emphasizes allocation of funds to locations with
the greatest resource management needs. Further, category 2 and 3
reservations which do not qualify for funding as individual locations
can form cooperatives to qualify for the highest level of funding under
Sec. 163.36(c) of the rule.
127. Comment: Level one funding assistance provided for in
Sec. 163.36(e)(1) is insufficient to employ and support an experienced
forester.
[[Page 52259]]
Response: The rule has not been revised because forestry program
management experience of tribes and the Bureau is that the base funding
assistance provided for in Sec. 163.36(e)(1) is adequate to employ and
support a professional forester. Also, if the minimum funding
assistance provided was increased, fewer tribes would benefit from the
program.
128. Comment: Given that one of the variables to determine
eligibility for tribal forestry financial support is the allowable
annual cut, would a reservation lose funding provided under Sec. 163.36
if they did not harvest timber in a given year?
Response: Funding would not be lost if harvest did not occur. If a
reservation qualifies under the criteria established in Sec. 163.36 and
funds are appropriated for tribal forestry program financial support,
the program will be funded regardless of harvest activity in a given
year.
129. Comment: Can public domain allotments in Alaska qualify for
tribal forestry program financial support funding under Sec. 163.36 of
the rule?
Response: Alaska Native allottees could qualify for tribal forestry
program financial support if they formed cooperatives and such
cooperatives met qualification criteria set forth in Sec. 163.36 of the
rule.
Subpart C--Forestry Education, Education Assistance, Recruitment and
Training
163.40 Indian and Alaska Native Forestry Education Assistance
130. Comment: Sec. 163.40 of the rule should provide for
standardization of salary and benefits for participants in the forester
intern and cooperative education programs and should provide a housing
allowance for students in the cooperative education program.
Response: The rule has not been revised because it provides for and
standardizes salary and benefits to the extent the National Indian
Forest Resources Management Act allows. Also, salary and benefits of
program participants are regulated by other Federal statutes and
regulations which address personnel management.
131. Comment: The education committee provided for by
Sec. 163.40(a)(1) of the rule should be comprised of a minimum of two
instead of one Indian or Alaska Native members.
Response: The rule has not been revised because the intent of the
program is to provide the maximum funds possible for Indian and Alaska
Native forestry students. The four person committee provided for in
Sec. 163.40(a)(1) of the rule is believed to be adequate to conduct
program business. Therefore, increasing program overhead and associated
costs would contradict the program intent to provide the maximum funds
possible for Indian and Alaska Native forestry students. If the number
of committee members stipulated is inadequate to complete required
program work, the number of committee members may be increased at the
discretion of the Secretary.
132. Comment: The scope of the intern program provided for in
Sec. 163.40(b) of the rule should be increased to provide training
needed to develop forestry technicians as well as professional resource
managers.
Response: The rule has not been revised because the purpose of the
intern program is to develop professional Indian foresters and resource
managers which, historically, have been in critically short supply.
133. Comment: Sec. 163.40(b) of the rule should provide for
establishing regional quotas for intern program positions to ensure
that all areas receive their fair share.
Response: The rule has not been revised because the education
committee provided for in Sec. 163.40(a)(1) of the rule can develop
criteria other than merit and past performance to ensure fairness and
equity in selection for the program.
134. Comment: Sec. 163.40(b)(1)(ii) of the rule should be modified
to encourage Indians and Alaska Natives in the intern program to
include courses on indigenous culture related to their field of study.
Response: Sec. 163.40(b)(1)(ii) of the rule has been revised to
emphasize that courses on indigenous culture related to their field of
study could be included in the curriculum of interns.
135. Comment: Shouldn't the term ``articulation'' in
Sec. 163.40(d)(5) of the rule be ``matriculation''?
Response: Even though use of the term ``articulation'' in
Sec. 163.40(d)(5) of the rule is correct, the rule has been revised to
delete the word from the rule and add the minimum requirements of such
agreements to the rule for the purpose of clarification.
136. Comment: Sec. 163.40(e)(1)(ii) of the rule should be modified
to promote forestry career awareness that includes both native
indigenous and modern forest technologies.
Response: Sec. 163.40(e)(1)(ii) of the rule has been revised to
emphasize the need for both native indigenous and modern technologies
in forestry career awareness programs.
137. Comment: Sec. 163.40(f)(3) of the rule should be modified to
encourage Indians and Alaska Natives in the postgraduate studies
program to choose a research topic that will include native indigenous
knowledge and technologies applied to forestry.
Response: The rule has not been revised because including the
suggested language as a requirement of the postgraduate study program
in 163.40(f)(3) of the rule would be inappropriate.
Subpart D--Alaska Native Technical Assistance Program
163.60 Purpose and Scope
138. Comment: Include the forest land management activity
objectives enumerated in Sec. 163.3(b) of the rule in Sec. 163.60 of
the rule.
Response: The rule has not been revised because the purpose of
Sec. 163.60 of the rule is to provide policy guidance for the
administration of the Alaska Native Technical Assistance Program, not
to reiterate the objectives of forest land management activities.
139. Comment: Broaden the scope of the definition of technical
assistance in Sec. 163.60(a) to include all forest land management
activities as defined in Sec. 163.1 Definitions of the rule.
Response: The rule has not been revised because including all
forest land management activities as defined in Sec. 163.1 of the rule
would expand technical assistance activities far beyond those
envisioned by 25 U.S.C. 3112.
140. Comment: Funding appropriated for managing Alaska Native
forest lands should be comparable to that appropriated for the
management of Indian forest land in the lower 48.
Response: The rule has not been revised because the issue of
appropriations is outside the scope of the rule. Congress has
discretionary authority for appropriating funds for the Alaska Native
technical assistance program.
141. Comment: The definition of technical assistance in
Sec. 163.60(a) should be modified to allow ANCSA corporations to engage
in on-the-ground field activities necessary to managing forest
resources on their lands.
Response: The rule has not been revised because the definition in
Sec. 163.60(a) of the rule is sufficiently flexible to provide for the
activities envisioned by 25 U.S.C. 3112 needed to promote sustained
yield management of ANCSA forest resources, local processing and other
value added activities with such forest resources. Further, the
definition does not prohibit on-the-ground activities so long as such
activities are required to promote
[[Page 52260]]
sustained yield management of ANCSA forest resources, local processing
and other value-added activities.
Subpart F--Program Assessment
163.82 Annual Status Report
142. Comment: In Sec. 163.82 of the rule delete the requirement to
report the value of timber available for sale and the condition to
report required information only for lands managed under an approved
forest management plan.
Response: The reporting requirements in Sec. 163.82 of the rule
have been changed to conform with reporting requirements stipulated in
25 U.S.C. 3111(c) so the change requested by the comment has been made.
III. Findings and Certifications
The major purpose of the revision has been to provide uniform
Indian forestry program operating policy that complies with the
National Indian Forest Resources Management Act.
The Department has certified to the Office of Management and Budget
(OMB) that these final regulations meet the applicable standards
provided in sections 2(a) and 2(b)(2) of Executive Order 12778. These
regulations have no preemptive or retroactive effect.
The Department of the Interior has determined that this rule is not
a significant regulatory action under Executive Order 12866, and
therefore will not be reviewed by the Office of Management and Budget.
In accordance with E.O. 12630, the Department has determined that
this rule does not have significant takings implications.
This 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 proposed 25 CFR part 163, General
Forest Regulations, will have a positive impact on small business
entities. Section 163.13, Indian tribal forest enterprise operations,
Sec. 163.14, Sale of forest products, and Sec. 163.22, Payment for
forest products provide streamlined rules for the sale and collection
of proceeds from the sale of Indian forest products. The rule should
benefit both Indian and non-Indian forest product businesses on and
adjacent to Indian lands by simplifying sale procedures and improving
cash flow to Tribes engaged in forest product industry. Further, the
rule will provide a means to deliver technical assistance to Alaska
Native Regional and Village Corporations to promote and develop value-
added forest product industry. Such assistance will create a positive
impact by facilitating initiation of new, small forest product
businesses and enhancing existing enterprises. Other than these
positive effects, the rule will not cause significant impacts to small
business entities because other sections of the rule serve to affirm
uniform Indian forest resource management standards, policy and
procedures which have been in effect for many years.
The Department has determined that this rule does not have
significant federalism effects.
The Department has determined that this rulemaking 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.
The information collection requirements contained in this part do
not require approval by the Office of Management and Budget under 44
U.S.C. 3501 et seq.
The primary author of this document is Mr. Jim Stires, Forester, in
the Billings Area Office, Bureau of Indian Affairs, Branch of Forestry,
Billings, Montana.
List of Subjects in 25 CFR Part 163
Forests and forest products; Indian lands; education.
For the reasons set forth in the preamble, part 163 of Title 25 of
the Code of Federal Regulations is revised as set forth below.
PART 163--GENERAL FORESTRY REGULATIONS
Subpart A--General Provisions
Sec.
163.1 Definitions.
163.2 Information collection.
163.3 Scope and objectives.
163.4 Secretarial recognition of tribal laws.
Subpart B--Forest Management and Operations
163.10 Management of Indian forest land.
163.11 Forest management planning and sustained yield management.
163.12 Harvesting restrictions.
163.13 Indian tribal forest enterprise operations.
163.14 Sale of forest products.
163.15 Advertisement of sales.
163.16 Forest product sales without advertisement.
163.17 Deposit with bid.
163.18 Acceptance and rejection of bids.
163.19 Contracts for the sale of forest products.
163.20 Execution and approval of contracts.
163.21 Bonds required.
163.22 Payment for forest products.
163.23 Advance payment for timber products.
163.24 Duration of timber contracts.
163.25 Forest management deductions.
163.26 Forest product harvesting permits.
163.27 Free-use harvesting without permits.
163.28 Fire management measures.
163.29 Trespass.
163.30 Revocable road use and construction permits for removal of
commercial forest products.
163.31 Insect and disease control.
163.32 Forest development.
163.33 Administrative appeals.
163.34 Environmental compliance.
163.35 Indian forest land assistance account.
163.36 Tribal forestry program financial support.
163.37 Forest management research.
Subpart C--Forestry Education, Education Assistance, Recruitment and
Training
163.40 Indian and Alaska Native forestry education assistance.
163.41 Postgraduation recruitment, continuing education and
training programs.
163.42 Obligated service and breach of contract.
Subpart D--Alaska Native Technical Assistance Program
163.60 Purpose and scope.
163.61 Evaluation committee.
163.62 Annual funding needs assessment and rating.
163.63 Contract, grant, or agreement application and award process.
Subpart E--Cooperative Agreements
163.70 Purpose of agreements.
163.71 Agreement funding.
163.72 Supervisory relationship.
Subpart F--Program Assessment
163.80 Periodic assessment report.
163.81 Assessment guidelines.
163.82 Annual status report.
163.83 Assistance from the Secretary of Agriculture.
Authority: 25 U.S.C. 2, 5, 9, 13, 406, 407, 413, 415, 466; and
3101-3120.
Subpart A--General Provisions
Sec. 163.1 Definitions.
Advance deposits means, in Timber Contract for the Sale of
Estimated Volumes, contract-required deposits in advance of cutting
which the purchaser furnishes to maintain an operating balance against
which the value of timber to be cut will be charged.
Advance payments means, in Timber Contract for the Sale of
Estimated Volumes, non-refundable partial payments of the estimated
value of the timber to be cut. Payments are furnished within 30 days of
contract approval and prior to cutting. Advance payments are normally
25 percent of the estimated value of the forest products on each
allotment. Advance payments may be required for tribal land.
Alaska Native means native as defined in section 3(b) of the Alaska
[[Page 52261]]
Native Claims Settlement Act of December 18, 1971 (43 U.S.C. 1604).
ANCSA corporation means both profit and non-profit corporations
established pursuant to the Alaska Native Claims Settlement Act (43
U.S.C. 1604).
Approval means authorization by the Secretary, Area Director,
Superintendent, tribe or individual Indian in accordance with
appropriate delegations of authority.
Approving officer means the officer approving instruments of sale
for forest products or his/her authorized representative.
Authorized representative means an individual or entity duly
empowered to make decisions under a direct, clear, and specific
delegation of authority.
Authorized tribal representative means an individual or entity duly
empowered to make decisions under a direct, clear, and specific
delegation of authority from an Indian tribe.
Beneficial owner means an individual or entity who holds an
ownership interest in Indian land.
Bid deposit means, in Timber Contract for the Sale of Estimated
Volumes or in Timber Contract for the Sale of Predetermined Volumes, a
deposit with bid furnished by prospective purchasers. At contract
execution, the bid deposit of the successful bidder becomes a portion
of the contract required advance deposit in estimated volume contracts
or an installment payment in predetermined volume contracts.
Commercial forest land means forest land that is producing or
capable of producing crops of marketable forest products and is
administratively available for intensive management and sustained
production.
Expenditure plan means a written agreement between an Indian tribe
and the Secretary documenting tribal commitment to undertake specified
forest land management activities within general time frames.
Forest or forest land means an ecosystem at least one acre in size,
including timberland and woodland, which: Is characterized by a more or
less dense and extensive tree cover; contains, or once contained, at
least ten percent tree crown cover, and is not developed or planned for
exclusive non-forest resource use.
Forest land management activities means all activities performed in
the management of Indian forest land including:
(a) All aspects of program administration and executive direction
such as:
(1) Development and maintenance of policy and operational
procedures, program oversight, and evaluation;
(2) Securing of legal assistance and handling of legal matters;
(3) Budget, finance, and personnel management; and
(4) Development and maintenance of necessary data bases and program
reports.
(b) All aspects of the development, preparation and revision of
forest inventory and management plans, including aerial photography,
mapping, field management inventories and re- inventories, inventory
analysis, growth studies, allowable annual cut calculations,
environmental assessment, and forest history, consistent with and
reflective of tribal integrated resource management plans where such
plans exist.
(c) Forest land development, including forestation, thinning, tree
improvement activities, and the use of silvicultural treatments to
restore or increase growth and yield to the full productive capacity of
the forest environment.
(d) Protection against losses from wildfire, including acquisition
and maintenance of fire fighting equipment and fire detection systems,
construction of fire breaks, hazard reduction, prescribed burning, and
the development of cooperative wildfire management agreements.
(e) Protection against insects and disease, including:
(1) All aspects of detection and evaluation;
(2) Preparation of project proposals containing project
descriptions, environmental assessments and statements, and cost-
benefit analyses necessary to secure funding;
(3) Field suppression operations and reporting.
(f) Assessment of damage caused by forest trespass, infestation or
fire, including field examination and survey, damage appraisal,
investigation assistance and report, demand letter, and testimony
preparation.
(g) All aspects of the preparation, administration, and supervision
of timber sale contracts, paid and free use permits, and other Indian
forest product harvest sale documents, including;
(1) Cruising, product marketing, silvicultural prescription,
appraisal and harvest supervision;
(2) Forest product marketing assistance, including evaluation of
marketing and development opportunities related to Indian forest
products and consultation and advice to tribes, tribal and Indian
enterprises on maximization of return on forest products;
(3) Archeological, historical, environmental and other land
management reviews, clearances, and analyses;
(4) Advertising, executing, and supervising contracts;
(5) Marking and scaling of timber; and
(6) Collecting, recording and distributing receipts from sales.
(h) Provision of financial assistance for the education of Indians
and Alaska Natives enrolled in accredited programs of postsecondary and
postgraduate forestry and forestry-related fields of study, including
the provision of scholarships, internships, relocation assistance, and
other forms of assistance to cover educational expenses.
(i) Participation in the development and implementation of tribal
integrated resource management plans, including activities to
coordinate current and future multiple uses of Indian forest lands.
(j) Improvement and maintenance of extended season primary and
secondary Indian forest land road systems.
(k) Research activities to improve the basis for determining
appropriate management measures to apply to Indian forest land.
Forest management deduction means a percentage of the gross
proceeds from the sales of forest products harvested from Indian land
which is collected by the Secretary pursuant to 25 U.S.C. 413 to cover
in whole or in part the cost of managing and protecting such Indian
forest lands.
Forest management plan means the principal document, approved by
the Secretary, reflecting and consistent with an integrated resource
management plan, which provides for the regulation of the detailed,
multiple-use operation of Indian forest land by methods ensuring that
such lands remain in a continuously productive state while meeting the
objectives of the tribe and which shall include: Standards setting
forth the funding and staffing requirements necessary to carry out each
management plan, with a report of current forestry funding and staffing
levels; and standards providing quantitative criteria to evaluate
performance against the objectives set forth in the plan.
Forest products means marketable products extracted from Indian
forests, such as: Timber; timber products, including lumber, lath,
crating, ties, bolts, logs, pulpwood, fuelwood, posts, poles, and split
products; bark; Christmas trees, stays, branches, firewood, berries,
mosses, pinyon nuts, roots, acorns, syrups, wild rice,
[[Page 52262]]
mushrooms, and herbs; other marketable material; and gravel which is
extracted from, and utilized on, Indian forest land.
Forestry-related field or forestry-related curriculum means a
renewable natural resource management field necessary to manage Indian
forest land and other professionally recognized fields as approved by
the education committee established pursuant to Sec. 163.40(a)(1).
Forest resources means all the benefits derived from Indian forest
land, including forest products, soil productivity, water, fisheries,
wildlife, recreation, and aesthetic or other traditional values of
Indian forest land.
Forester intern means an Indian or Alaska Native who: Is employed
as a forestry or forestry-related technician with the Bureau of Indian
Affairs, an Indian tribe, or tribal forest-related enterprise; is
acquiring necessary academic qualifications to become a forester or a
professional trained in forestry-related fields; and is appointed to
one of the Forester Intern positions established pursuant to
Sec. 163.40(b).
Indian means a member of an Indian tribe.
Indian enterprise means an enterprise which is designated as such
by the Secretary or tribe.
Indian forest land means Indian land, including commercial, non-
commercial, productive and non-productive timberland and woodland, that
are considered chiefly valuable for the production of forest products
or to maintain watershed or other land values enhanced by a forest
cover, regardless of whether a formal inspection and land
classification action has been taken.
Indian land means land title which is held by: The United States in
trust for an Indian, an individual of Indian or Alaska Native ancestry
who is not a member of a federally-recognized Indian tribe, or an
Indian tribe; or by an Indian, an individual of Indian or Alaska Native
ancestry who is not a member of a federally recognized tribe, or an
Indian tribe subject to a restriction by the United States against
alienation.
Indian tribe or tribe means any Indian tribe, band, nation,
rancheria, Pueblo or other organized group or community which is
recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians and
shall mean, where appropriate, the recognized tribal government of such
tribe's reservation.
Installment payments means, in Timber Contract for the Sale of
Predetermined Volumes, scheduled partial payments of the total contract
value based on purchaser bid. Payments made are normally not
refundable.
Integrated resource management plan means a document, approved by
an Indian tribe and the Secretary, which provides coordination for the
comprehensive management of the natural resources of such tribe's
reservation.
Noncommercial forest land means forest land that is available for
extensive management, but is incapable of producing sustainable forest
products within the general rotation period. Such land may be
economically harvested, but the site quality does not warrant
significant investment to enhance future crops.
Productive forest land means forest land producing or capable of
producing marketable forest products that is unavailable for harvest
because of administrative restrictions or because access is not
practical.
Reservation means an Indian reservation established pursuant to
treaties, Acts of Congress, or Executive Orders and public domain
Indian allotments, Alaska Native allotments, rancherias, and former
Indian reservations in Oklahoma.
Secretary means the Secretary of the Interior or his or her
authorized representative.
Stumpage rate means the stumpage value per unit of measure for a
forest product.
Stumpage value means the value of a forest product prior to
extraction from Indian forest land.
Sustained yield means the yield of forest products that a forest
can produce continuously at a given intensity of management.
Timberland means forest land stocked, or capable of being stocked,
with tree species that are regionally utilized for lumber, pulpwood,
poles or veneer products.
Trespass means the removal of forest products from, or damaging
forest products on, Indian forest land, except when authorized by law
and applicable federal or tribal regulations. Trespass can include any
damage to forest resources on Indian forest land resulting from
activities under contracts or permits or from fire.
Tribal forest enterprise means an Indian enterprise that is
initiated and organized by a reservation's recognized tribal
government.
Unproductive forest land means forest land that is not producing or
capable of producing marketable forest products and is also unavailable
for harvest because of administrative restrictions or because access is
not practical.
Woodland means forest land not included within the timberland
classification, stocked, or capable of being stocked, with tree species
of such form and size to produce forest products that are generally
marketable within the region for products other than lumber, pulpwood,
or veneer.
Sec. 163.2 Information collection.
The information collection requirements contained in 25 CFR part
163 do not require the approval of the Office of Management and Budget
under 44 U.S.C. 3504(h) et seq.
Sec. 163.3 Scope and objectives.
(a) The regulations in this part are applicable to all Indian
forest land except as this part may be superseded by legislation.
(b) Indian forest land management activities undertaken by the
Secretary shall be designed to achieve the following objectives:
(1) The development, maintenance and enhancement of Indian forest
land in a perpetually productive state in accordance with the
principles of sustained yield and with the standards and objectives set
forth in forest management plans by providing effective management and
protection through the application of sound silvicultural and economic
principles to the harvesting of forest products, forestation, timber
stand improvement and other forestry practices;
(2) The regulation of Indian forest land through the development
and implementation, with the full and active consultation and
participation of the appropriate Indian tribe, of forest management
plans which are supported by written tribal objectives;
(3) The regulation of Indian forest land in a manner that will
ensure the use of good method and order in harvesting so as to make
possible, on a sustained yield basis, continuous productivity and a
perpetual forest business;
(4) The development of Indian forest land and associated value-
added industries by Indians and Indian tribes to promote self-
sustaining communities, so that Indians may receive from their Indian
forest land not only stumpage value, but also the benefit of all the
labor and profit that such Indian forest land is capable of yielding;
(5) The retention of Indian forest land in its natural state when
an Indian tribe determines that the recreational, cultural, aesthetic,
or traditional values of the Indian forest land represents the highest
and best use of the land;
(6) The management and protection of forest resources to retain the
beneficial
[[Page 52263]]
effects to Indian forest land of regulating water run-off and
minimizing soil erosion; and
(7) The maintenance and improvement of timber productivity,
grazing, wildlife, fisheries, recreation, aesthetic, cultural and other
traditional values.
Sec. 163.4 Secretarial recognition of tribal laws.
Subject to the Secretary's trust responsibilities, and unless
otherwise prohibited by Federal statutory law, the Secretary shall
comply with tribal laws pertaining to Indian forest land, including
laws regulating the environment or historic or cultural preservation,
and shall cooperate with the enforcement of such laws on Indian forest
land. Such cooperation does not constitute a waiver of United States
sovereign immunity and shall include:
(a) Assistance in the enforcement of such laws;
(b) Provision of notice of such laws to persons or entities
undertaking activities on Indian forest land; and
(c) Upon the request of an Indian tribe, the appearance in tribal
forums.
Subpart B--Forest Management and Operations
Sec. 163.10 Management of Indian forest land.
(a) The Secretary shall undertake forest land management activities
on Indian forest land, either directly or through contracts,
cooperative agreements, or grants under the Indian Self-Determination
and Education Assistance Act (Pub. L. 93-638, as amended).
(b) Indian forest land management activities undertaken by the
Secretary shall be designed to achieve objectives enumerated in
Sec. 163.3 of this part.
Sec. 163.11 Forest management planning and sustained yield management.
(a) To further the objectives identified in Sec. 163.3 of this
part, an appropriate forest management plan shall be prepared and
revised as needed for all Indian forest lands. Such documents shall
contain a statement describing the manner in which the policies of the
tribe and the Secretary will be applied, with a definite plan of
silvicultural management, analysis of the short term and long term
effects of the plan, and a program of action, including a harvest
schedule, for a specified period in the future. Forest management plans
shall be based on the principle of sustained yield management and
objectives established by the tribe and will require approval of the
Secretary.
(b) Forest management planning for Indian forest land shall be
carried out through participation in the development and implementation
of integrated resource management plans which provide coordination for
the comprehensive management of all natural resources on Indian land.
If the integrated resource management planning process has not been
initiated, or is not ongoing or completed, a stand-alone forest
management plan will be prepared.
(c) The harvest of forest products from Indian forest land will be
accomplished under the principles of sustained yield management and
will not be authorized until practical methods of harvest based on
sound economic and silvicultural and other forest management principles
have been prescribed. Harvest schedules will be prepared for a
specified period of time and updated annually. Such schedules shall
support the objectives of the beneficial land owners and the Secretary
and shall be directed toward achieving an approximate balance between
net growth and harvest at the earliest practical time.
Sec. 163.12 Harvesting restrictions.
(a) Harvesting timber on commercial forest land will not be
permitted unless provisions for natural and/or artificial reforestation
of acceptable tree species is included in harvest plans.
(b) Clearing of large contiguous areas will be permitted only on
land that, when cleared, will be devoted to a more beneficial use than
growing timber crops. This restriction shall not prohibit clearcutting
when it is silviculturally appropriate, based on ecological principles,
to harvest a particular stand of timber by such method and it otherwise
conforms with objectives in Sec. 163.3 of this part.
Sec. 163.13 Indian tribal forest enterprise operations.
Indian tribal forest enterprises may be initiated and organized
with consent of the authorized tribal representatives. Such enterprises
may contract for the purchase of non-Indian owned forest products.
Subject to approval by the Secretary the following actions may be
taken:
(a) Authorized tribal enterprises may enter into formal agreements
with tribal representatives for the use of tribal forest products, and
with individual beneficial Indian owners for their forest products;
(b) Authorized officials of tribal enterprises, operating under
approved agreements for the use of Indian-owned forest products
pursuant to this section, may sell the forest products produced
according to generally accepted trade practices;
(c) With the consent of the beneficial Indian owners, such
enterprises may, without advertisement, contract for the purchase of
forest products on Indian land at stumpage rates authorized by the
Secretary;
(d) Determination of and payment for stumpage and/or products
utilized by such enterprises will be authorized in accordance with
Sec. 163.22. However, the Secretary may issue special instructions for
payment by methods other than those in Sec. 163.22 of this part; and
(e) Performance bonds may or may not be required in connection with
operations on Indian land by such enterprises as determined by the
Secretary.
Sec. 163.14 Sale of forest products.
(a) Consistent with the economic objectives of the tribe and with
the consent of the Secretary and authorized by tribal resolution or
resolution of recognized tribal government, open market sales of Indian
forest products may be authorized. Such sales require consent of the
authorized representatives of the tribe for the sale of tribal forest
products, and the owners of a majority Indian interest on individually
owned lands. Open market sales of forest products from Indian land
located off reservations will be permitted with the consent of the
Secretary and majority Indian interest of the beneficial Indian
owner(s).
(b) On individually owned Indian forest land not formally
designated for retention in its natural state, the Secretary may, after
consultation, sell the forest products without the consent of the
owner(s) when in his or her judgment such action is necessary to
prevent loss of value resulting from fire, insects, diseases, windthrow
or other catastrophes.
(c) Unless otherwise authorized by the Secretary, each sale of
forest products having an estimated stumpage value exceeding $15,000
will not be approved until:
(1) An examination of the forest products to be sold has been made
by a forest officer; and
(2) A report setting forth all pertinent information has been
submitted to the approving officer as provided in Sec. 163.20 of this
part.
(d) With the approval of the Secretary, authorized beneficial
Indian owners who have been duly apprised as to the value of the forest
products to be sold, may sell or transfer forest products for less than
the appraised value.
(e) Except as provided in Sec. 163.14(d) of this part, in all such
sales, the forest products shall be appraised and sold at
[[Page 52264]]
stumpage rates not less than those established by the Secretary.
Sec. 163.15 Advertisement of sales.
Except as provided in Secs. 163.13, 163.14, 163.16, and 163.26 of
this part, sales of forest products shall be made only after
advertising.
(a) The advertisement shall be approved by the officer who will
approve the instrument of sale. Advertised sales shall be made under
sealed bids, or at public auction, or under a combination thereof. The
advertisement may limit sales of Indian forest products to Indian
forest enterprises, members of the tribe, or may grant to Indian forest
enterprises and/or members of the tribe who submitted bids the right to
meet the higher bid of a non-member. If the estimated stumpage value of
the forest products offered does not exceed $15,000, the advertisement
may be made by posters and circular letters. If the estimated stumpage
value exceeds $15,000, the advertisement shall also be made in at least
one edition of a newspaper of general circulation in the locality where
the forest products are situated. If the estimated stumpage value does
not exceed $50,000, the advertisement shall be made for not less than
15 days; if the estimated stumpage value exceeds $50,000 but not
$250,000, for not less than 30 days; and if the estimated stumpage
value exceeds $250,000, for not less than 60 days.
(b) The approving officer may reduce the advertising period because
of emergencies such as fire, insect attack, blowdown, limitation of
time, or when there would be no practical advantage in advertising for
the prescribed period.
(c) If no instrument of sale is executed after such advertisement,
the approving officer may, within one year from the last day on which
bids were to be received as defined in the advertisement, permit the
sale of such forest products. The sale will be made upon the terms and
conditions in the advertisement and at not less than the advertised
value or the appraised value at the time of sale, whichever is greater.
Sec. 163.16 Forest product sales without advertisement.
(a) Sales of forest products may be made without advertisement to
Indians or non-Indians with the consent of the authorized tribal
representatives for tribal forest products or with the consent of the
beneficial owners of a majority Indian interest of individually owned
Indian land, and the approval of the Secretary when:
(1) Forest products are to be cut in conjunction with the granting
of a right-of-way;
(2) Granting an authorized occupancy;
(3) Tribal forest products are to be purchased by an Indian tribal
forest enterprise;
(4) It is impractical to secure competition by formal advertising
procedures;
(5) It must be cut to protect the forest from injury; or
(6) Otherwise specifically authorized by law.
(b) The approving officer shall establish a documented record of
each negotiated transaction. This will include:
(1) A written determination and finding that the transaction is a
type allowing use of negotiation procedures;
(2) The extent of solicitation and competition, or a statement of
the facts upon which a finding of impracticability of securing
competition is based; and
(3) A statement of the factors on which the award is based,
including a determination as to the reasonability of the price
accepted.
Sec. 163.17 Deposit with bid.
(a) A deposit shall be made with each proposal for the purchase of
Indian forest products. Such deposits shall be at least:
(1) Ten (10) percent if the appraised stumpage value is less than
$100,000 and in any event not less than $1,000 or full value whichever
is less;
(2) Five (5) percent if the appraised stumpage value is $100,000 to
$250,000 but in any event not less than $10,000; and
(3) Three (3) percent if the appraised stumpage value exceeds
$250,000 but in any event not less than $12,500.
(b) Deposits shall be in the form of either a certified check,
cashier's check, bank draft, postal money order, or irrevocable letter-
of-credit, drawn payable as specified in the advertisement, or in cash.
(c) The deposit of the apparent high bidder, and of others who
submit a written request to have their bids considered for acceptance
will be retained pending acceptance or rejection of the bids. All other
deposits will be returned following the opening and posting of bids.
(d) The deposit of the successful bidder will be forfeited and
distributed as damages to the beneficial owners if the bidder does not:
(1) Furnish the performance bond required by Sec. 163.21 of this
part within the time stipulated in the advertisement for sale of forest
products;
(2) Execute the contract; or
(3) Perform the contract.
(e) Forfeiture of a deposit does not limit or waive any further
claims for damages available under applicable law or terms of the
contract.
(f) In the event of an administrative appeal under 25 CFR part 2,
the Secretary may hold such bid deposits in an escrow account pending
resolution of the appeal.
Sec. 163.18 Acceptance and rejection of bids.
(a) The high bid received in accordance with any advertisement
issued under authority of this part shall be accepted, except that the
approving officer, having set forth the reason(s) in writing, shall
have the right to reject the high bid if:
(1) The high bidder is considered unqualified to fulfill the
contractual requirement of the advertisement; or
(2) There are reasonable grounds to consider it in the interest of
the Indians to reject the high bid.
(b) If the high bid is rejected, the approving officer may
authorize:
(1) Rejection of all bids; or
(2) Acceptance of the offer of another bidder who, at bid opening,
makes written request that their bid and bid deposit be held pending a
bid acceptance.
(c) The officer authorized to accept the bid shall have the
discretion to waive minor technical defects in advertisements and
proposals, such as typographical errors and misplaced entries.
Sec. 163.19 Contracts for the sale of forest products.
(a) In sales of forest products with an appraised stumpage value
exceeding $15,000, the contract forms approved by the Secretary must be
used unless a special form for a particular sale or class of sales is
approved by the Secretary.
(b) Unless otherwise directed, the contracts for forest products
from individually-owned Indian land will be paid by remittance drawn to
the Bureau of Indian Affairs and transmitted to the Superintendent.
Upon the request of the tribe, the contracts for tribal forest products
may require that the proceeds be paid promptly and directly into a bank
depository account designated by such tribe, or by remittance drawn to
the Bureau of Indian Affairs and transmitted to the Superintendent.
(c) By mutual agreement of the parties to a contract, contracts may
be extended, modified, or assigned subject to approval by the approving
officer, and may be terminated by the approving officer upon completion
or by mutual agreement.
[[Page 52265]]
Sec. 163.20 Execution and approval of contracts.
(a) All contracts for the sale of tribal forest products shall be
executed by the authorized tribal representative(s). There shall be
included with the contract an affidavit executed by the authorized
tribal representative(s) setting forth the resolution or other
authority of the governing body of the tribe. Contracts must be
approved by the Secretary to be valid.
(b) Contracts for the sale of individually owned forest products
shall be executed by the beneficial Indian owner(s) or the Secretary
acting pursuant to a power of attorney from the beneficial Indian
owner(s). Contracts must be approved by the Secretary to be valid.
(1) The Secretary may, after consultation with any legally
appointed guardian, execute contracts on behalf of minors and
beneficial Indian owners who are non compos mentis.
(2) The Secretary may execute contracts for a decedent's estate
where ownership has not been determined or for those persons who cannot
be located after a reasonable and diligent search and the giving of
notice by publication.
(3) Upon the request of the owner of an undivided but unrestricted
interest in land in which there are trust or restricted Indian
interests, the Secretary may include such unrestricted interest in a
sale of the trust or restricted interests in the timber, pursuant to
this part, and perform any functions required of him/her by the
contract of sale for both the restricted and the unrestricted
interests, including the collection and disbursement of payments for
timber and the forest management deductions from such payments.
(4) When consent of only a majority interest has been obtained, the
Secretary may execute the sale on behalf of all owners to fulfill
responsibilities to the beneficiaries of the trust. In such event, the
contract file must contain evidence of the effort to obtain consent of
all owners. When an individual cannot be located, the Secretary, after
a reasonable and diligent search and the giving of notice by
publication, may sign a power of attorney consenting to the sale for
particular interests. For Indian forest land containing undivided
restricted and unrestricted interests, only the restricted interests
are considered in determining if a majority interest has been obtained.
Sec. 163.21 Bonds required.
(a) Performance bonds will be required in connection with all sales
of forest products, except they may or may not be required, as
determined by the approving officer, in connection with the use of
forest products by Indian tribal forest enterprises pursuant to this
part in Sec. 163.13 or in timber cutting permits issued pursuant to
Sec. 163.26 of this part.
(1) In sales in which the estimated stumpage value, calculated at
the appraised stumpage rates, does not exceed $15,000, the bond shall
be at least 20 percent of the estimated stumpage value.
(2) In sales in which the estimated stumpage value exceeds $15,000
but is not over $150,000, the bond shall be at least 15 percent of the
estimated stumpage value but not less than $3,000.
(3) In sales in which the estimated stumpage value exceeds
$150,000, but is not over $350,000, the bond shall be at least 10
percent of the estimated stumpage value but not less than $22,500.
(4) In sales in which the estimated stumpage value exceeds
$350,000, the bond shall be at least 5 percent of the estimated
stumpage value but not less than $35,000.
(b) Bonds shall be in a form acceptable to the approving officer
and may include:
(1) A corporate surety bond by an acceptable surety company;
(2) A cash bond designating the approving officer to act as trustee
under terms of an appropriate trust;
(3) Negotiable U.S. Government securities supported by an
appropriate trust instrument; or
(4) An irrevocable letter of credit.
Sec. 163.22 Payment for forest products.
(a) The basis of volume determination for forest products sold
shall be the Scribner Decimal C log rules, cubic volume, lineal
measurement, piece count, weight, or such other form of measurement as
the Secretary may authorize for use. With the exception of Indian
tribal forest enterprises pursuant to Sec. 163.13 of this part, payment
for forest products will be required in advance of cutting for timber,
or removal for other forest products.
(b) Upon the request of an Indian tribe, the Secretary may provide
that the purchaser of the forest products of such tribe, which are
harvested under a timber sale contract, permit, or other harvest sale
document to make advanced deposits, or direct payments of the gross
proceeds of such forest products, less any amounts segregated as forest
management deductions pursuant to Sec. 163.25 of this part, into
accounts designated by such Indian tribe. Such accounts may be in one
or more of the following formats:
(1) Escrow accounts at a tribally designated financial institution
for receiving deposits with bids and advance deposits from which direct
disbursements for timber harvested shall be made to tribes and forest
management deductions accounts; or
(2) Tribal depository accounts for receiving advance payments,
installment payments, payments from Indian tribal forest enterprises,
and/or disbursements from advance deposit accounts or escrow accounts.
(c) The format must allow the Secretary to maintain trust
responsibility through written verification that all required deposits,
payments, and disbursements have been made.
(d) Terms and conditions for payment of forest products under lump
sum (predetermined volume) sales shall be specified in forest product
contract documents.
Sec. 163.23 Advance payment for timber products.
(a) Unless otherwise authorized by the Secretary, and except in the
case of lump sum (predetermined volume) sales, contracts for the sale
of timber from allotted, trust or restricted Indian forest land shall
provide for an advance payment of up to 25 percent of the stumpage
value, calculated at the bid price, within 30 days from the date of
approval and before cutting begins. Additional advance payments may be
specified in contracts. However, no advance payment will be required
that would make the sum of such payment and of advance deposits and
advance payments previously applied against timber cut from each
ownership in a sale exceed 50 percent of the bid stumpage value.
Advance payments shall be credited against the timber of each ownership
in the sale as the timber is cut and scaled at stumpage rates governing
at the time of scaling. Advance payments are not refundable.
(b) Advance payments may be required on tribal land. When required,
advance payments will operate the same as provided for in
Sec. 163.23(a) of this part.
Sec. 163.24 Duration of timber contracts.
After the effective date of a forest product contract, unless
otherwise authorized by the Secretary, the maximum period which shall
be allowed for harvesting the estimated volume of timber purchased,
shall be five years.
Sec. 163.25 Forest management deductions.
(a) Pursuant to the provisions of 25 U.S.C. 413 and 25 U.S.C. 3105,
a forest
[[Page 52266]]
management deduction shall be withheld from the gross proceeds of sales
of forest products harvested from Indian forest land as described in
this section.
(b) Gross proceeds shall mean the value in money or money's worth
of consideration furnished by the purchaser of forest products
purchased under a contract, permit, or other document for the sale of
forest products.
(c) Forest management deductions shall not be withheld where the
total consideration furnished under a contract, permit or other
document for the sale of forest products is less than $5,001.
(d) Except as provided in Sec. 163.25(e) of this part, the amount
of the forest management deduction shall not exceed the lesser amount
of ten percent (10%) of the gross proceeds or, the actual percentage in
effect on November 28, 1990.
(e) The Secretary may increase the forest management deduction
percentage for Indian forest land upon receipt of a written request
from a tribe supported by a resolution executed by the authorized
tribal representatives. At the request of the authorized tribal
representatives and at the discretion of the Secretary the forest
management deduction percentage may be decreased to not less than one
percent (1%) or the requirement for collection may be waived.
(f) Forest management deductions are to be utilized to perform
forest land management activities in accordance with an approved
expenditure plan. Expenditure plans shall describe the forest land
management activities anticipated to be undertaken, establish a time
period for their completion, summarize anticipated obligations and
expenditures, and specify the method through which funds are to be
transferred or credited to tribal accounts from special deposit
accounts established to hold amounts withheld as forest management
deductions. Any forest management deductions that have not been
incorporated into an approved expenditure plan by the end of the fiscal
year following the fiscal year in which the deductions are withheld,
shall be collected into the general funds of the United States Treasury
pursuant to 25 U.S.C. 413.
(1) For Indian forest lands located on an Indian reservation, a
written expenditure plan for the use of forest management deductions
shall be prepared annually and approved by the authorized tribal
representative(s) and the Secretary. The approval of the expenditure
plan by the authorized tribal representatives constitutes allocation of
tribal funds for Indian forest land management activities. Approval of
the expenditure plan by the Secretary shall constitute authority for
crediting of forest management deductions to tribal account(s). The
full amount of any deduction collected by the Secretary plus any income
or interest earned thereon shall be available for expenditure according
to the approved expenditure plan for the performance of forest land
management activities on the reservation from which the forest
management deduction is collected.
(2) Forest management deductions shall be handled in the same
manner as described under Sec. 163.25(f)(1) of this part if the
expenditure plan approved by an Indian tribe and the Secretary provides
for the conduct of forest land management activities on Indian forest
lands located outside the boundaries of an Indian reservation.
(3) For public domain and Alaska Native allotments held in trust
for Indians by the United States, forest management deductions may be
utilized to perform forest land management activities on such lands in
accordance with an expenditure plan approved by the Secretary.
(g) Forest management deductions withheld pursuant to this section
shall not be available to cover the costs that are paid from funds
appropriated for fire suppression or pest control or otherwise offset
federal appropriations for meeting the Federal trust responsibility for
management of Indian forest land.
(h) Within 120 days after the close of the tribal fiscal year,
tribes shall submit to the Secretary a written report detailing the
actual expenditure of forest management deductions during the past
fiscal year. The Secretary shall have the right to inspect accounts,
books, or other tribal records supporting the report.
(i) Forest management deductions incorporated into an expenditure
plan approved by the Secretary shall remain available until expended.
(j) As provided in Sec. 163.25(f) of this part, only forest
management deductions that have not been incorporated into an approved
expenditure plan may be deposited to a U.S. Treasury miscellaneous
receipt account. No amount collected as forest management deductions
shall be credited to any Federal appropriation. No other forest
management deductions or fees derived from Indian forest land shall be
collected to be covered into the general funds of the United States
Treasury.
Sec. 163.26 Forest product harvesting permits.
(a) Except as provided in Secs. 163.13 and 163.27 of this part,
removal of forest products that are not under formal contract, pursuant
to Sec. 163.19, shall be under forest product harvesting permit forms
approved by the Secretary. Permits will be issued only with the written
consent of the beneficial Indian owner(s) or the Secretary, for harvest
of forest products from Indian forest land, as authorized in
Sec. 163.20 of this part. To be valid, permits must be approved by the
Secretary. Minimum stumpage rates at which forest products may be sold
will be set at the time consent to issue the permit is obtained.
Payment and bonding requirements will be stipulated in the permit
document as appropriate.
(b) Free use harvesting permits issued shall specify species and
types of forest products to be removed. It may be stipulated that
forest products removed under this authority cannot be sold or
exchanged for other goods or services. The estimated value which may be
harvested in a fiscal year by any individual under this authority shall
not exceed $5,000. For the purpose of issuance of free use permits,
individual shall mean an individual Indian or any organized group of
Indians.
(c) Paid permits subject to forest management deductions, as
provided in Sec. 163.25 of this part, may be issued. Unless otherwise
authorized by the Secretary, the stumpage value which may be harvested
under paid permits in a fiscal year by any individual under this
authority shall not exceed $25,000. For the purpose of issuance of paid
permits, individual shall mean an individual or any operating entity
comprised of more than one individual.
(d) A Special Allotment Timber Harvest Permit may be issued to an
Indian having sole beneficial interest in an allotment to harvest and
sell designated forest products from his or her allotment. The special
permit shall include provision for payment by the Indian of forest
management deductions pursuant to Sec. 163.25 of this part. Unless
waived by the Secretary, the permit shall also require the Indian to
make a bond deposit with the Secretary as required by Sec. 163.21. Such
bonds will be returned to the Indian upon satisfactory completion of
the permit or will be used by the Secretary in his or her discretion
for planting or other work to offset damage to the land or the timber
caused by failure to comply with the provisions of the permit. As a
condition to granting a special permit under authority of this
paragraph, the Indian shall be required to provide evidence acceptable
to the Secretary
[[Page 52267]]
that he or she has arranged a bona fide sale of the forest products, on
terms that will protect the Indian's interests.
Sec. 163.27 Free-use harvesting without permits.
With the consent of the beneficial Indian owners and the Secretary,
Indians may harvest designated types of forest products from Indian
forest land without a permit or contract, and without charge. Forest
products harvested under this authority shall be for the Indian's
personal use, and shall not be sold or exchanged for other goods or
services.
Sec. 163.28 Fire management measures.
(a) The Secretary is authorized to maintain facilities and staff,
hire temporary labor, rent fire fighting equipment, purchase tools and
supplies, and pay for their transportation as needed, to maintain an
adequate level of readiness to meet normal wildfire protection needs
and extinguish forest or range fires on Indian land. No expenses for
fighting a fire outside Indian lands may be incurred unless the fire
threatens Indian land or unless the expenses are incurred pursuant to
an approved cooperative agreement with another protection agency. The
rates of pay for fire fighters and for equipment rental shall be the
rates for fire fighting services that are currently in use by public
and private wildfire protection agencies adjacent to Indian
reservations on which a fire occurs, unless there are in effect at the
time different rates that have been approved by the Secretary. The
Secretary may also enter into reciprocal agreements with any fire
organization maintaining protection facilities in the vicinity of
Indian reservations or other Indian land for mutual aid in wildfire
protection. This section does not apply to the rendering of emergency
aid, or agreements for mutual aid in fire protection pursuant to the
Act of May 27, 1955 (69 Stat. 66).
(b) The Secretary is authorized to conduct a wildfire prevention
program to reduce the number of person-caused fires and prevent damage
to natural resources on Indian land.
(c) The Secretary is authorized to expend funds for emergency
rehabilitation measures needed to stabilize soil and watershed on
Indian land damaged by wildfire.
(d) Upon consultation with the beneficial Indian owners, the
Secretary may use fire as a management tool on Indian land to achieve
land and/or resource management objectives.
Sec. 163.29 Trespass.
(a) Trespassers will be liable for civil penalties and damages to
the enforcement agency and the beneficial Indian owners, and will be
subject to prosecution for acts of trespass.
(1) Cases in Tribal Court. For trespass actions brought in tribal
court pursuant to these regulations, the measure of damages, civil
penalties, remedies and procedures will be as set forth in this
Sec. 163.29 of this part. All other aspects of a tribal trespass
prosecution brought under these regulations will be that prescribed by
the law of the tribe in whose reservation or within whose jurisdiction
the trespass was committed, unless otherwise prescribed under federal
law. Absent applicable tribal or federal law, the measure of damages
shall be that prescribed by the law of the state in which the trespass
was committed.
(2) Cases in Federal Court. For trespass actions brought in Federal
court pursuant to these regulations, the measure of damages, civil
penalties, remedies and procedures will be as set forth in this
Sec. 163.29. In the absence of applicable federal law, the measure
shall be that prescribed by the law of the tribe in whose reservation
or within whose jurisdiction the trespass was committed, or in the
absence of tribal law, the law of the state in which it was committed.
(3) Civil penalties for trespass include, but are not limited to:
(i) Treble damages, whenever any person, without lawful authority
injures, severs, or carries off from a reservation any forest product
as defined in Sec. 163.1 of this part. Proof of Indian ownership of the
premises and commission of the acts by the trespasser are prima facie
evidence sufficient to support liability for treble damages, with no
requirement to show willfulness or intent. Treble damages shall be
based upon the highest stumpage value obtainable from the raw materials
involved in the trespass.
(ii) Payment of costs associated with damage to Indian forest land
includes, but is not limited to, rehabilitation, reforestation, lost
future revenue and lost profits, loss of productivity, and damage to
other forest resources.
(iii) Payment of all reasonable costs associated with the
enforcement of these trespass regulations beginning with detection and
including all processes through the prosecution and collection of
damages, including but not limited to field examination and survey,
damage appraisal, investigation assistance and reports, witness
expenses, demand letters, court costs, and attorney fees.
(iv) Interest calculated at the statutory rate prescribed by the
law of the tribe in whose reservation or within whose jurisdiction the
trespass was committed, or in the absence of tribal law in the amount
prescribed by federal law. Where tribal law or federal law does not
supply a statutory interest rate, the rate of interest shall be
statutory rate upon judgments as prescribed by the law of the state in
which the trespass was committed. Interest shall be based on treble the
highest stumpage value obtainable from the raw materials involved in
the trespass, and calculated from the date of the trespass until
payment is rendered.
(b) Any cash or other proceeds realized from forfeiture of
equipment or other goods or from forest products damaged or taken in
the trespass shall be applied to satisfy civil penalties and other
damages identified under Sec. 163.29(a) of this part. After disposition
of real and personal property to pay civil penalties and damages
resulting from trespass, any residual funds shall be returned to the
trespasser. In the event that collection and forfeiture actions taken
against the trespasser result in less than full recovery, civil
penalties shall be distributed as follows:
(1) Collection of damages up to the highest stumpage value of the
trespass products shall be distributed pro rata between the Indian
beneficial owners and any costs and expenses needed to restore the
trespass land; or
(2) Collections exceeding the highest stumpage value of the
trespass product, but less than full recovery, shall be proportionally
distributed pro rata between the Indian beneficial owners, the law
enforcement agency, and the cost to restore the trespass land. Forest
management deductions shall not be withheld where less than the highest
stumpage value of the unprocessed forest products taken in trespass has
been recovered.
(c) Indian beneficial owners who trespass, or who are involved in
trespass upon their own land, or undivided land in which such owners
have a partial interest, shall not receive their beneficial share of
any civil penalties and damages collected in consequence of the
trespass. Any civil penalties and damages defaulted in consequence of
this provision instead shall be distributed first toward restoration of
the land subject of the trespass and second toward costs of the
enforcement agency in consequence of the trespass, with any remainder
to the forest management deduction account of the reservation in which
the trespass took place.
(d) Civil penalties and other damages collected under these
regulations, except for penalties and damages provided for in
Secs. 163.29(a)(3) (ii) and (iii) of this part, shall be treated as
[[Page 52268]]
proceeds from the sale of forest products from the Indian forest land
upon which the trespass occurred.
(e) When a federal official or authorized tribal representative
pursuant to Sec. 163.29(j) of this part has reason to believe that
Indian forest products are involved in trespass, such individual may
seize and take possession of the forest products involved in the
trespass if the products are located on reservation. When forest
products are seized, the person seizing the products must at the time
of the seizure issue a Notice of Seizure to the possessor or claimant
of the forest products. The Notice of Seizure shall indicate the date
of the seizure, a description of the forest products seized, the
estimated value of forest products seized, an indication of whether the
forest products are perishable, and the name and authority of the
person seizing the forest products. Where the official initiates
seizure under these regulations only, the Notice of Seizure shall
further include the statement that any challenge or objection to the
seizure shall be exclusively through administrative appeal pursuant to
part 2 of Title 25, and shall provide the name and the address of the
official with whom the appeal may be filed. Alternately, an official
may exercise concurrent tribal seizure authority under these
regulations using applicable tribal law. In such case, the Notice of
Seizure shall identify the tribal law under which the seizure may be
challenged, if any. A copy of a Notice of Seizure shall be given to the
possessor or claimant at the time of the seizure. If the claimant or
possessor is unknown or unavailable, Notice of Seizure shall be posted
on the trespass property, and a copy of the Notice shall be kept with
any incident report generated by the official seizing the forest
products. If the property seized is perishable and will lose
substantial value if not sold or otherwise disposed of, the
representative of the Secretary, or authorized tribal representative
where deferral has been requested, may cause the forest products to be
sold. Such sale action shall not be stayed by the filing of an
administrative appeal nor by a challenge of the seizure action through
a tribal forum. All proceeds from the sale of the forest products shall
be placed into an escrow account and held until adjudication or other
resolution of the underlying trespass. If it is found that the forest
products seized were involved in a trespass, the proceeds shall be
applied to the amount of civil penalties and damages awarded. If it is
found that a trespass has not occurred or the proceeds are in excess of
the amount of the judgment awarded, the proceeds or excess proceeds
shall be returned to the possessor or claimant.
(f) When there is reason to believe that Indian forest products are
involved in trespass and that such products have been removed to land
not under federal or tribal government supervision, the federal
official or authorized tribal representative pursuant to Sec. 163.29(k)
of this part responsible for the trespass shall immediately provide the
following notice to the owner of the land or the party in possession of
the trespass products:
(1) That such products could be Indian trust property involved in a
trespass; and
(2) That removal or disposition of the forest products may result
in criminal and/or civil action by the United States or tribe.
(g) A representative of the Secretary or authorized tribal
representative pursuant to Sec. 163.29(j) of this part will promptly
determine if a trespass has occurred. The appropriate representative
will issue an official Notice of Trespass to the alleged trespasser
and, if necessary, the possessor or potential buyer of any trespass
products. The Notice is intended to inform the trespasser, buyer, or
the processor:
(1) That a determination has been made that a trespass has
occurred;
(2) The basis for the determination;
(3) An assessment of the damages, penalties and costs;
(4) Of the seizure of forest products, if applicable; and
(5) That disposition or removal of Indian forest products taken in
the trespass may result in civil and/or criminal action by the United
States or the tribe.
(h) The Secretary may accept payment of damages in the settlement
of civil trespass cases. In the absence of a court order, the Secretary
will determine the procedure and approve acceptance of any settlements
negotiated by a tribe exercising its concurrent jurisdiction pursuant
to Sec. 163.29(j) of this part.
(i) The Secretary may delegate by written agreement or contract,
responsibility for detection and investigation of forest trespass.
(j) Indian tribes that adopt the regulations set forth in this
section, conformed as necessary to tribal law, shall have concurrent
civil jurisdiction to enforce 25 U.S.C. 3106 and this section against
any person.
(1) The Secretary shall acknowledge said concurrent civil
jurisdiction over trespass, upon:
(i) Receipt of a formal tribal resolution documenting the tribe's
adoption of this section; and
(ii) Notification of the ability of the tribal court system to
properly adjudicate forest trespass cases, including a statement that
the tribal court will enforce the Indian Civil Rights Act or a tribal
civil rights law that contains provisions for due process and equal
protection that are similar to or stronger than those contained in the
Indian Civil Rights Act.
(2) Where an Indian tribe has acquired concurrent civil
jurisdiction over trespass cases as set forth in Sec. 163.29(j)(1) of
this part, the Secretary and tribe's authorized representatives will be
jointly responsible to coordinate prosecution of trespass actions. The
Secretary shall, upon timely request of the tribe, defer prosecution of
forest trespasses to the tribe. Where said deferral is not requested,
the designated Bureau of Indian Affairs forestry trespass official
shall coordinate with the authorized forest trespass official of each
tribe the exercise of concurrent tribal and Federal trespass
jurisdiction as to each trespass. Such officials shall review each
case, determine in which forums to recommend bringing an action, and
promptly provide their recommendation to the Federal officials
responsible for initiating and prosecuting forest trespass cases. Where
an Indian tribe has acquired concurrent civil jurisdiction, but does
not request deferral of prosecution, the federal officials responsible
for initiating and prosecuting such cases may file and prosecute the
action in the tribal court or forum.
(3) The Secretary may rescind an Indian tribe's concurrent civil
jurisdiction over trespass cases under this regulation if the Secretary
or a court of competent jurisdiction determines that the tribal court
has not adhered to the due process or equal protection requirements of
the Indian Civil Rights Act. If it is determined that said rescission
is justified, the Secretary shall provide written Notice of the
rescission, including the findings justifying the rescission and the
steps needed to remedy the violations causing the rescission, to the
chief judge of the tribal judiciary or other authorized tribal official
should there be no chief judge. If said steps are not taken within 60
days, the Secretary's rescission of concurrent civil jurisdiction shall
become final. The affected tribe(s) may appeal a Notice of Rescission
under part 2 of Title 25.
(4) Nothing shall be construed to prohibit or in any way diminish
the authority of a tribe to prosecute
[[Page 52269]]
individuals under its criminal or civil trespass laws where it has
jurisdiction over those individuals.
Sec. 163.30 Revocable road use and construction permits for removal of
commercial forest products.
(a) In accordance with 25 U.S.C. 415 as amended, the Secretary may
request tribes and/or other beneficial owners to sign revocable permits
designating the Secretary as agent for the landowner and empowering him
or her to issue revocable road use and construction permits to users
for the purpose of removing forest products.
(b) When a majority of trust interest in a tract has consented, the
Secretary may issue revocable road use and con- struction permits for
removal of forest products over and across such land. In addition, the
Secretary may act for individual owners when:
(1) One or more of the individual owner(s) of the land or of an
interest therein is a minor or a person non compos mentis, and the
Secretary finds that such grant, in total or for an interest therein,
will cause no substantial injury to the land or the owner, which cannot
be adequately compensated for by monetary damages;
(2) The whereabouts of the owner(s) of the land or those with an
interest therein are unknown so long as the majority of owner(s) of
interests whose whereabouts are known, consent to the grant;
(3) The heirs or devisees of a deceased owner of the land or
interest have not been determined, and the Secretary finds the grant
will cause no substantial injury to the land or any land owner; or
(4) The owners of interests in the land are so numerous that the
Secretary finds it would be impractical to obtain the consent of the
majority and finds that such grant in total or an interest therein will
cause no substantial injury to the land or the owner(s), that cannot be
adequately compensated for by monetary damages.
(c) Nothing in this section shall preclude acquisition of rights-
of-way over Indian lands, under 25 CFR part 169, or conflict with
provisions of that part.
Sec. 163.31 Insect and disease control.
(a) The Secretary is authorized to protect and preserve Indian
forest land from disease or insects (Sept. 20, 1922, Ch. 349, 42 Stat.
857). The Secretary shall consult with the authorized tribal
representatives and beneficial owners of Indian forest land concerning
control actions.
(b) The Secretary is responsible for controlling and mitigating
harmful effects of insects and diseases on Indian forest land and will
coordinate control actions with the Secretary of Agriculture in
accordance with 92 Stat. 365, 16 U.S.C. 2101.
Sec. 163.32 Forest development.
Forest development pertains to forest land management activities
undertaken to improve the sustainable productivity of commercial Indian
forest land. The program shall consist of reforestation, timber stand
improvement projects, and related investments to enhance productivity
of commercial forest land with emphasis on accomplishing on-the-ground
projects. Forest development funds will be used to re-establish,
maintain, and/or improve growth of commercial timber species and
control stocking levels on commercial forest land. Forest development
activities will be planned and executed using benefit-cost analyses as
one of the determinants in establishing priorities for project funding.
Sec. 163.33 Administrative appeals.
Any challenge to action under 25 CFR part 163 taken by an approving
officer or subordinate official exercising delegated authority from the
Secretary shall be exclusively through administrative appeal or as
provided in the Indian Self-Determination and Education Assistance Act
(Pub. L. 93-638, as amended). Such appeal(s) shall be filed in
accordance with the provisions of 25 CFR part 2, Appeals from
administrative actions, except that an appeal of any action under part
163 of this title shall:
(a) Not stay any action unless otherwise directed by the Secretary;
and
(b) Define ``interested party'' for purposes of bringing such an
appeal or participating in such an appeal as any person whose own
direct economic interest is adversely affected by an action or
decision.
Sec. 163.34 Environmental compliance.
Actions taken by the Secretary under the regulations in this part
must comply with the National Environmental Policy Act of 1969,
applicable Council on Environmental Quality Regulations, and tribal
laws and regulations.
Sec. 163.35 Indian forest land assistance account.
(a) At the request of a tribe's authorized representatives, the
Secretary may establish tribal-specific forest land assistance accounts
within the trust fund system.
(b) Deposits shall be credited either to forest transportation or
to general forest land management accounts.
(c) Deposits into the accounts may include:
(1) Funds from non-federal sources related to activities on or for
the Indian forest land of such tribe's reservation;
(2) Donations or contributions;
(3) Unobligated forestry appropriations for the tribe;
(4) User fees; and
(5) Funds transferred under Federal interagency agreements if
otherwise authorized by law.
(d) For purposes of Sec. 163.35(c)(3) of this part; unobligated
forestry appropriations shall consist of balances that remain
unobligated at the end of the fiscal year(s) for which funds are
appropriated for the benefit of an Indian tribe.
(e) Funds in the Indian forest land assistance account plus any
interest or other income earned shall remain available until expended
and shall not be available to otherwise offset Federal appropriations
for the management of Indian forest land.
(f) Funds in the forest land assistance account shall be used only
for forest land management activities on the reservation for which the
account is established.
(g) Funds in a tribe's forest land assistance account shall be
expended in accordance with a plan approved by the tribe and the
Secretary.
(h) The Secretary may, where circumstances warrant, at the request
of the tribe, or upon the Secretary's own volition, conduct audits of
the forest land assistance accounts and shall provide the audit results
of to the tribe(s).
Sec. 163.36 Tribal forestry program financial support.
(a) The Secretary shall maintain a program to provide financial
support to qualifying tribal forestry programs. A qualifying tribal
forestry program is an organization or entity established by a tribe
for purposes of carrying out forest land management activities. Such
financial support shall be made available through the Indian Self-
Determination and Education Assistance Act (Pub. L. 93-638, as
amended).
(b) The authorized tribal representatives of any category 1, 2, or
3 reservation (as defined under Sec. 163.36(b)(1)-(3)) with an
established tribal forestry program or with an intent to establish such
a program for the purpose of carrying out forest land management
activities may apply and qualify for tribal forestry program financial
support. Reservation categories, as determined by the Secretary, are
defined as:
[[Page 52270]]
(1) Category 1 includes major forested reservations comprised of
more than 10,000 acres of trust or restricted commercial timberland or
having more than a one million board foot harvest of forest products
annually.
(2) Category 2 includes minor forested reservations comprised of
less than 10,000 acres of trust or restricted commercial timberland and
having less than a one million board foot harvest of forest products
annually, or whose forest resource is determined by the Secretary to be
of significant commercial timber value.
(3) Category 3 includes significant woodland reservations comprised
of an identifiable trust or restricted forest area of any size which is
lacking a timberland component, and whose forest resource is determined
by the Secretary to be of significant commercial woodland value.
(c) A group of tribes that has either established or intends to
establish a cooperative tribal forestry program to provide forest land
management services to their reservations may apply and qualify for
tribal forestry program financial support. For purposes of financial
support under this provision, the cooperative tribal forestry program
and the commercial forest acreage and annual allowable cut which it
represents may be considered as a single reservation.
(d) Before the beginning of each Federal fiscal year, tribes
applying to qualify for forestry program financial support shall submit
application packages to the Secretary which:
(1) Document that a tribal forestry program exists or that there is
an intent to establish such a program;
(2) Describe forest land management activities and the time line
for implementing such activities which would result from receiving
tribal forestry program financial support; and
(3) Document commitment to sustained yield management.
(e) Tribal forestry program financial support shall provide
professional and technical services to carry out forest land management
activities and shall be based on levels of funding assistance as
follows:
(1) Level one funding assistance shall be equivalent to a Federal
Employee General Pay Schedule GS 9 step 5 position salary plus an
additional 40 percent of the annual salary for such a position to pay
for fringe benefits and support costs;
(2) Level two funding assistance shall be equivalent to an
additional Federal Employee General Pay Schedule GS 9 step 5 position
salary plus an additional 40 percent of the annual salary for such a
position to pay for fringe benefits and support costs; and
(3) Level three funding assistance shall be based on equal
distribution of remaining funds among qualifying applicants.
(f) Determination of qualification for level of funding assistance
shall be as follows:
(1) A funding level qualification value shall be determined for
each eligible applicant using the formula below. Such formula shall
only be used to determine which applicants qualify for level one
funding assistance. Acreage and allowable cut data used in the formula
shall be as maintained by the Secretary. Eligible applicants with a
funding level qualification value of one (1) or greater shall qualify
for level one assistance.
Funding Level Qualification Formula
[GRAPHIC][TIFF OMITTED]TR05OC95.000
where:
CA=applicant's total commercial Indian forest land acres;
Tot. CA=national total commercial Indian forest land acres;
AAC=applicant's total allowable annual cut from commercial Indian
forest land acres; and
Tot. AAC=national total allowable annual cut from commercial Indian
forest land acres.
(2) All category 1 or 2 reservations that are eligible applicants
under Sec. 163.36(d) of this part are qualified and eligible for level
two assistance.
(3) All category 1, 2 or 3 reservations that are eligible
applicants under Sec. 163.36(d) of this part are qualified and eligible
for level three assistance.
(g) Tribal forestry program financial support funds shall be
distributed based on the following:
(1) All requests from reservations qualifying for level one funding
assistance must be satisfied before funds are made available for level
two funding assistance;
(2) All requests from reservations qualifying for level two funding
assistance must be satisfied before funds are made available for level
three funding assistance; and
(3) If available funding is not adequate to satisfy all requests at
a particular level of funding, funds will be evenly divided among
tribes qualifying at that level.
Sec. 163.37 Forest management research.
The Secretary, with the consent of the authorized Indian
representatives' is authorized to perform forestry research activities
to improve the basis for determining appropriate land management
activities to apply to Indian forest land.
Subpart C--Forestry Education, Education Assistance, Recruitment
and Training
Sec. 163.40 Indian and Alaska Native forestry education assistance.
(a) Establishment and evaluation of the forestry education
assistance programs. (1) The Secretary shall establish within the
Bureau of Indian Affairs Division of Forestry an education committee to
coordinate and implement the forestry education assistance programs and
to select participants for all the forestry education assistance
programs with the exception of the cooperative education program. This
committee will be, at a minimum, comprised of a professional educator,
a personnel specialist, an Indian or Alaska Native who is not employed
by the Bureau of Indian Affairs, and a professional forester from the
Bureau of Indian Affairs.
(2) The Secretary, through the Bureau of Indian Affairs Division of
Forestry, shall monitor and evaluate the forestry education assistance
programs to ensure that there are adequate Indian and Alaska Native
foresters and forestry-related professionals to manage the Bureau of
Indian Affairs forestry programs and forestry programs maintained by or
for tribes and ANCSA Corporations. Such monitoring and evaluating shall
identify the number of participants in the intern, cooperative
education, scholarship, and outreach programs; the number of
participants who completed the requirements to become a professional
forester or forestry-related professional; and the number of
participants completing advanced degree requirements.
(b) Forester intern program. (1) The purpose of the forester intern
program is to ensure the future participation of trained, professional
Indians and Alaska Natives in the management of Indian and Alaska
Native forest land. In keeping with this purpose, the Bureau of Indian
Affairs in concert with tribes and Alaska Natives will work:
(i) To obtain the maximum degree of participation from Indians and
Alaska Natives in the forester intern program;
(ii) To encourage forester interns to complete an undergraduate
degree program in a forestry or forestry-related field which could
include courses on indigenous culture; and
(iii) To create an opportunity for the advancement of forestry and
forestry-related technicians to professional resource management
positions with the
[[Page 52271]]
Bureau of Indian Affairs, a tribe, tribal forest enterprise or ANCSA
Corporation.
(2) The Secretary, through the Bureau of Indian Affairs Division of
Forestry, subject to the availability of personnel resource levels
established in agency budgets, shall establish and maintain in the
Bureau of Indian Affairs at least 20 positions for the forester intern
program. All Indians and Alaska Natives who satisfy the qualification
criteria in Sec. 163.40(b)(3) of this part may compete for such
positions.
(3) To be considered for selection, applicants for forester intern
positions must meet the following criteria:
(i) Be eligible for Indian preference as defined in 25 CFR, part 5
subchapter A;
(ii) Possess a high school diploma or its recognized equivalent;
(iii) Be able to successfully complete the intern program within a
three year maximum time period; and
(iv) Possess a letter of acceptance to an accredited post-secondary
school or demonstrate that such a letter of acceptance will be acquired
within 90 days.
(4) The Bureau of Indian Affairs shall advertise vacancies for
forester intern positions semiannually, no later than the first day of
April and October, to accommodate entry into school.
(5) Selection of forester interns will be based on the following
guidelines:
(i) Selection will be on a competitive basis selecting applicants
who have the greatest potential for success in the program;
(ii) Selection will take into consideration the amount of time
which will be required for individual applicants to complete the intern
program;
(iii) Priority in selection will be given to candidates currently
employed with and recommended for participation by the Bureau of Indian
Affairs, a tribe, a tribal forest enterprise or ANCSA Corporation; and
(iv) Selection of individuals to the program awaiting the letter of
acceptance required by Sec. 163.40(b)(3)(iv) of this part may be
canceled if such letter of acceptance is not secured and provided to
the education committee in a timely manner.
(6) Forester interns shall comply with each of the following
program requirements:
(i) Maintain full-time status in a forestry related curriculum at
an accredited post-secondary school having an agreement which assures
the transferability of a minimum of 55 semester hours from the post-
secondary institution which meet the program requirements for a
forestry related program at a bachelor degree granting institution
accredited by the American Association of Universities;
(ii) Maintain good academic standing;
(iii) Enter into an obligated service agreement to serve as a
professional forester or forestry-related professional with the Bureau
of Indian Affairs, the recommending tribe, tribal forest enterprise or
ANCSA Corporation for two years for each year in the program; and
(iv) Report for service with the Bureau of Indian Affairs, a tribe,
tribal forest enterprise or ANCSA Corporation during any break in
attendance at school of more than three weeks duration. Time spent in
such service shall be counted toward satisfaction of the intern's
obligated service.
(7) The education committee established pursuant to
Sec. 163.40(a)(1) of this part will evaluate annually the performance
of forester intern program participants against requirements enumerated
in Sec. 163.40(b)(6) of this part to ensure that they are
satisfactorily progressing toward completing program requirements.
(8) The Secretary shall pay all costs for tuition, books, fees and
living expenses incurred by a forester intern while attending an
accredited post-secondary school.
(c) Cooperative education program. (1) The purpose of the
cooperative education program is to recruit and develop promising
Indian and Alaska Native students who are enrolled in secondary
schools, tribal or Alaska Native community colleges, and other post-
secondary schools for employment as professional foresters and other
forestry-related professionals by the Bureau of Indian Affairs, a
tribe, tribal forest enterprise or ANCSA Corporation.
(2) The program shall be operated by the Bureau of Indian Affairs
Division of Forestry in accordance with the provisions of 5 CFR
213.3202(a) and 213.3202(b).
(3) To be considered for selection, applicants for the cooperative
education program must meet the following criteria:
(i) Meet eligibility requirements stipulated in 5 CFR 213.3202;
(ii) Be accepted into or enrolled in a course of study at a high
school offering college preparatory course work, an accredited
institution which grants bachelor degrees in forestry or forestry-
related curriculums or a post-secondary education institution which has
an agreement with a college or university which grants bachelor degrees
in forestry or forestry-related curriculums. The agreement must assure
the transferability of a minimum of 55 semester hours from the post-
secondary institution which meet the program requirements for a
forestry related program at the bachelor degree-granting institution.
(4) Cooperative education steering committees established at the
field level shall select program participants based on eligibility
requirements stipulated in Sec. 163.40(c)(3) of this part without
regard to applicants' financial needs.
(5) A recipient of assistance under the cooperative education
program shall be required to enter into an obligated service agreement
to serve as a professional forester or forestry- related professional
with the Bureau of Indian Affairs, a recommending tribe, tribal forest
enterprise or ANCSA Corporation for one year in return for each year in
the program.
(6) The Secretary shall pay all costs of tuition, books, fees, and
transportation to and from the job site to school, for an Indian or
Alaska Native student who is selected for participation in the
cooperative education program.
(d) Scholarship program. (1) The Secretary is authorized, within
the Bureau of Indian Affairs Division of Forestry, to establish and
grant forestry scholarships to Indians and Alaska Natives enrolled in
accredited programs for post-secondary and graduate forestry and
forestry-related programs of study as full-time students.
(2) The education committee established pursuant to this part in
Sec. 163.40(a)(1) shall select program participants based on
eligibility requirements stipulated in Secs. 163.40(d)(5), 163.40(d)(6)
and 163.40(d)(7) without regard to applicants' financial needs or past
scholastic achievements.
(3) Recipients of scholarships must reapply annually to continue
funding beyond the initial award period. Students who have been
recipients of scholarships in past years, who are in good academic
standing and have been recommended for continuation by their academic
institution will be given priority over new applicants for selection
for scholarship assistance.
(4) The amount of scholarship funds an individual is awarded each
year will be contingent upon the availability of funds appropriated
each fiscal year and, therefore, may be subject to yearly changes.
(5) Preparatory scholarships are available for a maximum of two and
one half academic years of general, undergraduate course work leading
to a degree in forestry or forestry-related curriculums and may be
awarded to individuals who meet the following criteria:
[[Page 52272]]
(i) Must possess a high school diploma or its recognized
equivalent; and
(ii) Be enrolled and in good academic standing or accepted for
enrollment at an accredited post-secondary school which grants degrees
in forestry or forestry-related curriculums or be in a post-secondary
institution which has an agreement with a college or university which
grants bachelor degrees in forestry or forestry-related curriculums.
The agreement must assure the transferability of a minimum of 55
semester hours from the post-secondary institution which meet the
program requirements for a forestry-related curriculum at the bachelor
degree granting institution.
(6) Pregraduate scholarships are available for a maximum of three
academic years and may be awarded to individuals who meet the following
criteria:
(i) Have completed a minimum of 55 semester hours towards a
bachelor degree in a forestry or forestry-related curriculum; and
(ii) Be accepted into a forestry or forestry-related bachelor
degree-granting program at an accredited college or university.
(7) Graduate scholarships are available for a maximum of three
academic years for individuals selected into the graduate program of an
accredited college or university that grants advanced degrees in
forestry or forestry-related fields.
(8) A recipient of assistance under the scholarship program shall
be required to enter into an obligated service agreement to serve as a
professional forester or forestry-related professional with the Bureau
of Indian Affairs, a tribe, tribal forest enterprise or ANCSA
Corporation for one year for each year in the program.
(9) The Secretary shall pay all scholarships approved by the
education committee established pursuant to this part in
Sec. 163.40(a)(1), for which funding is available.
(e) Forestry education outreach. (1) The Secretary shall establish
and maintain a forestry education outreach program within the Bureau of
Indian Affairs Division of Forestry for Indian and Alaska Native youth
which will:
(i) Encourage students to acquire academic skills needed to succeed
in post-secondary mathematics and science courses;
(ii) Promote forestry career awareness that could include modern
technologies as well as native indigenous forestry technologies;
(iii) Involve students in projects and activities oriented to
forestry related professions early so students realize the need to
complete required precollege courses; and
(iv) Integrate Indian and Alaska Native forestry program activities
into the education of Indian and Alaska Native students.
(2) The program shall be developed and carried out in consultation
with appropriate community education organizations, tribes, ANCSA
Corporations, and Alaska Native organizations.
(3) The program shall be coordinated and implemented nationally by
the education committee established pursuant to Sec. 163.40(a)(1) of
this part.
(f) Postgraduate studies. (1) The purpose of the postgraduate
studies program is to enhance the professional and technical knowledge
of Indian and Alaska Native foresters and forestry-related
professionals working for the Bureau of Indian Affairs, a tribe, tribal
forest enterprise or ANCSA Corporations so that the best possible
service is provided to Indian and Alaska Native publics.
(2) The Secretary is authorized to pay the cost of tuition, fees,
books and salary of Alaska Natives and Indians who are employed by the
Bureau of Indian Affairs, a tribe, tribal forest enterprise or ANCSA
Corporation who have previously received diplomas or degrees in
forestry or forestry-related curriculums and who wish to pursue
advanced levels of education in forestry or forestry-related fields.
(3) Requirements of the postgraduate study program are:
(i) The goal of the advanced study program is to encourage
participants to obtain additional academic credentials such as a degree
or diploma in a forestry or forestry-related field;
(ii) The duration of course work cannot be less than one semester
or more than three years; and
(iii) Students in the postgraduate studies program must meet
performance standards as required by the graduate school offering the
study program during their course of study.
(4) Program applicants will submit application packages to the
education committee established by Sec. 163.40(a)(1). At a minimum,
such packages shall contain a complete SF 171 and an endorsement,
signed by the applicant's supervisor clearly stating the needs and
benefits of the desired training.
(5) The education committee established pursuant to
Sec. 163.40(a)(1) shall select program participants based on the
following criteria:
(i) Need for the expertise sought at both the local and national
levels;
(ii) Expected benefits, both to the location and nationally; and
(iii) Years of experience and the service record of the employee.
(6) Program participants will enter into an obligated service
agreement in accordance with Sec. 163.42(a), to serve as a professional
forester or forestry-related professional with the Bureau of Indian
Affairs, a tribe, tribal forest enterprise or ANCSA Corporation for two
years for each year in the program. However, the obligated service
requirement may be reduced by the Secretary if the employee receives
supplemental funding such as research grants, scholarships or graduate
stipends and, as a result, reduces the need for financial assistance.
If the obligated service agreement is breached, the Secretary is
authorized to pursue collection in accordance with Sec. 163.42(b) of
this part.
Sec. 163.41 Postgraduation recruitment, continuing education and
training programs.
(a) Postgraduation recruitment program. (1) The purpose of the
postgraduation recruitment program is to recruit Indian and Alaska
Native graduate foresters and trained forestry technicians into the
Bureau of Indian Affairs forestry program or forestry programs
conducted by a tribe, tribal forest enterprise or ANCSA Corporation.
(2) The Secretary is authorized to assume outstanding student loans
from established lending institutions of Indian and Alaska Native
foresters and forestry technicians who have successfully completed a
post-secondary forestry or forestry- related curriculum at an
accredited institution.
(3) Indian and Alaska Natives receiving benefits under this program
shall enter into an obligated service agreement in accordance with
Sec. 163.42(a) of this part. Obligated service required under this
program will be one year for every $5,000 of student loan debt repaid.
(4) If the obligated service agreement is breached, the Secretary
is authorized to pursue collection of the student loan(s) in accordance
with Sec. 163.42(b) of this part.
(b) Postgraduate intergovernmental internships. (1) Forestry
personnel working for the Bureau of Indian Affairs, a tribe, tribal
forest enterprise or ANCSA Corporation may apply to the Secretary and
be granted an internship within forestry-related programs of agencies
of the Department of the Interior.
(2) Foresters or forestry-related personnel from other Department
of the Interior agencies may apply through
[[Page 52273]]
proper channels for internships within Bureau of Indian Affairs
forestry programs and, with the consent of a tribe or Alaska Native
organization, within tribal or Alaska Native forestry programs.
(3) Forestry personnel from agencies not within the Department of
the Interior may apply, through proper agency channels and pursuant to
an interagency agreement, for an internship within the Bureau of Indian
Affairs and, with the consent of a tribe or Alaska Native organization,
within a tribe, tribal forest enterprise or ANCSA Corporation.
(4) Forestry personnel from a tribe, tribal forest enterprise or
ANCSA Corporation may apply, through proper channels and pursuant to a
cooperative agreement, for an internship within another tribe, tribal
forest enterprise or ANCSA Corporation forestry program.
(5) The employing agency of participating Federal employees will
provide for the continuation of salary and benefits.
(6) The host agency for participating tribal, tribal forest
enterprise or ANCSA Corporation forestry employees will provide for
salaries and benefits.
(7) A bonus pay incentive, up to 25 percent of the intern's base
salary, may be provided to intergovernmental interns at the conclusion
of the internship period. Bonus pay incentives will be at the
discretion of and funded by the host organization and will be
conditioned upon the host agency's documentation of the intern's
superior performance, in accordance with the agency's performance
standards, during the internship period.
(c) Continuing education and training. (1) The purpose of
continuing education and training is to establish a program to provide
for the ongoing education and training of forestry personnel employed
by the Bureau of Indian Affairs, a tribe, tribal forest enterprise or
ANCSA Corporation. This program will emphasize continuing education and
training in three areas:
(i) Orientation training, including tribal-Federal relations and
responsibilities;
(ii) Technical forestry education; and
(iii) Developmental training in forest land-based enterprises and
marketing.
(2) The Secretary shall implement within the Bureau of Indian
Affairs Division of Forestry, an orientation program designed to
increase awareness and understanding of Indian culture and its effect
on forest management practices and on Federal laws that affect forest
management operations and administration in the Indian forestry
program.
(3) The Secretary shall implement within the Bureau of Indian
Affairs Division of Forestry, a continuing technical forestry education
program to assist foresters and forestry-related professionals to
perform forest management on Indian forest land.
(4) The Secretary shall implement, within the Bureau of Indian
Affairs Division of Forestry, a forest land-based forest enterprise and
marketing training program to assist with the development and use of
Indian and Alaska Native forest resources.
Sec. 163.42 Obligated service and breach of contract.
(a) Obligated service. (1) Individuals completing forestry
education programs with an obligated service requirement may be offered
full time permanent employment with the Bureau of Indian Affairs, a
tribe, tribal forest enterprise or ANCSA Corporation to fulfill their
obligated service within 90 days of the date all program education
requirements have been completed. If such employment is not offered
within the 90-day period, the student shall be relieved of obligated
service requirements. Not less than 30 days prior to the commencement
of employment, the employer shall notify the participant of the work
assignment, its location and the date work must begin. If the employer
is other than the Bureau of Indian Affairs, the employer shall notify
the Secretary of the offer for employment.
(2) Qualifying employment time eligible to be credited to
fulfilling the obligated service requirement will begin the day after
all program education requirements have been completed, with the
exception of the forester intern program, which includes the special
provisions outlined in Sec. 163.40(b)(6)(iv). The minimum service
obligation period shall be one year of full-time employment.
(3) The Secretary or other qualifying employer reserves the right
to designate the location of employment for fulfilling the service
obligation.
(4) A participant in any of the forestry education programs with an
obligated service requirement who receives a degree may, within 30 days
of the degree completion date, request a deferment of obligated service
to pursue postgraduate or postdoctoral studies. In such cases, the
Secretary shall issue a decision within 30 days of receipt of the
request for deferral. The Secretary may grant such a request, however,
deferments granted in no way waive or otherwise affect obligated
service requirements.
(5) A participant in any of the forestry education programs with an
obligated service requirement may, within 30 days of the date all
program education requirements have been completed, request a waiver of
obligated service based on personal or family hardship. The Secretary
may grant a full or partial waiver or deny the request for waiver. In
such cases, the Secretary shall issue a decision within 30 days of
receipt of the request for waiver.
(b) Breach of contract. Any individual who has participated in and
accepted financial support under forestry education programs with an
obligated service requirement and who does not accept employment or
unreasonably terminates such employment by their own volition will be
required to repay financial assistance as follows:
(1) Forester intern program--Amount plus interest equal to the sum
of all salary, tuition, books, and fees that the forester intern
received while occupying the intern position. The amount of salary paid
to the individual during breaks in attendance from school, when the
individual was employed by the Bureau of Indian Affairs, a tribe,
tribal forest enterprise, or ANCSA Corporation, shall not be included
in this total.
(2) Cooperative education program--Amount plus interest equal to
the sum of all tuition, books, and fees that the individual received
under the cooperative education program.
(3) Scholarship program--Amount plus interest equal to
scholarship(s) provided to the individual under the scholarship
program.
(4) Postgraduation recruitment program--Amount plus interest equal
to the sum of all the individual's student loans assumed by the
Secretary under the postgraduation recruitment program.
(5) Postgraduate studies program--Amount plus interest equal to the
sum of all salary, tuition, books, and fees that the individual
received while in the postgraduate studies program. The amount of
salary paid to that individual during breaks in attendance from school,
when the individual was employed by the Bureau of Indian Affairs, a
tribe, a tribal enterprise, or ANCSA Corporation, shall not be included
in this total.
(c) Adjustment of repayment for obligated service performed. Under
forestry education programs with an obligated service requirement, the
amount required for repayment will be adjusted by crediting time of
obligated service performed prior to breach of contract toward the
final amount of debt.
[[Page 52274]]
Subpart D--Alaska Native Technical Assistance Program
Sec. 163.60 Purpose and scope.
(a) The Secretary shall provide a technical assistance program to
ANCSA corporations to promote sustained yield management of their
forest resources and, where practical and consistent with the economic
objectives of the ANCSA Corporations, promote local processing and
other value-added activities. For the purpose of this subpart,
technical assistance means specialized professional and technical help,
advice or assistance in planning, and providing guidance, training and
review for programs and projects associated with the management of, or
impact upon, Indian forest land, ANCSA corporation forest land, and
their related resources. Such technical assistance shall be made
available through contracts, grants or agreements entered into in
accordance with the Indian Self-Determination and Education Assistance
Act (Pub. L. 93-638, as amended).
(b) Nothing in this part shall be construed as: Affecting,
modifying or increasing the responsibility of the United States toward
ANCSA corporation forest land, or affecting or otherwise modifying the
Federal trust responsibility towards Indian forest land; or requiring
or otherwise mandating an ANCSA corporation to apply for a contract,
grant, or agreement for technical assistance with the Secretary. Such
applications are strictly voluntary.
Sec. 163.61 Evaluation committee.
(a) The Secretary shall establish an evaluation committee to assess
and rate technical assistance project proposals. This committee will
include, at a minimum, local Bureau of Indian Affairs and Alaska Native
representatives with expertise in contracting and forestry.
Sec. 163.62 Annual funding needs assessment and rating.
(a) Each year, the Secretary will request a technical assistance
project needs assessment from ANCSA corporations. The needs assessments
will provide information on proposed project goals and estimated costs
and benefits and will be rated by the evaluation committee established
pursuant to Sec. 163.61 for the purpose of making funding
recommendations to the Secretary. To the extent practicable, such
recommendations shall achieve an equitable funding distribution between
large and small ANCSA corporations and shall give priority for
continuation of previously approved multi-year projects.
(b) Based on the recommendations of the evaluation committee, the
Secretary shall fund such projects, to the extent available
appropriations permit.
Sec. 163.63 Contract, grant, or agreement application and award
process.
(a) At such time that the budget for ANCSA corporation technical
assistance projects is known, the Secretary shall advise the ANCSA
corporations on which projects were selected for funding and on the
deadline for submission of complete and detailed contract, grant or
agreement packages.
(b) Upon the request of an ANCSA corporation and to the extent that
funds and personnel are available, the Bureau of Indian Affairs shall
provide technical assistance to ANCSA corporations to assist them with:
(1) Preparing the technical parts of the contract, grant, or
agreement application; and
(2) Obtaining technical assistance from other Federal agencies.
Subpart E--Cooperative Agreements
Sec. 163.70 Purpose of agreements.
(a) To facilitate administration of the programs and activities of
the Department of the Interior, the Secretary is authorized to
negotiate and enter into cooperative agreements between Indian tribes
and any agency or entity within the Department. Such cooperative
agreements include engaging tribes to undertake services and activities
on all lands managed by Department of the Interior agencies or entities
or to provide services and activities performed by these agencies or
entities on Indian forest land to:
(1) Engage in cooperative manpower and job training and development
programs;
(2) Develop and publish cooperative environmental education and
natural resource planning materials; and
(3) Perform land and facility improvements, including forestry and
other natural resources protection, fire protection, reforestation,
timber stand improvement, debris removal, and other activities related
to land and natural resource management.
(b) The Secretary may enter into such agreements when he or she
determines the public interest will be benefited. Nothing in
Sec. 163.70(a) shall be construed to limit the authority of the
Secretary to enter into cooperative agreements otherwise authorized by
law.
Sec. 163.71 Agreement funding.
In cooperative agreements, the Secretary is authorized to advance
or reimburse funds to contractors from any appropriated funds available
for similar kinds of work or by furnishing or sharing materials,
supplies, facilities, or equipment without regard to the provisions of
31 U.S.C. 3324, relating to the advance of public moneys.
Sec. 163.72 Supervisory relationship.
In any agreement authorized by the Secretary, Indian tribes and
their employees may perform cooperative work under the supervision of
the Department of the Interior in emergencies or otherwise, as mutually
agreed to, but shall not be deemed to be Federal employees other than
for purposes of 28 U.S.C. 2671 through 2680, and 5 U.S.C. 8101 through
8193.
Subpart F--Program Assessment
Sec. 163.80 Periodic assessment report.
The Secretary shall commission every ten years an independent
assessment of Indian forest land and Indian forest land management
practices under the guidelines established in Sec. 163.81 of this part.
(a) Assessments shall be conducted in the first year of each decade
(e.g., 2000, 2010, etc.) and shall be completed within 24 months of
their initiation date. Each assessment shall be initiated no later than
November 28 of the designated year.
(b) Except as provided in Sec. 163.83 of this part, each assessment
shall be conducted by a non-Federal entity knowledgeable of forest
management practices on Federal and private land. Assessments will
evaluate and compare investment in and management of Indian forest land
with similar Federal and private land.
(c) Completed assessment reports shall be submitted to the
Committee on Interior and Insular Affairs of the United States House of
Representatives and the Select Committee on Indian Affairs of the
United States Senate and shall be made available to Indian tribes.
Sec. 163.81 Assessment guidelines.
Assessments shall be national in scope and shall include:
(a) An in-depth analysis of management practices on, and the level
of funding by management activity for, specific Indian forest land
compared with similar Federal and private forest land;
(b) A survey of the condition of Indian forest land, including
health and productivity levels;
(c) An evaluation of the staffing patterns, by management activity,
of
[[Page 52275]]
forestry organizations of the Bureau of Indian Affairs and of Indian
tribes;
(d) An evaluation of procedures employed in forest product sales
administration, including preparation, field supervision, and
accountability for proceeds;
(e) An analysis of the potential for streamlining administrative
procedures, rules and policies of the Bureau of Indian Affairs without
diminishing the Federal trust responsibility;
(f) A comprehensive review of the intensity and utility of forest
inventories and the adequacy of Indian forest land management plans,
including their compatibility with other resource inventories and
applicable integrated resource management plans and their ability to
meet tribal needs and priorities;
(g) An evaluation of the feasibility and desirability of
establishing or revising minimum standards against which the adequacy
of the forestry program of the Bureau of Indian Affairs in fulfilling
its trust responsibility to Indian forest land can be measured;
(h) An evaluation of the effectiveness of implementing the Indian
Self-Determination and Education Assistance Act (Pub. L. 93-638, as
amended) in regard to the Bureau of Indian Affairs forestry program;
(i) A recommendation of any reforms and increased funding and other
resources necessary to bring Indian forest land management programs to
a state-of-the-art condition; and
(j) Specific examples and comparisons from across the United States
where Indian forest land is located.
Sec. 163.82 Annual status report.
The Secretary shall, within 6 months of the end of each fiscal
year, submit to the Committee on Interior and Insular Affairs of the
United States House of Representatives, the Select Committee on Indian
Affairs of the United States Senate, and to the affected Indian tribes,
a report on the status of Indian forest land with respect to attaining
the standards, goals and objectives set forth in approved forest
management plans. The report shall identify the amount of Indian forest
land in need of forestation or other silvicultural treatment, and the
quantity of timber available for sale, offered for sale, and sold, for
each Indian tribe.
Sec. 163.83 Assistance from the Secretary of Agriculture.
The Secretary of the Interior may ask the Secretary of Agriculture,
through the Forest Service, on a nonreimbursable basis, for technical
assistance in the conduct of such research and evaluation activities as
may be necessary for the completion of any reports or assessments
required by Sec. 163.80 of this part.
Dated: July 14, 1995.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 95-24480 Filed 10-4-95; 8:45 am]
BILLING CODE 4310-02-P
