Supplement to Kappler's Indian Affairs: Laws and Treaties

SUPPLEMENT TO KAPPLER'S INDIAN AFFAIRS: LAWS AND TREATIES

Compiled Federal Regulations Relating To Indians

UNITED STATES DEPARTMENT OF THE INTERIOR

Kent Frizzell, Acting Secretary FOREWORD

The original and revised editions of Senate Document 319 of the 58th Congress, entitled Indian Affairs, Laws and Trectties (popularly called "Kapplers") did not include federal regulations. Indeed, federal regulations were not available in the present codified form until after 1935 when Congress directed a compilation of all documents of "general applicability and legal effect" relied upon by an agency as authority or invoked or used by it in the discharge of any of its functions or activities. See Section 11, Act of July 26, 1935, 49 Stat. 500, 503, as amended and codified, 44 U.S.C. § 1510. Since the Interior Department has had principal responsibility in the field of Indian Affairs, Title 25 CFR comprises the main body of regulations relating to Indian Affairs. This Department, however, no longer has the exclusive "management of all Indian Affairs and of all matters arising out of Indian relations". The modern trend has been to make programs and services of other agencies available to Indians. Conse- quently, other agencies have promulgated regulations relating specifically to Indians; those regulations are found in Titles of CFR other than Title 25. Congress by the 1968 Indian Civil Rights Act directed, inter alict, that this edition include "federal regulations relating to Indian Affairs". A decision to carry out that directive by a supplement (rather than by including these regulations in the main volumes of Kapplers) and by including in the compilation only regulations other than those in Title 25 CFR is founded on conclusions (a) that regulations, susceptible as they are to frequent change, should be presented in a form more easily updated and (b) that little purpose would be served by republishing the main body of regulations contained in Title 25, which are already easily accessible. The concept that knowledge is an initial step in protecting rights is, of course, not new but is appropriately applied here to the complex regulations for the implementation of laws applicable to Indians. This compilation should, as intended by Congress, assist Indians and those employed on their behalf in more fully understanding and applying rules which relate to the exercise of their rights.

KENT FRIZZELL, Solicitor Department of the Interior INTRODUCTION A word of caution about use of this compilation: it is not the official Code of Federal Regulations. Users researching regulations should, for reasons hereinafter explained, consult the appropriate Title of the official Code of Federal Regulations. A compilation of regulations such as this falls short of the original code in several important respects. First, the Code of Federal Regulations has been designated by Congress (44 U.S.C. § 1510(e)) as "prima facie evidence" of the text of the regulations as promulgated-this compilation has not been so designated. Second, agencies in the exercise of their authority can, and many times do, amend their regulations or promulgate new regulations. (The compilation is based on the 1973 CFR) Such amendments or new regulations would first appear in the daily issues of the Federal Register and subsequently in one of the Titles of CFR which are revised annually. See 1 CFR v. Moreover, the regulations contained in this compilation are not always the entire regulation but often are only pertinent excerpts of regulations. Users are, therefore, advised to consult the original Code of Federal Regulations when it is important that complete up-to-date regulations be applied. This is only a convenient aid in finding those regulations. TABLE OF CONTENTS

Page Foreword ii Introduction ------iii Title 5-ADMINISTRATIVE PERSONNEL ______1 Title 7-AGRICULTURE ------3 Title 8-ALIENS AND NATIONALITY ------6 Title 23-HIGHWAYS ------7 Title 28-JUDICIAL ADMINISTRATION ______8 Title 30-MINERAL RESOURCES ______10 Title 31-MONEY AND FINANCE: TREASURY ______38 Title 41-PUBLIC CONTRACTS AND PROPERTY MANAGEMENT ------61 Title 42-PUBLIC HEALTH ------6,t Title 43-PUBLIC LANDS: INTERIOR ______68 Title 45-PUBLIC WELFARE ------133 Title 50-WILDLIFE AND FISHERIES ______150 Index ------157 TITLE 5-ADMINISTRATIVE PERSONNEL CHAPTER 1-CIVIL SERVICE COMMISSION * * * * * * PART 213-EXCEPTED SERVICE (b) Public Health Service. * * * * * * SUBPART C-EXCEPTED SCHEDULES ( 8) Positions directly and pri_marily related to the providing of services to SCHEDULE A Indians when filled by the appointment § 213.3101 Positions other than those of of Indians who are one-fourth or more a confidential or policy-determining Indian blood. character for which it is not practi- * * * * * * cable to examine. (d) Social Security Administration. (a) The positions enumerated in (1) Six positions of social insurance §§ 213.3102 to 213.3199 are positions representative in the dist~i~t offi_ces ?f other than those of a confidential or the Social Security Admm1strat10n m- policy-determining character for which the State of Arizona when filled by the it is not practicable to examine and appointment of persons of one-fourth or which are excepted from the competitive more Indian blood. service and constitute Schedule A. (2) Seven positions of social insur- * * * * * * ance representative in the district offices § 213.3112 Department of the Interior. of the ,Social Security Administration in * * * * * * the State of New Mexico when filled (7) All positions in the Bureau of by the appointment of persons of one- Indian Affairs and other positions in fourth or more Indian blood. the Department of the Interior directly (3) Two positions of social insurance and primarily related to the providing of representative in the district offices of services to Indians when filled by the the Social Security Administration in appointment of Indians who are one- the State of Alaska when filled by the fourth or more Indian blood. appointment of persons of one-fourth or * * * * * * more Alaskan Native blood (Eskimos, (b) Bureau of Indian Affairs. (1) Indians, or Aleuts). Housekeeper positions at a gross salary not in excess of the entrance rate of * * * * * * grade GS-4 or its equivalent when, be- § 213.3199 Temporary boards and com- cause of isolation or lack of quarters, missions. appointment through competitive exam- (a)-(f) [Reserved] ination is, in the opinion of the Com- (g) The National Council on Indian mission, impracticable. Opportunity. (1) Positions at GS-15 and (2) Subject to prior approval of the below on the staff of the Council when Commission, assistants in Alaska native filled by Indians who are of one-fourth schools (not including teachers and in- or more Indian blood. structors) at a salary rate not in excess * * * * * * of that of GS-4 or its equivalent where SCHEDULE B the schools are in isolated or remote § 213.3201 Positions other than those of areas or lack suitable quarters. a confidential or policy-determining (c) Indian Arts and Crafts Board. character for which it is not practi- (1) The Executive Director. cable to hold a competitive examina- * * * * * * tion. · § 213.3116 Department of Health, Edu- The positions enumerated in §§213.3202 cation, and Welfare. to 213.3299 are positions other than * * * * * * those of a confidential or policy-deter-

1 § 213.3212 ADMINISTRATIVE PERSONNEL

mining character for which it is not SCHEDULE C practicable to hold a competitive exam- § 213.3301 Positions of a confidential or ination and which are excepted from the policy-determining c'haracter. competitive service and constitute Sched- The positions enumerated in §§213.3302 ule B. Appointments to these positions to 213.3399 are positions of a confiden- are subject to such noncompetitive exam- tial or policy-determining character ination as -may be prescribed by the which are excepted from the competitive Commission. service, to which appointments may be * * * * * made without examination by the Com- * mission and which constitute Schedule C. § 213.3212 Department of the Interior. * * * (a) Any competitive position at an * * * § 213.3312 Department of the Interior. Indian school when filled by the spouse of a competitive employee of the school, * * * * * * (j) Bureau of Indian Affairs. (1) One when because of isolation or lack of Assistant to the Commissioner. quarters, the Commission deems appointment through competitive examination * * * * * * § 213.3345 Indian Claims Commission. impracticable. (a) One Private Secretary to each * * * * * * Commissioner.

2 TITLE 7-AGRICULTURE * * * * * * CHAPTER II-FOOD AND NUTRITION SERVICE SUBCHAPTER 8-GENERAL REGULATIONS AND POLICIES- FOOD DISTRIBUTION * * * * * * and FNS may require amendment of PART 250-DONATION OF FOODS any plan as a condition of continuing FOR USE IN UNITED STATES, ITS approval. Distributing agencies shall TERRITORIES AND POSSESSIONS require welfare agencies making distribution to households to conduct distri- AND AREAS UNDER ITS JURISDIC- bution programs in accordance with all TION provisions of the State plan of operation. * * * * * * As a minimum, the plan shall include the § 250.3 Definitions. following: * * * * * * * * * * * * (s) "Welfare agencies" means public ( 4) Assurance that Tribal Councils (Federal, State or local) or private serving Indian households on reserva- agencies offering assistance on a charit- tions have been designated by the Bu- able or welfare basis to needy persons reau of Indian Affairs to so act. who are not residents of an institution, * * * * * * and to Tribal Councils designated by § 250.15 Operating expense funds for the Bureau of Indian Affairs. distributing agencies. * * * * * * * * * * * * § 250.6 Obligations of distributing (c) Apportionment of funds. From the agencies. funds available for the purpose of this * * * * * * section for any fiscal year, the Depart- ( e) Household distribution. Distribut- ment shall first reserve funds in an ing agencies, prior to making distribu- amount sufficient to meet the require- tion to welfare agencies or households, ments of subparagraph (3) of this para- shall submit a plan of operation for ap- graph and then shall apportion the proval by the appropriate Food and remaining funds, as follows: Nutrition Service Regional Office. Such (1) Twelve and one-half percent of plan shall incorporate the procedures the remaining available funds shall and methods to be used in certifying be apportioned among the distributing households as in need of food assistance; agencies for Guam, Puerto Rico, the in making distribution to households; Virgin Islands, American Samoa, the and in providing a fair hearing to house- Trust Territory of the Pacific Islands, holds whose claims for food assistance and the governing bodies of Indian res- under the plan are denied or are not ervations which are also distributing acted upon with reasonable promptness, agencies. The proportion of funds appor- or who are aggrieved by an agency's tioned to each of these distributing interpretation of any provision of the agencies shall be such amount as FNS plan. No amendment to the plan of determines is necessary to effectuate the operation of a distributing agency shall purpose of this section. be made without prior approval of FNS, * * * * * *

3 § 271.3 AGRICULTURE

SUBCHAPTER C-FOOD STAMP PROGRAM * * * * * * persons with a member or members age 60 or over whose resources are not ex- PART 271-PARTICIPATION OF STATE cluded under subdivision (iii) (c) of this AGENCIES AND ELIGIBLE HOUSE- subparagraph, the resources shall not HOLDS exceed $3,000. * * * * * * * * * * * * § 271.3 Household eligibility. (iii) Exclusions from resources. In * * * * * * determining the resources of a house- ( 4) Resource definition and stand- hold, there shall be excluded: ards-(i) Maximum allowable resources. * * * * * * The 'maximum allowable resources-in- (d) Indian lands held jointly with the cluding both liquid and nonliquid assets- Tribe, or land that can be sold only of all members of each household shall with the approval of the Bureau of not exceed $1,500 for each household, Indian Affairs. except, for households of two or more * * * * * *

CHAPTER XVIII-FARMERS HOME ADMINISTRATION * * * * * * F, and G of Part 1822, Subpart A of PART 1890 - NONDISCRIMINATION Part 1831, and Subpart A of Part 1832, BY RECIPIENTS OF FINANCIAL all of this chapter. This part outlines the ASSISTANCE additional policies and procedures to be followed in making and servicing Farm- * * * * * * § 1890.1 Purpose. ers Home Administration ( FHA) loans This part supplements Subpart A of to Indians secured by trust or restricted Part 1821, .Subparts C, D, E, F, G, and I land is the States of Florida, Michigan, of Part 1822, Subparts A, B, C, D, E, F, Mississippi, North Carolina, Wisconsin, and H of Part 1823 and Subpart A of and all States west of the Mississippi Part 1831 of this chapter. The purpose River except Arkansas, Missouri, and of this part is to implement the regula- Texas, and in selected counties of these tions of the Department of Agriculture states. issued pursuant to title VI of the Civil § 1890f.2 Loan making. Rights Act of 1964 as they relate to the The following is a joint statement by activities of the Farmers Home Admin- the Department of Agriculture and the istration (FHA). Title VI provides that Department of the Interior. This state- no person shall, on the ground of race, ment was prepared by representatives of color or national origin, be excluded the two Departments to make it possible from participation in, be denied the to expedite and simplify the processing benefits of, or be subjected to discrimi- of FHA loans to eligible Indians. nation under any program or activity (a)- receiving Federal financial assistance. JOINT STATEMENT BY DEPARTMENT OF AGRICULTURE * * * * * AND DEPARTMENT OF THE INTERIOR * Loans by Farmers Home Administration to In- PART 1890f-LOANS TO INDIANS dians, and to Permittees and Lessees or Indian trust Sec. of restricted lands. I 890f. l General. Whereas, the Secretary of Agriculture and the l 890L2 Loan making. Secretary of the Interior executed a memorandum AUTHORITY: The provisions of this Pa rt I 890f of understanding on August 27, 1957, and July 26, issued under sec. 510, 63 Stat. 437; 42 U.S.C. 1480, 1957, respectively, the purpose of which was to sec 339, 75 Stat. 318; 7 U.S.C. 1989, 29 F.R. outline the general procedures to be followed by 16210, 32 F.R. 6650, 33 F.R. 9677. the Farmers Home Administration (FHA) and the SouRcE: The provisions of this Part I 890f appear Bureau of Indian Affairs (BIA) on loans by the at 35 F.R. 13980, Sept. 3, 1970, unless otherwise FHA to Indians, and noted. Whereas, the working relationships between FHA § 1890f.1 General. and BIA have now been well established and are understood by field personnel, it is mutually agreed This part supplements Subparts A and that the detail provisions of said memorandum are B of Part 1821, Subparts A, B, C, D, E, no longer necessary; and

4 TITLE 7 § 1890f.2

Whereas, we deem it advisable that Indian appli- (i) An Indian applicant who owns cants for FHA financing should be treated in the land in a trust or restricted status and same manner as non-Indians: Therefore, it is agreed that said memorandum of applies for a loan to buy land to enlarge understanding is hereby nullified and henceforth a farm will not be required to convert applications from Indians for loans will be handled the trust or restricted land he owns to by FHA in the same manner as applications from nbn-Indians, except in those instances where Indian an unrestricted status. trust or restricted property is involved. When a lien (ii) Land in trust or restricted status is to be taken on trust or restricted property in purchased with FHA loan funds may be connection with a loan to be made or insured by acquired and held by the Indian in trust FHA, the BIA will assist FHA to the fullest extent necessary in accordance with the statutory require- or restricted status. ments affecting such property. This will include (3) When a lien is to be taken on furnishing advice requested by FHA as to condi- trust or restricted property in connections under which BIA will approve a lien on the tion with a loan to be made or insured property. It is further agreed that upon request by FHA, BIA will furnish relevant information which by FHA, the local representatives of it has with respect to the property and the indi- the Bureau of Indian Affairs will fur- vidual loan applicant including that on his reputa- nish requested advice and information tion for industry and payment of debts. with respect to the property and each (1) It is the policy to accept and applicant. The request will indicate the process applications from Indians in the specific information needed. same manner as non-Indians except in (4) The FHA State director should those instances where Indian trust or re- arrange with the area director or other stricted property is to serve as security. appropriate local official of the Bureau (2) FHA loans which are to be se- of Indian Affairs as to the manner in cured by real estate liens may be made which the information will be requested to Indians holding land in severalty un- and furnished. The State director will der trust patents or deeds containing issue instructions to prescribe the actions restriction against alienation subject to to be taken by FHA personnel to imple- statutes under which they may, with the ment the making of loans under such approval of the Secretary of the Inte- conditions. rior, give mortgages on their land which (b) Loan servicing. Loans made to are valid and enforceable. These statutes Indians will be serviced in accordance include, but may not be limited to, the with the applicable procedures contained Act of March 29, 1956 (70 ,Stat. 62, 63). in this chapter.

5 TITLE 8-ALIENS AND NATIONALITY CHAPTER I-IMMIGRATION AND NATURALIZATION SERVICE PART 289-AMERICAN INDIANS by the Act of April 2, 1928 ( 45 Stat. BORN IN CANADA 401), or section 289 of the Act, and has Sec. maintained residence in the United States 289. I Definition. since his entry, shall be regarded as 289.2 Lawful admission for permanent residence. having been lawfully admitted for per- 289.3 Recording the entry of certain American Indians born in Canada. manent residence. A person who does AUTHORITY: The provisions of this Part 289 not possess 50 per centum of the blood issued under secs. 103, 262, 289, 66 Stat. 173, 224, of the American Indian race, but who 234; 8 U.S.C. II03, 1302, 1339; 45 Stat. 401, 54 Stat. 670; 8 U.S.C. 226a, 451. entered the United States prior to De- SOURCE: The provisions of this Part 289 appear cember 24, 1952, under the exemption at 29 F.R. II494, Aug. II, 1964. provided by the Act of April 2, 1928, § 289.1 Definition. and has maintained his residence in the The term "American Indian born in United States since such entry shall also Canada" as used in section 289 of the be regarded as having been lawfully Act includes only persons possessing 50 admitted for permanent residence., In per centum or more of the blood of the the absence of a Service record of arrival American Indian race. It does not in- in the United States, the record of reg- clude a person who.. is the spouse or child istration under the Alien Registration of such an Indian or a person whose Act, of 1940 ( 54 Stat. 670; · 8 U .S.C. membership in an Indian tribe or family 451), or section 262 of the Act, or other is created by adoption, unless such per- satisfactory evidence may be accepted to son possess at least 50 per centum or establish the date of entry. more of such blood. § 289.3 Recording the entry of certain American Indians born in Canada. § 289.2 Lawful admission for perma- The lawful admission for permanent nent residence. residence of an American Indian born Any American Indian born in Canada in Canada shall be recorded on Form who at the time of entry was entitled to I-181. the exemption provided for such person [33 F.R. 7485, May 21, 1968]

6 TITLE 23-HIGHWAYS Regulations concerning construction and maintenance of roads on Indian lands, Bureau of Indian Affairs, Department of the Interior: 25 CFR Part 162.

7 TITLE 28-.JUDICIAL ADMINISTRATION CHAPTER I-DEPARTMENT OF JUSTICE PART 0-ORGANIZATION OF THE involving discrimination or intimidation DEPARTMENT OF JUSTICE on grounds of race or color, and section 245(b) (1) of title 18, United States * * * * * * Subpart J-Civil Rights Division Code, insofar as it relates to matters not 0.50 General functions. involving discrimination or intimidation on grounds of race, color, religion, or na- * * * * * * Subpart M-Land and Natural Resources tional origin; Division (3) Section 245(b) (3) of title 18, Sec. United States Code, pertaining to forci- 0.65 General functions. ble interference with persons engaged in * * * * * * business during a riot or civil disorder; Subpart J-Civil Rights Division and § 0.50 General functions. ( 4) Sections 241 through 256 of title Subject to the general supervision of 2, United States Code (Federal Corrupt the Attorney General and under the direc- Practices Act). tion of the Deputy Attorney General, the (b) Requesting and reviewing investi- following-described matters are assigned gations arising from reports or com- to, and shall be conducted, handled, or plaints of public officials or private citi- supervised by, the Assistant Attorney zens with respect to matters affecting General in charge of the Civil Rights civil rights. Division: (c) Conferring with individuals and (a) Enforcement of all Federal sta- groups who call upon the Department in tutes affecting civil rights, including connection with civil rights matters, ad- those pertaining to elections and voting, vising such individuals and groups public accommodations, public facilities, thereon, and initiating action appropri- school desegregation, employment, hous- ate thereto. ing, and the constitutional and civil ( d) Coordination within the Depart- rights of Indians arising under 25 U.S.C. ment of Justice of all matters affecting 1301 et seq. and authorization of litiga- civil rights. tion in such enforcement, including (e) Consultation with and assistance criminal prosecutions and civil actions to other Federal departments and agen- and proceedings on behalf of the Gov- cies and State and local agencies on ernment, and designation of attorneys matters affecting civil rights. to present evidence to grand juries; and (f) Research on civil rights matters, appellate proceedings in all such cases. and the making of recommendations to Notwithstanding the provisions of the the Attorney General as to proposed pol- foregoing sentence, the responsibility icies and legislation relating thereto. for the enforcement of the following- (g) Representation of Federal officials described provisions of the United States in private litigation arising under 42 Code is assigned to the Assistant At- U.S.C. 2000d or under other statutes per- torney General in charge of the Criminal taining to civil rights. [Order 423-60, 34 F.R. 20388, Dec. 31, 1969, as Division- amended by Order 484-72, 37 F.R. 11317, June 7, (1) Sections 591 through 593 and sec- 1972; Order 540-73, 38 F.R. 26910, Sept. 27, 1973; tions 595 through 612 of title 18, United Order No. 543-73, 38 F.R. 29584, Oct. 23, 1973] States Code, relating to elections and * * * * * * political activities; Subpart M-Land and Natural (2) Sections 241, 242, and 594 of title Resources Division 18, and sections 1973i and 1973j of title § 0.65 General functions. 42, United ,States Code, insofar as they Subject to the general supervision of relate to voting and election matters not the Attorney General, and under the di-

8 TITLE 28 § 0.65 rection of the Deputy Attorney General, cally assigned to the Civil Division; the following-described matters are as- (iii) Suits and matters involving the signed to, and shall be conducted, han- foreclosure of mortgages and other liens dled, or supervised by, the Assistant At- held by the United States, the same be- torney General in charge of the Land and ing specifically assigned to the Civil and Natural Resources Division: Tax Divisions according to the nature (a) Civil suits and matters in Federal of the lien involved; and State courts (and administrative (iv) Suits arising under 28 U.,S.C. tribunals), by or against the United 2410 to quiet title or to foreclose a mort- .States, its agencies, officers, or contrac- gage or other lien, the same being tors, or in which the United States has specifically assigned to the Civil and Tax an interest, whether for specific or Divisions according to the nature of the monetary relief, and also nonlitigation lien held by the United States, and all matters, relating to other actions arising under 28 U.S.C. ( 1) The public domain lands and the 2410 involving federal tax liens held by outer continental shelf of the United the United States, which are specifically States, assigned to the Tax Division; (2) Other lands and interests in real (v) Matters involving the immunity property owned, leased, or otherwise of the Federal Government from State claimed or controlled, or allegedly im- and local taxation specifically delegated paired or taken, by the United States, its to the Tax Division by § 0.71. agencies, officers, or contractors, includ- (b) Representation of the interests of ing the acquisition of such lands by con- the United States in all civil litigation in demnation proceedings or otherwise, Federal and State courts, and before the (3) The water and air resources con- Indian Claims Commission, pertaining trolled or used by the United States, its to Indians, Indian tribes, and Indian agencies, officers, or contractors, without affairs, and matters relating to restricted regard to whether the same are in or Indian property, real or personal, and related to the lands enumerated in sub- the treaty rights of restricted Indians paragraphs (1) and (2) of this para- ( except matters involving the constitu- graph, and tional and civil rights of Indians as- ( 4) The other natural resources in or signed to the Civil Rights Division by related to such lands, water, and air, Subpart J of this part). except that the following matters which ( c) Rendering opinions as to the would otherwise be included in such as- validity of title to all lands acquired by signment are excluded therefrom: the United States, except as otherwise (i) Suits and matters relating to the specified by statute. use or obstruction of navigable waters ( d) Criminal suits and matters involv- or the navigable capacity of such waters ing air and water pollution. by ships or shipping thereon, the same (c) Criminal suits and matters involv- being specifically assigned to the Civil ing obstruction to navigation, and ille- Division; gal dredging or filling (33 U.S.C. 403). (ii) Suits and matters involving tort [Order No. 423-69, 31 F.R. 20388, Dec. 31, 1969, claims against the United States under as amended by Order No. 457-74, 36 F.R. 10362, June 4, 1971; Order 465-72, 37 FR 11724, June 13, the Federal Tort Claims Act and special 1972; Order 540-74, 33 FR 27910, Sept. 27, 1973; acts of Congress, the same being specifi- Order No. 543-73, 38 FR 29385, Oct. 26, 1973]

9 TITLE 30-MINERAL RESOURCES

CHAPTER II-GEOLOGICAL SURVEY

PART 221-OIL AND GAS OPERATING 221.40 Royalty and rental payments. 1 221.41 Surface rights on'Indian lands. REGULATIONS 221.42 Costs or damages. INTRODUCTION: DEFINITIONS MEASUREMENT OF PRODUCTION AND COMPUTATION Sec. OF ROYALTIES 221.1 Introduction. 221.43 Measurement of oil. 221.2 Definitions. 221.44 Measurement of gas. ]URISDICTION AND FUNCTIONS OF SUPERVISOR 221.45 Determination of gasoline content of natural 221.3 Jurisdiction. gas. 221.4 General functions. 221.46 Quantity basis for computing royalties on 221.5 Supervision of operations. natural gasoline, butane, propane, and 221.6 Reports and recommendations. other liquid hydrocarbon substances ex- 221. 7 Reports and notices. tracted from gas. 221.8 Required samples, tests, and surveys. 221.9 Damage to mineral deposits, directional Sec. drilling, lease obligations, well abandon· 221.47 Value basis for computing royalties. ment. 221.48 Royalty rates on oil; flat-rate leases. 221.10 Well potentials and permissible flow. 221.49 Royalty rates on oil; sliding- and step-scale leases (public land only). Sec. 221.50 Royalty on gas. 221.11 Well-spacing and well-casing; technical assis- 221.51 Royalty on casing-head or natural gasoline, tance to lessees. butane, propane, or other liquid hydro- 221.12 Production records; rentals, royalties, and carbon substances extracted from gas. payments; drainage and waste. 221.52 Royalty on drip gasoline or other natural 221.13 Division orders, run tickets, sales agreements condensate. or contracts. PROCEDURE IN CASE OF DEFAULT BY LESSEE 221.14 Suspension of operations and production. 221.53 Shutting down operations; lease cancella- 221.15 Beginning or resumption of drilling or pro- tions. ducing operations. 221.54 Liquidated damages. 221. I 6 Enforcement. 221.55 Payment of damages. 221.17 Appeals action. 221.56 Damages to Indian property. REQUIREMENTS FOR ALL LESSEES ( INCLUDING REPORTS To BE MADE BY ALL LESSEES DESIGNATED OPERATORS) (INCLUDING OPERATORS) 221.18 Lease terms, regulations, instructions of 221.57 General requirements. supervisor, waste, damage, safety, and 221.58 Sundry notices and reports on wells (Form bond. 9-33!A Public; Form 9-331B Indian). 221.19 Designated operator (or agent). 221.59 Log and history of well (Form 9-330). 221.20 Well-location restrictions. 221.60 Monthly report of operations (Form 9-329 221.21 Well-spacing and well-casting program, well Public; Form 9-329A Indian). operations, required offsets, diligence, 221.61 Daily report of gas-producing wells (Form compensation in lieu of drilling. 9-352). 221.22 Well designations, property boundaries, 221.62 Statement of oil and gas runs and royalties markers for abandoned wells. (Form 9-361 Public; Form 9-361A In- 221.23 Well records and reports, plats and maps, dian). samples, tests, and surveys. 221.63 Royalty and rental remittance (Form 221.24 Precautions necessary in areas where high 9-614A Indian). pressures are likely to exist. 221.64 Royalty and rental remittance (Form !IND 221.25 Cable tool drilling precautions. Naval Petroleum Reserves). 221.26 Rotary tool drilling precautions. 221.65 Special forms or reports. 221.27 Vertical drilling. 221.66 Appeals. 221.28 Water shut-offs; formation tests. 221.67 Effective date; repeal of prior regulations. 221.29 Protection of upper productive strata. AUTHORITY: The provisions of this Part 221 issued 221.30 Open flows and control of "wild" wells. under sec. 3, 26 Stat. 795, secs. 18, 14, 27, 28, 32, 221.3 I Emulsion and dehydration. 41 Stat. 426, 442, as amended, 448, as atnended, 449, 221.32 Pollution and surface damage. as amended, 450 sec. 7, 42 Stat. 1450, 43 Stat. 244, 221.33 Gaging and storing oil. sec. 6, 46 Stat. 374, sec. 39, 47 Stat. 793, as amended, 221.34 Well abandonment. sec. 40, 48 Stat. 977, sec. 3, 49 Stat. 679, 50 Stat. 221.35 Waste prevention; beneficial use. 842, as amended, sec. 4, 52, Stat. 348, sec. I 0, 61 221.36 Accidents and fires. Stat. 915; 25 U.S.C. 397, 356, 30 U.S.C. 223, 184, 221.37 Workmanlike operations. I 85, I 89, 230, 25 U .S.C. 398, 30 U .S.C. 306, 209, 221.38 Sales contracts; division orders. 229a, 236a, 2211. 25 U.S.C. 396d. 30 U.S.C. 359. 221.39 Relief from operating, royalty, and rental SouRcE: The provisions of this Part 221 appear at requirements. 7 F .R. 4 I 32, June 2, 1942, unless otherwise noted.

10 TITLE 30 § 221.2

INTRODUCTION; DEFINITIONS law, and collections with respect to oil § 221.1 Introduction. or gas leases for restricted Indian lands. The regulations in this part will gov- (f) Lease. An agreement which in ern the development and production of consideration of covenants to be observed, deposits of oil, gas, and casing-head or grants to a lessee the exclusive right natural gasoline, including propane, bu- and privilege of developing and produc- tane and other hydrocarbons, and fluids, ing oil or gas deposits owned by the and lands containing such deposits lessor subject to the regulations in this owned or controlled by the United States, part. and under jurisdiction of the Secretary (g) Leased lands, leasehold. Lands and by law or administrative arrangement. deposits covered by a lease as defined in The regulations in this part shall be paragraph (f) of this section. administered under the Director of the (h) Producing lease. A producing Geological Survey, except that as to lease is one including land on which there lands within naval petroleum reserves is a producible well, either active or shut they shall be administered under such in, or land determined by the supervisor official as the Secretary of the Navy to be subject to subsurface drainage. shall designate. (i) Lessor. The party to a lease who § 221.2 Definitions. holds title to the leased lands. The following terms as used in the (j) Lessee. The party authorized by a regulations in this part shall have the lease, or approved assignment thereof, meanings here given: to develop and produce oil or gas on the (a) Secretary. The Secretary of the leased lands in accordance with the regu- Interior, except where lands in naval lations in this part, including all parties petroleum reserves are involved, and in holding such authority by or through that case the Secretary of the Navy. him. (b) Director.-The Director of the (k) Register. A representative of the Geological Survey, Washington, D.C., Bureau of Land Management in charge having direction of the enforcement of of a District Land Office. the regulations in this part. (1) Operator. The individual, partner- (c) Supervisor.-The Area Oil and ship, firm, or corporation that has con- Gas Supervisor, Conservation Division trol or management of operations on the of the Geological Survey; a representa- leased land or a portion thereof. The tive of the Secretary, subject to the operator may be a lessee, designated solution in oil, or in any other manner

11 § 221.3 MINERAL RESOURCES

such as to render impracticable the re- subject hereto. In the exercise of his covery of such oil or gas. jurisdiction, the supervisor shall be (2) Waste of reservoir energy shall be subject to the direction and supervisory deemed to include the failure reasonably authority of the Chief, Conservation to maintain such energy by artificial Division, Geological Survey and the ap- means and also the dissipation of gas propriate Regional Conservation Man- energy, hydrostatic energy, or other nat- ager, Conservation Division, Geological ural reservoir energy, at any time at a Survey, each of whom may exercise the rate or in a manner which would consti- jurisdiction of the supervisor. tute improvident use of the energy available or result in loss thereof without [38 F.R. 10001, Apr. 23, 1973] reasonably adequate recovery of oil. ( o) Gas.1 Any fluid, either combustible § 221.4 General functions. or noncombustible, which is produced in The supervisor is hereby authorized to a natural state from the earth and which require compliance with lease terms, with maintains a gaseous or rarefied state at the regulations in this part, and all other ordinary temperature and pressure con- applicable regulations, and with applica- ditions. ble law to the end that all operations ( p) Oil, crude oil. Any liquid hydro- shall conform to the best practice and carbon substance which occurs naturally shall be conducted in such manner as in the earth, including drip gasoline or to protect the deposits of the leased lands other natural condensates recovered and result in the maximum ultimate re- from gas, without resort to manufactur- covery of oil, gas, or other products with ing process. minimum waste. Inasmuch as conditions in one area may vary widely from condi- [7 FR 4132, June 2, 1942, as amended by 38 FR tions in another area, the regulations in 10001, Apr. 23, 19731 this part are general, and detailed pro- JURISDICTION AND FUNCTIONS OF cedure hereunder in any particular area SpPERVISOR is subject to the judgment and discretion § 221.3 Jurisdiction. of the supervisor, and to any real plan of Subject to the supervisory authority development that may be adopted pur- of the Secretary and the Director, drill- suant to law. The supervisor may require ing and producing operations, handling satisfactory evidence that a lease is in and gaging of oil, and the measurement good standing, that the lessee or operator of gas or other products, determination is authorized to conduct operations, and of royalty liability, receipt and delivery that an acceptable bond has been filed to those entitled thereto of royalty ac- before permitting operations on the cruing to the lessor and paid in amount leased land. of production, determination of amount § 221.5 Supervision of operation& and manner of payment of damages The supervisor shall inspect and super- assessed under authority of the regula- vise operations under the regulations in tions in this part for defaults or non- this part; prevent waste, damage to for- compliance with duties by the lessee and, mations or deposits containing oil, gas, in general, all operations subject to the or water or to coal measures or other regulations in this part are under the mineral deposits, and injury to life or jurisdiction of the supervisor for any property; and shall issue instructions area as delineated by the Director. As necessary, in his judgment, to accomplish to producing leases of Indian lands, the these purposes. officer in charge, and as to lands within naval petroleum reserves, the supervisor § 221.6 Reports and recommendations. shall determine rental liability, record The supervisor shall make reports to rentals, royalties, and other payments, his superior administrative officer as to and maintain lease accounts. Upon re- the general condition of leased lands, and quest, the supervisor will advise any the manner in which operations are being person concerning the regulations in conducted and departmental orders are this part, and will furnish technical in- being obeyed, and submit from time to formation and advice relative to oil and time information and recommendations gas development and operation on lands for safeguarding and protecting surface

12 TITLE 30 § 221.13

property and underlying mineral-bearing or the permissible production of any formations. such well when, in his opinion, such action is necessary to protect the inter- § 221. 7 Reports and notices. ests of the lessor, or to conform with The supervisor shall prescribe the proration rules established for the field; manner and form in which records of all and to specify the time and method for operations, reports, and notices shall be determining the potential capacity of made by lessees and operators. such wells. § 221.8 Required samples, tests, and § 221.11 Well-spacing and well-casing; surveys. technical assistance to lessees. When deemed necessary or advisable, The supervisor shall approve well- the supervisor is authorized to require spacing and well-casing programs deter- that adequate samples be taken and tests mined to be necessary for the proper or surveys be made in acceptable manner development of the leases and assist and without cost to the lessor to determine advise lessees in the planning and con- the identity and character of formations; duct of tests and experiments for the the presence or waste of oil, gas, water, purpose of increasing the efficiency of or reservoir energy; the quantity and operations. quality of oil, gas, or water; the amount and direction of deviation of any well § 221.12 Production records; rentals, from the vertical; formation, casing, tub- royalties, and payments; drainage ing, or other pressures; and whether and waste. operations are being conducted with due The supervisor shall compile and regard to the interests of the lessor'" maintain records of production and prices and determine royalties accrued, § 221.9 Damage to mineral deposits, estimate drainage and compute losses directional drilling, lease obligations, to the lessor resulting therefrom, and well abandonment. estimate the amount and value of oil, The supervisor shall require correction, gas, and other products wasted. The in a manner to be prescribed, or approved supervisor shall render monthly to the by him, of any condition which is caus- lessee, or his agent, statements, showing ing or is likely to cause damage to any the amount of oil, gas, casing-head or formation containing oil, gas, or water natural gasoline, propane, butane, or or to coal measures or other mineral other hydrocarbons produced or sold and deposits, or which is dangerous to life or the amount or value of production accru- property or wasteful of oil, gas, or water; ing to the lessor as royalty from each require substantially vertical drilling lease; the loss by drainage or waste and when necessary to protect interests in the compensation due to the lessor as other properties; demand drilling in reimbursement; and, except as to any accordance with the terms of the lease or disposal of gas that shall have been of the regulations in this part; and determined by the ,Secretary of the In- require plugging and abandonment of terior to be sanctioned by the laws of any well or wells no longer used or use- the United States and of the State in ful in accordance with such plan as may which it occurs, the amount and full be approved or prescribed by him, and, value, computed at a price of not less upon failure to secure compliance with than 5 cents per 1,000 cubic feet, of all such requirement, perform the work at gas wasted by blowing, release, escape the expense of the lessee, expending into the air, or otherwise. Also, as to available public funds, and submit such producing leases of Indian lands and report as may be needed to furnish a lands within naval petroleum reserves, basis for appropriate action to obtain the supervisor shall determine rental reimbursement. liability, record rental, royalty, and other payments, and maintain lease § 221.10 Well potentials and permissible flow. accounts. The supervisor is authorized to fix the § 221.13 Division orders, run tickets, percentage of the potential capacity of sales agreement or contracts. any oil or gas well that may be utilized The supervisor is authorized to ap-

13 § 221.14 MINERAL RESOURCES

prove, subject to such conditions as he ter presented for reconsideration under shall prescribe, division orders or tem- the regulations in this part and shall porary purchase agreements granting to receive and promptly transmit for review transportation agencies or purchasers all appeals filed pursuant to part 290 of authority to receive products from leased this chapter. lands in accordance with Government [38 FR 10001, Apr. 23, 1973] rules and regulations; sign run tickets or other receipts for royalty oil or gas de- REQUIREMENTS FOR ALL LESSEES livered to a representative of the lessor (INCLUDING DESIGNATED OPERATORS) or to the lessor's account; and approve sales agreements and contracts, subject § 221.18 Lease terms, regulations,, in- to any conditions, modification, or revoca- structions of supervisor, waste, dam- tion that may be prescribed on review age, safety, and bond. thereof by the Director. The lessee shall comply with the terms of the lease, and of the regulations in CRoss REFERENCE: For regulations relating to approval of sales agreements or contracts, see Part 223 this part and any amendments thereof, of this chapter. and with the written instructions of the supervisor, shall take all reasonable pre- § 221.14 Suspension of operations and cautions to prevent waste, damage to production. formations or deposits containing oil, On receipt of an application for sus- gas, or water or to coal measures or pension of operations or production or other mineral deposits, and injury to life for relief from any drilling or produc- of property, and before drilling or other ing requirement under a lease, the super- operations are started, shall have sub- visor shall forward such application, mitted a satisfactory bond. with a report and recommendation, to the appropriate official and, pending § 221.19 Designated operator (or action thereon, grant such temporary agent). approval as he may deem warranted in (a) In all cases where operations on the premises, or reject such application, a lease are not conducted by the record subject to the right of appeal as provided owner, but are to be conducted under in part 290 of this chapter. authority of an operating agreement, an [7 FR 4132, June 2, 1942, as amended at 38 FR unapproved assignment, or other arrange- 10001, Apr. 23, 1973] ment, a "designation of operator" shall be submitted to the supervisor, in a man- § 221.15 Beginning or resumption of ner and form approved by the supervisor, drilling or producing operations. prior to commencement of operations. If Where drilling or producing operations the designation of operator form cannot have been suspended on a lease, the be obtained from the lessee without un- supervisor may approve in writing notice due inconvenience to the operator, the by the lessee of intention to begin or supervisor in his discretion may accept resume such operations: Provided, That in lieu thereof a valid operating agree- whenever it appears from facts adduced ment approved by the Secretary. A desig- by or furnished to him that the interests nation of operator will be accepted as of the lessor require additional drilling authority of operator or his local repre- or producing operations, the supervisor sentative to fulfill the obligations of the may require by notice in writing the be- lessee and to sign, as operator, any pap- ginning or resumption of such operations. ers or reports required under the regula- § 221.16 Enforcement. tions in this part. It will rest '·in the The supervisor shall enforce the regu- discretion of the supervisor to determine lations in this part, and his orders issued how a local representative of the opera- pursuant thereto by action provided for tor empowered to act in whole or in part in §§ 221.53 and 221.54 whenever, in his in his stead shall be identified. judgment, such action is necessary or (b) If the designated operator shall at advisable. any time be incapacitated for duty or absent from his designated address, the § 221.17 Appeals action. operator or the lessee shall designate in The supervisor shall receive and writing a substitute to serve in his stead, promptly render his decision on any mat- and, in the absence of such operator or

14 TITLE 30 § 221.22

of notice of the appointment of a sub- warrant, with the consent and approval stitute, any employee of the lessee who of the supervisor. is on the leased lands or the contractor (b) The lessee shall not begin to drill, or other person in charge of operations redrill, repair, deepen, plug back, shoot, will be considered the agent of the lessee or plug and abandon any well, make for the service of orders or notices and water shut-off or formation test, alter the service in person or by ordinary mail casing or liner, stimulate production by upon any such employee, contractor, or vacuum, acid, gas, air, water injection, or other person will be deemed service upon any other method, change the method of the operator and the lessee. All changes recovering production, or use any forma- of address and any termination of the tion or well for gas storage or water operator's authority shall be immediately disposal without first notifying the super- reported, in writing, to the supervisor or visor of his plan and intention and re- his representative. In case of such ter- ceiving written approval prior to com- mination or of controversy between the mencing the contemplated work. The lessee and the designated operator, the approval by the supervisor of a drilling operator, if in possession of the lease- plan does not constitute a determination hold will be required to protect the or opinion that the lessee will be entitled interests of the lessor. to an extension of his lease under any extension provisions of the public-land § 221.20 Well-location restrictions. or acquired lands mineral leasing laws if (a) The lessee shall not drill any well he carries out his plan. within 200 feet of any of the outer (c) The lessee shall drill diligently and boundaries of the leased lands except produce continuously from such wells as where necessary to protect those lands are necessary to protect the lessor from against wells on land the title to which loss of royalty by reason of drainage, or, is not held by the lessor, and then only in lieu thereof, with the consent of the on consent first had in writing from the supervisor, he must pay a sum estimated supervisor: Provided, That for good to reimburse the lessor for such loss of cause shown in any particular case, and royalty, the sum to be computed monthly where not prohibited by law, a lessee by the supervisor. may be relieved of such restrictions on ( d) The lessee, whenever drilling or written consent of the supervisor. The producing operations are suspended for lessee shall not drill any well within 200 24 hours or more, shall close the mouth feet of the boundary of any legal sub- of the well with a suitable plug or other division without first submitting ade- fittings acceptable to the supervisor. quate reasons therefor and obtaining [7 FR 4131, June 2, 1942, as amended at 31 FR consent in writing from the supervisor, 6415, Apr. 28, 1966] such consent to be subject to such conditions as may be prescribed by said § 221.22 Well designations, property official. boundaries, markers for abandoned (b) Lessees of Indian lands shall not wells. drill any well within 200 feet of any The lessee shall mark each and every house or barn standing on the leased derrick or well in a conspicuous place lands without the lessor's written con- with his name or the name of the opera- sent, approved by the officer in charge tor, the serial number of the lease or the and the superintendent. name of the lessor if on Indian land, and the number and location of the well, § 221.21 Well-spacing and well-casing and shall take all necessary means and program, well operations,, required precautions to preserve these markings. offsets, diligence, compensation in All abandoned wells shall be marked ,, ,lieu of drilling. with a permanent monument, on which (a) When required by the supervisor, shall be shown the number and location the ,· lessee shall submit an acceptable of the well, unless this requirement is well0spacing and well-casing program for waived in writing by the supervisor. the lease or area. Such program must be This monument shall consist of a piece approved by the supervisor and may be of pipe not less than 4 inches in diam- modified from time to time as conditions eter and not less than 10 feet in length, 15 § 221.23 MINERAL RESOURCES of which 4 feet shall be above the gen- wells on the leased lands, together with eral ground level, the remainder being such other pertinent information as the embedded in cement. The top of the pipe supervisor may require. must be closed with a screw cap, cement § 221.24 Precautions necessary in areas plug, or by other approved means. where high pressures are likely to § 221.23 Well records and reports, plats exist. and maps, samples, tests, and sur- When drilling in "wildcat" territory, veys. or in any field where high pressures (a) The lessee shall keep on the leased are likely to exist, the lessee shall take lands or at his headquarters in the field, all necessary precautions for keeping the or otherwise conveniently available to well under control at all times and shall the supervisor, accurate and complete provide at the time the well is started records of the drilling, redrilling, deep- the proper high-pressure fittings and ening, repairing, plugging, or abandon- equipment; under such conditions the ing of all wells and of all other well conductor string of casing must be ce- operations, and of all alterations to cas- mented throughout its length, unless ing. These records shall show all the other procedure is authorized or pre- formations penetrated, the content and scribed by the supervisor, and all strings character of oil, gas, or water in each of casing must be securely anchored. formation, and the kind, weight, size, and § 221.25 Cable tool drilling precautions. landed depth of casing used in drilling When drilling with cable tools, the each well on the leased lands, and any lessee shall provide at least one prop- other information obtained in the course erly prepared slush pit, into which must of well operations. be deposited mud and cuttings from clay (b) Within 15 days after the comple- or shale free of sand that will be suitable tion of any well and within 15 days after for the mudding of a well. When neces- the completion of any further operations sary or required, the lessee shall provide on it, the lessee shall transmit to the a second pit for sand pumpings and supervisor copies of these records on other materials obtained from the well forms furnished by the supervisor. (For during the process of drilling that are reports to be made by all lessees or their not suitable for mudding. designated operators, see §§ 221.57 to 221.65.) § 221.26 Rotary tool drilling precautions. ( c) The lessee shall take such samples When drilling with rotary tools, the and make such tests and surveys as may lessee shall provide, when required by be required by the supervisor with a view the supervisor, an auxiliary mud pit or to determining conditions in the well and tank of suitable capacity and maintain obtaining information concerning mate- therein a supply of mud having the rials (formations) drilled and shall proper characteristics for emergency use furnish such characteristic samples of in case of blowouts or lost circulation. each formation or substance, or reports thereon, as may be requested by the § 221.27 Vertical drilling. supervisor. The lessee shall gage the The lessee shall drill substantially ver- production of oil, gas, and water from tical wells, material deviation from the individual wells continuously or at rea- vertical being permitted only on written sonably frequent intervals to the satis- approval of the supervisor and where faction of the supervisor. interests in other properties will not be (d) The lessee shall also submit in unfairly affected. duplicate such other reports and records of operations as may be required and in § 221.28 Water shut-offs; formation the manner and form prescribed by the tests. supervisor. (a) By approved methods, the lessee (e) Upon request and in the manner shall shut off and exclude all water and form prescribed by the supervisor from any oil- or gas-bearing stratum the lessee shall furnish a copy of the to the satisfaction of the supervisor, and daily drilling report, a plat showing the to determine the effectiveness of such location, designation, and status of all operations, the lessee shall make a cas-

16 TITLE 30 § 221.34

ing and a water shut-off test before sus- utilized. Under such circumstances the pending drilling operations or drilling supervisor must be consu1ted, and his into the oil or gas sand and completing approval obtained. the well. (b) The lessee shall test for commer- § 221.32 Pollution and surface damage. cial productivity all formations that give The lessee shall not pollute streams evidence of carrying oil or gas, the test or damage the surface or pollute the to be made to the satisfaction of and in underground water of the leased or other a manner approved in advance by the land. If useless liquid products of wells supervisor. Unless otherwise specifically cannot be treated or destroyed or if the approved by the supervisor, formation volume of such products is too great tests shall be made at the time the for- for disposal by usual methods without mations are penetrated and in the absence damage, the supervisor must be con- of excessive back pressure from a column sulted, and the useless liquids disposed of water or mud fluid. Records of such of by some method approved by him. tests shall be furnished in duplicate. § 221.33 Gaging and storing oil. § 221.29 Protection of upper productive All production run from leased lands strata. shall be gaged or measured according to. The lessee shall not deepen an oil or methods approved by the supervisor. gas well for the purpose of producing oil The lessee shall provide tanks located on or gas from a lower stratum until all the leasehold, unless otherwise approved upper productive strata are protected to by the supervisor, suitable for containing the satisfaction of the supervisor. and measuring accurately all crude oil produced from the wells and shall § 221.30 Open flows and control of furnish to the supervisor at least two "wild" wells. · acceptable positive copies of 100 percent- The lessee shall take reasonable pre- capacity tank tables. Meters for meas- cautions to prevent any oil, gas, or water uring oil must be first approved by the well from blowing open, or "wild", and supervisor, and tests of their accuracy shall take immediate steps and exercise shall be made when directed by that offi- due diligence to bring under control any ciaL The lessee shall not, except during such well or burning oil or gas well. an emergency and except by special permission of the supervisor, confirmed in § 221.31 Emulsion and dehydration. writing, permit oil to be stored or re- The lessee shall complete and maintain tained in earthen reservoirs or in any his wells in such mechanical condition other receptacle in which there may be and operate them in such manner as undue waste of oil. to prevent, as far as possible, the formation of emulsion, or so-called B. S., and § 221.34 Well abandonment. the infiltration of water. If the forma- (a) The lessee shall promptly plug tion of emulsion, or B. S., or the infiltra- and abandon or condition as a water tion of water, cannot be prevented or well any well on the leased land that if all or any part of the product is is not used or useful for the purposes unmarketable by reason thereof or on of the lease, but no productive well shall account of any impurity or foreign sub- be abandoned until its lack of capacity stance, the lessee shall put into market- for further profitable production of oil able condition, if commercially feasible, or gas has been demonstrated to the all products produced from the leased satisfaction of the supervisor. Before land and pay royalty thereon without abandoning a well the lessee shall sub- recourse to the lessor for deductions on mit to the supervisor a statement of rea- account of costs of treatment or of costs sons for abandonment and his detailed of shipping. To avoid excessive losses plans for carrying on the necessary work, from evaporation, oil shall not be heated together with duplicate copies of the log, to temperatures above the minimum re- if it has not already been submitted. A quired to put the oil into marketable well may be abandoned only after receipt condition. If excessive temperatures are of written approval by the supervisor, in required to break down an emulsion, then which the manner and method of aban- other means of dehydration must be donment shall be approved or prescribed. 17 !i 221.35 MINERAL RESOURCES

Equipment shall be removed and prem- a safe and workmanlike manner, having ises at the well-site shall be properly due regard for the preservation and the conditioned immediately after plugging conservation of the property and for the operations are completed on any well. health and safety of employees. The (b) In case the lessee of lands of the lessee shall take reasonable steps to pre- United States strikes water while drill- vent and shall remove accumulations of ing, instead of oil or gas, and the water oil or other materials deemed to be fire is of sufficient quantity and suitable hazards from the vicinity of well loca- quality to be valuable and usable at a tions and lease tanks, and shall remove reasonable cost, the .Secretary may take from the property or store in orderly over the well as provided in section 40 manner all scrap or other materials not of the Mineral Leasing Act approved in use. June 16, 1934, 48 Stat. 977, 30 U.S.C. 299a. If a satisfactory agreement is § 221.38 Sales contracts; division or- reached, the lessee may condition the well ders. for a water well in lieu of plugging and The lessee shall file with the super- abandonment. visor triplicate ( quadruplicate for pro- (c) Drilling equipment shall not be duction of restricted Indian lands or removed from any suspended drilling naval petroleum reserves) executed cop- well without first securing the written ies of all contracts for the disposition consent of the supervisor. of all products of the leased land except that portion used for purposes of pro- § 221.35 Waste prevention; beneficial duction on the leased land or unavoid- use. ably lost, and he shall not sell or other- The lessee is obligated to prevent the wise dispose of said products except in waste of oil or gas and to avoid physical accordance with a sales contract, divi- waste of gas the lessee shall consume sion order, or other arrangement first it beneficially or market it or return it approved, as provided in § 221.13. to the productive formation. If waste or gas occurs the lessee shall pay the lessor § 221.39 Relief from operating, royalty, the full value of all gas wasted by blow- and rental requirements. ing, release, escape, or otherwise at a Applications for any modification au- price not less than 5 cents for each thorized by law of the operating require- 1,000 cubic feet, unless, on application by ments of a lease for lands of the United the lessee, such waste of gas under the States shall be filed in triplicate (quin- particular circumstances involved shall tuplicate for applications involving leases be determined by the Secretary to be for lands within the naval petroleum sanctioned by the laws of the United reserves) with the supervisor, and shall States and of the State in which it occurs. include a full statement of the circum- The production of oil and gas shall be stances that render such modification restricted to such amount as can be put necessary or proper. Applications for to beneficial use with adequate realiza- any modification authorized by law of tion of values, and in order to avoid ex- the royalty or rental requirements of a cessive production of either oil or gas, lease for lands of the United States shall when required by the Secretary, shall be be filed in triplicate in the office of the limited by the market demand for gas supervisor. or by the market demand for oil. CRoss REFERENCE: For regulations of the Bureau of Land Management relating to royalty and rental § 221.36 Accidents and fires. relief, and suspension of operations and production, The lessee shall take all reasonable see 43 CFR Parts 3100 to 3104. precautions to prevent accidents and [13 F.R. 9496, Dec. 31, 1948] fires, shall notify the supervisor within 24 hours of all accidents or fires on the § 221.40 Royalty and rental payments. leased land, and shall submit a full (a) When due in money, the lessee report thereon within 15 days. shall tender all payments of rental and royalty by check or draft on a solvent § 221.37 Workmanlike operations. bank, or by money order drawn to the The lessee shall carry on all operations order of the appropriate receiving officer, and maintain the property at all times in in accordance with statements rendered

18 TITLE 30 § 221.44 by the supervisor pursuant to § 221.12, or volume of oil shall be corrected to exclude in the case of public-land leases in accor- the entire volume of such impurities. dance with instructions of the Bureau of (b) Temperature correction. The ob- Land Management. served volume of oil corrected for impuri- (b) If the lessor elects to take royalty ties shall be further corrected to the in oil or gas, unless otherwise agreed standard volume at 60° F. in accor- upon, such royalty shall be delivered on dance with table 2 of Circular C-410 of the leasehold, by the lessee to the order the National Bureau of ,Standards of and without cost to the lessor, as (March 4, 1936), or any revisions thereof instructed by <;he supervisor. Upon the and any supplements thereto, or any lessor's request, storage for royalty oil close approximation thereof approved by for 30 days after the end of the calen- the supervisor. dar month in which the royalty accrues, (c) Gravity determination. The grav- shall be furnished free of charge. Stor- ity of the oil at 60° F. shall be deter- age shall be provided on the leased lands mined in accordance with table 1 of or at a place mutually agreed upon by Circular C-410 of the National Bureau the supervisor and the lessee. of Standards (March 4, 1936), or any § 221.41 Surface rights on Indian lands. revisions thereof and any supplements Lessees of Indian land shall have only thereto. such surface rights as are specifically ( d) Lease production, pipe-line runs. granted in the lease, but additional For the convenience of the lessor and rights may be exercised under written lessee, monthly statements of produc- agreement with the owner, such agree- tion and royalty shall be based in gen- ment to be subject to the prior approval eral on production recorded in pipe-line of the superintendent of the Indian runs or other shipments. When ship- agency having jurisdiction. On demand ments are infrequent or do not approxi- of the supervisor, pipe lines on Indian mate actual production, the supervisor land shall be buried below plow depth. may require statements of production and royalty to be made on such other § 221.42 Costs or damages. basis as he may prescribe, gains, or losses The lessee shall pay all costs or dam- in volume of storage being taken into ages assessed under the provisions of the account when appropriate. Evidence of regulations in this part. all shipments of oil shall be furnished CRoss REFERENCE: For other liabilities of the lessee by pipe-line or other run tickets signed in case of default, see also § § 221.53 to 221.58. by representatives of the lessee and of the purchaser who have witnessed the MEASUREMENT OF PRODUCTION AND measurements reported and the deter- COMPUTATION OF ROYALTIES minations of gravity, temperature, and the percentage of impurities contained § 221.43 Measurement of oil. in the oil. Signed run tickets shall be The volume of production shall be com- filed with the supervisor within 5 days puted in terms of barrels of clean oil of after the oil has been run. 42 standard United States gallons of 231 cubic inches each, on the basis of meter § 221.44 Measurement of gas. measurements (meter must be approved Gas of all kinds ( except gas used for by supervisor), or tank measurements of purposes of production on the leasehold oil-level difference, made and recorded or unavoidably lost) is subject to royalty, to the nearest quarter inch of 100-per- and all gas shall be measured by meter cent-capacity tables, or with such greater (preferably of the orifice-meter type) accuracy as shall be required by the unless otherwise agreed to by the super- supervisor, and subject to the following visor. All gas meters must be approved corrections. by the supervisor and installed at the (a) Correction for impurities. The per- expense of the lessee at such places as centage of impurities (water, sand, and may be agreed to by the supervisor. For other foreign substances not constituting computing the volume of all gas pro- a natural component part of the oil) duced, sold, or subject to royalty, the shall be determined to the satisfaction of standard of pressure shall be 10 ounces the supervisor, and the observed gross above an atmospheric pressure of 14.4

19 § 221.45 MINERAL RESOURCES

pounds to the square inch, regardless ( c )' If the net gasoline output of a of the atmospheric pressure at the point plant is derived from gas obtained from of measurement, and the standard of several leaseholds producing gas of di- temperature shall be 60° F. All mea- verse gasoline content, the proportion of surements of gas shall be adjusted by net output of gasoline allocable to each computation to these standards, regard- leasehold as a basis for computing roy- less of the pressure and temperature at alty will be determined by multiplying which the gas was actually measured, the amount of gas delivered to the plant unless otherwise authorized in writing by from the leaseholds by the gasoline con- the supervisor. tent of the gas and dividing the arithmetical product thus obtained by the § 221.45 Determination of gasoline con- sum of the similar arithmetical products tent of natural gas. separately obtained for all leaseholds Tests to determine the gasoline content from which gas is delivered to the plant. of gas delivered to plants manufacturing gasoline are required to check plant effi- (d) If the net output of butane, pro- ciency and to obtain an equitable basis pane, or other liquid hydrocarbon sub- for allocating the gasoline output of any stances of a plant is derived from gas plant to the several sources from which obtained from several leaseholds, the the gas treated is derived. The gasoline proportion of net output of such sub- content of the gas delivered to each gaso- stances allocable to each leasehold as a line plant treating gas from leased lands basis for computing royalty will be shall be determined periodically by field determined by substituting the butane, tests, as required by the supervisor, to propane, or other liquid hydrocarbon be made at the place and by the methods content for the gasoline content and fol- approved by him and under his super- lowing the method outlined in paragraph vision. (b) or (c) of this section, whichever is applicable: Provided, That when in the § 221.46 Quantity basis for computing judgment of the supervisor it is imprac- royalties on natural gasoline, butane, ticable to test gas to determine the con- propane, and other liquid hydrocar- tent of butane, propane, or other liquid bon substances extracted from gas. hydrocarbon substances, the gasoline The primary quantity basis for com- content will be used in determining the puting monthly royalties on casing-head proportion of the net output of such sub- or natural gasoline, butane, propane, or stances allocable to each leasehold. other liquid hydrocarbon substances ex- ( e) The supervisor is authorized, when- tracted from gas is the monthly net out- ever irt his judgment neither method put of the plant at which the substances prescribed in paragraph (b) and ( c) of are manufactured, "net output" being this section is practicable, to estimate defined as the quantity of each such sub- the production of natural gasoline, bu- stance that the plant produces for sale. tane, propane, or other liquid hydro- (a) If the net output of a plant is carbon substances from any leasehold derived from the gas obtained from only from ( 1) the quantity of gas produced one leasehold, the quantity of gasoline from the leasehold and transmitted to or other liquid hydrocarbon substances the extraction plant, (2) the gasoline, of which computations of royalty for the butane, propane, or other liquid hydro- lease are based is the net output of the carbon content of such gas as determined plant. by test, and (3) a factor based on plant (b) If the net gasoline output of a efficiency or recovery and so determined plant is derived from gas obtained from as to insure full protection of the royalty several leaseholds producing gas of uni- interest of the lessor. form gasoline content, the proportion of net output of gasoline allocable to each § 221.47 Value basis for computing lease as a basis for computing royalty royalties. will be determined by dividing the The value of production, for the pur- amount of gas delivered to the plant pose of computing royalty shall be the from each leasehold by the total amount estimated reasonable value of the product of gas delivered to the plant from all as determined by the supervisor, due leaseholds. consideration being given to the highest

20 TITLE 30 § 221.49 price paid for a part or for a majority computing royalty in accordance with of production of like quality in the same the following rules, and in his discretion field, to the price received by the lessee, may count as producing any commer- to posted prices and to other relevant cially productive well shut-in for conser- matters. Under no circumstances shall vation purposes: the value of production of any of said (a) For a previously producing lease- substances for the purposes of computing hold, count as producing for every day royalty be deemed to be less than the of the month each previously producing gross proceeds accruing to the lessee well that produced 15 days or more dur- from the sale thereof or less than the ing the month, and disregard wells that value as shall have been determined by produced less than 15 days during the the Secretary. In the absence of good month. reason to the contrary, value computed (b) Wells approved by the supervisor on the basis of the highest price per bar- as input wells shall be counted as pro- rel, thousand cubic feet, or gallon paid ducing wells for the entire month if so or offered at the time of production in a used 15 days or more during the month fair and open market for the major por- and shall be disregarded if so used less tion of like-quality oil, gas, or other than 15 days during the month. products produced and sold from the field (c) When the initial production of a or area where the leased lands are situ- leasehold is made during the calendar ated will be considered to be a reasonable month, compute royalty on the basis of value. producing well-days. ( d) When a new well is completed for § 221.48 Royalty rates on oil; flat-rate production on a previously producing leases. leasehold and produces for 10 days or The royalty on crude oil shall be the more during the calendar month in percentage ( established by the terms of which it is brought in, count such new the lease) of the value or amount of the wells as producing every day of the crude oil produced from the leased lands. month, in arriving at the number of pro- § 221.49 Royalty rates on oil; sliding- ducing well-days. Do not count any new and step-scale leases (public land well that produces for less than 10 days only). during the calendar month. Sliding- and step-scale royalties are ( e) Consider "head wells" that make based on the average daily production their best production by intermittent per well. The supervisor shall specify pumping or flowing as producing every which wells on a leasehold are commer- day of the month, provided they are reg- cially productive, including in the cate- ularly operated in this manner, with gory all wells, whether produced or not, approval of the supervisor. for which the annual value of permissible (f) For previously producing lease- production would be greater than the holds on which no wells produced for 15 estimated reasonable annual lifting cost, days or more, compute royalty on a basis but only wells which yield a commercial of actual producing well-days. volume of production during at least part (g) For previously producing lease- of the month shall be considered in ascer- holds on which no wells were producing taining the average daily production per during the calendar month but from well. The average daily production per which oil was shipped, compute royalty well for a lease is computed on the basis at the same royalty percentage as that of of a 28-, 29-, 30-, or 31-day month ( as the last preceding calendar month in the case may be), the number of wells which production and shipments were on the leasehold counted as producing normal. and the gross production from the lease- (h) Rules for special cases not subject hold. (Tables for computing royalty on to definition, such as those arising from the sliding-scale and on the step-scale averaging the production from two dis- basis may be obtained upon application tinct sands or horizons when the produc- to the supervisor.) The supervisor will tion of one sand or horizon is relatively determine which commercially produc- insignificant compared to that of the tive wells shall be considered each month other, shall be made by the supervisor as as producing wells for the purpose of need arises.

21 § 221.50 MINERAL RESOURCES

(i) (1) In the following summary of § 221.51 Royalty on casing-head or nat- operations on a typical leasehold for the ural gasoline, butane, propane, or month of June, the wells considered for other liquid hydrocarbon substances the purpose of computing royalty on the extracted from gas. entire production of the property for the A royalty as provided in the lease shall months are indicated. be paid on the value of one-third· ( or the lessee's portion if greater than one- Count third) of all casing-head or natural gaso- Well Record (marked line, butane, propane, or other liquid No. X) hydrocarbon substances extracted from I. Produced full time for 30 days X the gas produced from the leasehold. 2. Produced for 26 days; down 4 days The value of the remainder is an allow- for repairs X 3. Produced for 28 days; down June ance for the cost of manufacture, and no 5, 12 hours, rods; June 14, 6 royalty thereon is required. The value hours, engine down; June 25, 24 shall be so determined that the minimum hours; June 26, 24 hours, pull- inp; rods and tubing X royalty accruing to the lessor shall be the 4. Produced for 12 days; down June percentage established by the lease of the 13 to 30 amount or value of all extracted hydro- 5. Produced for 8 hours every other day (head well) X carbon substances accruing to the lessee 6. Idle producer (not operated) under an arrangement, by contract or 7. New well. completed June I 7; otherwise, for extraction and sale that produced for 14 days X 8. New well, completed June 22; has been approved by the supervisor: produced for 9 days (a) When a minimum price established by the Secretary is used in determining the value of natural gasoline (2) In this example there are eight accruing to the lessee, the volume of such wells on the leasehold, but wells 4, 6, and gasoline may be corrected when deemed 8 are not counted in computing royalties. necessary by the supervisor to such Wells 1, 2, 3, 5, and 7 are counted standard and by such method as may as producing for 30 days. The average be approved by the supervisor, in order production per well per day is deter- that volumetric differences between nat- mined by dividing the total production ural gasolines of various specifications of the leasehold for the month (including may be equitably adjusted. the oil produced by wells 4 and 8) by 5, (b) The present policy is to allow the the number of wells counted as produc- use of a reasonable amount of dry gas ing, and dividing the quotient thus ob- for operation of the gasoline plant, the tained by the number of days in the amount allowed being determined or ap- month. proved by the supervisor, but no allow- § 221.50, Royalty on gas. ance shall be made for boosting residue gas, or other expenses incidental to mar- The royalty on gas shall be the per- keting. centage established by the terms of the lease of the value or amount of the gas § 221.52 Royalty on drip gasoline or produced. other natural condensate. (a) Royalty accrues on dry gas, The royalty on all drip gasoline, or whether produced as such or as residue other natural condensate recovered from gas after the extraction of gasoline. gas produced from the leased lands with- (b) If the lessee derives revenue on out resort to manufacturing process shall gas from two or more products, a royalty be the same percentage as provided in normally will be collected on all such the lease for other oil, except that such products. substance, if processed in a casing-head gasoline plant shall be treated for royalty ( c) For the purpose of computing roy- purposes as though it were gasoline. alty the value of wet gas shall be either the gross proceeds accruing to the lessee PROCEDURE IN CASE OF DEFAULT from the sale thereof or the aggregate BY LESSEE value determined by the Secretary of all commodities, including residue gas, ob- § 221.53 S 'h u t ti n g down operations; tained therefrom, whichever is greater. lease cancellations.

22 TITLE 30 § 221.56

The supervisor has authority to shut water injection, or using any well or for- down any operation and place under mation for gas storage or water disposal, seal any property or equipment for fail- $25 for each violation. ure to comply with the oil and gas (e) For failure to mark wells or der- operating regulations in this part or ricks, $10 for each violation. orders issued under this part, to enter (f) For failure to install required high- upon any leasehold and perform any pressure fittings and equipment, to operation that the lessee fails to perform cement conductor string, or to anchor when ordered so to do in writing, and to properly all strings of casing, $50 for recommend cancellation of the lease and each violation. forfeiture under the bond for noncompli- (g) For failure to construct and main- ance with the applicable law, lease terms, tain in proper condition slush or mud and regulations. pits, $10 for each violation. (h) For failure to comply with § 221.32, § 221.54 Liquidated damages. $25 for each violation. Administrative costs arising out of cer- (i) For failure to file sales contracts tain defaults or violations of orders re- or division orders as required by lease quiring the performance of certain duties terms, $25 for each violation, and for by lessees, as set forth in the regulations failure to submit pipe-line run tickets, in this part constitute loss or damage to or other proper evidence of disposal as the United States the amount of which is required by these regulations, $10 for difficult or impracticable of ascertain- each violation. ment. Therefore, the following amounts (j) For failure to file the following shall be deemed to cover such loss or reports within the time specified in the damage and shall be payable upon receipt regulations in this part, or within such of notice from the oil and gas supervisor other time designated in writing by the of such loss or damage: Provided, That supervisor, $10 for each violation: as to paragraph (f) of this section the (1) Log of well, subsequent report of specified loss or damage shall be appli- driIIing, redrilling, deepening, plugging- cable to each week or fraction thereof back, plugging and abandonment, mak- during which the violation continues and ing water shut-off or formation test, as to paragraph (h) of this section the stimulating production by acid or shot. specified loss or damage shall be applicable to each day or fraction thereof dur- (2) Lessee's Monthly Report of Opera- ing which the violation continues: tions. Daily Report of Gas-Producing Wells, when required. Lessee's State- (a) For failure to perform any opera- ment of Oil and Gas Runs and Royalties. tion ordered in writing by the supervisor, if said operation is thereafter performed (3) Special forms or reports as re- by or through the supervisor, the actual quired by the supervisor. cost of performance thereof and an addi- § 221.55 Payment of damages. tional 25 percent to compensate the Gov- (a) Payment or request for payment ernment for administrative costs. for any of the damages assessed for ad- (b) For failure to maintain inviolate ministrative costs under the regulations any seal placed upon any property or in this part shall not relieve the lessee equipment by the supervisor, $50 for each from compliance with the provisions of such violation. the regulations in this part, or for lia- ( c) For failure to file notice of inten- bility for waste or any other damage. A tion and to obtain approval before start- waiver of any particular cause for the ing to drill, or for failure to :file notice payment of damages shall not be con- and obtain approval before making any strued as precluding the assessment of changes iri the originally approved notice damages for any other cause herein of intention, $25 for each violation. specified or for the same cause occurring ( d) ,,For failure to :file notice and to at any other time. obtain approval before repairing, redrill- (b) Damages shall be paid in the man- ing, de~pening, plugging-back, plugging, ner and as directed by the supervisor. or abandoning any well, in pulling or altering casing, stimulating productiop § 221.56 Damages to Indian property. by vacuum, acid, or shot, or gas, air, or Damage to lands, crops, buildings, and

23 § 221.57 MINERAL RESOURCES

other improvements on Indian land shall received before the work is begun. This be assessed by the superintendent and notice must give the location, in feet, and payments for such damages shall be direction from the nearest lines of estab- made to the superintendent. lished public survey; the altitude of the ground and derrick floor above sea level REPORTS To BE MADE BY ALL LESSEES and how obtained; and the geologic name (INCLUDING OPERATORS) of the surface formation. Under the heading "Details of Work", the proposed § 221.57 General requirements. drilling and casing plan should be out- Information required to be submitted lined in detail. Essential information in- in accordance with the regulations in this cludes type of tools, proposed depth to part shall be furnished in the manner which the well will be drilled, estimated and form prescribed in the regulations in depths to the top of important markers, this part or as directed by the supervisor. estimated depths at which water, oil, gas, Prescribed standard forms in general use and mineral beds are expected, the pro- are described in §§ 221.58-221.64. Copies posed casing record, including the size of such forms can be obtained from the and weight of casing, the depth at which supervisor and must be filled out com- each string is to be set, and the amount pletely and filed punctually with that of cement and mud to be used. Informa- official. Failure of the lessee to submit tion also shall be given relative to the the information and reports required drilling plan, such as making drill-stem herein constitutes noncompliance with tests, drilling in with oil, using reversed the terms of the regulations in this part circulation, perforating opposite pays, and is cause for the assessment of spe- using special types of mud in rotary drill- cific damages as prescribed by the regu- ing, coring at specified depths, and using lations in this part and the cancellation electric logging together with any other of the lease. information which may be required by § 221.58 Sundry notices and reports on the supervisor. wells (Form 9-331A Public; Form (b) Notice of intention to change 9-331B Indian). plans. Where unexpected conditions Forms 9-331A and 9-331B cover all necessitate any change in the plans of notices of intention and all subsequent proposed work already approved, com- reports pertaining to individual wells plete details of the changes must be sub- except those for which special blanks mitted to the supervisor and approval are provided. The forms may be used thereof obtained before the work is for any of the purposes listed thereon, undertaken. or a special heading may be inserted in (c) Notice of date for casing and the blank to adapt it for use for simi- water shut-off test. The protection and lar purposes. Any written notice of in- segregation of oil, gas, or water-bearing tention to do work or to change plans formations is an important item of con- previously approved must be filed in trip- servation, and the supervisor will witness licate, unless otherwise directed, and all casing and water shut-off tests. No- must reach the supervisor and receive his tice must be filed with the supervisor in approval before the work is begun. The advance of the date on which the lessee lessee is responsible for receipt of the expects to make such test. Later by notice by the supervisor in ample time agreement the exact time shall be fixed. for proper consideration and action. If, The casing test and the test of water in case of emergency, and notice is given shut-off must be approved before further orally or by wire, and approval is ob- drilling can proceed. In the event of tained, the transaction shall be confirmed failure, casing must be repaired or re- in writing as a matter of record. The placed or recemented, whichever the con- following paragraphs illustrate some of ditions may require. the uses to which Forms 9-331A and ( d) Subsequent report of casing and 9-331B may be put and indicate the re- water shut-off test. Within 15 days after quirements with respect to each use. making a casing or water shut-off test, (a) Notice of intention to drill. The the results of the test must be reported. notice of intention to drill a well must be The report must give complete and accu- filed with the supervisor and approval rate details, amount of mud and cement

24 TITLE 30 § 221.58 used, lapse of time between running and in 15 days after the work is done, unless cementing the casing and making the such report is included in the log as a test, method of testing, and· results. part of a report of other subsequent work (e) Notice of intention to redrill, re- done or as a part of an abandonment pair, or condition well. Before repairing, report any one of which shall have been deepening, or conditioning a well, a de- filed within that period. The subsequent tailed written statement of the plan of report of use of explosive or chemicals work must be filed with the supervisor shall include a statement of the amount and approval obtained before the work is and the nature of the material used, its started. In work that affects only rods, exact location and distribution in the well pumps, or tubing, or other routine work, by depths, and the method used to local- _such as cleaning out to previous total ize its effects. The report shall also con- depth, no report is necessary unless spe- tain an accurate statement of the dates cifically required by the supervisor. and daily production of oil, gas, and (f) Subsequent report of redrilling, re- water for each of the last 10 producing pairing, or conditioning. Within 15 days days preceding the use of explosive or after completion of the repair work a chemicals and a similar statement of pro- detailed report of work done and the duction after the work is done. In addi- results obtained should be filed. Such tion, this rep91"t must include other report shall show the amount of produc- pertinent information, such as the depth tion of oil, gas, and water, both before to which the well was cleaned out, the and after the work is done, and shall also time spent in bailing and cleaning out, include a complete statement of the work and any injuries to the casing or well. accomplished and methods employed, in- (i) Notice of intention to pull, perfo- cluding all dates. rate, or otherw·ise alter casing. If any (g) Notice of intention to use explosive casing is to be pulled, perforated, or or chemicals. Before using explosive or otherwise altered, notice of intention must chemicals ( shooting or acidizing) in any be filed and approved before the work is well, whether for increasing production started. Such notice must give full de- or in drilling, repair, or abandonment, tails of the contemplated work, stating notice of intention shall be filed and ap- fully what changes are intended and proval obtained before the work is done. what results are anticipated. A notice of When such notice of intention forms a intention to perforate the casing shall part of a notice of intention to redrill, state the conditions of the well that repair, or abandon a well, the supervisor make such work desirable; whether it is may accept such notice in lieu of a sepa- to be ripped or shot, the depth, number, rate notice of intention to use explosive and size of shots, or if ripped, the depths or chemicals. The notice of intention to of the rips proposed; the production of use explosive or chemicals must be ac- oil, gas, and water; and, if a log of the companied by the complete log of the well has not already been filed, the notice well to date, provided the complete log should be accompanied by a duplicate has not previously been filed, and must copy of the log showing all casing seats state the object of the work to be done, as well as all water strata and all oil and the amount and nature of the material gas shows. to be used, its exact location and distri- (j) Subsequent report of pulling, per- bution in the well by depths, the method forating, or otherwise altering casing. If of localizing its effects, and the name of any casing has been pulled, perforated, the company that is to do the work. The or otherwise altered, the results of the notice shall also contain an accurate work should be reported within 15 days statement of the dates and daily produc- after the completion of such work, stat- tion of oil, gas, and water from the well ing exactly what was done and the re- for each of the last preceding 10 produc- sults obtained, including any change in ing days. production. The report of perforating (h) Subsequent report of use of explo- casing also should include the number, sive or chemicals. After using explosive depth, and size of shots, the date shot, or chemicals in any well a subsequent and who did the shooting. If ripped, the report must be filed with the supervisor. depths and number of rips should be This report shall be filed separately with- stated. The production of oil, gas, and

25 § 221.59 MINERAL RESOURCES water obtained by the work should be drillers, whether using company labor shown. or contract labor, to record accurately (k) Notice of intention to abandon the depth, character, fluid content, and well. Before beginning abandonment fluid levels, where possible, of each for- work on any well, whether drilling well, mation as it is penetrated, together with oil or gas well, water well, or so-called all other pertinent information obtained dry hole, notice of intention to abandon in drilling the well. The practice of com- shall be filed with the supervisor and piling well logs from memory, after the approval obtained before the work is work has been completed, will not be started. The notice must show the reason permitted. for abandonment and must be accompanied by a complete log, in duplicate, § 221.60 Monthly report of operations of the well to date, provided the complete (Form 9-329 Public; Form 9-329A log has not been filed previously, and Indian). must give a detailed statement of the A separate report of operations for proposed work, including such informa- each lease must be made on Form 9-329 tion as kind, location, and length of plugs for public land and on Form 9-329A for (by depths), and plans for mudding, Indian land, for each calendar month, cementing, shooting, testing, and remov- beginning with the month in which drilling casing, as well as any other pertinent ing operations are initiated, and must information. be filed in duplicate with the supervisor on or before the 6th day of the succeed- (1) Subsequent report of abandoning month, unless an extension of time ment. After a well is abandoned or for the filing of such report is granted plugged a subsequent record of work done must be filed with the supervisor. This by the supervisor. The report on this report shall be filed separately within 15 form shall disclose accurately all opera- days after the work is done. The report tions conducted on each well during each shall give a detailed account of the man- month, the status of operations on the ner in which the abandonment or plug- last day of the month, and a general ging work was carried out, including the summary of the status of operations on nature and quantities of materials used the leased lands, and the report must in plugging and the location and extent be submitted each month until the lease (by depths) of the plugs of different ma- is terminated or until omission of the terials; records of any tests or measure- report is authorized by the supervisor. ments made and of the amount, size, and It is particularly necessary that the location (by depths) of casing left in the report shall show for each calendar well; and a detailed statement of the vol- month: ume of mud fluid used, and the pressure (a) The lease be identified by insert- attained in mudding. If an attempt was ing the name of the United States land made to part any casing, a complete office and the serial number, or in the report of the methods used and results case of Indian land the lease number obtained must be included. and lessor's name, in the space provided in the upper right corner; § 221.59 Log and history of well (Form (b) Each well be listed separately by 9-330). number, its location be given by 40-acre The lessee shall furnish in duplicate, subdivision ( ¼ ¼ sec. or lot), section on Form 9-330, to the supervisor, not number, township, range, and meridian; later than 15 days after the comple- (c) The number of days each well tion of each well, a complete and accurate produced, whether oil or gas, and the log and history, in chronologic order, of number of days each input well was in all operations conducted on the well. If a operation be stated; log is compiled for geologic information (d) The quantity of oil, gas, and from cores or formation samples, dupli- water produced, the total amount of cate copies of such log shall be filed in gasoline, and other lease products recov- addition to the regular log. Duplicate ered, and other required information. copies of all electric logs, temperature When oil and gas, or oil, gas, and gaso- surveys, or direction surveys shall be line, or other hydrocarbons are concur- furnished. The lessee shall require the rently produced from the same lease,

26 TITLE 30 § 221.67 separate reports on this form should be signed, must accompany each remittance submitted for oil and for gas and gaso- covering payments of royalty or rental line, unless otherwise authorized or di- on Naval Petroleum Reserves. The remit- rected by the supervisor. tance and the original form shall be sent (e) The depth of each active or sus- direct to the Property Accounting Officer, pended well, and the name, character, United States Navy, Bureau of Supplies and depth of each formation drilled dur- and Accounts, Navy Department, Wash- ing the month, the date each such depth ington, D.C. 20360, and the duplicate and was reached, the date and reason for triplicate copies of the form shall be sent every shut-down, the names and depths to the oil and gas supervisor. of important formation changes and § 221.65' Special forms or reports. contents of formation, the amount and When special forms or reports other size of any casing run since last report, than those referred to in the regulations the dates and results of any tests such in this part may be necessary, instruc- as production, water shut-off, or gaso- tions for the filing of such forms or line content, and any other noteworthy reports will be given by the supervisor. information on operations not specifically provided for in the form. § 221.66 Appeals. (f) The footnote must be completely Orders or decisions issued under the filled out as required by the supervisor. regulations in this part may be appealed If no runs or sales were made during from as provided in part 290 of this the calendar month, the report must so chapter. Compliance with any such order state. or decision shall not be suspended by reason of an appeal having been taken § 221.61 Daily report of gas-producing unless such suspension is authorized in wells (Form 9-352). writing by the Director or the Board of Unless otherwise directed by the su- Land Appeals (depending upon the offi- pervisor, the readings of all meters cial before whom the appeal is pending) showing production of natural gas from and then only upon a determination that leased lands shall be submitted daily on such suspension will not be detrimental Form 9-352, together with the meter to the lessor or upon submission and charts. After a check has been had the acceptance of a bond deemed adequate to meter charts will be returned. indemnify the lessor from loss or damage. § 221.62 Statement of oil and gas runs [38 FR 1000!, Apr. 23, 1973] and royalties (Form 9-361 Public; Form 9-361A Indian). § 221.67 Effective date; repeal of prior When directed by the supervisor, a regulations. monthly report shall be made by the The regulations in this part shall be- lessee in duplicate, on Form 9-361 or come effective on the 1st day of June 9-361A, showing each run of oil, all 1942, and shall supersede the oil and gas sales of gas, gasoline, other lease prod- operating regulations of November 1, ucts, and the royalty accruing there- 1936, as amended, 30 CFR, 1938 ed., 221.1 from to the lessor. When use of this to 221.56, except as to leases and unit form is required it must be completely agreements in force and effect on June 1, filled out and sworn to. 1942, to which the regulations in this part are not applicable.' § 221.63 Royalty and rental remittance (Form 9-614A Indian). Form 9-614A, completely filled out PART 231 - OPERATING REGULA- and signed, shall be submitted to the TIONS FOR EXPLORATION DEVEL- supervisor in triplicate and shall accom- OPMENT, AND PRODUCTION pany each remittance covering payments ADMINISTRATION OF REGULATIONS AND DEFJ;>;ITio:,.,;s of royalty or rental on Indian lands. Sec. 23!.l Scope and purpose. § 221.64 Royalty and rental remittance 23!.2 Definitions. (Form llND Naval Petroleum Re- 23!.3 Responsibilities. 23!.4 General obligations of lessees and pcrmittees. serves). 23 l.5 Public inspection of records. Form llND, completely filled out and MAPS AND PLANS

27 § 231.1 MINERAL RESOURCES

231.10 Operating plans. apply to operations for the discovery, 231.11 Maps of underground workings and surface testing, development, mining, and proc- operations and equipment. 231.12 Other maps. essing of minerals ( except coal, oil, and BOREHOLES AND SAMPLES gas) in acquired lands under leases or 231.20 Core or test hole, cores, samples, cuttings, permits issued pursuant to the regula- mill products. WELFARE AND SAFETY tions in 43 CFR Group 3500 and min- 231.25 Sanitary, welfare, and safety arrangements. erals (except coal, oil, and gas) in tribal MINING METHODS and allotted Indian lands leased under 231.30 Good practice to be observed. 231.31 Ultimate maximum recovery; information the regulations in 25 CFR Parts 171, regarding mineral deposits. 172, 173, 174, and 176. (b) The purpose of the regulations in Sec. 231.32 Pillap left for support. this part is to promote orderly and effi- 231.33 Boundary pillars and isolated blocks. cient prospecting, exploration, testing, 231.34 Development on leased tracts through ad- development, mmmg, and processing joining mines as part of a mining unit. 231.35 I\.1inerals soluble in water; brines; minerals operations and production practices with- taken in solution. out waste or avoidable loss of minerals PROTECTION AGAINST MINE HAZARDS or damage to deposits; to promote the 231.40 Surface openings. 231.41 Abandonment of underground workings. safety, health, and welfare of workmen; 231.42 Flammable gas and dust. to encourage maximum recovery and use 231.43 Fire protection. of all known mineral resources; to pro- MILLING; WASTE FROM MINING OR MILLING mote operating practices which will 231.50 Milling. 231.51 Disposal of waste. avoid, minimize, or correct damage to the PRODUCTION RECORDS AND AUDIT environment-land, water and air-and 231.60 Books of account. avoid, minimize, or correct hazards-to 231.61 Royalty basis. 231.62 Audits. public health and safety; and to obtain a INSPECTION_, ISSUANCE OF ORDERS AND proper record and accounting of all min- ENFORCEMENT OF ORDERS erals produced. 231.70 Inspection of underground and surface conditions; surveying, estimating, and study. (c) When the regulations in this part 231.71 Issuance of -orders. relate to matters included in the regu- 231. 72 Service of notices, instructions, and orders. lations in 43 CFR Part 23-Surface Ex- 23 I. 73 Enforcement of orders. ploration, Mining, and Reclamation of 231.74 Appeals. AUTHORITY: The provisions of this Part 231 issued Lands--pertaining to public domain and under 35 Stat. 312; 35 Stat. 781, as amended; secs. acquired lands, or 25 CFR Part 177- 32, 6, 26, 41 Stat. 450, 753, 1248; secs. I, 2, 3, Surface Exploration, Mining, and Rec- 44 Stat. 301, as amended; secs. 6, 3, 44 Stat. 659, 710; secs. I, 2, 3, 44 Stat. 1057; 47 Stat. 1487; 49 lamation of Lands-pertaining to Indian Stat. 1482, 1250, 1967, 2026; 52 Stat. 347; sec. 10, lands, the regulations in this part shall 53 Stat. 1196, as amended; 56 Stat. 273; sec. 10, 61 be considered as supplemental to the Stat. 915; sec. 3, 63 Stat. 683; 64 Stat. 311; 25 U.S.C. 396, 396a-f, 30 U.S.C. 189, 271, 281, 293, regulations in those parts, and the regu- 359. Interpret or apply secs. 5, 5, 44 Stat. 302, 1058, lations in those parts shall govern to as amended; 58 Stat. 483-485; 5 U .S.C. 301, 16 the extent of any inconsistencies. U.S.C. 508b, 30 U.S.C. 189, 192c, 271, 281, 293, 359, 45 U .s.c. 387. CRoss REFERENCE: See Part 211 of this chapter for SOURCE: 37 FR l 1041, June I, 1972, unless other- regulations governing operations under coal permits wise noted. and leases. See Part 221 of this chapter for regulations governing operations under oil and gas leases ADMINISTRATION OF REGULATIONS AND and operations for the extraction of shale oil by DEFINITIONS in situ retorting or other methods utilizing boreholes or wells. § 231.1 Scope and purpose. (a) The regulations in this part shall § 231.2 Definitions. govern operations for the discovery, The terms used in this part shall have testing, development, mining, and proc- the following meanings: essing of potash, sodium phosphate, sul- (a) Secretary. The Secretary of the phur, asphalt, and oil shale ( except for Interior. operations for the extraction of shale (b) Director. The Director of the Geo- oil by in situ retorting methods utilizing logical Survey, Washington, D.C. boreholes or wells) under leases or per- (c) Mining Supervisor. The Area Min- mits issued for public domain lands pur- ing Supervisor, Conservation Division of suant to the regulations in 43 CFR the Geological Survey; a representative Group 3500. These regulations shall also of the Secretary, subject to the direction

28 TITLE 30 § 231.3

and supervisory authority of the Direc- 773; 30 U.S.C. 723) and the Health and tor, the Chief, Conservation Division, Safety Standards contained in Parts 55, Geological Survey, and the appropriate 56, and 57, Chapter I, of this title. Regional Conservation Manager, Conser- (c) The mining supervisor, individu- vation Division, Geological Survey, au- ally, or through his subordinates is thorized and empowered to regulate empowered to regulate prospecting, ex- operations and to perform other duties ploration, testing, development, mining prescribed in the regulations in this part, and processing operations under the reg- or any subordinate acting under his ulations in this part. The duties of the direction. mining supervisor or his subordinates ( d) Lessee. Any person or persons, include the following: partnership, association, corporation, or ( 1) Inspections; supervision of opera- municipality to whom a mineral lease is tions to prevent waste or damage. Exam- issued subject to the regulations in this ine frequently leased or permit lands part, or an assignee of such lease under where operations for the discovery, test- an approved assignment. ing, development, mining, or processing (e) Permittee. Any person or persons, of minerals are conducted or are to be partnership, association, corporation, or conducted; inspect and regulate such municipality to whom a mineral pros- operations, including operations at acces- pecting permit is issued subject to the sory plants, for the purpose of prevent- regulations in this part, or an assignee ing waste of mineral substances or of such permit under an approved assign- damage to formations and deposits ment. containing them, or damage to other (f) Leased lands, leased permises, or formations, deposits, or nonmineral released tract. Any lands or deposits under sources affected by the operations, and a mineral lease and subject to the regula- insuring that the terms and conditions tions in this part. of the permit or lease and the require- (g) Permit lands. Any lands or deposit ments of the exploration or mining plans under a mineral prospecting permit and are being complied with. subject to the regulations in this part. (2) Compliance with regulations, lease (h) Operator. A lessee or permittee or or permit terms, and approved plans. one conducting operations on the leased Require operators to conduct their oper- or permit lands under the authority of ations in compliance with the provisions the lessee or permittee. of applicable regulations, the terms and (i) Reclamation. The measures under- conditions of the leases or permits, and taken to bring about the necessary recon- the requirements of approved exploration ditioning or restoration of land or water or mining plans. that has been affected by exploration, (3) Reports on condition of lands and testing, mineral development, mining, on manner of operations; recommendations site processing operations, or waste dis- for protection of property. Make reports posal, in ways which will prevent or to the Chief, Conservation Division control onsite and offsite damage to the through the Regional Conservation Man- environment. ager, Conservation Division of Geologi- [37 FR 11041, June I, 1972, as amended at 38 FR cal Survey, as to the general condition 10001, Apr. 23, 1973] of lands under permit or lease and the manner in which operations are being § 231.3 Responsibilities. conducted and orders or instructions are (a) Subject to the supervisory author- being complied with, and to submit infor- ity of the Secretary, the regulations in mation and recommendations for protect- this part shall be administered by the ing the minerals, the mineral-bearing Director through the Chief, Conservation formations and the nonmineral resources. Division, of the Geological Survey. (4) Manner and form of records, and (b) The responsibility for health and notices. Prescribe, subject to the con- safety inspections of mines subject to the currence of the Regional Conservation regulations in this part is vested in the Manager, Conservation Division, and the Bureau of Mines in accordance with sec- approval of the Chief, Conservation Divi- tion 4 of the Federal Metal and Non- sion of the Geological Survey, the man- metallic Mine Safety Act (80 Stat. 772, ner and form in which records of

29 § 231.4 MINERAL RESOURCES

operations, reports, and notices shall be control measures for the protection and made. control of air quality. ( 5) Records of production; rentals and (f) The mining supervisor shall issue royalties. Obtain and check the records such orders and instructions not in con- of production of minerals; determine flict with the laws of the State in which rental and royalty liability of lessees the leased or permit lands are situated and permittees; collect and deposit rental as necessary to assure compliance with and royalty payments; and maintain the purposes of the regulations in this rental and royalty accounts. part. (6) Suspension of operations and pro- (g) In the exercise of his jurisdiction duction. Act on applications for suspen- unde: the regulations in this part, the sion of operations or production or both mining supervisor shall be subject to the filed pursuant to 43 CFR 3503.3-2 ( e), direction and supervisory authority of and terminate such suspensions which the Chief, Conservation Division, and have been granted; and transmit to the the appropriate Regional Conservation Bureau of Indian Affairs for appropriate Manager, Conservation Division of the action applications for suspension of Geological Survey, each of whom may operations or production or both under exercise the jurisdiction of the mining leases on Indian lands. supervisor. (7) Cesscition and abandonment of (37 FR I I 041, June I, I 972, as amended at 38 FR operations. Upon receipt of a report of 10001, Apr. 23, 1973] cessation or abandonment of operations, inspect and determine whether the terms § 231.4 General obligations of lessees and conditions of the permit or lease and permittees-. and the exploration or mining plans have (a) Operations for the discovery, test- been complied with; and determine and ing, development, mining, or processing report to the agency having administra- of minerals shall conform to the pro- tive jurisdiction over the lands when the visions of applicable regulations, the lands have been properly conditioned for terms and conditions of the lease or per- abandonment. The mining supervisor, in mit, the requirements of approved ex- accordance with applicable regulations, ploration or mining plans, and the orders will consult with, or obtain the concur- and instructions issued by the mining rence of, the authorized officer of the supervisor or his subordinates under the agency having administrative jurisdic- regulations in this part. Lessees and per- tion over the lands with respect to com- mittees shall take precautions to prevent pliance by the operator with the surface waste and damage to mineral-bearing protection and reclamation requirements formations, and shall take such steps as of the lease or permit and the explora- may be needed to prevent injury to life tion· or mining plan. or health and to provide for the health (8) Tresp£LSs involving removal of and welfare of employees. mineral deposits. Report to the agency (b) Lessees and permittees shall take having administrative jurisdiction over such action as may be needed to avoid, the lands any trespass that involves re- minimize, or repair soil erosion; pollu- moval of mineral deposits. tion of air; pollution of surface or ground (d) Prior to the approval of an explo- water; damage to vegetative growth, ration or mining plan, the mining super- crops, including privately owned forage, visor shall consult with the authorized or timber; injury or destruction of fish officer of the agency having administra- and wildlife and their habitat; creation tive jurisdiction over the land with of unsafe or hazardous conditions; a,nd respect to the surface protection and damage to improvements, whether owned reclamation aspects of the plan. by United States, its permittees, licensees ( e) The mining supervisor shall in- or lessees, or by others; and damage to spect exploratory and mining operations recreational, scenic, historical, and eco- to determine the adequacy of water man- logical values of the land. The surface agement and pollution control measures of leased or permit lands shall be re- for the protection and control of the claimed in accordance with the terms quality of surface and ground water re- and conditions prescribed in the lease or sources and the adequacy of emission permit and the provisions of the approved

30 TITLE 30 §231.10 exploration or mmmg plan. Where any (a) General. Before conducting any question arises as to the necessity for operations under a permit or lease, the or the adequacy of an action to meet the operator shall submit, in quintuplicate, requirements of this paragraph, the de- to the mining supervisor for approval an termination of the mining supervisor exploration or mining plan which shall shall be final subject to the right of show in detail the proposed exploration, appeal as provided in part 290 of this prospecting, testing, development, or min- chapter. ing operations to be conducted. Explora- ( c) All operations conducted under tion and mining plans shall be consistent the regulations in this part must be con- with and responsive to the requirements sistent with Federal and State water and of the lease or permit for the protection air quality standards. of nonmineral resources and for the (d) When the mining supervisor deter- reclamation of the surface of the lands mines that a water pollution problem affected by the operations. The mining exists, the mining supervisor may require supervisor shall consult with the other that a lessee or permittee maintain rec- agencies involved, and shall promptly ords of the use of water, quantity and approve the plans or indicate what modi- quality of waste water produced, and the fications of the plans are necessary to quantity and quality of waste water dis- conform to the provisions of the applica- posal, including mine drainage discharge, ble regulations and the terms and condi- process wastes and associated wastes. tions of the permit or lease. No operations In order to obtain this information, the shall be conducted except under an lessee or permittee may be required to approved plan. install a suitable monitoring system. (b) Exploration plans. The mining (e) Full reports of accidents, inunda- supervisor may require that an explora- tions, or fires shall be promptly mailed tion plan include any or all of the to the mining supervisor by the operator following: or his representative. Fatal accidents, (1) A description of the area within accidents threatening damage to the mine, which exploration is to be conducted; the lands, or the deposits, or accidents (2) Five copies of a suitable map or which could cause water pollution shall aerial photograph showing topographic, be reported promptly to the mining super- cultural, and drainage features; visor by telegram or telephone. The ( 3) A statement of proposed explora- reports required by this section shall be tion methods, i.e., drilling, trenching, etc., in addition to those required by Parts and the location of primary support 55, 56, or 57, Chapter I of this title or roads and facilities; other applicable regulations. ( 4) A description of measures to be (f) Lessees and permittees shall sub- taken to prevent or control fire, soil ero- mit the reports required by 25 CFR Part sion, pollution of surface and ground 177; Part 200 of this chapter, and 43 water, pollution of air, damage to fish CFR Part 23. and wildlife or other natural resources, [37 FR 1l041, June I, 1972, as amended at 38 FR and hazards to public health and safety l0001, Apr. 23, 1973] both during and upon abandonment of exploration activities. § 231.5 Public inspection of records. (c) Mining plans. The mining super- Geological and geophysical interpreta- visor may require that a mining plan tions, maps, and data and commercial include any or all of the following: and financial information required to be (1) A description of the location and submitted under this part shall not be area to be affected by the operations; available for public inspection without (2) Five copies of a suitable map, or the consent of the permittee or lessee so aerial photograph showing the topog- long as the permittee or lessee furnish- raphy, the area covered by the permit or ing such data, or his successors or as- lease, the name and location of major signees, continues to hold a permit or topographic and cultural features, and lease of the lands involved. the drainage plan away from the area MAPS AND PLANS affected; (3) A statement of proposed methods § 231.10 Operating plans. of operating, including a description of 31 §231.11 MINERAL RESOURCES the surface or underground mmmg ration or mining plan for the entire methods; the proposed roads or vehicular operation is dependent upon unknown trails; the size and location of structures factors which cannot or will not be de- and facilities to be built; termined except during the progress of ( 4) An estimate of the quantity of the operations, a partial plan may be water to be used and pollutants that approved and supplemented from time to are expected to enter any receiving time. The operator shall not, however, waters; perform any operation except under an ( 5) A design for the necessary im- approved plan. poundment, treatment or control of all § 231.11 Maps of underground workings runoff water and drainage from work- and surface operations and equip- ings so as to reduce soil erosion and ment. sedimentation and to prevent the pollu- Maps of underground workings and tion of receiving waters; surface operations shall be drawn to a ( 6) A description of measures to be scale acceptable to the mining super- taken to prevent or control fire, soil visor. All maps shall be appropriately erosion, pollution of surface and ground marked with reference to Government water, pollution of air, damage to fish land marks or lines and elevations with and wildlife or other natural resources, reference to sea level. When required by and hazards to public health and safety; the mining supervisor vertical projections (7) A statement of the proposed man- and cross sections shall accompany plan ner and time of performance of work to views. Maps shall be based on accurate reclaim areas disturbed by the opera- surveys made at least annually and as tions. may be necessary at other times. Accu- ( d) Revegetation; regrading; backfill- rate copies of such maps on reproducible ing. In those instances in which the per- material or prints thereof shall be fur- mit or lease requires the revegetation of nished the mining supervisor when and an area to be affected by operations the as required. The maps shall be posted to exploration or mining plan shall show: date and submitted to the mining super- ( 1) Proposed methods of preparation visor at least once each year. The accu- and fertilizing the soil prior to replant- racy of maps furnished shall be certified ing; by a professional engineer, professional (2) Types and mixtures of shrubs, land surveyor, or other professionally trees, or tree seedlings, grasses or leg- qualified person. umes to be planted; and (3) Types and methods of planting, § 231.12 Other maps. including the amount of grasses or leg- (a) The operator shall prepare such umes per acre, or the number and spacing maps of the leased lands as in the judg- of trees, or tree seedlings, or combina- ment of the mining supervisor are neces- tions of grasses and trees. sary to show the surface boundaries, If the permit or lease requires regrading improvements, and topography, including and backfilling, the exploration or mining subsidence resulting from mining, and plan shall show the proposed methods the geological conditions so far as deter- and the timing of grading and backfilling mined from outcrops, drill holes, explora- of areas of lands affected by the operation or mining. All excavations in each tions. separate bed or deposit shall be shown in (e) Changes in plans. Exploration and such manner that the production of mining plans may be changed by mutual minerals for any royalty period can be consent of the mining supervisor and the accurately ascertained. operator at anytime to adjust to changed (b) In the event the failure of the conditions or. to correct an oversight. To operator to furnish the maps required, obtain approval of a changed or supple- the mining supervisor shall employ a mental plan the operator shall submit competent mine surveyor to make a sur- a written. statement of the proposed vey and maps of the mine, and the cost changes or supplement and the justifica- thereof shall be charged to and promptly tion for tl:l.e changes proposed. paid by the operator. (f) Partial plan. If circumstances (c) If any map submitted by an oper- warrant, or if development of an explo- ator is believed to be incorrect, the min-

32 TITLE 30 § 231.31 ing supervisor may cause a survey to be sequent operations upon the quantity, made, and if the survey shows the map quality, or pressure of ground water or submitted by the operator to be sub- mine gases. stantially incorrect in whole or in part, ( d) When drilling on lands valuable the cost of making the survey and pre- or potentially valuable for oil and gas or paring the map shall be charged to and geothermal resources drilling equipment promptly paid by the operator. shall be equipped with blowout control devices acceptable to the mining super- BORE HOLES AND SAMPLES visor before penetrating more than 100 feet of consolidated sediments unless a § 231.20 Core or test hole, cores, sam- greater depth is approved in advance by ples, cuttings, mill products. the mining supervisor. (a) The operator shall submit promptly to the mining supervisor signed WELFARE AND SAFETY copies, in duplicate, of records of all core or test holes made on the leased or per- § 231.25 Sanitary, welfare, and safety mit lands, the records to be in such form arrangements. that the position and direction of the The underground and surface sanitary, holes can be accurately located on a map. welfare, health, and safety arrangements The records shall include a log of all shall be in accordance with the recom- strata penetrated and conditions encoun- mendations of the U.S. Public Health tered, such as water, quicksand, gas or Service and the applicable standards in unusual conditions, and copies of analyses Parts 55, 56, and 57, Chapter I of the of all samples analyzed from strata title. penetrated shall be transmitted to the CRoss REFERE:"1:CE: For regulations of the U.S. mining supervisor as soon as obtained Public Health Service, Department of Health, Edu- or at such time as specified by the mining cation, and Welfare, see 42 CFR Chapter I. supervisor. All drill holes will be logged under supervision of a competent geolo- MINING METHODS gist or engineer, and the lessees will § 231.30 Good practice to be observed. furnish to the mining supervisor a de- The operator shall observe good prac- tailed lithologic log of each drill hole and tice following the highest standards in all other in-hole surveys, such as elec- prospecting, exploration, testing, develop- tric logs, gamma ray neutron logs, some ment, and mining, sinking wells, shafts, logs or any other logs produced. The and winzes, driving drifts and tunnels, core from test holes shall be retained by stoping, blasting, transporting ore and the operator for 1 year and shall be avail- materials, hoisting, the use of explosives, able for inspection at the convenience of timbering, pumping, and other activities the mining supervisor, and he shall be on the leased or permit lands. privileged to cut such cores and receive samples of such parts as he may deem § 231.31 Ultimate maxim urn recovery; advisable, or on request of the mining information regarding mineral de- supervisor the operator shall furnish posits. such samples of strata, drill cuttings, (a) Mining operations shall be con- and mill products as may be required. ducted in a manner to yield the ultimate (b) Drill holes for development or maximum recovery of the mineral de- holes for prospecting shall be abandoned posits, consistent with the protection and to the satisfaction of the mining super- use of other natural resources and the visor by cementing and/or casing or by protection and preservation of the envi- other methods approved in advance by ronment-land, water, and air. All shifts, the mining supervisor and in a manner main exits, and passageways, as well as to protect the surface and not to endan- overlying beds or mineral deposits that at ger any present or future underground a future date may be of economic impor- operation or any deposit of oil, gas, other tance, shall be protected by adequate pil- mineral substances, or water strata. lars in the deposit being worked or by (c) At the option of the mining super- such other means as approved by the visor or the operator drill holes may be mining supervisor. converted to surveillance wells for the (b) Information obtained regarding purpose of determining the effect of sub- the mineral deposit being worked and

33 § 231.32 MINERAL RESOURCES

other mineral deposits on the leased or to all sections in the regulations in this permit lands shall be fully recorded and part. a copy of the record furnished to the (b) The only connections between the mining supervisor. mine on land privately owned or controlled and the mine on leased land shall § 231.32 Pillars left for support. be the main haulageways, the ventila- Sufficient pillars shall be left in first tionways, and the escapeways. Substan- mining to insure the ultimate maximum tial concrete frames and fireproof doors recovery of mineral deposits when the that may be closed in an emergency and time arrives for the removal of pillars. opened from either side shall be installed Boundary pillars shall in no case be less in each such connection. Other connec- than 50 feet thick unless otherwise speci- tions through the boundary pillars shall fied in writing by the mining supervisor. not be made until both mines are about Boundary and other main pillars shall to be exhausted and abandoned. The be mined only with the written consent mining supervisor may waive any of the or by order of the mining supervisor requirements in this paragraph when, in or his authorized subordinates. his judgment, such a waiver would not conflict with the regulations in Part 57, § 231.33 Boundary pillars and isolated Chapter I of this title and would not blocks. entail substantial loss of ore. (a) the ore on adjacent lands sub- If ( c) Free access for inspection of said ject to these regulations has been worked connecting mine on land privately owned out beyond any boundary pillar, if the or controlled shall be given at any rea- water level beyond the pillar is below sonable time to the mining supervisor the lessee's adjacent operations, and if or other representative of the Secretary no other hazards exist, the lessee shall, of the Interior. on the written demand of the mining · ( d) If a lessee operating on a lease supervisor, mine out and remove all avail- through a mine on land privately owned able ore in such boundary pillar, both or controlled does not maintain the mine in the lands covered by the lease and in accordance with the operating regu- in the adjoining premises, when the min- lations, operations on the leased land ing supervisor determines that it can be may be ordered stopped or departmental mined without undue hardship to the seals applied by the mining supervisor, lessee. and the operations on leased lands shall (b) the mining rights in adjoining If be stopped. premises are privately owned or controlled, an agreement may be made with § 231.35 Minerals soluble in water; the owners of such interests for the ex- brines; mineral taken in solution. traction of the ore in the boundary In mining or prospecting deposits of pillars. potassium or other minerals soluble in (c) Narrow strips of ore between water, all well, shafts, prospect holes, leased lands and the outcrop on other and other openings shall be adequately lands subject to these regulations and protected with neat cement or other suit- small blocks of ore adjacent to leased able materials against the coursing or lands that would otherwise be isolated entrance of water; and the operator or lost may be mined under the provi- shall, on orders of the mining supervisor, sions specified in paragraphs (a) and backfill with rock or other suitable mate- (b) of this section. rial to protect the roof from breakage when there is a danger of the entrance § 231.34 Development on leased tract of water. On leased or permit land con- through adjoining mines as part of a taining brines, due precaution shall be mining unit. exercised to prevent the deposits becom- A lessee may mine his leased tract ing diluted or contaminated by the mix- from an adjoining underground mine on ture of water or valueless solution. land privately owned or controlled or Where minerals are taken from the earth from adjacent leased lands, under the in solution, such extraction shall not be following conditions: within 500 feet of the boundary line of (a) A mine that is on the land pri- the leased lands without the written per- vately owned or controlled shall conform mission of the mining supervisor.

34 TITLE 30 §231.61

PROTECTION AGAINST MINE HAZARDS lines for either surface or underground fires. § 231.40 Surface openings. (a) The operator shall substantially MILLING; WASTE FROM MINING fill in, fence, protect or close all surface OR MILLING openings, subsidence holes, surface excavations or workings which are a hazard § 231.50 Milling. to people or animals. Such protective It shall be the duty of the operator to measures shall be maintained in a secure conduct milling operations pursuant to condition during the term of the permit the terms of the lease, the approved min- or lease. Before abandonment of opera- ing plan, and the regulations in this part tions all openings, including water dis- and to use due diligence in the reduction, charge points, shall be closed to the concentration, or separation of mineral satisfaction of the mining supervisor. substances by mechanical or chemical (b) Reclamation or protection of sur- processes, by distillation, by evaporation face areas no longer needed for opera- or other means so that the percentage tions should commence without delay. of salts, concentrates, oil, or other min- The mining supervisor shall designate eral substances recovered shall be in such areas where restoration or protec- accordance with approved practices. tive measures, or both, must be taken. § 231.51 Disposal of waste. The operator shall dispose of all wastes § 231.41 Abandonment of underground workings. resulting from the mining, reduction, No underground workings or part concentration, or separation of mineral thereof shall be permanently abandoned substances in accordance with the terms and rendered inaccessible without the of the lease, approved mining plan, the advance and written approval of the regulations in this part, and the direc- mining supervisor. tions of the mining supervisor. PRODUCTION RECORDS AND AUDIT § 231.42 Flammable gas and dust. Mines in which flammable gas is found § 231.60 Books of account. or explosive dust produced shall be sub- Operators shall maintain books in ject to the coal-mining operating regu- which will be kept a correct account of lations in Part 211 of this chapter. An all ore and rock mined, of all ore put "explosive dust" is a combustible solid through the mill, of all mineral products in airborne dispersion capable of propa- produced, and of all ore and mineral gating flame when ignited. products sold and to whom sold, the weight, assay value, moisture content, § 231.43 Fire protection. base price, dates, penalties, and price All structures within 100 feet of any received, and the percentage of the min- mine opening shall be protected against eral products recovered and lost shall be fire and constructed of fire resistant shown. material. Flammable material shall not be stored within 100 feet of a mine exit. CROSS REFJ:RE'\'CI·'.: Sec Part 200 of this chapter for reports required to be filed zind the forms to be All shifts shall be fireproof, or adequate used. fire-control devices, satisfactory to the mining supervisor, shall be installed. § 231.61 Royalty basis. All underground offices, stations, shops, The sale price basis for the determina- magazines, and stores shall be so con- tion of the rates and amount of royalty structed, equipped, and maintained as shall not be less than the highest and to reduce the fire hazard to a minimum. best obtainable market price of the ore Sufficient fire-fighting apparatus shall be and mineral products, at the usual and maintained in working condition at the customary place of disposing of them at mine exits and at convenient points in the time of sale, and the right is reserved the mine workings for fire emergencies. to the Secretary of the Interior to deter- An adequate water supply shall be held mine and declare such market price, if it in storage tanks or reservoirs for fire is deemed necessary by him to do so for emergencies and shall be available for the protection of the interests of the immediate use through connecting pipe- lessor.

35 § 231.62 MINERAL RESOURCES

§ 231.62 Audits. and orders that are mailed to or posted An audit of the lessee's accounts and at the mine or mine office, or mailed or books may be made annually or at such handed to the superintendent, the mine other times as may be directed by the foreman, the mine clerk, or higher offi- mining supervisor, by certified public cials connected with the mine for trans- accountants, and at the expense of the mittal to the operator or his local repre- lessee. The lessee shall furnish free of sentative. cost duplicate copies of such annual or § 2,31.73 Enforcement of orders. other audits to the mining supervisor, (a) If the mining supervisor deter- within 30 aays after the completion of mines that an operator has failed to each auditing. comply with the regulations in this part, other applicable departmental regula- INSPECTION, ISSUANCE OR ORDERS, AND ENFORCEMENT OF ORDERS tion, the terms and conditions of the permit or lease, the requirements of an § 231.70 Inspection of underground and approved exploration or mining plan, or surface conditions; _surveying, esti- with the mining supervisor's orders or mating, and study. instructions, and such noncompliance Operators shall provide means at all does not threaten immediate, serious, or reasonable hours, either day or night, irreparable damage to the environment, for the mining supervisor or his repre- the mine or the deposit being mined, or sentative to inspect or investigate the other valuable mineral deposits or other underground and surface conditions; to resources, the mining supervisor shall conduct surveys; to estimate the amount serve a notice of noncompliance upon the of ore or mineral product mined; to study operator by delivery in person to him or the methods of prospecting exploration, his agent or by certified or registered testing, development, processing, and mail addressed to the operator at his last handling that are followed; to determine known address. Failure of the operator the volumes, types, and composition of to take action in accordance with the wastes generated, the adequacy of meas- notice of noncompliance shall be grounds ures for minimizing the amount of such for suspension by the mining supervisor wastes, and the measures for treatment of operations. and disposal of such wastes; and to deter- (b) A notice of noncompliance shall mine whether the terms and conditions specify in what respects the operator has of the permit or lease and the require- failed to comply with the provisions of ments of the exploration or mining plan applicable regulations, the terms and have been complied with. conditions of the permit or lease, the requirements of an approved exploration § 231. 71 Issuance of orders. or mining plan or the orders and instruc- Before beginning operations the operations of the mining supervisor, and shall tor shall inform the mining supervisor specify the action which must be taken in writing of the designation and post to correct the noncompliance and the office address of the exploration or min- time limits within which such action ing operation, the operator's temporary must be taken. and permanent post office address, and (c) If the judgment of the mining the name and post office address of the supervisor such failure to comply with superintendent or other agent who will the regulations, the terms and conditions be in charge of the operations and who of the permit or lease, the requirements will act as the local representative of the of approved exploration or mining plans, operator. The mining supervisor shall or with the mining supervisor's orders or also be informed of each change there- instructions threatens immediate, seri- after in the address of the mine office or ous, or irreparable damage to the envir- in the name or address of the local onment, the mine or the deposit being representative. mined, or other valuable mineral deposits or other resources, the mining § 231.72 Service of notices:, instructions, supervisor is authorized, either in writ- and orders. ing or orally with written confirmation, The operator shall be considered to to suspend operations without prior have received all notices, instructions, notice.

36 TITLE 30 § 290.6

§ 231. 7 4 Appeals. der authority of the regulations in chap- Orders or decisions issued under the ter II of this title, 43 CFR part 23, 43 regulations in this part may be appealed CFR subtitle B, chapter II, and 25 CFR as provided in part 290 of this chapter. part 177. This part also provides for the further right of appeal, to the Board of [38 FR 10001, Apr. 23, 1973] Land Appeals in the Office of Hearings C:Ro.ss R1-n:e;:v:E: Sec 43 CFR 23.12 for appeals and Appeals, Office of the ,Secretary, under 4'.3 CFR Part 23-Surfacc Exploration, ~fin. from adverse decisions of the Director ing, and Re< la mat ion of Land~. Sec 25 CFR 177 .11 for appl'ah under 25 CFR Part 177-Surface Ex· (and the Commissioner of Indian Affairs ploration, .\lining, and Reclamation of Lands. when Indian lands are involved) rendered under this part. PART 290-APPEALS PROCEDURES * * * * * * § 290.6 Appeals to the Commissioner of § 290.1 Scope. Indian Affairs. The rules and procedures set forth The procedure for appeals under this herein apply to appeals to the Director, part shall be followed for permits and Geological Survey (and the Commis- leases on Indian land except that with sioner of Indian Affairs when Indian respect to such permits and leases, the lands are involved) from final orders or Commissioner of Indian Affairs will decisions of officers of the Conservation exercise the functions vested in the Di- Division, Geological Survey, issued un- rector, Geological Survey.

37 TITLE 31-MONEY AND FINANCE: TREASURY CHAPTER 1-MONETARY OFFICES, DEPARTMENT OF THE TREASURY

Sec. PART 51-FISCAL ASSISTANCE TO 51.54 Institut10n of proceeding, STATE AND LOCAL GOVERNMENTS 51.55 Contents of complaint. 51.56 Service of complaint and other papers. Subpart A-General Information 51.57 Answer; referral to administrative law judge. Sec. 51.58 Supplemental charge. 51.0 Scope and application of regulations. 51.59 Proof; variance; amendment of pleadings. 51.1 Establishment of Office of Revenue Sharing. 51.60 Representation. 51.2 Definitions. 51.61 Administrative law judge; powers. 51.3 Procedure for effecting compliance. 51.62 Hearings. 51.4 Extension of time. 51.63 Stipulations. 51.5 Transfer of funds to secondary recipients. 51.64 Evidence. Subpart &--Reports and Written 51.65 Depositions. Communications, 51.66 Stenographic record; oath of reporter tran- 51.10 Reports to the Secretary; assurances. script. 51.11 Report on planned use and actual use of 51.67 Proposed findings and conclusion. funds. 51.68 Initial decision of the administrative law judge. 51.12 Certifications. 51.13 Publication and publicity of reports; public 51.69 Certification and transmittal of record and inspection. decision. 51.14 Reports to the Bureau of the Census. 51.70 What constitutes record. 51.71 Procedure on review of decision of adminis- Subpart C-Computation and trative law judge. Adjustment of Entitlement 51.72 Decision of the Secretary. 51.20 Data. 51. 73 Effect of order of repayment or withholding 51.21 Adjusted taxes. of funds. 51.22 Date for determination of allocation. 51. 7 4 Publicity of proceedings. 51.23 Boundary changes, governmental reorganiza- 51.75 Judicial review. tion> etc. AUTHORITY: The provisions of this Part 51 are 51.24 Waiver of entitlement; nondelivery of checks; issued under Pub, L. 92-512; and 5 U,S.C. 301. insufficient data. SouRcE: 38 FR 9132, Apr. 10, 1973, unless other- 51.25 Reservation of funds and adjustment of wise noted. entitlement. 51.26 State must maintain transfers to local governments. Subpart A-General Information 51.27 Optional formula. 51.28 Adjustment of data factors. § 51.0 Scope and application of regula- 51.29 Adjustment of maximum and minimum per tions. capita entitlement; 100 per cent criterion. (a) In general. The rules and regula- Subpart D-Prohibition and Restrictions tions in this part are prescribed for car- on Use of Funds · 51.30 Matching funds. rying into effect the State and Local Fis- 51.31 Permissible expenditures. cal Assistance Act of 1972 (Title I, 51.32 Discrimination. Public Law 92-512) applicable to entitle- 51.33 Wage rates and labor standards. 51.34 Restriction on expenditures by Indian tribes ment periods beginning January 1, 1973. and Alaskan native villages. Subpart A sets forth general information Subpart E-Fiscal Procedures and and definitions of terms used in this part. Auditing Subpart B of this part prescribes reports 51.40 Procedures applicable to use of funds. required under this part and publicity 51.41 Auditing and evaluation; scope of audits. concomitant thereto. Subpart C of this Subpart F-Proceedings for Reduction in part contains rules regarding the compu- Entitlement, Withholding or Repayment tation, allocation and adjustment of of Funds entitlement. Subpart D of this part pre- 51.50 Scope of subpart. scribes prohibitions and restrictions on 51.51 Liberal construction the use of funds. Subpart E of this part 51.52 Reasonable notice and opportunity for hearing. prescribes fiscal procedures and auditing 51.53 Opportunity for compliance. requirements. Subpart F of this part

38 TITLE 31 § 51.1

contains rules relating to procedure and (c) "Department" means the Depart- practice requirements where a recipient ment of the Treasury. government has failed to comply with (d) "Entitlement" means the amount any provision of this part. of payment to which a State govern- (b) Saving clause. Any cause of action ment or unit of local government is en- arising out of noncompliance with the titled as determined by the Secretary interim regulations covering payments pursuant to an allocation formula con- made for the first and second entitle- tained in the Act and as established by ment periods (January 1, 1972, through regulation under this part. June 30, 1972, and July 1, 1972, through ( e) "Entitlement funds" means the December 31, 1972) shall continue to be amount of funds paid or payable to a covered by such regulations and any pre- State government or unit of local gov- ceeding commenced thereon shall be government for the entitlement period. erned by the procedures set forth in (f) "Entitlement period" means one Subpart F of this part. of the following periods of time: ( 1) The 6-month period beginning § 51.1 Establishment of Office of Reve- January 1, 1973, and ending June 30, nue Sharing. 1973. There is established in the Office of the (2) The fiscal year beginning July 1, Secretary of the Treasury the Office of 1973, and ending June 30, 1974. Revenue Sharing. The office shall be (3) The fiscal year beginning July 1, headed by a Director who shall be ap- 1974, and ending June 30, 1975. pointed by the .Secretary of the Treas- (4) The fiscal year beginning July 1, ury. The Director shall perform the func- 1975, and ending June 30, 1976. tions, exercise the powers and carry out (5) The 6-month period beginning the duties vested in the Secretary of the July 1, 1976, and ending December 31, Treasury by the State and Local Fiscal 1976. Assistance Act of 1972, Title I, Public (g) "Governor" means the Governor Law 92-512. of any of the 50 States or the Commis- sioner of the District of Columbia. § 51.2 Definitions. (h) "Independent public accountants" As used in this part ( except where the means independent certified public ac- context clearly indicates otherwise, or countants or independent licensed pub- where the term is defined elsewhere in lic accountants certified or licensed by a this part) the following definitions shall regulatory authority of a State or other apply: political subdivision of the United States. (a) "Act" means the State and Local (i) "Indian tribes and Alaskan native Fiscal Assistance Act of 1972, Title I of villages" means those Indian tribes and Public Law 92-512, approved October 20, Alaskan native villages which have a rec- 1972. ognized governing body and which per- (b) "Chief executive officer" of a unit form substantial governmental func- of local government means the elected tions. Certification to the Secretary by official, or the legally designated official, the Secretary of the Interior ( or by the who has the primary responsibility for Governor of a State in the case of a the conduct of that unit's governmental State affiliated tribe) that an Indian affairs. Examples of the "chief execu- tribe or an Alaskan native village has a tive officer" of a unit of local govern- recognized governing body and performs ment may be: The elected mayor of a substantial governmental functions, shall municipality, the elected county execu- constitute prima facie evidence of that tive of a county, or the chairman of a fact. county commission or board in a county (j) "Recipient government" means a that has no elected county executive, or State government or unit of local gov- such .,other official as may be designated ernment as defined in this section. pursuant to law by the duly elected gov- (k) "Secretary" means the Secretary erning body of the unit of local govern- of the Treasury or any person duly au- ment;· or the chairman, governor, chief, thorized by the Secretary to perform the or president (as the case may be) of an function mentioned. Indian tribe or Alaskan native village. (1) "State government" means the

39 § 51.3 MONEY AND FINANCE: TREASURY government of any of the 50 States or § 51.4 Extension of time. the District of Columbia. When by these regulations ( other than (m) "Unit of local government" means those specified in subpart F of this part) the government of a county, municipal- an act is required within a specified time, ity, township, or other unit of govern- the Secretary may grant a request for an ment below the State which is a unit of extension of time if in his judgment it is general government and which shall be necessary and appropriate. Requests for determined on the basis of the same extensions of time shall set forth the principles as used by the Bureau of the facts and circumstances supporting the Census for general statistical purposes. need for more time and the amount of The term "unit of local government" additional time requested. shall also include the recognized governing body of an Indian tribe or Alaskan § 51.5 Transfer of funds to secondary native village which performs substan- recipients. tial governmental functions. The Dis- Those prohibitions and restrictions set trict of Columbia, in addition to being forth in Subpart D of this part which treated as a State, shall also be treated are applicable to a recipient govern- as a county area which has no units of ment's entitlement funds continue to be local government ( other than itself) applicable to such funds if they are within its geographic area. transferred to another governmental unit or private organization. A violation of § 51.3 Procedure for effecting compli- Subpart D of this part by a secondary ance. recipient shall constitute a violation by (a) In general. If the Secretary de- the recipient government and the appli- termines that a recipient government has cable penalty shall be imposed on the failed to comply substantially with any recipient government. provision of this part, and after giving [38 FR 9132, Apr. 10, 1973, as amended at 38 FR reasonable notice and opportunity for a 18668, July 13, 1973] hearing to the Governor of the State or the chief executive officer of the unit of local government pursuant to Subpart F Subpart B-Reports and Written of this part, the Secretary shall notify Communications the recipient government that if it fails to take corrective action within 60 days § 51.10 Reports to the Secretary; assur- from the date of receipt of such notifica- ances. tion further payments to it will be with- (a) Reports for review and evaluation. held for the remainder of the entitlement The Secretary may require each recip- period and for any subsequent entitle- ient government receiving entitlement ment period until such time as the funds to submit such annual and interim Secretary is satisfied that appropriate reports ( other than those required by corrective action has been taken and § 51.11) as may be necessary to provide a that there will no longer be any failure basis for evaluation and review of com- to comply. Until he is satisfied, the Sec- pliance with and effectiveness of the retary shall make no further payments provisions of the Act and regulations of of such amounts. this part. (b) Determination to delay payment. (b) Requisite assurances for receipt Whenever the Secretary determines that of entitlement funds. Each Governor of a recipient government has failed to a State or chief executive officer of a comply with the communication require- unit of local government, in order to ments of Subpart B, he may delay pay- qualify for entitlement funds, must file ment of entitlement funds to such a statement of assurances when re- recipient. A determination to delay pay- quested by the Secretary, on a form to ment of entitlement funds shall not be be provided, that such government will subject to the procedure set forth in abide by certain specific requirements of paragraph (a) of this section and shall the Act and the prohibitions and restric- be in effect only for such time as is nec- tions of Subparts D and E of this part, essary to effect compliance. with respect to the use of entitlement [38 FR 18668, July 13, 1973; 38 FR 19801, July 24, funds. The Secretary will afford each 1973] Governor the opportunity for review and

40 TITLE 31 § 51.14

comment to the Secretary on the ade- only for priority expenditures as pre- quacy of the assurances by units of local scribed by § 51.31. The certifications re- government in his State. quired by this section shall be in such form as the Secretary may prescribe. §51.11 Report on planned use and actual use of funds. §51.13 Publication and publicity of re- (a) Planned use report. Each recipient ports; public inspection. government which expects to receive (a) Publication of required reports. funds under the Act shall submit to the Each recipient government must pub- Secretary a report, on a form to be pro- lish in a newspaper a copy of each report vided, of the specific amounts and pur- required to be filed under§ 51.11 (a) and poses for which is plans to spend the (b) prior to the time such report is filed funds which it expects to receive for an with the Secretary. Such publication entitlement period. The planned use re- shall be made in one or more newspapers ports for the third and fourth entitle- which are published within the State and ment periods (the 6-month period begin- have general circulation within the geo- ning January 1, 1973 and ending June 30, graphic area of the recipient government 1973, and the fiscal year beginning July 1, involved. In the case of a recipient gov- 1973 and ending June 30, 1974) shall be ernment located in a metropolitan area filed with the Secretary on a date he which adjoins and extends beyond the shall determine. Thereafter, each planned boundary of the State, the recipient gov- use report shall be filed prior to the ernment may satisfy the requirement of beginning of an entitlement period as this section by publishing its reports in defined in § 51.2 (f). a metropolitan newspaper of general cir- (b) Actual use report; status of trust culation even though such newspaper fund. Each recipient government which may be located in the adjoining State receives funds pursuant to the Act shall from the recipient government. submit to the Secretary an annual re- (b) Publicity.-Each recipient govern- port, on a form to be provided, of the ment, at the same time as required for amounts and purposes for which such publication of reports under paragraph funds have been spent or otherwise ( a) of this section, shall advise the news transferred from the trust fund ( as de- media, including minority and bilingual fined in § 51.40 (a) ) during the report- news media, within its geographic area ing period. Such report also shall state of the publication of its reports made any interest earned on entitlement funds pursuant to paragraph (a) of this sec- during the period. Such reports shall tion, and shall provide copies of such show the status of the trust fund includ- reports to the news media on request. ing its balance as of June 30 and shall be ( c) Public inspection.-Each recipient filed with the Secretary on or before government shall make available for September 1 of each calendar year. All public inspection a copy of each of the such funds must be used, obligated, or reports required under § 51.11 (a) and appropriated within the time period (b) and information as necessary to sup- specified in § 51.40 (b). port the information and data submitted [38 FR 9132, Apr. JO, 1973, as amended at 38 FR on each of those reports. ,Such detailed 18668, July 31, 1973] information shall be available for public inspection at a specified location during § 51.12 Certifications. normal business hours. The Secretary The Secretary shall require a certifica- may prescribe additional guidelines con- tion by the Governor, or the chief ex- cerning the form and content of such ecutive officer of the unit of local gov- information. ernment, that no entitlement funds have been used in violation of the prohibition §51.14 Reports to the Bureau of t'he contained in § 51.30 against the use of Census. entitlement funds for the purpose of ob- It shall be the obligation of each re- taining matching Federal funds. In the cipient government to comply promptly case of a unit of local government the with requests by the Bureau of the Cen- Secretary shall require a certification by sus ( or by the Secretary) for data and the chief executive officer that entitle- information relevant to the determina- ment funds received by it have been used tion of entitlement allocations. Failure

41 § 51.20 MONEY AND FINANCE: TREASURY

of any recipient government to so comply and the adjusted taxes, and intergovern- may place in jeopardy the prompt re- mental transfers of such parts are esti- ceipt by it of entitlement funds. mated on the basis of the ratio which the population of such part bears to the population of the entirety of such unit. Subpart C-Computation and Adjustment of Entitlement § 51.21 Adjusted taxes. (a) In general. Tax revenues are com- § 51.20 Data. pulsory contributions to a unit of local ( a) In general. The data used in de- government exacted for public purposes, termination of allocations and adjust- as such contributions are determined by ments thereto payable under this part the Bureau of the Census for general will be the latest and most complete data statistical purposes. The term "adjusted supplied by the Bureau of the Census or taxes" means the tax revenues adjusted such other sources of data as in the judg- by excluding an amount equal to that ment of the Secretary will provide for portion of such compulsory contributions equitable allocations. which is properly allocable to school op- (b) Computation and payment of en- erations, debt service on school indebted- titlements. (1) Allocations will not be ness, school capital outlays, and other made to any unit of local government educational purposes. if the available data is so inadequate as (b) Procedure for exclusion of tax to frustrate the purpose of the Act. Such revenues for education. The tax revenues units of local government will receive an exacted by a unit of local government entitlement and payment when current shall be adjusted to exclude any such tax and sufficient data become available as revenues used for financing education in necessary to permit an equitable alloca- a manner consistent with the following tion. provisions: (2) Payment to units of local govern- (1) Where a unit of local government ment for which the Secretary has not finances education from a specific fund received an address confirmation will be and lists tax revenues to the fund or delayed until proper information is avail- levies a separate tax for purposes of edu- able to the Secretary. cation, such amounts as determined will ( 3) Where the Secretary determines constitute the tax revenues for education. that the data provided by the Bureau of (2) If tax revenues for purposes of the Census or the Department of Com- education are not separately identifiable merce are not current enough, or are not because education is financed by expendi- comprehensive enough, or are otherwise ture or transferring of moneys from a inadequate to provide for equitable al- general fund (or similarly named fund) locations he may use other data, includ- to a school fund or funds, then the ing estimates. The Secretary's deter- ratio of tax revenues ( as defined in para- mination shall be final and such other graph (a) of this section) to the total additional data and estimates as are revenues in such fund shall be calculated, used, including the sources, shall be pub- and that ratio multiplied by the expendi- licized by notice in the FEDERAL REGIS- ture or transfer of moneys from such TER. fund to the school fund shall be equated ( c) Special rule for 6 month entitle- with the tax revenues properly allocable ment periods. For entitlement periods to expenses for education. The phrase which encompass only one-half of a year, "total revenues in such fund" means cash the adjusted taxes and intergovern- and securities on hand in the general mental transfers of any unit of local gov- fund ( or similiarly named fund) at the ernment for that half-year will be esti- beginning of the fiscal year, plus all mated to be one-half of the annual revenues to the fund (other than trust amounts. or agency revenues) less cash and se- (d) Units of local government located curities on hand at the end of the fiscal in more than one county area. In cases year. Trust and agency funds are those where a unit of local government is lo- held specifically for individuals or gov- cated in more than one county, each part ernments for which no discretion can be of such unit is treated for allocation pur- exercised as to the amounts to be paid poses as a separate unit of government, to the recipient.

42 TITLE 31 § S 1.23

(3) If any instance where neither [38 FR 9132, Apr. IO, 1973, as amended at 39 FR paragraph (b) (1) nor (2) of this sec- 8324, Mar. 5, 1974] tion permits determination of school § 51.23 Boundary changes, governmen- taxes, then any procedure deemed equita- tal reorganization, etc. ble by the Secretary shall be utilized to (a) In general. Boundary changes, ascertain adjusted taxes. governmental reorganizations, or changes (c) Validity of adjusted tax data. Al- in State statutes or constitutions occur- location of funds under the Act will be ring prior to or during an entitlement based on data reported by States and period which were not taken into account units of local governments to the Bureau during the initial allocation shall, if not of the Census and shall be in accord- within the scope of paragraph ( d) of ance with definitions established by the this section, affect such allocation or Bureau. No unit of government shall payments in a manner consistent with report to the Department of the Trea- the following provisions: sury or the Bureau of the Census in a (1) A boundary change, governmental manner which attempts to circumvent or reorganization, or change in State stat- frustrate the intent of this section. utes or constitution relevant to the computation of an entitlement of a unit § 51.22 Date for determination of allo- of local government under the Act, cation. occurring prior to the beginning of an (a) In general. Pursuant to the provi- entitlement period shall result in an sions of § 51.20 (a) and (b) (3), the alteration to the entitlement of that unit determination of the data definitions if brought to the attention of the Bureau upon which the allocations and entitle- of the Census within 60 days (or by ments for an entitlement period is to be June 30, 1973, in case of the third entitle- calculated shall be made not later than ment period) after the beginning of such the day immediately preceding the begin- entitlement period. ning of the entitlement period. The final (2) A boundary change, governmental date upon which determinations of allo- reorganization, or change in State stat- cations and entitlements, including ad- utes or constitution relevant to the com- justments thereto, may be made for an putation of entitlement of a unit of entitlement period shall be determined local government under the Act, occur- by the Secretary as soon as practicable ring during an entitlement period shall and shall be publicized by notice in the not result in a change to the entitlement FEDERAL REGISTER. of that unit until the next entitlement (b) Time limitation and minimum ad- period. However, payment tendered to justment. If prior to the date determined such unit for the entitlement period may by the Secretary pursuant to paragraph be redistributed pursuant to the provi- (a) of this section, it is established to the sions of paragraphs (b) and (c) of this satisfaction of the Secretary by factual section. evidence and documentation that the (b) New 11nits of local government. A data used in the computation of an allo- unit of local government which came cation is erroneous and, if corrected, into existence during an entitlement pe- would result in an increase or decrease riod shall first be eligible for an entitle- of an entitlement of $200 or more of ment allocation for the next entitlement entitlement funds, an adjustment will be period. However, if such unit is a succes- made. sor government, it shall be eligible to ( c) Adjusted taxes and intergovern- receive the entitlement payment of the mental transfers. The dates for deter- unit or units of local government to mining the amount of adjusted taxes and which it succeeded in accordance with intergovernmental transfers of a unit of the conditions of the succession. local government will be the fiscal year (c) Dissolution of units of local gov- of such unit ending during the 12 months ernment. A unit of local government prior to July 1, 1971. If a more recent which dissolved, was absorbed or ceased period is used, it shall be such fiscal year to exist as such during an entitlement that can be uniformly assembled for all period is eligible to receive an entitle- units of government prior to the begin- ment payment for that entitlement pening of the affected entitlement period. riod: Provided, That such unit of local

43 § 51.24 MONEY AND FINANCE: TREASURY

government is in the process of winding and, unless the attempted waiver is up its governmental affairs or a suc- rescinded within 30 days of the date of cessor unit of local government has legal such notice, it shall be given effect. How- capacity to accept and use such entitle- ever, in no event will a notice of waiver ment funds. Entitlement payments which be given effect for an entitlement period are returned to the Secretary because which is subsequent to the next begin- of the cessation of existence of a unit ning entitlement period. The entitlement of local government shall be placed in waived, and adjustments thereto, if any, the State and Local Government Fiscal resulting from recalculation of earlier Assistance Trust Fund until such times entitlements, shall be added to and shall as they can be redistributed according become a part of the entitlement of the to the c·onditions under which the unit next highest unit of government eligible of local government ceased to exist. to receive entitlement funds in that State ( d) Limitations on adjustment for an- in which the units of government waiv- nexations. ( 1) Annexations by units of ing entitlement is located. However, if local government having a population the governing body of an Indian tribe of less than 5,000 on April 1, 1970, shall or Alaskan native village waives its not affect the entitlement of any unit of entitlement for any period, the rules local government for an entitlement relating to distributions within county period unless the .Secretary determines areas (pursuant to section 108(b) (4) of that adjustments pursuant to such an- the Act) are to apply to the distribution nexations would be equitable and would within a county area as if such tribe or not be unnecessarily burdensome, ex- village were not in existence for that pensive, or otherwise impracticable. period. A waiver of entitlement by a unit of local government or Indian tribe or (2) Annexations of areas with a popu- Alaskan native village shall be deemed lation of less than 250 or less than 5 per- irrevocable for the entitlement period or cent of the population of the gaining periods to which it relates. government, shall not affect the entitlement of any unit of local government. (b) Constructive waiver. Any recipient government which has not waived and (e) Certification. Units of local gov- is otherwise eligible to receive entitle- ernment affected by a boundary change, ment payments and which has failed to governmental reorganization, or change provide required reports, assurances or in State statutes or constitution shall, certifications pursuant to Subpart B is before receiving an entitlement adjust- subject to a determination of having ment or payment redistribution pursu- constructively waived its entitlement ant to this section, obtain State certifica- funds for the affected entitlement period tion that such change was accomplished through inaction. The Secretary, prior to in accordance with State law. The certi- such a determination, shall notify non- fying official shall be designated by the responsive recipient governments of their Governor, and such certification shall be noncompliance and that their entitlement submitted to the Bureau of the Census. funds are being temporarily withheld pursuant to § 51.3 ( b) . If compliance is § 51.24 Waiver of entitlement; nonde- not achieved within a reasonable period livery of checks; insufficient data. of time, which shall not be less than 30 (a) Waiver. Any unit of local govern- days, the Secretary shall notify the ment may waive its entitlement for any affected recipient governments that if entitlement period: Provided, The chief compliance is not achieved within a executive officer with the consent of the period of 30 days after mailing such governing body of such unit notifies the notice, a constructive waiver of entitle- Secretary that the entitlement payments ment funds will be determined to have for a past, current, or the next beginning occurred. Entitlement funds thus con- entitlement period are being waived. In structively waived will be redistributed the event that an entitlement payment pursuant to the provisions of paragraph is returned or a notice of waiver is exe- (a) of this section. cuted which is not in accordance with (c) Nondelivery. Entitlement funds for this procedure, the chief executive offi- any entitlement period which are re- cer will be so notified by the Secretary turned by the U.S. Postal Service to the 44 TITLE 31 § 51.26

Department of the Treasury as being § 51.26 State must maintain transfers nondeliverable because of incorrect ad- to local governments. dress information, or which are un- (a) General rule. The entitlement of claimed for any reason, shall be placed any State government for any entitle- in the State and Local Government ment period beginning on or after July 1, Fiscal Assistance Trust Fund until such 1973, shall be reduced by the amount (if time as payment can be made. any) by which- ( d) Insufficient data. Entitlement (1) The average of the aggregate funds for any entitlement period which amounts transferred by the State gov- are withheld from payment because of ernment out of its own sources during insufficient data upon which to compute such period ( or during that States fis- the entitlement, or for which payment cal year ending on or immediately prior cannot be made for any other reason, to the end of such period) and the pre- shall remain in the State and Local Gov- ceding entitlement period ( or such fiscal ernment Fiscal Assistance Trust Fund year) to all units of local government until such time as payment can be made. (as defined in § 51.2(m) in such State, [38 FR 9132, Apr. 10, 1973, as amended at 38 FR is less than, 18668, July 13, 1973; 39 FR 8324, Mar. 5, 1974] (2) The similar aggregate amount for the 1-year period beginning July 1, 1971 § 51.25 Reservation of funds and ad- ( or that State's fiscal year ending on or justment of entitlement. immediately prior to the end of such period). (a) Reservation of entitlement funds. For purposes of paragraph (a) (1) of In order to make subsequent adjust- this section, the amount of any reduc- ments to an entitlement payment under tion in the entitlement of a State gov- this part which may be necessitated be- ernment under this section for any cause of insufficient or erroneous data entitlement period shall, for subsequent or for any other reason, the Secretary entitlement periods, be treated as an shall reserve in the State and Local Gov- amount transferred by the State govern- ernment Fiscal Assistance Trust Fund ment out of its own sources during such percentage of the total entitlement such period to units of local government funds for any entitlement period as in in such State. The phrase "own sources" his judgment shall be necessary to insure means all sources of State revenue (in- that there will be sufficient funds avail- cluding debt proceeds and the State's able so that all recipient governments revenue sharing entitlement funds) but will receive their full entitlements. Such excluding intergovernmental revenues re- reserve shall be known as the Obligated ceived from the Federal government. Adjustment Reserve and amounts re- (b) Measurement of maintenance of maining in that reserve will accumulate effort. In those States that do not have until the liabilities of the Trust Fund are an accounting system providing an audit discharged or sufficiently diminished to trail for all funds concerned (from own permit an allocation to recipient govern- source to final application) in intergov- ments. ernmental transfer to units of local gov- (b) Adjustment to entitlement pay- er!}ment ( such as those States in which ments. Adjustment to an entitlement of a intergovernmental transfers to units of recipient government will ordinarily be local government are made from a com- effected through alteration to entitle- mingled fund with no identification as ment payments unless there is a down- to specific revenue source), the following ward adjustment which is so substantial formula may be applied by the Secretary as to make payment alterations imprac- to establish the base year intergovern- ticable or impossible. In such case the mental transfers to units of local govern- Secretary may demand that the funds ment from own sources and to generally received by the recipient government in monitor level of accordance with the excess of its entitlement be immediately maintenance provision of paragraph (a) repaid to the Trust Fund of the Depart- of this section during future entitlement ment of the Treasury. periods: [38 FR 9432, Apr. IO, 1973, as amended at 38 FR (1) It shall be assumed that the ratir 18669, July 13, 9173; 39 FR 8324, Mar. 5, 1974] of a State's own source intergovern

45 § 51.26 MONEY AND FINANCE: TREASURY

mental transfers to units of local govern- a State's calculated own source average ment to that .State's total intergovern- aggregate intergovernmental transfers mental transfers to units of local gov- to units of local government ( over the ernment is equal to the ratio of that appropriate periods) be less than such State's own source revenues to its total transfers as calculated for the base revenues. Thus, for a State in which such period, the difference (as defined in para- formula may be applied, its base year graph (b) (3) of this section) shall con- own source intergovernmental transfers stitute the future indicated reduction in to units of local government shall be that State's entitlement unless such State assumed to equal its total intergovern- can document to the Secretary that the mental transfers to units of local gov- fact or amount of nonmaintenance as ernment in the base year multiplied by determined by application of the formula its own source revenue in the base year is inaccurate. divided by its total revenues in the base ( c) Alternative procedure. If the Sec- year. retary shall determine that application (2) In a State in which the formula is of the formula set forth in paragraph applied, the State's own source inter- (b) of this section in a particular case governmental transfers to units of local provides an inaccurate or unfair mea- government in a future entitlement pe- sure of transfer effort, then any formula, riod shall be assumed to equal the aver- procedure, or method deemed equitable by age of- the Secretary, may be utilized to measure (i) The State's total intergovernmen- such transfer effort for the purpose of tal transfers to units of local govern- implementing the maintenance provi- ment during that period (or that State's sion. fiscal year ending on or immediately prior to the end of such period) multi- (d) Adjustment where State assumes plied by its own source revenue in that responsibility for category of expendi- period ( or such fiscal year) divided by tures. If the State government establishes its total revenues in that period ( or such to the satisfaction of the Secretary that fiscal year) and since June 30, 1972, it has assumed re- (ii) The State's total intergovernmen- sponsibility for a category of expendi- tal transfers to units of local government tures which (before July 1, 1972) was during the preceding entitlement period the responsibility of local governments ( or that States' fiscal year ending on or located in such State, then, the aggregate immediately prior to the end of such amount taken into account under para- period) multiplied by its own source graph (a) (2) of this section shall be revenue in that period (or such fiscal reduced to the extent that increased year) divided by its total revenues in State government spending ( out of its that period ( or such fiscal year). own sources) for such category has re- (3) Therefore, in a State in which the placed corresponding amount which for formula is applied, maintenance (for a the 1-year period beginning July 1, 1971 given entitlement period) of intergovern- ( or that State's fiscal year ending on or mental transfer effort to units of local immediately prior to the end of such government will be measured by the dif- period) it transferred to units of local ference between that State's average government. aggregate intergovernmental transfers to (e) Adjustment where new taxing units of local government ( over the ap- powers are conferred upon local govern- propriate periods) as calculated by em- ments. If a State establishes to the satis- ploying the method described in para- faction of the Secretary that since June graph (b) (2) of this section and that 30, 1972, one or more units of local gov- State's own source intergovernmental ernment within such State havP had con- transfers to units of local government in ferred upon them new taxing authority, the base period as calculated by employ- then, the aggregate amount taken into ing the method described in paragraph account under paragraph (a) (2) of this (b) ( 1) of this section. section shall be reduced to the extent of (4) Should the application of this for- the larger of- mula during any entitlement period indi- (1) An amount equal to the amount of cate nonmaintenance, for example, should the taxes collected by reason of the exer-

46 TITLE 31 § 51.27 cise of such new taxing authority by portunity for hearing to the State. If, such local governments, or thereafter, he determines that paragraph (2) An amount equal to the amount of (a) of this section requires the reduction the loss of revenue to the State by reason of such entitlement, he shall also deter- of such new taxing authority being con- mine the amount of such reduction and ferred on such local governments. shall notify the Governor of such State No amount shall be taken into consider- of such determinations and shall with- ation under paragraph (e) (1) of this hold from subsequent payments to such section if such new taxing authority is State government under this subtitle an an increase in the authorized rate of tax amount equal to such reduction. under a previously authorized kind of (j) Transfer to general fund. An tax, unless the State is determined by the amount equal to the reduction in the en- Secretary to have decreased a related titlement of any State government which State tax. results from the application of this sec- (f) Special rule for period beginning tion (after any judicial review) shall be July 1, 1973. In the case of the entitle- transferred from the Secretary's Trust ment period beginning July 1, 1973, the Fund to the general fund of the Trea- preceding entitlement period for purposes sury on the day on which such reduction of paragraph (a) (1) of this section shall becomes final. be treated as being the 1-year period be- [38 FR 9132, Apr. 10, 1973, as amended at 38 FR ginning July 1, 1972, or that State's fis- 18669, July 13, 1973] cal year which ends prior to June 30, 1973. § 51.27 Optional formula. (g) Special rule for period beginning (a) In general. A State government July 1, 1976. In the case of the entitle- may by law provide for the allocation of ment period beginning July 1, 1976, and entitlement funds among county areas, ending December 31, 1976, the aggregate or among units of local government amount taken into account under para- (other than county governments, Indian graph (a) (1) of this section for the pre- tribes, and Alaskan native villages): (1) ceding entitlement period and the aggre- On the basis of the population multiplied gate amount taken into account under by the general tax effort factors of such paragraph (a) (2) of this section shall be areas or units of local governments; or, one-half of the amounts which (but for (2) on the basis of the population multi- this paragraph (g) ) would be taken into plied by the relative income factors of account. such areas or units of local government; (h) Report by Governor. Pursuant to or, (3) on the basis of a combination of the authority of § 51.10 and in order to those two factors. Any State which pro- effect compliance with this section, the vides by law for such a variation in the Governor of each State shall submit to allocation formula provided by subsec- the Secretary within 90 days after the tions 108 (a) or 108 (b) (2) and (3) of end of the State's fiscal year, on a form the Act, shall notify the Secretary of to be provided, the aggregate transfers such law not later than 90 days before from own source revenues to units of the beginning of the first entitlement local government for those entitlement period to which such law is to apply. Any periods or that State's fiscal years speci- such law shall: fied on the report: (1) Provide for allocating 100 percent (1) The State's own source revenues. of the aggregate amount to be allocated (2) The State's total revenues. under subsections 108(a) or 108(b) (2) (3) The State's own source transfers and (3) of the Act; to units of local government. (2) Apply uniformly throughout the ( 4) The State's total transfers to units State; and of local government. (3) Apply during the period beginning (i) Reduction in entitlement. If the on the first day of the first entitlement Secretary has reason to believe that period to which it applies and ending on paragraph ( a) of this section requires a December 31, 1976. reduction in the entitlement of any State (b) Single legislation required. If a government for any entitlement period, State government alters its county area he shall give reasonable notice and op- allocation formula or its local govern-

47 I 51.28 MONEY AND FINANCE: TREASURY

ment allocation formula, or both, such section, a county area allocation is less alteration may be made only once and than the 20-percent limit, its allocation must be made in the same legislative shall be increased to the 20-percent level enactment. and the resulting deficit shall be shared (c) Certification required. Paragraph proportionately by all remaining uncon- (a) of this section shall apply within a strained county areas. State only if the Secretary certifies that (b) Local government ( other than a the State law complies with the require- county government)-(1) In general. ments of such paragraph. The Secretary Except as provided below, the per-capita shall not certify any such law with re- amount allocated to any unit of local spect to which he receives notification government ( other than a county govern- later than 30 days prior to the first ment) shall be not less than 20-percent, entitlement period during which it is to nor more than 145-percent, of two-thirds apply. of the amount allocated to the State under section 106 of the Act, divided by (38 FR 9132, Apr. 10, 1973, as amended at 39 FR 8324, Mar. 5, I 974] the population of that State. (2) One hundred forty-five-percent § 51.28 Adjustment of data factors. rule. If a unit of local government is The data factors and data definitions allocated an amount greater than the used in computing entitlements under the 145-percent limit, its allocation shall be Act for any entitlement period will be reduced to that level. made available to each State government ( 3) Twenty-percent rule. If a unit of and unit of local government as soon as local government is allocated an amount practicable. Each such government will less than the 20-percent limit, its alloca- be given a reasonable opportunity to tion shall be increased to the lower of question those data factors by providing the 20-percent limit or 50 percent of the the Department with factual documenta- sum of that unit's adjusted taxes and tion demonstrating evidence of error. If transfers. the Secretary determines that any data (c) One hundred-percent criterion. If factors used were erroneous, necessary the amounts allocated to recipient gov- adjustments will be made. Data factors ernments of a State do not total 100 which are used for more than one en- percent of the amount allocated to that titlement period will be subject to chal- State, the amount to be allocated to lenge and adjustment only for the first county areas shall be adjusted appro- entitlement period in which they were priately, and the allocation process shall used. be repeated until the amounts allocated to recipient governments of a State total § 51.29 Adjustment of maximum and 100 percent of the amount allocated to minimum per capital entitlement; 100 percent criterion. that State. (a) County area maximum and minimum per capita. entitlement--(1) In Subpart D-Prohibition and general. Pursuant to section lOS(b) (6) Restrictions on Use of Funds of the Act, the per capita amount allocated to any county area shall be not §51.30 Matching funds. less than 20 percent, nor more than 145 (a) In general. Entitlement funds percent, of two-thirds of the amount may not be used, directly or indirectly, allocated to the State under section 106 as a contribution in order to obtain any of the Act, divided by the population of Federal funds under any Federal pro- that State. gram. The indirect use of entitlement (2) One hundred forty-five-percent funds to match Federal funds is defined rule. If a county area allocation is to mean the allocation of entitlement greater than the 145-percent limit, its funds to a nonmatching expenditure and allocation shall be reduced to the 145- thereby releasing or displacing local percent level and the resulting surplus funds which are used for the purpose of shall be shared proportionately by all matching Federal funds. This prohibition remaining unconstrained county areas. on use of entitlement funds as matching (3) Twenty-percent rule. If, after the funds applies to Federal programs where application of paragraph (a) (2) of this Federal funds are required to be matched

48 TITLE 31 § 51.J 1 by non-Federal funds and to Federal pro- believe that a recipient government has grams which allow matching from either used entitlement funds to match Federal Federal or non-Federal funds. funds in violation of the Act, the Secre- (b) Secondary recipients. The prohi- tary shall give such government notice bition of paragraph (a) applies to a re- and opportunity for hearing. If the Sec- cipient government's entitlement funds retary determines that such government which are transferred by it to another has, in fact, used funds in violation of governmental unit or private organiza- this section, he shall notify such govern- tion. A violation of this section by a sec- ment of his determination and shall ondary recipient shall constitute a viola- request repayment to the United States tion by the recipient government and the of an amount equal to the funds so used. penalty provided by subparagraph (f) of To the extent that such government fails this section shall be imposed on the re- to repay such amount, the Secretary shall cipient government. withhold from subsequent entitlement (c) Certification required. Pursuant to payments to that government an amount § 51.12, the chief executive officer of of entitlement funds equal to the funds each recipient government must certify used in violation of this section or, if to the Secretary that entitlement funds this method is impracticable, the Sec- received by it have not been used in retary may refer the matter to the Attor- violation of this section. ney General for appropriate civil action. ( d) Increased State or local govern- (g) Use of entitlement funds to supplement revenues. No recipient government Federal grant funds. The prohibi- ment shall be determined to have used tion on use of entitlement funds con- funds in violation of paragraph (a) of tained in paragraph (a) of this section this section with respect to any funds does not prevent the use of entitlement received for any entitlement period ( or funds to supplement other Federal grant during its fiscal year) to the extent that funds. For example, if expenditures for net revenues received by it from its own a project exceed the amount available sources during such period exceed the from non-Federal funds plus matched net revenues received by it from its own Federal funds, the recipient government sources during the 1-year period begin- may use entitlement funds to defray the ning July 1, 1971 ( or its fiscal year end- excess costs: Provided, however, That ing during the same period). In the case the entitlement funds are not used to of the entitlement periods of 6 months, match other Federal funds: And Pro- one-half of such net revenues shall be vided further, That in the case of a unit measured. of local government, the use of entitle- (e) Presumptions of compliance. No ment funds to supplement Federal grants recipient government shall be determined is restricted to the category of expendi- to have used entitlement funds in viola- tures as set forth in § 51.31. tion of the indirect prohibition of para- § 51.31 Permissible expenditures. graph (a) of this section to the extent that: (a) In general. Entitlement funds re- (1) The expenditure of entitlement ceived by units of local government may funds was accompanied by an aggregate be used only for priority expenditures. increase in nonmatching funds expendi- As used in this part, the term "priority tures. expenditures" means: (2) The receipt of entitlement funds ( 1) Ordinary and necessary mainte- permitted that government to reduce nance and operating expenses for- taxes: Provided, Nonentitlement revenue ( i) Public safety (including law en- is sufficient to cover all matching funds forcement, fire protection, and building contributions. code enforcement); (3) The matching funds contribution (ii) Environmental protection (includ- in question is accounted for by an ining sewage disposal, sanitation, and kind contribution which was not financed pollution abatement) ; directly or indirectly with entitlement (iii) Public transportation (including funds. transit systems and streets and roads) ; (f) Determination by Secretary of the (iv) Health; Treasury. If the Secretary has reason to (v) Recreation;

49 § 51.32 MONEY AND FINANCE: TREASURY

(vi) Libraries; activity funded in whole or in part with (vii) Social services for the poor or entitlement funds made available pur- aged; and suant to subtitle A of title I of the Act. (viii) Financial administration, and For purposes of this section "program or (2) Ordinary and necessary capital activity" is defined as any function con- expenditures authorized by law. No unit ducted by an identifiable administrative of local government may use entitlement unit of the recipient government, or by funds for nonpriority expenditures which any unit of government or private con- are defined as any expenditures other tractor receiving entitlement funds from than those included in paragraph (a) (1) the recipient government. "Funded in and (2) of this section. Pursuant to whole or in part with entitlement funds" § 51.12, the chief executive officer of each means that entitlement funds in any unit of local government must certify to amount have been transferred from the the Secretary that entitlement funds re- recipient government's trust fund to an ceived by it have been used only for identifiable administrative unit and dis- priority expenditures as required by the bursed in a program or activity. Act. (b) Specific discriminatory actions (b) Use of entitlement funds for debt prohibited. ( 1) a recipient government retirement. The use of entitlement funds may not, under any program or activity for the repayment of debt is a permissi- to which the regulations of this section ble expenditure provided that: may apply, directly or through contrac- (1) Entitlement funds are not used to tual or other arrangements, on the pay any interest incurred because of the grounds of race, color, national origin, or debt, sex: (2) The debt was originally incurred (i) Deny any service or other benefit for a priority expenditure purpose as provided under the program or activity. defined in this section, (ii) Provide any service or other bene- ( 3) The actual expenditure from the fit which is different, or is provided in a proceeds of the indebtedness (i.e., for different form from that provided to materials, contractors, etc.) was made on others under the program or activity. or after January 1, 1972 (the beginning (iii) Subject to segregated or separate of the first entitlement period), treatment in any facility in, or in any (4) The actual expenditures from the matter or process related to receipt of proceeds of the indebtedness were not in any service or benefit under the program violation of any restrictions enumerated or activity. in this subpart. (iv) Restrict in any way the enjoy- (c) the Effect of noncompliance. In ment of any advantage or privilege case of a unit of local government which enjoyed by others receiving any service uses an amount of entitlement funds for or benefit under the program or activity. other than priority expenditures as de- (v) Treat an individual differently fined in paragraph (a) of this section, it from others in determining whether he will pay over to the Secretary ( for de- satisfies any admission, enrollment, eligi- posit in the general fund of the Trea- bility, membership, or other requirement sury) an amount equal 110 percent of to or condition which individuals must meet any amount expended in violation of in order to be provided any service or paragraph (a) of this section, unless other benefit provided under the program such amount of entitlement funds is or activity. promptly repaid to the trust fund of the (vi) Deny an opportunity to partici- local government after notice by the pate in a program or activity as an Secretary and opportunity for corrective employee. action. (2) A recipient government may not § 51.32 Discrimination. utilize criteria or methods of adminis- (a) Discrimination prohibited. No per- tration which have the effect of subject- son in the United States shall, on the ing individuals to discrimination on the ground of race, color, national origin, or basis of race, color, national origin, or sex, be excluded from participation in, be sex, or have the effect of defeating or denied the benefits of, or be subjected to substantially impairing accomplishment discrimination under, any program or of the objectives of the program or

50 TITLE 31 § 51.32 activity with respect to individuals of a recipient government of the receipt of particular race, color, national origin, or such report. If the Secretary has reason sex. to believe that the report shows a re- (3) A recipient government in deter- cipient government has failed to comply mining the site or location of facilities with the provisions of this part, he will may not make selections of such site or cause a prompt investigation to be made location which have the effect of exclud- with respect to the facts and circum- ing individuals from, denying them the stances alleged in the report and with benefits of, or subjecting them to dis- respect to the program or activity con- crimination on the grounds of race, color, cerned. Such investigation may be made, national origin, or sex from, the benefits if necessary, with the assistance of com- of an activity or program; or which have plainants or of the recipient government. the purpose or e_ffect of defeating or sub- No representative of a recipient govern- stantially impairing the accomplishment ment nor any of its agencies shall intimi- of the objectives of the Act and of this date, threaten, coerce, or discriminate section. against any person or class of persons ( 4) A recipient government shall not because of testimony, assistance or parti- be prohibited by this section from taking cipation in an investigation, proceeding, any action to ameliorate an imbalance in or hearing under this section. services or facilities provided to any geo- (e) Compliance reviews. The Secre- graphic area or specific group of persons tary shall monitor and determine com- within its jurisdiction, where the purpose pliance of recipient governments with of such action is to overcome prior dis- the requirements of this section and of criminatory practice or usage. the Act. Compliance reviews will be (5) Notwithstanding anything to the undertaken from time to time, as appro- contrary in this section, nothing con- priate, at the discretion of the Secretary. tained herein shall be construed to pro- (f) Procedure for effecting compli- hibit any recipient government from ance. (1) Whenever the Secretary deter- maintaining or constructing separate mines that a recipient government has living facilities or rest room facilities for failed to comply with this section, he the different sexes. Furthermore, selec- shall notify the chief executive officer of tivity on the basis of sex is not pro- such recipient government and the Gov- hibited when institutional or custodial ernor of the State in which such gov- services can properly be performed only ernment is located of the noncompliance by a member of the same sex as the and shall request the Governor to secure recipients of the services. compliance. If within a reasonable time, ( c) Assurances required. Pursuant to not to exceed 60 days, the Governor fails, § 51.00 (b), each Governor of a State or or refuses to secure compliance, the chief executive officer of a unit of local Secretary is authorized: ( i) To refer the government shall include, in the assur- matter to the Attorney General of the ances to the Secretary required by that United States with a recommendation section, a statement that all programs that an appropriate civil action be insti- and activities funded in whole or in part tuted; (ii) to exercise the powers and by entitlement funds will be conducted in functions and the administrative reme- compliance with the requirements of this dies provided by Title VI of the Civil section. Such assurances shall be in a Rights Act of 1964 ( 42 U.S.C. 2000d); form prescribed by the Secretary. or ( iii) to take such other action as may (d) Complaints and investigations. be authorized by law. Any person who believes himself, or any (2) No action to effect compliance with specific class of persons who believe this section by any other means author- themselves, to be subjected to discrimi- ized by law shall be taken by the Depart- nation prohibited by this section, may by ment until: himself or by a representative file with (i) The Secretary has determined that the Secretary a written report setting compliance cannot be secured by volun- forth the nature of the discrimination tary means, and the recipient govern- alleged and the facts upon which the ment has been notified of such deter- allegation is based. The Secretary shall mination; and advise the chief executive officer of the (ii) The expiration of at least 10 days

51 § 51.33 MONEY AND FINANCE: TREASURY from the mailing of such notice to the a finding of noncompliance until such recipient government. During this period time that he is satisfied that such gov- of at least 10 days, additional efforts ernment will comply with the provisions may be made to persuade the recipient of this section. government to comply with this regula- (g) Delegation. The Secretary may tion and to take such corrective action as from time to time assign to officials of may be appropriate. the Department, or to officials of other (3) An order pursuant to Title VI of departments or agencies of the Govern- the Civil Rights Act of 1964 terminating ment with the consent of such depart- or refusing to grant or continue entitlements or agencies, responsibilities in ment payments or demanding the for- connection with the effectuation of the feiture, repayment or withholding of purposes of this section ( other than the entitlement funds shall become effective review of initial decision of the adminis- 'only after the procedures in paragraph trative law judge) including the achieve- (f) (1) of this section have been comment of effective coordination within the plied with and: executive branch in the implementation (i) The Secretary has advised the re- of Title VI of the Civil Rights Act of cipient government of its failure to com- 1964 (42 u.s.c. 2000d). ply and has determined that compliance (h) Hearing procedure. Whenever a cannot be secured by voluntary means; procedure which requires due notice and (ii) There has been an express finding opportunity for hearing is involved by on the record, after such notice pre- the Secretary to effect compliance under scribed in this section, and after oppor- this section, the procedural regulations tunity for hearing, of a failure by the promulgated in Subpart F of this part recipient government to comply with a shall govern. requirement imposed by or under this part; § 51.33 Wage rates, and labor standards. (iii) The action has been approved (a) Construction laborers and me- by the Secretary; and chanics. A recipient government which (iv) Thirty days have elapsed after receives entitlement funds under the Act the Secretary has filed with the Com- shall require that all laborers and me- mittee on Ways and Means of the House chanics employed by contractors or sub- of Representatives and the Committee on contractors in the performance of work Finance of the Senate a full written on any construction project costing in report of the circumstances and the excess of $2,000.00 and of which 25 per- grounds for such action; and cent or more of the cost is paid out of (v) The forfeiture or repayment of its entitlement funds: (1) Will be paid entitlement funds shall be limited to the wages at rates not less than those pre- particular recipient government as to vailing on similar construction in the whom a finding of noncompliance is locality as determined by the Secretary made with this section and shall be of Labor in accordance with the Davis- limited to the program or activity in Bacon Act as amended ( 40 U .S.C. 276a- which such noncompliance has been so 276a-5); and (2) will be covered by found. The amount of entitlement funds labor standards specified by the Secre- as are forfeited by the recipient govern- tary of Labor pursuant to 29 CFR Parts ment shall be reflected in a downward 1, 3, 5, and 7. adjustment to future entitlement pay- (b) Request for wage determination. ments and shall be deposited in the gen- In situations where the Davis-Bacon eral fund of the Treasury. If the Sec- standards are applicable, the recipient retary determines that adjustment to government must ascertain the U.S. De- future entitlement payments is imprac- partment of Labor wage rate determina- ticable, he may refer the matter to the tion for each intended project and insure Attorney General for appropriate civil that the wage rates and the contract action to require repayment of such clauses required by 29 CFR 5.5 and 29 amount to the United States. Further- CFR 5a.3 are incorporated in the con- more, the Secretary shall withhold pay- tract specifications. The recipient gov- ment of all entitlement funds to a recipi- ernment must also satisfy itself that the ent government for which there has been bidder is made aware of his labor stand-

52 TITLE 31 § 51.41 ards responsibilities under the Davis- check is applicable. Any interest earned Bacon Act. Wage rate determinations on such funds while in the trust fund may be obtained by filing a Standard shall be used, obligated, or appropriated Form 308 with the Employment Stand- within 24 months from the end of the ards Administration of the applicable entitlement period during which the in- regional office of the U.S. Department of terest was received or credited. An exten- Labor at least 30 days before the invita- sion of time in which to act on the funds, tion for bids or, in case of construction or interest earned thereon, must be covered by general wage rate determina- obtained by application to the Secretary. tions, the appropriate rate may be ob- Such application will set forth the facts tained from the FEDERAL REGISTER. and circumstances supporting the need (c) Government employees. A recipient for more time and the amount of addi- government which employs individuals tional time requested. The Secretary may whose wages are paid in whole or in part grant such extensions of time as in his from entitlement funds must pay wages judgment appear necessary or appropri- which are not lower than the prevailing ate. rates of pay for persons employed in ( c) Provide for the expenditure of en- similar public occupations by the same titlement funds in accordance with the employer. However, this subsection shall laws and procedures applicable to the apply with respect to employees in any expenditure of its own revenues. category only if 25 percent or more of ( d) Maintain its fiscal accounts in a the wages of all employees of the recipi- manner sufficient to: ent government in such category are (1) Permit the reports required by the paid from the trust fund established by Secretary to be prepared therefrom, it under § 51.40 (a) . (2) Document compliance with the [38 FR 9132, Apr. IO, 1973, as amended at 39 FR matching funds certification, and 8324, ~far. 5, 1974] (3) Permit the tracing of entitlement § 51.34 Restriction on expenditures by funds to a level of expenditure adequate Indian tribes and Alaskan native to establish that such funds have not villages. been used in violation of the restrictions Indian tribes and Alaskan native vil- and prohibitions of this part. lages as defined in § 51.2 are required to The accounting for entitlement funds expend entitlement funds only for the shall at a minimum employ the same fis-" benefit of members of the tribe or village cal accounting and internal audit pro- residing in the county area from which cedures as are used with respect to the allocation of entitlement funds was expenditures from revenues derived from originally made. Expenditures which are the recipient government's own sources. so restricted will not constitute a failure ( e) Provide to the Secretary and to the to comply with the requirement of §51.- Comptroller General of the United 32 (a). States, on reasonable notice, access to and the right to examine such books, Subpart E-Fiscal Procedures and documents, papers or records as the Sec- retary may reasonably require for the Auditing purpose of reviewing compliance with § 51.40 Procedures applicable to the use the Act and the regulations of this part of funds. or, in the case of the Comptroller Gen- A recipient government which receives eral, as the Comptroller General may entitlement funds under the Act shall: reasonably require for the purpose of (a) Establish a trust fund and deposit reviewing compliance and operations all entitlement funds received and all under the Act. interest earned thereon in that trust (38 FR 9132, Apr. 10, 1973, as amended at 39 FR fund. The trust fund may be established 8325, l\lar. 5, 1974] on the books and records as a separate set of accounts, or a separate bank § 51.41 Auditing and evaluation; scope account may be established. of audits. (b) Use, obligate, or appropriate such (a) In general. The Secretary shall funds within 24 months from the end provide for such auditing and evaluation of the entitlement period to which the as may be necessary to insure that ex-

53 § 51.50 MONEY AND FINANCE: TREASURY penditures of entitlement funds by recipi- dit reports are retained for 3 years after ent governments comply with the require- the issuance of the audit report, and are ments of the Act and regulations of this available upon request to the Secretary part. Detail audits, reviews and evalua- and the Comptroller eneral or to their tions may be made on a sample basis representatives; and, through inspection of records, and of (4) Audit reports shall contain a clear reports required under subpart B of this statement of the auditor's findings as to part, and through on-site examinations, compliance or noncompliance with the to determine whether the recipient gov- requirements of the Act and the regula- ernments have properly discharged their tions of this part. In the event that an financial responsibilities and to evaluate auditor is unable to review compliance compliance with the Act and the regula- with all of the provisions of paragraph tions of this part. (b), the audit report shall reflect those (b) Scope of audits. The scope of such areas in which a compliance review was audits may include a review of entitle- not performed. Audit reports which dis- ment fund transactions, accounts and close or otherwise indicate a possible reports. In addition, the scope of such failure to comply substantially with any audits may include an examination of requirements of the Act or the regula- the following areas: tions of this part will be submitted to (1) Compliance with assurances made the Secretary by the Governor or chief under § 51.10. executive officer. (2) Compliance with the requirement that States must maintain transfers to Subpart F-Proceedings or Reduction local governments as required by section in Entitlement, Withholding, or Re- 107 (b) of the Act. payment of Funds (3) Compliance with the reporting re- § 51.50 Scope of subpart. quirements and accuracy of the reports The regulations of this subpart govern submitted to th,e Secretary as set forth the procedure and practice requirements in Subpart B of this part. involving adjudications where the Act ( 4) Accuracy of fiscal data reported requires reasonable notice and opportu- to the Bureau of the Census. nity for hearing. ( 5) Accuracy of the public records required under § 51.13 ( c). § 51.51 Liberal construction. ( c) Reliance on State and local gov- The regulations in this subpart shall ernment audits. It is the intention of the be liberally construed to secure just, ex- Secretary to rely to the maximum extent peditious, and efficient determination of possible on audits of recipient govern- the issues presented. The Rules of Civil ments by State and local government Procedure for the District Courts of the auditors and independent public account- United States, where applicable, shall be ants. The Secretary may accept such a guide in any situation not provided for audits when in his judgment this may or controlled by this subpart, but shall be reasonably be done consistent with the liberally construed or relaxed when provisions of the Act and regulations of necessary. this part, and provided: (1) Audits are performed in accord- § 51.52 Reasonable notice and opportu- ance with generally accepted auditing nity for hearing. standards. Recipient governments are Whenever the Secretary has reaso~ to encouraged to have such audits per- believe that a recipient government has formed, to the extent they consider prac- failed to comply with any section of the ticable, in accordance with standards for Act or of the provisions of this part, and the Audit of Governmental Organiza- that repayment, withholding, or reductions, Programs, Activities and Func- tion in the amount of an entitlement of tions issued by the Comptroller General a recipient government is required, he in June 1972. shall give reasonable notice and oppor- ( 2) Audits include coverage as set tunity of hearing to such government forth in paragraph (b) of this section. prior to the invocation of any sanction (3) Audit workpapers and related au- under the Act.

54 TITLE 31 § 51.57

§ 51.53, Opportunity for compliance. or it may be served in any other manner Except in proceedings involving will- which has been agreed to by the respon- fulness or those in which the public in- dent. Where the service is by certified terest requires otherwise, a proceeding mail, the return Postal Service receipt under this part will not be instituted duly signed on behalf of the respondent until such facts or conduct which may shall be proof of service. warrant such action have been called to (b) Service of papers other than com- the attention of the chief executive plaint. Any paper other than the com- officer of the recipient government in plaint may be served upon the respon- writing and he has been accorded an dent or upon its attorney of record by opportunity to demonstrate or achieve first-class mail. Such mailing shall con- compliance with the requirements of the stitute complete service. Act and the regulations of this part. If ( c) Filing of papers. Whenever the the recipient government fails to meet filing of a paper is required or permitted the requirements of the Act and regula- in connection with a proceeding under tions within such reasonable time as may this part, and the place of filing is not be specified by the Secretary, a proceed- specified in this subpart or by rule or ing shall be initiated. If the recipient order of the administrative law judge, government is a unit of local government, the paper shall be filed with the Director, regarding the alleged violation shall be Office of Revenue Sharing, Treasury De- transmitted by the Secretary to the Gov- partment, Washington, D.C. 20226. All ernor of the State in which the unit of papers shall be filed in duplicate. local government is located. ( d) Motions and requests. Motions and requests may be filed with the desig- § 51.54 Institution of proceeding. nated administrative law judge, except A proceeding to require repayment of that an application to extend the time funds to the Secretary, or to withhold for filing an answer shall be filed with funds from subsequent entitlement of a the Director, Office of Revenue ,Sharing, recipient government, shall be instituted pursuant to § 51.57(a). by the Secretary by a complaint which names the recipient government as the § 51.57 Answer; referral to administra- respondent. tive law judge. (a) Filing. The respondent's answer § 51.55 Contents of complaint. shall be filed in writing within the time (a) Charges. A complaint shall give a specified in the complaint, unless on plain and concise description of the alle- application the time is extended by the gations which constitute the basis for Secretary. The respondent's answer shall the proceeding. A complaint shall be be filed in duplicate with the Director, deemed sufficient if it fairly informs the Office of Revenue Sharing. respondent of the charges against it so that it is able to prepare a defense to the (b) Contents. The answer shall con- charges. tain a statement of facts which constitute the grounds of defense, and it (b) Demand for answer. Notification shall specifically admit or deny each shall be given in the complaint as to the allegation set forth in the complaint, ex- place and time within which the respon- cept that the respondent shall not deny dent shall file its answer, which time a material allegation in the complaint shall be not less than 30 days from the which it knows to be true; nor shall a date of service of the complaint. The respondent state that it is without suffi- complaint shall also contain notice that cient information to form a belief when a decision . by default will be rendered in fact it possesses such information. against the respondent in the event it The respondent may also state affirma- fails to file its answer as required. tively special matters of defense. § 51.56 Service of complaint and other ( c) Failure to deny or answer allega- papers. tion in the complaint. Every allegation (a) Complaint. The complaint or a in the complaint which is not denied in true copy thereof may be served upon_ the answer shall be deemed to be admit- the respondent by first-class mail or by ted and may be considered as proved, certified mail, return receipt requested; and no further evidence in respect of

55 § 51.58 MONEY AND FINANCE: TREASURY

such allegation need be adduced at a order or authorize amendment of the hearing. pleading to conform to the evidence: ( d) Failure to file answer. Failure to Provided, The party that would other- file an answer within the time prescribed wise be prejudiced by the amendment is in the complaint, except as the time for given reasonable opportunity to meet the answer is extended under paragraph (a) allegation of the pleading as amended. of this section, shall constitute an admis- The administrative law judge shall make sion of the allegations of the complaint findings on any issue presented by the and a waiver of hearing, and the admin- pleadings as so amended. istrative law judge shall make his find- § 51.60 Representation. ings and decision by default without a A respondent or proposed respondent hearing or further procedure. may appear in person through its chief (e) Reply to answer. No reply to the executive officer or it may be represented respondent's answer shall be required, by counsel or other duly authorized rep- and new matter in the answer shall be resentative. The Secretary shall be rep- deemed to be denied, but the Secretary resented by the General Counsel of the may file a reply in his discretion and Treasury. shall file one if the administrative law judge so requests. § 51.61 Administrative law judge; pow- (f) Referral to administrative law ers. judge. Upon receipt of the answer by the (a) Appointment. An administrative Director, or upon filing a reply if one law judge, appointed as provided by sec- is deemed necessary, or upon failure of tion 11 of the Administrative Procedure the respondent to file an answer within Act ( 5 U .S.C. 3105), shall conduct pro- the time prescribed in the complaint or ceedings upon complaints filed under this as extended under paragraph (a) of this subpart. section, the complaint (and answer, if (b) Powers of administrative law one is filed) shall be referred to the judge. Among other powers provided by administrative law judge who shall then law, the administrative law judge shall proceed to set a time and place for hear- have authority, in connection with any ing and shall serve notice thereof upon proceeding under this subpart, to do the the parties at least 15 days in advance following things: of the hearing date. (1) Administer oaths and affirmations; (2) Make ruling upon motions and § 51.58 Supplemental charges. requests. Prior to the close of the hearing If it appears that the respondent in no appeal shall lie from any such ruling its answer falsely and in bad faith, denies except, at the discretion of the adminis- a material allegation of fact in the com- trative law judge, in extraordinary plaint or states that it has no knowledge circumstances; sufficient to form a belief, when in fact ( 3) Determine the time and place of it does possess such information, or if it hearing and regulate its course and con- appears that the respondent has know- duct. In determining the place of hear- ingly introduced false testimony during ing the administrative law judge may the proceedings, the Secretary may take into consideration the requests and thereupon file supplemental charges convenience of the respondent or its against the respondent. Such supple- counsel; mental charges may be tried with other (4) Adopt rules of procedure and charges in the case, provided the respon- modify the same from time to time as dent is given due notice thereof and occasion requires for the orderly disposi- is afforded an opportunity to prepare its tion of proceedings; defense thereto. (5) Rule upon offers of proof, receive relevant evidence, and examine witnesses; § 51.59 Proof; variance; amendment of (6) Take or authorize the taking of pleadings. depositions; In the case of a variance between the (7) Receive and consider oral or allegations in a pleading and the evi- written arguments on facts or law; dence adduced in support of the plead- (8) Hold or provide for the holding ing, the administrative law judge may of conferences for the settlement or sim-

56 TITLE 31 § 51.65 plification of the issues by consent of the Courts of the United States, shall be parties; admissible and controlling as far as pos- (9) Perform such acts and take such sible: Provided that, the administrative measures as are necessary or appropri- law judge may relax such rules in any ate to the efficient conduct of any pro- hearing when in his judgment such re- ceeding; and laxation would not impair the rights of (10) Make initial findings and deci- either party and would more speedily sion. conclude the hearing, or would better serve the ends of justice. Evidence which § 51.62 Hearings. is irrelevant, immaterial or unduly repe- ( a) In general. The administrative titious shall be excluded by the adminis- law judge shall preside at the hearing trative law judge. on a complaint. Testimony of witnesses (b) Depositions. The deposition of any shall be given under oath or affirmation. witness may be taken pursuant to § 51.65 The hearing shall be stenographically and the deposition may be admitted. recorded and transcribed. Hearings will ( c) Proof of documents. Official docu- be conducted pursuant to section 7 of ments, records, and papers of a respon- the Administrative Procedure Act ( 5 dent shall be admissible as evidence u.s.c. 556). without the production of the original (b) Failure to appear. If a respondent provided that such documents, records fails to appear at the hearing, after due and papers are evidenced as the original notice thereof has been served upon it or by a copy attested or identified by the upon its counsel of record, it shall be chief executive officer of the respondent deemed to have waived the right to a or the custodian of the document, and hearing and the administrative law contain the seal of the respondent. judge may make his findings and deci- ( d) Exhibits. If any document, record, sion against the respondent by default. paper, or other tangible or material thing ( c) Waiver of hearing. A respondent is introduced in evidence as an exhibit, may waive the hearing by informing the the administrative law judge may au- administrative law judge, in writing, on thorize the withdrawal of the exhibit or before the date set for hearing, that subject to any conditions he deems it desires to waive hearing. In such event proper. An original document, paper or _the administrative law judge may make record need not be introduced, and a his findings and decision based upon the copy duly certified (pursuant to para- pleadings before him. The decision shall graph (b) of this section) shall be plainly show that the respondent waived deemed sufficient. hearing. (e) Objections. Objections to evidence § 51.63 Stipulations. shall be in short form, stating the The administrative law judge shall grounds of objection relied upon, and prior to or at the beginning of the hear- the record shall not include argument ing require that the parties attempt to thereon, except as permitted by the ad- arrive at such stipulations as will elimi- ministrative law judge. Rulings on such nate the necessity of taking evidence objections shall be a part of the record. with respect to allegations of facts con- No exception to the ruling is necessary cerning which there is no substantial dis- to preserve the right of either party to pute. The administrative law judge shall the proceeding. take similar action, where it appears appropriate, throughout the hearing and § 51.65 Depositions. shall call and conduct any conferences (a) In general. Depositions for use at which he deems advisable with a view to a hearing may, with the written approval the simplification, clarification, and dis- of the administrative law judge, be taken position of any of the issues involved. by either the Secretary or the respondent or their duly authorized representa- § 51.64 Evidence. tives. Depositions may be taken upon (a) In general. Any evidence which oral or written interrogatories, upon not would be admissible under the rules of less than 15 days written notice to the evidence governing proceedings in mat- other party, before any officer duly au- ters not involving trial by jury in the thorized to administer an oath for gen-

57 § 51.66 MONEY AND FINANCE: TREASURY eral purposes. Such written notice shall thereof will be supplied to the respon- state the names of the witnesses and the dent or its counsel at actual cost of dupli- time and place where the depositions are cation. Copies of exhibits introduced at to be taken. The requirement of 15 days the hearing or at the taking of deposi- written notice may be waived by the par- tions will be supplied to the parties upon ties in writing, and depositions may then the payment of a reasonable fee ( 31 be taken from the persons and at times U.S.C. 483 (a) ). and places mutually agreed to by the parties. § 51.67 Proposed findings and conclusions. (b) Written interrogatories. When a Except in cases where a respondent deposition is taken upon written inter- has failed to answer the complaint or rogatories, any cross-examination shall has failed to appear at the hearing, or be upon written interrogatories. Copies has waived the hearing, the administra- of such written interrogatories shall be tive law judge, prior to making his ini- served upon the other party with the tial decision, shall afford the parties a notice, and copies of any written cross- reasonable opportunity to submit pro- interrogatories shall be mailed by first posed findings and conclusions and sup- class mail or delivered to the opposing porting reasons therefor. party at least 10 days before the date of taking the depositions, unless the par- § 51.68 Initial decision of t'he adminis- ties mutually agree otherwise. A party trative law judge. upon whose behalf a deposition is taken As soon as practicable after the con- must file it with the administrative law cl us ion of a hearing and the receipt of judge and serve one copy upon the oppos- any proposed findings and conclusions ing party. Expenses in the reporting timely submitted by the parties, but in no of depositions shall be borne by the party event later than 30 days after the sub- at whose instance the deposition is taken. mission of proposed findings and conclusions if they are submitted, the ad- § 51.66 Stenographic record; oath of ministrative law judge shall make his reporter; transcript. initial decision in the case. The initial (a) In general. A stenographic record decision shall include a statement of the shall be made of the testimony and pro- findings of fact and the conclusions ceedings, including stipulations and ad- therefor, as we II as the reasons or basis missions of fact in all proceedings, but therefor, upon all the material issues not arguments of counsel unless other- of fact, law or discretion presented on wise ordered by the administrative law the record, and shall provide for one of judge. A transcript of the proceedings the following orders: (and evidence) at the hearing shall be (a) An order that the respondent pay made in all cases. over to the Secretary an amount equal (b) Oath of reporter. The reporter to 110 percent of any amount determined making the stenographic record shall to be improperly expended by the respon- subscribe an oath before the administra- dent in violation of § 51.31 relating to tive law judge, to be filed in the record of priority expenditures; or the case, that he ( or she) will truly and (b) An order that the respondent pay correctly report the oral testimony and over to the Secretary an amount equal proceedings at such hearing and accu- to the amount of entitlement funds deter- rately transcribe the same to the best of mined to be expended in violation of the his (or her) ability. Act and the provisions of this part; or ( c) Transcript. In cases where the ( c) An order that the Secretary with- hearing is stenographically reported by hold from subsequent entitlement pay- a Government contract reporter copies ments to the respondent an amount equal of the transcript may be obtained from to the amount of entitlement funds de- the reporter at rates not to exceed the termined to be expended in violation of maximum rates fixed by contract be- the Act and the provisions of this part; tween the Government and the reporter. or Where the hearing is stenographically ( d) An order that the entitlement of a reported by a regular employee of the recipient government be reduced and Department of the Treasury, a copy the amount of such reduction to be with- 58 TITLE 31 § 51.73

held from subsequent entitlement pay- therefor. A copy of the exceptions shall ments; or be transmitted to the respondent or its ( e) An order dismissing the proceed- counsel of record, who, within 30 days ings. after receipt thereof, may file a reply brief thereto with the Secretary and sub- § 51.69 Certification and transmittal of mit a copy to the Director of the Office record and decision. of Revenue Sharing or his counsel. Upon After reaching his initial decision, the the filing of a reply brief, if any, the Sec- administrative law judge shall certify to retary will make the final agency decision the complete record before him and shall on the record of the administrative law immediately forward the certified record, judge. together with a certified copy of his initial (c) Absence of appeal. In the absence decision, to the Secretary. The adminis- of either exceptions by the respondent trative law judge shall serve also a copy or a notice of appeal by the Director of of the initial decision by certified mail to the Office of Revenue Sharing within the the chief executive officer of the respon- time set forth in paragraphs (a) and (b) dent or to its attorney of record. of this section, or a review initiated by § 51.70 What constitutes record. the Secretary on his own motion within The transcript of testimony, pleadings the time allowed to the Director of the and exhibits, all papers and requests filed Office of Revenue Sharing, the initial de- in the proceeding, together with all find- cision of the administrative law judge ings, decisions and orders, shall con- shall constitute the final decision of the stitute the exclusive record in the matter. Department. § 51.71 Procedure on review of decision § 51.72 Decision of the Secretary. of administrative law judge. On appeal from or review of the initial (a) Appeal to the Secretary. Within 30 decision of the administrative law judge, days from the date of the initial decision the Secretary will make the final agency and order of the administrative law decision. In making his decision the Sec- judge, the respondent may appeal to the retary will review the record or such por- Secretary and file his exceptions to the tions thereof as may be cited by the initial decision and his reasons therefor. parties to permit limiting of the issues. The respondent shall transmit a copy of The Secretary may affirm, modify, or his appeal and reasons therefor to the revoke the findings and initial decision of Director of the Office of Revenue Shar- the administrative law judge. A copy of ing, who may, within 30 days from receipt the Secretary's decision shall be trans- of the respondent's appeal, file a reply mitted immediately to the chief executive brief in opposition to the appeal. A copy officer of the respondent or its counsel of of the reply brief, if one is filed, shall be record. transmitted to the respondent or its § 51.73 Effect of order of repayment or counsel of record. Upon the filing of an withholding of funds. appeal and a reply brief, if any, the Sec- In case the final order against the re- retary shall make the final agency deci- spondent is for repayment of funds to sion on the record of the administrative the United States, such amount as de- law judge submitted to him. termined by the order shall be repaid (b) Appeal by the Director of the Office upon request by the Secretary. To the ex- of Revenue Sharing. In the absence of an tent that the respondent fails to do so appeal by the respondent, the Director upon request of the Secretary, the Secre- of the Office of Revenue Sharing may, on tary shall withhold from subsequent en- his own motion, within 45 days after the titlement payments to the respondent in initial decision, serve on the respondent amount equal to the amount not repaid. by certified mail a notice that he will In case the final order against the re- appeal the decision to the Secretary, for spondent is for the withholding of an review. Within 30 days from such notice, amount of subsequent entitlement pay- the Director of the Office of Revenue ments, such amounts as ordered shall be Sharing or his counsel will file with the withheld by the Director of the Office of Secretary his exceptions to the initial Revenue Sharing after notice to the chief decision and his supporting reasons executive officer of the recipient govern-

59 § 51.74 MONEY AND FINANCE: TREASURY ment that if it fails to take corrective judge in any proceedings, whether or not action within 60 days after receipt of on appeal or review, shall be indexed and the notice, further entitle~ent payments maintained by the Director of the Office will be withheld until the Secretary is of Revenue Sharing and made available satisfied that appropriate corrective ac- for inspection by the public at the public tion has been taken and there is full documents room of the Department. If compliance with the Act and regulations practicable, the statement of findings of this part. In every case in which the and the decisions of the administrative respondent is a unit of local government, law judge shall be published periodically a copy of the final order and notice shall by the Department and offered for sale be submitted to the Governor of the State through the Superintendent of Docu- in which the respondent is located. ments.

§ 51.74 Publicity of proceedings. § 51.75 Judicial review. (a) In general. A proceeding con- Actions taken under administrative ducted under this subpart shall be open proceedings pursuant to this subpart to the public and to elements of the news shall be subject to judicial review pur- media provided that, in the judgment of suant to section 143 of Subtitle C of the the administrative law judge, the pres- Act. If a respondent desires to appeal a ence of the media does not detract from decision of the administrative law judge the decorum and dignity of the proceed- which has become final, or a final order ing. of the Secretary for review of appeal, to (b) Availability of record. The record the U.S. Court of Appeals, as provided established in any proceeding conducted by law, the Secretary, upon prior notifi- under this subpart shall be made avail- cation of the filing of the petition for able to inspection by the public as pro- review, shall have prepared in triplicate, vided for and in accordance with regu- a complete transcript of the record of the lations of the Department of the Trea- proceeding, and shall certify to the cor- sury pursuant to 31 CFR Part 1. rectness of the record. The original cer- ( c) Decisions of the administrative law tificate together with the original record judge. The statement of findings and the shall then be filed with the Court of initial decision of the administrative law Appeals which has jurisdiction.

60 TITLE 41-PUBLIC CONTRACTS AND PROPERTY MANAGEMENT CHAPTER 14H-BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

PART 14H-1-GENERAL § 14H-1.000 Scope of part. (a) This part establishes a system for Sec. the codification and publication of poli- Scope of part. !4H-l.000 cies and procedures of the Bureau of Subpart 14H-1.0-Regulation System Indian Affairs (Bureau) regulations !4H-1.001 Scope of subpart. which implement, supplement or deviate !4H-I.002 Purpose. from the Federal Procurement Regula- !4H-l.003 Authority. tions (FPR) and Interior Procurement J4H-l.004 Applicability. Regulations (IPR), when appropriate. J4H-I.006 Issuance. J4H-l.006-J Code arrangement. (b) The Federal Procurement Regula- !4H-l.006-2 Publication. tions are published as Chapter I of this J4H-I.007 Arrangement. title. The Interior Procurement Regula- J4H-I.007-l General plan. tions which implement and supplement J4H-l.007-2 Numbering. J4H-I.007-3 Citation. the FPR are published as Chapter 14 of J4H-I.008 . Agency implementation. this title. The Bureau Procurement Reg- !4H-l.009 Deviation. ulations which implement and supple- !4H-I.009-2 Procedure. ment the FPR and IPR are published as Subpart 14H-1.2~Definition of Terms Chapter 14H of this title. It is the basic policy of the Bureau to apply the Fed- !4H-I.205 Procuring activity. !4H-I.206 Head of the procuring activity. eral Procurement Regulations and the Interior Procurement Regulations. Thus, Subpart 14H-1.3-General Policies as to most elements of the procuremeµt 14H-l.302 Procurement sources. process, substantive guidelines will be !4H-l.302-3 Contracts between the Government found by reference to those regulations and Government employees or business concerns substantially owned or in the order mentioned. controlled by Government employees. Subpart 14H-1 .0-Regulation Subpart 14H-1.4-Procurement System Responsibility and Authority 14H-l.402 Authority of contracting officers. § 14H-1.001 Scope of subpart. 14H-l.404 Selection, designation and termination This subpart establishes the Bureau of of designation of contracting officers. Indian Affairs Procurement Regulations 14H-l.404-2 Designation. (BIAPR) and states their relationship 14H-l.404-3 Termination of designation. to the Federal Procurement Regulations Sec. ( FP A) and the Interior Procurement 14H-l.404-4 Assignment of duties to contracting officers. Regulations (IPR). 14H-l.451 Delegation and redelegation of authority and designation of contract- § 14H-1.002 Purpose. ing officers. This subpart establishes for the Bu- 14H-l.451-2 Designation of contracting officer positions. reau uniform policies and procedures 14H-1.451-6 Limitation of contracting officer au- related to procurement of personal prop- thority. erty, nonpersonal services, construction, AUTHORITY: The provisions of this Part J4H-l and real property by lease. issued under sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c). § 14H-1.003 Authority. SouRcE: The provisions of this Part 14H-J appear at 34 F.R. 13659, Aug. 26, 1969, unless other- BIAPR are prescribed by the Commis- wise noted. sioner of Indian Affairs (Commissioner)

61 § 14H-1.004 PUBLIC CONTRACTS AND PROPERTY MANAGEMENT

under the Federal Property and Admin- ( c) Matters which pertain to procure- istrative Services Act of 1949, as ment but are primarily for internal amended, or other authority specifically guidance whether or not related to the cited. material in FPR and IPR, will be issued as Bureau of Indian Affairs Procure- § 14H-1.004 Applicability. ment Instructions (BIAPI). To simplify BIAPR apply to all procurement ac- usage of BIAPI in conjunction with tivities of the Bureau to the extent indi- FPR, IPR and BIAPR the same system cated, unless otherwise provided by law. and format used for those regulations § 14H-1.006 Issuance. will be followed. A yellow colored paper will be used for BIAPI. § 14H-1.006-1 Gode arrangement. BIAPR are issued in the Gode of Fed- § 14H-1.009 Deviation. eral Regulations as Chapter 14H of Title § 14H-1.009-2 Procedure. 41, Public Contracts and Property Man- Deviations from FPR and IPR by the agement. BIAPR contain the alphabetical Bureau will be kept to a minimum and letter "H" which identifies the Bureau controlled as follows: and which immediately follows the Gode ( a) Requests for approval of devia- (14) which identifies the Department as tions may be submitted by contracting illustrated in IPR. officers to the Commissioner. The re- § 14H-1.006-2 Publication. quests shall cite the specific part of BIAPR will be published in the FED- FPR, or IPR, from which it is desired ERAL REGISTER and in separate looseleaf to deviate, shall set forth the nature of form on salmon colored paper. the deviations, and shall give the reasons for the action requested. Requests § 14H-1.007 Arrangement. considered meritorious will be submitted for approval as provided for in IPR. No § 14H-1.007-1 General plan. deviation shall be effective until ap- The general plan, numbering system, proved. and nomenclature used in FPR and IPR, which conform to the FEDERAL REGISTER standards, are adhered to in BIAPR. Subpart 14H-1 .2-Definition of Terms § 14H-1.007-2 Numbering. § 14H-1.205 Procuring activity. For ease in identification, the number- "Procuring activity" means the Bu- ing system and part, subpart, and sec- reau of Indian Affairs in which author- tion titles used in FPR, and in IPR are ity to contract for the procurement of also used in BIAPR. personal property, nonpersonal services, and construction is vested. § 14H-1.007-3 Citation. Using this section as an example § 14H-1.206 Head of the procuring BIAPR should be cited as, "BIAPR activity. 14H-1.007-3." When referred to for- "Head of the procuring activity" mally in official documents such as legal means the Commissioner. briefs, the section should be cited as "41 GFR 14H-l.007-3." Subpart 14H-1.3-General Policies § 14H-1.008 Agency implementation. (a) It is Bureau policy to utilize FPR § 14H-1.302 Procurement sources. and IPR to the fullest extent possible in § 14H-1.302-3 Contracts between the the conduct of all procurement matters. Goverment and Government em- The Bureau will conform to this policy ployees or business concerns sub- by avoiding implementation, supplemen- stantially owned or controlled by tation, or deviation from FPR and IPR Government employees. unless compelling reasons exist for Contracting Officers shall refer all doing so. proposed contracts with Government (b) FPR and IPR shall be applicable employees or business concerns sub- as issued unless implemented, supple- stantially owned or controlled by Gov- mented, or devi_ated from in BIAPR. ernment employees to the Commissioner.

62 TITLE 41 § 14H-1.451-6

Approval of the Assistant Secretary for designate contracting officer positions, is Administration will be requested in hereby redelegated to the contracting those instances where the Commissioner officer positions designated in § 14H- determines it would be in the Govern- 1.451-2. ment's interest to enter into such a contract. § 14H-1.451-2 Designation of contracting 01fficer positions. (a) Each of the following organiza- Subpart 14H-1 .4-Procurement tional titles are designated as contract- Responsibility and Authority ing officer positions: § 14H-1.402 Authority of contracting ( 1) Headquarters Office Officials: officers. (i) Commissioner. The authority under this section (ii) Deputy Commissioner. shall be exercised in conformity with (iii) Director of Administrative Serv- § 14H-1.451. ices. (iv) Chief, Division of Contracting § 14H-1.404 Selection, designation, and Services. termination of designation of con- (v) Property and Supply Officer. tracting oifficers. (vi) Chief, Division of Plant Design The authority under this section and Construction, Albuquerque, N. Mex. shall be exercised in conformity with ( vii) Chief, Indian Technical Assist- § 14H-1.451. ance Center, Denver, Colo. (viii) Property and Supply Officer, § 14H-1.404-2 Designation. Field Support Services Office, Albuquer- The authority under this section que, N. Mex. shall be exercised in conformity with ( 2) Area Office officials : § 14H-1.451. (i) Area Director. § 14H-1.404-3 Termination of designa- (ii) Deputy Area Director. tion. (iii) Assistant Area Director, Minne- The requirements of this section apolis and Sacramento Area Offices. shall be exercised in conformity with (iv) Assistant Area Director for Ad- § 14H-1.451. ministration. (v) Area Administrative Officer. § 14H-1.4O4-4 Assignment of duties to (vi) Area Property and ,Supply Officer. contracting officers. (vii) Contract Engineering Adviser, The requirements of this section Portland, Oreg. shall be exercised in conformity with (viii) Administrative Officer and Spe- § 14H-1.451. cial Representative, Seattle, Wash. [34 F.R. 13659, Aug. 26, 1969, as amended at 37 § 14H-1.451 Delegation and redelega- F.R. 13531, July II, 1972] tion of authority and designation of contracting officers. § 14H-1.451-6 Limitation of contract- Except for such limitations as are ing officer authority. prescribed elsewhere, the authority dele- Contract Engineering Advisor, Port- gated to the Commissioner with respect land, Oreg., is limited to the approval to all matters relating to contracting and of nonnegotiated construction contracts procurement of supplies, services, and not exceeding $25,000. construction, except the authority to [35 F.R. 11398, July 16, 1970]

63 TITLE 42-PUBLIC HEALTH CHAPTER I-PUBLIC HEALTH SERVICE PART 36-INDIAN HEALTH (b) The Surgeon General of the Public Health Service is authorized to adopt, Subpart A-Scope and Definitions and from time to time revise or add, Sec. 36.1 Purpose and effect. administrative instructions relating to 36.2 Meaning of terms. methods or procedures appropriate to implementing these principles, or for Subpart B-Availability of Services to their supplementation as to matters not Individuals in Programs (Including covered, including instructions providing Facilities Constructed or Supported for the continuation or appropriate mod- Wit'h Tribal Funds) Operated for In- ification of practices and procedures dian Beneficiaries By the Public Health previously observed in the provision of Service Indian health services in particular 36.1 I Services available. jurisdictions. 36.12 Persons to whom services will be provided. 36. I 3 Charges to Indian beneficiaries for services § 36.2 Meaning of terms. provided in Public Health Service facilities or by Public Health Service personnel. When used in this part, the term: 36.14 Nonbeneficiaries; emergency care and treatment; charges. (a) "Indian health program" includes the Alaska Native Health Services. Subpart C-Contract Services (b) "Indian" includes Indians in the Sec. continental United States, and Indians, 36.21 Availability of contract services. Aleuts and Eskimos in Alaska. Subpart D-Contagious and Infectious (c) "Jurisdiction" shall have the same Diseases geographical meaning as in Bureau of TUBERCULOSIS Indian Affairs usage. 36.30 Applicability. (d) "Bureau of Indian Affairs" means 36.31 Commitment of Indians afflicted with tuber· culosis. the Bureau of Indian Affairs, Depart- 36.32 Retention of custody; utilization of law en- ment of the Interior. forcement authorities. 36.33 Discharge of patients. 36.34 Transfer of patients. Subpart B-Availability of Services to AUTHORITY: The provisions of this Part 36 issued Individuals in Programs (Including under sec. 3, 68 Stat. 674; 42 U .S.C. 2003. 42 Stat. 208, sec. I, 68 Stat. 674; 25 U.S.C. 13, 42 U.S.C. Facilities Constructed or Supported 2001, unless otherwise noted. With Tribal Funds) Operated for SOURCE: The provisions of this Part 36 appear at 21 F.R. 9833, Dec. 12, 1936, unless otherwise noted. Indian Beneficiaries by the Public Health Service Subpart A-Scope and Definitions § 36.11 Services available. § 36.1 Purpose and effect. Within the limits of available funds, (a) The regulations in this part estab- facilities, and personnel, the Public lish the general principles to be followed Health Service will make available, within the discharge of this Department's in the area served by the local facility, responsibilities for continuation and im- hospital and medical and dental care, provement of the Indian health services. including outpatient services and serv- Officers and employees of the Depart- ices of mobile clinics and public health ment will be guided by these policies in nurses, and preventive care including im- exercising discretionary authority with munizations and health examinations of respect to the matters covered. special groups, such as school children.

64 TITLE 42 § 36.14

§ 36.12 Persons to w'hom services, will payment in appropriate cases. No charge be provided. may be made for immunizations, health (a) In general. (1) Services will be examination of school children or sim- :made available, as medically indicated, ilar preventive services, or for the hos- to persons of Indian descent belonging pitalization of Indian patients for tuber- to the Indian community served by the culosis. local facilities and program, and non- (b) Amount of charges. Payment may Indian wives of such persons. be requested in accordance with a sched- (2) Generally, an individual may be ule of charges established for the juris- regarded as within the scope of the diction by the Area Medical Officer, but Indian health and medical service pro- such charges may in no case exceed the gram if he is regarded as an Indian by cost of providing the service, as deter- the community in which he lives as evi- mined by the Surgeon General or in denced by such factors as tribal mem- accordance with instructions issued by bership, enrollment, residence on tax- him. exempt land, ownership of restricted (c) Circumstances under which pay- property, active participation in tribal ment may be requested; Authority of the affairs, or other relevant factors in Medical Officer in Charge. Whenever it keeping with general Bureau of Indian is established to the satisfaction of the Affairs practices in the jurisdiction. Medical Officer in Charge, from infor- (b) Doubtful cases. (1) In case of mation available from the local Bureau doubt as to whether an individual apply- of Indian Affairs officers or from other ing for care is within the scope of the sources, that an Indian applying for program, the Medical Officer in Charge care for himself or his family is able to shall obtain from the appropriate Bu- meet the scheduled charge for the needed reau of Indian Affairs officials in the care without impairing his prospects for jurisdiction information pertinent to his economic independence, he may be asked determination of the individual's con- to pay the scheduled charge. Charges tinuing relationship to the Indian popu- may be reduced in individual cases, or lation group served by the local program. payment may be waived and needed (2) If the applicant's condition is services may nevertheless be provided if, such that immediate care and treatment in the judgment of the Medical Officer are necessary, services shall be provided in Charge, the health objectives in the pending identification as an Indian area served will be advanced thereby. beneficiary. (c) [21 F.R. 9833, Dec. 12, 1956, as amended at 22 F.R. Priorities when funds, facilities, 6412, Aug. 10, 1957] or personnel are insufficient to provide the indicated volume of services. Priori- § 36.14 Nonbeneficiaries; emergency ties for care and treatment, as among care and treatment; charges. individuals who are within the scope of (a) In case of emergency, as an act of the program, will be determined on the humanity, nonbeneficiaries of the ,Serv- basis of relative medical need and access ice may be provided temporary care and to other arrangements for obtaining the treatment in hospitals and facilities of necessary care. the Service which are operated for In- § 36.13 Charges to Indian beneficiaries dian beneficiaries. for services provided in Public (b) Persons referred to in paragraph Health Service facilities or by Public (a) of this section who, as determined Health Service personnel. by the medical officer in charge, are able (a) In general. In order to make the to defray the cost of their care and most effective use of funds and facilities treatment shall be charged for such available for needed health and medical care and treatment at the following rates services, individual Indians who are (which shall be deemed to constitute the clearly able to pay the costs of hospital entire charge in each instance) : In the care (and of other major items of serv- case of hospitalization, at the current ice specified in instructions of the Sur- interdepartmental reimbursable per diem geon General) will be encouraged to do rate as established by the Bureau of the so, and services may be conditioned upon Budget; and in the case of outpatient

65 § 36.21 PUBLIC HEAL TH

treatment, at rates established by the custody of the Public Health Service, Surgeon General. the Medical Officer in Charge may accept ( Interpret or apply sec. 322 ( d), 58 Stat. 696, sec. such commitment and transport and ad- 501, 65 Stat. 290; 42 U.S.C. 249(d), 31 U.S.C. 483a) mit the Indian to any hospital or insti- [24 F.R. 10108, Dec. 15, 1959] tution operated by the Public Health Service for the medical care and treat- Subpart C-Contract Services ment of tuberculosis patients whether within or without the jurisdiction of the § 36.21 Availability of contract serv- court. ices. (c) An Indian admitted to a facility Availability of contract services to of the Public Health Service pursuant individual Indian beneficiaries will be to this subpart shall be subject to the governed by the terms of the contract. rules and regulations of the Public Health Service applicable to patients and Subpart D-Contagious and Infectious to the facility. Diseases § 36.32 Retention of custody; utilization of law enforcement authorities. TUBERCULo;:;rn (a) The Medical Officer in Charge AUTHORITY: The provisions of this Subpart D having custody of a patient whose com- also issued under sec. I, 38 Stat. 584; 25 U .S.C. 198. mitment has been accepted under this SouRcE: The provisions of this Subpart D appear subpart is authorized to employ such at 25 F.R. 10063, Oct. 21, 1960, unless otherwise means as may be necessary for the re- noted. tention of custody of, and the provision § 36.30 Applicability. of necessary treatment to, the afflicted The regulations in this subpart rela- Indian including the provision of attend- tive to the commitment of Indians afflict- ants during periods of transportation, ed with tuberculosis apply only to Indian until such time as the patient is dis- reservations where effective procedures charged. for the commitment of persons afflicted (b) When necessary to retain custody with tuberculosis are not available under of the patient the Medical Officer in the laws of the State in which the reser- Charge is authorized to call upon the vation is located. police force of the Bureau of Indian Affairs, of the tribe, or of the State, as §36.31 Commitment of Indians afflicted may be appropriate. with tuberculosis. (a) Upon a determination by a tribal § 36.33 Discharge of patients. court or other Indian court of competent When the Medical Officer in Charge jurisdiction that an Indian within its of a medical facility to which an afflicted jurisdiction has tuberculosis in a com- Indian has been admitted is satisfied municable form and th,at under appli- that the disease is inactive and not in a cable tribal law such Indian may be communicable stage, he shall discharge committed to a hospital or other place the patient: Provided, That he may dis- for medical treatment, the Area Medical charge the patient or release him on Officer in Charge may, upon request of parole under such conditions as he deems such court, certify that facilities and appropriate if he is satisfied that such services of the Public Health Service are action would not endanger the health of available to provide necessary medical the patient or the health of other treatment for the Indian if he deter- persons. mines in accordance with applicable in- § 36.34 Transfer of patients. structions of the Division of Indian (a) A patient admitted to a facility Health that the health of the afflicted of the Service, pursuant to this subpart, Indian or that of other persons requires may be transferred to any other facility the isolation or quarantine of the Indian of the ,Service within or without the in a hospital or other place of treat- jurisdiction of the committing court for ment. necessary care and treatment. (b) If, after such certification the (b) A patient admitted to a facility court commits the afflicted Indian to the of the Service under this subpart may

66 TITLE 42 § 36.34 be transferred to a hospital operated by ( c) The transfer of a patient author- a State or local government which is ized in this section shall be made only authorized to receive him within or with- if such transfer is in the judgment of out the jurisdiction of the committing the Medical Officer in Charge in the best court. interest of the health of the patient.

67 TITLE 43-PUBLIC LANDS: INTERIOR

Subtitle A-Office of the Secretary of the Interior

PART 1-PRACTICES BEFORE THE § 1.3 Who may practice. DEPARTMENT OF THE INTERIOR (a) Only those individuals who are Sec. eligible under the provisions of this sec- I.I Purpose. tion may practice before the Department, 1.2 Definitions. l.3 Who may practice. but this provision shall not be deemed AUTHORITY: The provisions of this Part I issued to restrict the dealings of Indian tribes under sec. 5, 23 Stat. IOI; 43 U.S.C. 1464. or members of Indian tribes with the SouRcE: The provisions of the Part I appear at 29 F.R. 143, Jan. 7, 1964, unless otherwise noted. Department. * * * * * § 1.1 Purpose. * This part governs the participation of individuals in proceedings, both formal PART 2-RECORDS AND TESTIMONY and informal, in which rights are asserted Sec. before, or privileges sought from, the 2.1 Inspection. 2.2 Determinations as to availability of records. Department of the Interior. 2.3 Declassification of classified documents. 2.4 Charges. § 1.2 Definitions. 2.5 Opinions in adjudication of cases; administrative manuals. As used in this part the term: 2.6 Compulsory process. (a) "Department" includes any bu- 2.7 Testimony of employees. reau, office, or other unit of the Depart- 2.8 Definition. Appendix. ment of the Interior, whether in Wash- AUTHORITY: The provisions of this Part 2 issued ington, D.C., or in the field, and any under 64 Stat. 402, 65 Stat. 290, 80 Stat. 383; 43 officer or employee thereof; U.S.C. 1460, 31 U.S.C. 483a, 5 U.S.C. 552. (b) "Solicitor" means the Solicitor of § 2.1 Inspection. the Department of the Interior or his Records of the Department of the In- authorized representative; terior which are available to the public (c) "Practice" includes any action may be inspected or copied by any person taken to support or oppose the assertion during the normal business hours at the of a right before the Department or to office in which the records are located. support or oppose a request that the Requests to inspect or to obtain copies of Department grant a privilege; and the records shall be handled as promptly as term "practice" includes any such action possible with due regard for the dispatch whether it relates to the substance of, or of other public business. While there is to the procedural aspects of handling, a no general requirement that requests to particular matter. The term "practice" inspect must be in writing, applicants does not include the preparation or filing may be required to file written requests of an application, the filing without com- in instances in which such action will ment of documents prepared by one other assist in the search for the records than the individual making the filing, sought or in the orderly filling of such obtaining from the Department informa- requests. A request to inspect or to ob- tion that is available to the public gener- tain copies of a record must contain a ally, or the making of inquiries respect- reasonably specific description of the ing the status of a matter pending before rt!Cbrds sought. the Department. Also, the term "prac- [32 F.R. 9974, July 7, 1967] tice" does not include the representation of an employee who is the subject of § 2.2 Determinations as to availability disciplinary, loyalty, or other personnel of records. administrative proceedings. (a) Section 552 of Title 5, U.S. Code,

68 TITLE 43 § 2.3 as amended by Public Law 90-23 (the (b) An applicant may appeal from act codifying the "Public Information a determination that a record is not Act") requires that identifiable agency available for inspection to the Solicitor records be made available for inspection. of the Department of the Interior, who Subsection (b) 1 of section 552 exempts may exercise all of the authority of the several categories of records from the Secretary of the Interior in this regard. general requirement but does not require The Deputy Solicitor may decide such the withholding from inspection of all appeals and may exercise all of the au- records which may fall within the cate- thority of the Secretary in this regard. gories exempted. Accordingly, no request ( c) All replies of officers or employees made of a field office to inspect a record of the Department of the Interior to shall be denied unless the head of the written requests denying a member of office or such higher field authority as the public an opportunity to inspect or the head of the bureau may designate receive copies of records of the Depart- shall determine (1) that the record falls ment shall advise the applicant, in writ- within one or more of the categories ex- ing, of the reason for the denial and of empted and (2) either that disclosure is the right of appeal to the Solicitor. A prohibited by statute or Executive order copy of all such replies shall be for- or that sound grounds exist which re- warded to the U.S. Department of the quire the invocation of the exemption. A Interior, Office of the Solicitor, Wash- request to inspect a record located in the ington, D.C. 20240. headquarters office of a bureau shall not (32 F.R. 9974, July 7, 1967, as amended at 37 F.R. be denied except on the basis of a similar 15865, Aug. 8, 1972] determination made by the head of the § 2.3 Declassification of classified docu- bureau or his designee, and a request ments. made to inspect a record located in a (a) Request for classification review. major organizational unit of the Office (1) Requests for a classification review of the Secretary shall not be denied ex- of a document of the Department of the cept on the basis of a similar determina- Interior pursuant to section 5 ( c) of tion by the head of that unit. Officers Executive Order 11652 (37 F.R. 5209, and employees of the Department shall March 10, 1972) and section III B of the be guided by the "Attorney General's National Security Council Directive Memorandum on the Public Information Governing Classification, Downgrading, Section of the Administrative Procedure Declassification and Safeguarding of Na- Act" of June 1967. tional Security Information (37 F.R. 10053, May 1972) shall be made in ac- 1 Subsection (b) of section 552 provides that: (b) This section does not apply to matters that cordance with the procedures established are- by this section. (!) Specifically required by Executive order to be (2) Any person desiring a classifica- kept secret in the interest of the national defense or foreign policy; tion review of a document of the Depart- (2) Related solely to the internal personnel rules ment of the Interior containing infor- and practices of an agency; mation classified as National Security (3) Specifically exempted from disclosure by statute; Information by reason of the provisions ( 4) Trade secrets and commercial or financial of Executive Order 11652 ( or any pre- information obtained from a person and privileged decessor executive order) and which is or confidential; more than 10 years old, should address ( 5) Interagency or intra-agency memorandums or letters which would ne>t be available by law to a such request to the Chief, Division of party other than an agency in litigation with the Records and Protective Services, Office agency; of Management Operations, U.S. Depart- ( 6) Personnel and medical files and similar files the disclosure of which would constitute a clearly ment of the Interior, Washington, D.C. ·unwarranted invasion of personal privacy; 20240. (7) Investigatory files compiled for law enforce- (3) Requests need not be made on ment purposes except to the extent available by law to a party other than an agency; any special form, but shall, as specified (8) Contained in or related to examination, oper- in the executive order, describe the docu- ating, or condition reports prepared by, on behalf ment with sufficient particularity to of, or for the use of an agency responsible for the enable identification of the document regulation or supervision of financial institutions; or (9) Geological and geophysical information and requested with expenditure of no more data, including maps, concerning wells. than a reasonable amount of effort.

69 § 2.4 PUBLIC LANDS: INTERIOR

( 4) Charges for locating and repro- cannot be declassified. He shall also be ducing copies of records will be made advised that if he desires he may appeal when deemed applicable in accordance the determination to the Chairman, De- with 31 U.S.C. 483a, which is imple- partment of the Interior Committee on mented by § 2.4 and the requester will be Classification of Security Information, notified. U.S. Department of the Interior, Wash- ( b) Action of requests for classifica- ington, D.C. 20240. An appeal shall in- tion review. (1) The Chief, Division of clude a brief statement as to why the Records and Protective Services, shall, requester disagrees with the decision unless the request is for a document over which he is appealing. The Department :30 years old, assign the request to the Committee on Classification of Security bureau having custody of the requested Information shall render its decision records for action. In the case of re- within thirty (30) days of receipt of an quests for declassification of records in appeal. The Departmental Committee the custody of the Office of the Secretary shall be authorized to over-rule previous and less than 30 years old, the request determinations in whole or in part when, shall be processed by the Chief, Division in its judgment, continued protection is of Records and Protective Services. Re- no longer required. quests for declassification of documents (d) Appeal to lnteragency Classifica- over 30 years old shall be referred tion Review Committee. Whenever the directly to the Archivist of the United Department of the Interior Committee on States. The bureau which has been as- Classification of Security Information signed the request, or the Chief, Divi- confirms a determination for continued sion of Records and Protective Services, classification, it shall so notify the re- in the case of requests assigned to him, quester and advise him that he is shall immediately acknowledge the re- entitled to appeal the decision to the quest in writing. Every effort will be lnteragency Classification Review Com- made to complete action on each request mittee established under section 8 (A) of within thirty ( 30) days of its receipt. If Executive Order 11652. Such appeals action cannot be completed within thirty shall be addressed to the lnteragency ( 30) days, the requester shall be so Classification Review Committee, the advised. Executive Office Building, Washington, (2) If the requester does not receive D.C. 20500. a decision on his request within sixty (e) Suggestions and complaints. Any ( 60) days from the date of receipt of person may also direct suggestions or his request, or from the date of his most complaints with respect to the adminis- recent response to a request for more tration of the other provisions of Execu- particulars, he may apply to the Depart- tive Order 11652 and the NSC Directive ment of the Interior Committee on Classi- by the Department of the Interior to the fica'tion of Security Information, U.S. Department of the Interior Committee Department of the Interior, Washington, for Classification of Security Informa- D.C. 20240, for a decision on his request. tion U.S. Department of the Interior, The Committee must render a decision Washington, D.C. 20240. within thirty (30) days. [37 F.R. 26594, Dec. 14, 19721 ( c) Form of decision and appeal to Committee on Classification of Security § 2.4 Charges. Information. In the event that the bureau (a) No charge shall be made for the to which a request is assigned or the inspection of any record available pur- Chief, Division of Records and Protective suant to the provisions of section 2.4. Services, in the case of a request as- No charge shall be made in connection signed to him, determines that the with requests to inspect identifiable requested information must remain records in those instances involving no classified by reason of the provisions of search or only a nominal search for the Executive Order 11652, the requester records. In those instances in which a shall be given prompt notification of request to inspect a record requires more that decision and, whenever possible, than a nominal search, a charge shall be shall be provided with a brief statement made ( in accordance with the policy of as to why the information or material Bureau of the Budget Circular A-25,

70 TITLE 43 § 2.5

"User Charges") which covers the cost direct costs of the agency providing the of the service. service. This category includes cases (b) Except as otherwise provided in where the fee for the service would be this section, a charge shall be made for included in a billing against the Gov- a copy of a record. Such charge shall be ernment (for example, in cost-type con- at a rate that recovers the full cost of tracts, or in the case of private physi- rendering the service in accordance with cians who are treating Government bene- the policy of Bureau of the Budget Cir- ficiaries at Government expense). cular A-25, "User Charges." ( 5) When furnishing the service free (c) A charge of 25 cents may be is in conformance with generally estab- made for each certificate or verification lished business custom, such as furnish- attached to authenticated copies of rec- ing personal reference data to prospec- ords furnished to the public. tive employers of former Government ( d) No charge shall be made for fur- employees. nishing unauthenticated copies of any ( 6) To the extent of one copy, to those opinions, regulations, or instructions re- who require copies of records or informa- produced for gratuitous distribution. tion from the records in order to obtain ( e) No charge shall be made for the financial benefits to which they may be making or verifying of copies of records entitled ( e.g., veterans or their depen- which are required for official use by the dents, employees with workmen's com- officers of any branch of the Government. pensation claims, or persons insured by (f) No charge shall be made for fur- the Government). nishing one copy of a personal document [32 F.R. 9974. July 7. 1967. Redcsignated a:t 37 F.R. (e.g., a birth certificate) to a person 26594, Dec. 14, 1972] who has been required to furnish it for retention by the Department. § 2.5 Opinions in adjudications of cases; (g) A copy of the transcript of a hear- administrative manuals. ing before a hearing board in an adverse (a) (1) Copies of final decisions and action or grievance proceeding shall be orders issued on and after July 1, 1970, furnished without charge to the employee in the following categories of cases are for whom the hearing was held. available for inspection and copying in (h) Money received from the collection the Office of Hearings and Appeals, of charges fixed under this section shall Ballston Building No. 3, 4015 Wilson be deposited in the Treasury to the credit Boulevard, Arlington, Va. 22203: of the appropriation current and charge- ( i) Contract appeals; able for the cost of furnishing the copies. (ii) Appeals from decisions rendered (i) Copies of records may be provided by departmental officials relating to the free: use and disposition of public lands and (1) To press, radio, television, and their resources and the use and disposi- newsreel representatives for dissemination of mineral resources in certain action to the general public. quired lands of the United States and (2) To donors with respect to the in the submerged lands of the Outer original of their gift, individuals or asso- Continental Shelf; ciations having an official voluntary or (iii) Appeals from orders and deci- cooperative relationship to an agency in sions issued by departmental officials and rendering assistance toward its work, or administrative law judges in proceedings national governments and international relating to mine health and safety; and agencies when furnishing the service (iv) Appeals from orders and deci- without charge is an appropriate cour- sions of administrative law judges in tesy. Indian probate matters other than those ( 3) To agencies of State and local involving estates of Indians of the Five governments which are carrying on a Civilized Tribes and Osage Indians. function related to that of the Federal (2) Copies of final opinions and orders agency involved, when furnishing the issued in the following categories of cases service will help to accomplish an objec- are available for inspection and copying tive of the Federal agency. in the Docket and Records Section, Office ( 4) When furnishing the service free of the Solicitor, Interior Building Wash- saves costs or yields income equal to the ington, D.C. 20240:

71 § 2.5 PUBLIC LANDS: INTERIOR

( i) Tort claims decided in the head- issued by Regional Solicitors on tort quarters office of the Office of the Solici- claims and irrigation claims, and copies tors, and appeals from decisions of of final opinions and orders on appeals Regional Solicitors or Field Solicitors on in Indian probate proceedings issued by tort claims; Regional Solicitors prior to July 1, 1970, (ii) Irrigation claims under Public are available for inspection and copying Works Appropriation Acts (e.g., 79 Stat. in their respective offices. Copies of final 1103) or 25 U.S.C. section 388 decided in opinions and orders issued by Field the headquarters office of the Office of Solicitors on tort claims are available for the Solicitor, and appeals from decisions inspection and copying in their respec- of Regional Solicitors or irrigation tive offices. claims; (b) ( 1) Copies of final decisions and (iii) Appeals under § 2.2 respecting orders issued prior to July 1, 1970, on availability of records; appeals to the Director, Bureau of Land (iv) Appeals from decisions of officials Management, and by hearing examiners of the Bureau of Indian Affairs, and In- of the Bureau of Land Management, in dian enrollment appeals; and proceedings relating to lands and inter- (v) Appeals from decisions of officers ests in land are available for inspection of the Bureau of Land Management and and copying in the Office of Hearings of the Geological Survey in proceedings and Appeals, Ballston Building No. 3, relating to lands or interests in land, con- 4015 Wilson Boulevard, Arlington, Va. tract appeals, and appeals in Indian pro- 22203, and in the offices of the Depart- bate proceedings, issued prior to July 1, mental administrative law judges. 1970. (2) Copies of final decisions, opinions (3) An Index-Digest is issued by the and orders issued on and after July 1, Department. All decisions, opinions and 1970, by departmental administrative law orders issued in the categories of cases judges in all proceedings before them are described in subdivisions ( i), (ii), and available for inspection and copying in (iii) of subparagraph ( 1) of this para- their respective offices and in the Office graph (that is, contract appeals, land of Hearings and Appeals, Ballston Build- appeals, and mine health and safety ap- ing No. 3, 4015 Wilson Boulevard, Arling- peals), are covered in the Index-Digest; ton, Va. 22203. in addition, the Index-Digest covers the (3) Copies of final decisions, opinions more important decisions, opinions and and orders issued by administrative law orders in the remaining categories of judges in Indian probate proceedings are cases described in subdivision (iv) of available for inspection and copying in subparagraph (1) of this paragraph and their respective offices. in subdivisions (i), (ii), (iii), and (iv) (c) Copies of final opinions and orders of subparagraph (2) of this paragraph, issued in cases pertaining to applications and the more important opinions of law for subsidies for the construction of fish- issued by the Office of the Solicitor. The ing vessels are available for inspection Index-Digest is available for use by the and copying in the Branch of Grants public in the Office of Hearings and and Loans, Bureau of Commercial Fish- Appeals, Ballston Building No. 3, 4015 eries, Washington, D.C. Wilson Boulevard, Arlington, Va. 22203, ( d) Copies of final opinions and orders in the Docket and Records Section. Office issued by the Oil Import Appeals Board of the Solicitor, Interior Building, Wash- are available for inspection and copying ington, D.C. 20240, and in the offices of in the Office of Hearings and Appeals, the Regional Solicitors and Field Solici- Ballston Building No. 3, 4015 Wilson tors. Selected decisions, opinions and Boulevard, Arlington, VA 22203. orders are published in a series entitled (e) The Department Manual is avail- "Decisions of the United States Depart- able for inspection in the Departmental ment of the Interior" ( cited as I.D.), Library, Interior Building, Washington, and copies may be obtained by subscrip- D.C., and at each of the regional offices tion from the Superintendent of Docu- of bureaus of the Department. The ad- ments, U.S. Government Printing Office, ministrative manuals of those bureaus Washington, D.C. 20402. which have issued such documents are ( 4) Copies of final opinions and orders available for inspection at the headquar-

72 TITLE 43 § 2.6 ters offices and at the regional offices of interest of the litigant and the informa- the bureaus. tion with respect to which the testimony [32 F.R. 9974, July 7, 1967, as amended at 35 F.R. of the officer or employee of the Depart- !4697, Sept. 22, 1970; 37 F.R. 2677, Feb. 4, 1972. ment is desired, before permission to Redesignated at 37 F.R. 26594, Dec. 14, 1972) testify will be granted under this section. ( c) The Solicitor of the Department § 2.6 Compulsory process. of the Interior and the Deputy Solicitor (a) If the production of any record may exercise all of the authority of the of the Department is sought by compul- Secretary of the Interior under this sory process and if it is determined, in section. accordance with the provisions of § 2.2 that the record should not be disclosed, (32 F.R. 9974, July 7, 1967. Redesignated at 37 F.R. the person making such determination 26594, Dec. 14, 1972) shall immediately report the matter to § 2.8 Definition. the Solicitor. The person to whom the As used in the regulations in this part, compulsory process is directed shall ap- the term "bureau" includes the other pear in answer to the process and respect- Departmental offices. fully decline to produce the record on the ground that the disclosure, pending the APPENDIX receipt of instructions from the Secre- OFFICE OF HEARINGS AND APPEALS-FIELD OFFICES Departmental Administrative Law Judges: tary of the Interior, is prohibited by the (l) Sacramento, Calif., Federal Building. regulations in this part. (2) Salt Lake City, Utah, Federal Building. Ad- (b) The Solicitor of the Department ministrative Law Judges (Indian Probate): (I) Phoenix, Ariz., Arizona Title Annex Building. of the Interior and the Deputy Solicitor (2) Sacramento, Calif., Federal Building. may exercise all of the authority of the ( 3) Denver, Colo., Denver Federal Center. Secretary of the Interior under this (4) Minneapolis, Minn., Buzza Building. (5) Billings, Mont., Federal Building and Court- section. hou.Se. (32 F.R. 9974, July 7, 1967. Redesignated at 37 F.R. (6) Gallup, N. Mex., V.E.M. Building. 26594, Dec. 14, 1972] (7) Tulsa, Okla., U.S. Post Office and Federal Office Building. § 2. 7 Testimony of employees. (8) Portland, Oreg., Federal Building. (a) An officer or employee of the De- OFFICE OF TflE SOLICITOR-FIELD OFFICES partment shall not testify in any judicial Anchorage Region Regional Solicitor; Anchorage, Alaska, Federal Build- or administrative proceeding concerning ing. matters related to the business of the Field Solicitor; Juneau, Alaska, U.S. Post Office and Government without the permission of Courthouse. the head of the bureau, or his designee, Denver Region Regional Solicitor; Denver, Colo., Denver Federal or of the Secretary of the Interior, or his Center designee. If the head of a bureau, or Field Solicitor; Aberdeen, S. Dak., Federal Building. his designee, concludes that permission Field Solicitor; Albuquerque, N. Mex., Federal ll uilding and Courthouse. should be withheld, he shall report the Field Solicitor; Billings, Mont., Federal Building matter immediately to the Solicitor for and Courthouse. a determination, and the officer or em- Field Solicitor; Cheyenne, Wyo., Joseph C. O'Maho- ney Federal Center. ployee shall appear in answer to process Field Solicitor; Twin Cities, Minn., Federal Build- and respectfully decline to testify, pending, Fort Snelling. ing the receipt of instructions from the Field Solicitor; Santa Fe, N. !\Iex., U.S. Courthouse. Secretary, on the ground that testimony Los Angeles Region Regional Solicitor; Los Angeles, Calif., 7759 Federal is prohibited by the regulations in this Building. part. Pending instructions from the Sec- Field Solicitor; Phoenix, Ariz., Arizona Title Annex retary, or his designee, an officer or em- lluilding. Field Solicitor; Reno, Nev., 2004 Federal Building- ployee in the Office of the ,Secretary shall U.S. Courthouse. follow the same procedure. Philadelphia Region (b) Any person (including a public Regional Solicitor; Philadelphia, Pa., Second Bank Building, agency) wishing an officer or employee Portland Region of the Department to testify, in a judi- Regional Solicitor; Portland, Oreg., Federal lluild- cial or administrative proceeding con- ing. cerning a matter related to the business Field Solicitor; Boise, Idaho, Federal Building-U.S. Courthouse. of the Government may be required to Field Solicitor; Ephrata, Wash., Reclamation Build- submit a statement setting forth the ing.

73 § 4.1 PUBLIC LANDS: INTERIOR

Sacramento Region rules in Subpart B of this part. Wher- Regional Solicitor; Sacramento, Calif., Federal Build- ing. ever there is any conflict between one of Field Solicitor; San Francisco, Calif., 450 Golden the general rules in Subpart B of this Gate Avenue. part and a special rule in another sub- Attorney-Advisor; Palm Springs, Calif., 587 South part applicable to a particular type of Palm Canyon Drive. Salt Lake City Region proceeding, the special rule will govern. Regional Solicitor; Salt Lake City, Utah, Federal Reference should be made also to the Building. governing laws, substantive regulations Tulsa Region Regional Solicitor; Tulsa, Okla., Federal Building, and policies of the Department relating U.S. Post Office and Courthouse. to the proceeding. In addition, reference Field Solicitor; Amarillo, Tex., I I 06 Herring Plaza. should be made to Part 1 of this subtitle Field Solicitor; Anadarko, Okla., 121 Northwest which regulates practice before the De- Second Street. Trial Attorney; Durant, Okla., U.S. Post Office and partment of the Interior. Courthouse. * Field Solicitor; Muskogee, Okla., Federal Building. * * * * * Field Solicitor; Pawhuska, Okla, c/o Osage Indian (2) Board of Indian Appeals. The Agency. Board decides finally for the Depart- Field Solicitor; Elberton, Ga., First National Bank ment appeals to the head of the Depart- Building. [35 F.R. 14697, Sept. 22, 1970. Redesignated at 37 ment from orders and decisions of F.R. 26594, Dec. 14, 1972] hearing examiners in Indian probate * * matters. Jurisdiction of the Board in- * * * * cludes, but is not limited to, authority of the Secretary relating to Indian pro- PART 4 - DEPARTMENT HEARINGS bate proceedings other than those in- AND APPEALS PROCEDURES volving estates of the Five Civilized Tribes and Osage Indians. ,Special regu- Subpart A-General; Office of Hear- lations applicable to proceedings before ings and Appeals the Board are contained in Subpart D § 4.1 Scope of authority; applicable of this part. regulations. * * * * * * The Office of Hearings and Appeals, headed by a Director, is an authorized Subpart B-General Rules Relating to representative of the Secretary for the Procedures and Practice purpose of hearing, considering and determining, as fully and finally as might § 4.20 Purpose. the Secretary, matters within the juris- In the interest of establishing and diction of the Department involving maintaining uniformity to the extent hearings, and appeals and other review feasible, this subpart sets forth general functions of the Secretary. Principal rules applicable to all types of proceed- components of the Office include (a) a ings before the Hearing Division and the Hearings Division comprised of hearing several Appeals Boards of the Office of examiners who are authorized to con- Hearings and Appeals. duct hearings in cases required by law § 4.21 General provisions. to be conducted pursuant to 5 U.S.C. sec. (a) Effect of decision pending appeal. 554, hearings in Indian probate matters, Except as otherwise provided by law or and hearings in other cases arising under other pertinent regulation, a decision statutes and regulations of the Depart- will not be effective during the time in ment, includng rule making hearings, which a person adversely affected may and (b) Appeals Boards, shown below, file a notice of appeal, and the timely with administrative jurisdiction and spe- filing of a notice of appeal will suspend cial procedural rules as indicated. Gen- the effect of the decision appealed from eral rules applicable to all types of pro- pending the decision on appeal. However, ceedings are set forth in Subpart B of when the public interest requires, the this part. Therefore, for information as Director or an Appeals Board may pro- to applicable rules, reference should be vide that a decision or any part of it shall made to the special rules in the subpart be in full force and effect immediately. relating to the particular type of pro- (b) Exhaustion of administrative rem- ceeding, as indicated, and to the general edies. No decision which at the time of

74 TITLE 43 § 4.22

,its rendition is subject to appeal to the ceived in evidence in a hearing or Director or an Appeals Board shall be submitted for the record in any proceed- considered _fin~l. so as ~o be agency action ing before the Office of Hearings and ,ubject to Judicial review under 5 U.S.C. Appeals will be retained with the official f!ec. 704, unless !t.has been made e~ective record of the proceeding. However, the pending a dec1s1on on appeal m the withdrawal of original documents may manner provided in paragraph (a) of be permitted while the case is pending this section. upon the submission of true copies in (c) Finality of decision. No further lieu thereof. When a decision has become appeal will lie in the Department from a final, an Appeals Board may, upon re- decision of the Director or an Appeals quest and after notice to the other party, Board of th·e Office of Hearings and in its discretion permit the withdrawal Appeals. Unless otherwise provided by of original exhibits or any part thereof, regulation, reconsideration of -a decision by the party entitled thereto. The sub- may be granted only in extraordinary stitution of true copies of exhibits or any circumstances where, in the judgment of part thereof may be required by the the Director or an Appeals Board, suffi- Board in its discretion as a condition of cient reason appears therefor. Requests granting permission for such withdrawal. for reconsideration -must be filed (d) Record address. Every person who promptly, or within the time required by files a document for the record in con- the regulations relating to the particular nection with any proceeding before the type of proceeding concerned, and must Office of Hearings and Appeals shall at state with particularity the error claimed. the time of his initial filing in the matter The filing and pendency of a request for state his address. Thereafter he must reconsideration shall not operate to stay promptly inform the office in which the the effectiveness of the decision involved matter is pending of any change in ad- unless so ordered by the Director or an dress, giving the docket or other appro- Appeals Board. A_ request for reconsid- priate numbers of all matters in which eration need not be filed to exhaust he has made such a filing. The successors administrative remedies. of such person shall likewise promptly inform such office of their interest in § 4.22 Documents. the matters and state their addresses. (a) Filing of documents. A document If a person fails to furnish a record ad- is filed in the Office where the filing is dress as required herein, he will not be required only when the document is re- entitled to notice in connection with the ceived in that office during the office proceedings. hours when filing is permitted and the (e) Computation of time for filing and document is received by a person autho- service. Except as otherwise provided by rized to receive it. law, in computing any period of time pre- (b) Service generally. A copy of each scribed for filing and serving a document, document filed in a proceeding before the the day upon which the decision or docu- Office of Hearings and Appeals must be ment to be appealed from or answered served by the filing party on the other was served or the day of any other event party or parties in the case. In all cases after which the designated period of time where a party is represented by an attor- begins to run is not to be included. The ney, such attorney will be recognized last day of the period so computed is to as fully controlling the case on behalf of be included, unless it is a Saturday, Sun- his client, and service of any document day, Federal legal holiday, or other non- relating to the proceeding shall be made business day, in which event the period upon such attorney in addition to any runs until the end of the next day which other service specifically required by law is not a Saturday, Sunday, Federal legal or by rule, order, or regulation of an holiday, or other nonbusiness day. When Appeals Board. Where a party is repre- the time prescribed or allowed is 7 days sented by more than one attorney, service or less, intermediate Saturdays, Sundays, upon one of the attorneys shall be suffi- Federal legal holidays and other non- cient. business days shall be excluded in the (c) Retention of documents. All docu- computation. ments, book, records, papers, etc., re- (f) Extensions of time. (1) The time

75 § 4.23 PUBLIC LANDS: INTERIOR for filing or serving any document may tion by the parties to the appeal or be extended by the Appeals Board or hearing. other officer before whom the proceeding (b) 0 fficial notice. Official notice may is pending, except for the time for filing be taken of the public records of the a notice of appeal and except where such Department of the Interior and of any extension is contrary to law or regula- matter of which the courts may take tion. judicial notice. (2) A request for an extension of time § 4.25 Oral argument. must be filed within the time allowed The Director or an Appeals Board may, for the filing or serving of the document in their discretion, grant an opportunity · and must be filed in the same office in for oral argument. which the document in connection with which the extension is requested must § 4.26 Subpoena power and witness pro- be filed. visions generally. (a) Compulsory attendance of wit- § 4.23 Transcript of hearings. nesses. The administrative law judge, on Hearings will be recorded verbatim and his own motion, or on written application transcripts thereof shall be made when of a party, is authorized to issue sub- requested by interested parties, costs of poenas requiring the attendance of wit- transcripts to be borne by the requesting nesses at hearings to be held before him parties. Fees for transcripts prepared or at the taking of depositions to be held from recordings by Office of Hearings before himself or other officers. Sub- and Appeals employees will be at rates poenas will be issued on a form approved which cover the cost of manpower, ma- by the Director. A subpoena may be chine use and materials, plus 25 percent, served by any person who is not a party adjusted to the nearest 5 cents. If the and is not less than 18 years of age, and reporting is done pursuant to a contract the original subpoena bearing a certifi- between the reporter and the Depart- cate of service shall be filed with the ment of the Interior agency or office administrative law judge. A witness may which is involved in the proceeding, or be required to attend a deposition or the Office of Hearings and Appeals, fees hearing at a place not more than 100 for transcripts will be at rates estab- miles from the place of service. lished by the contract. (b) Application for subpoena. Where § 4.24 Basis of decision. the file has not yet been transmitted to the administrative law judge, the appli- (a) Record. ( 1) The record of a hear- cation for a subpoena may be filed in the ing shall consist of the transcript of office of the officer who made the decision testimony or summary of testimony and appealed from, or in the office of the exhibits together with all papers and Bureau of Land Management in which requests filed in the hearing. the complaint was filed, in which cases (2) If a hearing has been held on an such offices will forward the application appeal pursuant to instructions of an to the examiner. Appeals Board, this record shall be the (c) Fees payable to witnesses. (1) Wit- sole basis for decision insofar as the re- nesses subpoenaed by any party shall ferred issues of fact are involved except be paid the same fees and mileage as are to the extent that official notice may be paid for like service in the District taken of a fact as provided in paragraph Courts of the United States. The witness (b) of this section. fees and mileage shall be paid by the ( 3) Where a hearing has been held in party at whose instance the witness other proceedings, the record made shall appears. be the sole basis for decision except to (2) Any witness who att:mds any the extent that official notice may be hearing or the taking of any deposition taken of a fact as provided in paragraph at the request of any party to the con- (b) of this section. troversy without having been subpoenaed (4) In any case, no decision on appeal to do so shall be entitled to the same or after a hearing shall be based upon mileage and attendance fees, to be paid any record, statement, file or similar by such party, to which he would have document which is not open to inspec- been entitled if he had been first duly

76 TITLE 43 § 4.200

subpoenaed as a witness on behalf of § 4.29 Remands from courts. such party. This paragraph does not Whenever any matter is remanded apply to Government employees who are from any court for further proceedings, called as witnesses by the Government. and to the extent, the court's directive and time limitations will permit, the § 4.27 Standards of conduct. parties shall be allowed an opportunity (a) Inquiries. All inquiries with re- to submit to the appropriate Appeals spect to any matter pending before the Board a report recommending proce- Office of Hearings and Appeals shall be dures to be followed in order to comply directed to the Director, the Chief Ad- with the court's order. The Board will ministrative Law Judge, or the Chair- review the reports and enter special or- man of the appropriate Board. ders governing the handling of matters (b) Ex parte communications. There remanded to it for further proceedings shall be no communication between any by any court. party and a member of the Office of Hearings and Appeals concerning the § 4.30 Information required by forms. merits of a proceeding, or an appeal, Whenever a regulation of the Office unless such communication (if written) of Hearings and Appeals requires a form is also furnished to the other party, or approved or prescribed by the Director, (if oral) is made in the presence of the the Director may in that form require the other party. The Board shall refuse to submission of any information which he receive, except as part of the appeals considers to be necessary for the effective record, any information having a sub- administration of that regulation. stantial bearing upon an appeal from * * * * * * persons who do not represent a party in the appeal but have an interest in the Subpart D-Special Rules Applicable decision to be rendered. to Proceedings in Indian Probate, (c) Disqualification. An administrative law judge or Board member shall with- Including Hearings and Appeals draw from a case if he deems himself AUTHORITY: The provisions of this Subpart D disqualified under the recognized canons issued under secs, I, 2, 36 Stat. 855, as amended, of judicial ethics. If, prior to a decision 856, as amended, sec. I, 38 Stat. 586, 42 Stat. 1185, as amended, secs. I, 2, 56 Stat. I 02 I, I 022; 25 of an administrative law judge or an U.S.C. 372, 373, 374, 373a, 373b. Appeals Board, there is filed in good [Cross reference: Sec Subpart A for the authority, faith by a party an affidavit of personal jurisdiction and membership of the Board of Indian bias or disqualification with Sllbstantiat- Appeals within the Office of Hearings and Appeals. For general rules applicable to proceedings before ing facts, and the administrative law the Board of Indian Appeals as well as the other judge or Board member concerned does Appeals Boards of the Office of Hearings and Ap- not withdraw, the Board or the Director, peals, see Subpart Bl as appropriate, shall determine the matter of disqualification. DETERMINATION OF HEIRS AND APPROVAL OF WILLS, EXCEPT AS TO MEMBERS OF § 4.28 Interlocutory appeals. THE FIVE CIVILIZED TRIBES AND OSAGE There shall be no interlocutory appeal INDIANS. from a ruling of an administrative law SCOPE OF REGULATIONS; DEFINITIONS; judge unless permission is first obtained GENERAL AUTHORITY OF EXAMINERS from an Appeals Board and an adminis- § 4.200 Scope of regulations. trative law judge has certified the inter- The regulations in this subpart govern locutory ruling or abused his discretion the procedures in settlement of trust in refusing a request to so certify. Per- estates of deceased Indians who die pos- mission will not be granted except upon sessed of trust property, except deceased a showing that the ruling complained of Indians of the Five Civilized Tribes, de- involves a controlling question of law and ceased Osage Indians, and the members that an immediate appeal therefrom may of any tribe organized under 25 U .S.C. materially advance the final decision. An sec. 476 (1964), to the extent that the interlocutory appeal shall not operate to constitution, bylaws, or charter of such suspend the hearing unless otherwise tribe may be inconsistent with this ordered by the Board. subpart.

77 § 4.201 PUBLIC LANDS: INTERIOR

§ 4.201 Definitions. held by an Indian which he may not As used in this subpart: alienate without the consent of the Sec- (a) The term "Secretary" means the retary or his authorized representative) Secretary of the Interior or his author- is treated as if it were trust property, ized representative; and conversely trust property is treated (b) The term "Board" means the as restricted property. Board of Indian Appeals in the Office of Hearings and Appeals, Office of the § 4.202 General authority of Examiners. Secretary, authorized by the Secretary Examiners shall determine the heirs to hear, consider, and determine finally of Indians who die intestate possessed for the Department appeals taken by of trust property, except as otherwise· aggrieved parties from actions by Exam- provided in §§ 4.205(b) and 4.271; ap- iners on petitions for rehearing or re- prove or disapprove wills of deceased opening, and allowance of attorney fees; Indians disposing of trust property; and (c) The term "Commissioner" means allow or disallow creditors' claims the Commissioner of Indian Affairs or against estates of deceased Indians. his authorized representative; § 4.203 Determinations as to nonexist- (d) The term "Superintendent" means ent persons and other irregularities the Superintendent or other officer hav- of allotments. ing jurisdiction over an estate, including (a) Examiners shall hear and deter- area field representatives or one holding mine whether trust patents covering al- equivalent authority; lotments of land were issued to nonex- (e) The terms "agency" and "Indian istent persons, and whether more than agency" mean the Indian agency or any one trust patent covering allotments of other designated office in the Bureau of land had been issued to the same person Indian Affairs having jurisdiction over under different names and numbers or trust property; through other errors in identification. (f) "Hearing Examiner" (hereinafter (b) If an Examiner determines under called Examiner) means any employee paragraph (a) of this section that a of the Office of Hearings and Appeals trust patent did issue to an existing per- upon whom authority has been con- son or that separate persons did receive ferred by the Secretary to conduct hear- the allotments under consideration and ings in accordance with the regulations any one of them is deceased, without in this subpart; having had his estate probated, he shall (g) The term "Solicitor" means the proceed as provided in § 4.202. Solicitor of the Department of the Inte- ( c) If an Examiner determines under rior or his authorized representative; paragraph (a) of this section that a (h) The term "Department" means person did not exist or that there were the Department of the Interior; more than one allotment issued to the (i) The term "parties in interest" same person, he shall issue a decision to means any presumptive or actual heir, that effect, giving notice thereof to par- any beneficiary under a will, and any ties in interest as provided in § 4.240 (b). party asserting a claim against a deceased Indian's estate; § 4.204 Presumption of death. (j) The term "minor" means an indi- (a) Examiners shall receive evidence vidual who has not reached his majority on and determine the issue of whether as defined by the laws of the State where persons, by reason of unexplained ab- the deceased's property is situated; sence, are to be presumed dead. (k) The words "child" or "children" (b) If an Examiner determines that include adopted child or children; an Indian person possessed of· trust property is to be presumed dead, he shall (1) The words "will" and "last will proceed as provided in § 4.202. and testament" include codicils thereto; (m) The term "trust property" means § 4.205 Escheat. real or personal property title to which Examiners shall determine whether is in the United States for the benefit Indian holders of trust property have of an Indian. In this subpart "restricted died intestate without heirs and- property" ( real or personal property ( a) With respect to trust property

78 TITLE 43 § 4.210 other than on the public domain, shall (c) Upon an affirmative determina- order the escheat of such property in tion as to all three points specified, the accordance with 25 U.S.C. sec. 373a Examiner shall issue such final order of (1964). distribution in the settlement of the (b) With respect to trust property on estate as is necessary to approve the the public domain, shall submit to the same and to accomplish the purpose and Board of Indian Appeals the records spirit of the settlement. Such order shall thereon, together with their recommen- be construed as any other order of dis- dations as to the disposition of said tribution establishing title in heirs and property under 25 U.S.C. 373b (1964). devisees and shall not be construed as § 4.206 Determinations of nationality or a partition or sale transaction within the citizenship and status affecting provisions of Part 121, Title 25, Code of character of land titles. Federal Regulations. If land titles are In cases where the right and duty of to be transferred, the necessary deeds the Government to hold property in trust shall be prepared and executed at the depends thereon, Examiners shall deter- earliest possible date. Upon failure or mine the nationality or citizenship, or refusal of any party in interest to exe- the Indian or non-Indian status, of heirs cute and deliver any deed necessary to or devisees, or whether Indian heirs or accomplish the settlement, the Examiner devisees of United States citizenship are shall settle the issues and enter his order of a class as to whose property the Gov- as if no agreement had been attempted. ernment's supervision and trusteeship ( d) Examiners are authorized to ap- have been terminated (a) in current prove all deeds or conveyances necessary probate proceedings or (b) in completed to accomplish a settlement under this estates after reopening such estates un- section. der, but without regard to the 3-year limit set forth in § 4.242. COMMENCEMENT OF PROBATE PROCEEDINGS § 4.207 Compromise settlement. § 4.210 Commencement of probate. (a) If during the course of the pro- (a) Within the first 7 days of each bate of an estate it shall develop that month, each Superintendent shall pre- an issue between contending parties is pare and furnish to the appropriate Ex- of such nature as to be substantial, and aminer a list of the names of all Indians it further appears that such issue may who have died and whose names have be settled by agreement preferably in not been previously reported. writing by the parties in interest to (b) Within 90 days of receipt of notice their advantage and to the advantage of of death of an Indian who died owning the United States, such an agreement trust property, the ,Superintendent hav- may be approved by the Examiner upon ing jurisdiction thereof shall commence findings that: the probate of the trust estate by filing ( 1) All parties to the compromise are with the appropriate Examiner all data fully advised as to all material facts; shown in the records relative to the (2) All parties to the compromise are family of the deceased and his property. fully cognizant of the effect of the com- The data shall include but is not limited promise upon their rights; and to: (3) It is in the best interest of the (1) A copy of the death certificate or parties to settle rather than to continue its equivalent; litigation. (2) Data for heirship findings and (b) In considering the proposed set- family history, certified by the Superin- tlement, the Examiner may take and tendent, on a form approved by the receive . evidence as to the respective Director, Office of Hearings and Appeals, values of specific items of property. such data to contain: Superintendents and irrigation project (i) The facts and alleged facts of engineers shall supply all necessary deceased's marriages, separations and information concerning any liability or divorces, with copies of necessary sup- lien for payment of irrigation construc- porting documents; tion and of irrigation operation and (ii) The names and last known ad- maintenance charges. dresses of probable heirs and other

79 § 4.211 PUBLIC LANDS: INTERIOR known parties in interest, including be signed by the person or official who known creditors; performs the act. (iii) Information on whether the re- (b) The Examiner shall serve or lationship of the probable heirs to the cause to be served a copy of the notice deceased arose by marriage, blood, or on each party in interest reported to the adoption; Examiner and on each attesting witness (iv) The names, relationships to the if a will is offered: deceased, and last known addresses of (1) By personal service in sufficient beneficiaries and attesting witnesses time in advance of the date of the hear- when a will or purported will is ining to enable the person served to attend volved; and the hearing; or (v) If will beneficiaries are not prob- (2) By mail, addressed to the person able heirs of the deceased, the names of at his last known address, in sufficient the tribes in which they are members; time in advance of the date of the hearing to enable the addressee served to ( 3) A certified inventory of the trust attend the hearing. The Examiner shall real and personal property wherever sit- cause a certificate, as to the date and uated, in which the deceased had any manner of such mailing, to be made on right, title or interest at the time of his the record copy of the notice. death (including all moneys and credits (c) All parties in interest, known and in a trust status whether in the form of unknown, including creditors, shall be bonds, undistributed judgment funds, or bound by the decision based on such any other form and the source of each hearing if they lived within the vicinity fund in the account), showing both the of any place of posting during the post- total estimated value of the real prop- ing period, whether they had actual no- erty and the estimated value of the de- tice of the hearing or not. As to those ceased's interest therein, and the amount not within the vicinity of the place of and names and addresses of parties hav- posting, a rebuttable presumption of ing an approved incumbrance against actual notice shall arise upon the mail- the estate; ing of such notice at a reasonable time ( 4) The original and copies of all prior to the hearing, unless the said wills in the Superintendent's custody, if notice is returned by the postal service any; the original and copies of codicils to the Examiner's office unclaimed by to and revocations of wills, if any; and the addressee. any paper, instrument, or document that purports to be a will; § 4.212 Contents of notice. (5) The Superintendent shall trans- (a) In the notice of hearing, the Ex- mit to the Examiner all creditors' and aminer shall specify that at the stated other claims which have been filed and, time and place he will take testimony to thereafter, he shall transmit all addi- determine the heirs of the deceased per- tional claims immediately upon the filing son (naming him) and, if a will is of- thereof. fered for probate, testimony as to the validity of the will describing it by date. [36 F.R. 7186, Apr. 15, 1971, as amended at 36 F.R. 24813, Dec. 23, 1971] The notice shall name all known presumptive heirs of the decedent, and, if §4.211 Notice. a will is offered for probate, the bene- (a) An Examiner may receive and ficiaries under such will and the attest- hear proofs at a hearing to determine ing witnesses to the will. The notice the heirs of a deceased Indian or pro- shall cite this subpart as the authority bate his will only after he has caused and jurisdiction for holding the hearing, notice of the time and place of the and shall inform all persons having an hearing to be posted at least 20 days in interest in the estate of the decedent, five or more conspicuous places in the including persons having claims or ac- vicinity of the designated place of hear- counts against the estate, to be present ing, and he may cause postings in such at the hearing or their rights may be other places and reservations as he lost by default. deems appropriate. A certificate show- (b) The notice shall state further that ing the date and place of posting shall the hearing may be continued to an-

80 TITLE 43 § 4.221

other time and place. A continuance (2) The name and address of that may be announced either at the original person, qualified under paragraph (d) hearing by the Examiner or by an ap- of this section to take depositions, before propriate notice posted at the announced whom the proposed examination is to be place of hearing on or prior to the an- made; nounced hearing date and hour. ( 3) The proposed time and place of the examination, which shall be at least DEPOSITIONS, DISCOVERY, AND PREHEARING 20 days after the date of the filing of CONFERENCE the application; and § 4.220 Production of documents for in- (4) The reasons why such deposition spection and copying. should be taken. (a) At any stage of the proceeding (c) Order for taking deposition. If prior to the conclusion of the hearing, a after examination of the application the party in interest may make a written Examiner determines that the deposition demand, a copy to be filed with the Ex- should be taken, he shall order its tak- aminer, upon any other party to the ing. The order shall be served upon all proceeding or upon a custodian of rec- parties in interest and shall state: ords on Indians or their trust property, ( 1) The name of the deponent; to produce for inspection and copying or (2) The time and place of the exam- photographing, any documents, papers, ination which shall not be less than 15 records; letters, photographs, or other days after the date of the order except tangible things not privileged, relevant as stipulated otherwise; and to the issues which are in the other ( 3) The name and address of the offi- party's or custodian's possession, cus- cer before whom the examination is to tody, or control. Upon failure of prompt be made. The officer and the time and compliance, the Examiner may issue an place need not be the same as those appropriate order upon a petition filed requested in the application. by the requesting party. At any time (d) Qualifications of officer. The de- prior to closing the record, the Examiner ponent shall appear before the Examiner upon his own motion, after notice to all or before an officer authorized to admin- parties, may issue an order to any ister oaths by the law of the United party in interest or custodian of records States or by the law of the place of the for the production of material or infor- examination. mation not privileged, and relevant to (e) Procedure on examination. The the issues. deponent shall be examined under oath (b) Custodians of official records shall or affirmation and shall be subject to furnish and reproduce documents, or cross-examination. The testimony of the permit their reproduction, in accordance deponent shall be recorded by the officer with the rules governing the custody or someone in his presence. An applicant and control thereof. who requests the taking of a person's § 4.221 Depositions. deposition shall make his own arrange- (a) Stipulation. Depositions may be ments for payment of any costs incurred. taken upon stipulation of the parties. (f) Submission to witness; changes; Failing an agreement therefor, deposi- signing. When the testimony is fully tions may be ordered under paragraphs transcribed, the deposition shall be sub- (b) and ( c) of this section. mitted to the deponent for examination (b) Application for taking deposition. and shall be read to or by him, unless When a party in interest files a written such examination and reading are application, the Examiner may at any waived by the deponent or by all other time thereafter order the taking of the parties in interest. Any changes in form sworn testimony of any person by depo- or substance which the deponent desires sition upon oral examination for the to make shall be entered upon the depo- purpose of discovery or for use as evi- sition by the officer with a statement of dence at a hearing. The application shall the reasons given by the deponent for be in writing and shall set forth: making them. The deposition shall then (1) The name and address of the pro- be signed by the deponent, unless the posed deponent; parties in interest by stipulation waive

81 § 4.222 PUBLIC LANDS: INTERIOR

the signing, or the witness is ill or can- presentation of evidence at the hearing. not be found or refuses to sign. If the Answers shall be served upon the Ex- deposition is not signed by the deponent, aminer within 15 days from the date of the officer shall sign it and state on the service of such interrogatories or within record the fact of the waiver, or of the such other period of time as may be illness or absence of the deposent or the agreed upon by the parties or prescribed fact of the refusal to sign together with by the Examiner. A copy of the answers the reason, if any, given therefor; the shall be transmitted by the Examiner to deposition may then be used as fully as the party propounding the interroga- though signed, unless the Examiner tories. Within 10 days after service of holds that the reason given for refusal written interrogatories are made upon to sign requires rejection of the deposi- him, a party in interest so served may tion in whole or in part. serve cross-interrogatories for answer by (g) Certification by officer. The officer the witness to be interrogated. shall certify on the deposition that the deponent was duly sworn by him and § 4.223 Objections to and limitations on that the deposition is a true record of production of documents, deposi- the deponent's testimony. He shall then tions, and interrogatories. securely seal the deposition, together The Examiner, upon motion timely with two copies thereof, in an envelope made by any party in interest, proper and shall personally deliver or mail the notice, and good cause shown, may direct same by certified or registered mail to that proceedings under §§ 4.220, 4.221, the Examiner. and 4.222 shall be conducted only under, (h) Use of depositions. A deposition and in accordance with, such limitation ordered and taken in accord with the as he deems necessary and appropriate provisions of this section may be used in as to documents, time, place, and scope. a hearing if the Examiner finds that the The Examiner may act on his own mo- witness is absent and his presence can- tion only if undue delay, dilatory tactics, not be readily obtained, that the evidence and unreasonable demands are made so is otherwise admissible, and that circum- as to delay the orderly progress of the stances exist that make it desirable in proceeding or cause unacceptable hard- the interest of fairness to allow the dep- ship upon a party or witness. osition to be used. If a deposition has been taken, and the party in interest on § 4.224 Failure to comply with orders. whose application it was taken refuses to offer the deposition, or any part In the event of the failure of a party thereof, in evidence, any other party in to comply with a request for the produc- interest or the Examiner may introduce tion of a document under § 4.220; or on the deposition or any portion thereof on the failure of a party to appear for ex- which he wishes to rely. amination under § 4.221 or on the failure of a party to respond to interrogatories § 4.222 Written interrogatories; admis- or requests for admissions under § 4.222; sion of facts and documents. or on the failure of a party to comply At any time prior to a hearing and in with an order of the Examiner issued sufficient time to permit answers to be under § 4.223 without, in any of such filed before the hearing, a party in events, showing an excuse or explana- interest may serve upon any other party tion satisfactory to the Examiner for in interest written interrogatories and such failure, the Examiner may: requests for admission of facts and doc- (a) Decide the fact or issue relating uments by filing such application and to the material requested to be produced, requests with the Examiner, who shall or the subject matter of the probable thereupon transmit a copy to the party testimony, in accordance with the claims in interest for whom they are intended. of the other party in interest or in ac- Such interrogatories and requests for cordance with other evidence available admissions shall be drawn with the pur- to the Examiner; or pose of defining the issues in dispute (b) Make such other ruling as he between the parties and facilitating the determines just and proper.

82 TITLE 43 § 4.233

§ 4.225 Prehearing conference. § 4.231 Hearings. The Examiner may, upon his own (a) All testimony in Indian probate motion or upon the request of any party hearings shall be under oath and shall in interest, call upon the parties to be taken in public except in those cir- appear for a conference to: cumstances which in the opinion of the (a) Simplify or clarify the issues; Examiner justify all but parties in in- (b) Obtain stipulations, admissions, terest to be excluded from the hearing. agreements on documents, understand- (b) The proceedings of hearings shall ings on matters already of record, or be recorded verbatim and transcribed similar agreements which will avoid and made a part of the record. unnecessary proof; (c) The record shall include a showing of the names of all parties in inter- (c) Limit the number of expert or est and of attorneys who attended such other witnesses in avoidance of exces- hearing. sively cumulative evidence;, ( d) Effect possible agreement dispos- § 4.232 Evidence; form and admissi- ing of all or any of the issues in dis- bility. pute; and (a) Parties in interest may offer at a ( e) Resolve such other matters as hearing such relevant evidence as they may simplify and shorten the hearing. deem appropriate under the generally accepted rules of evidence of the ,State HEARINGS in which the evidence is taken, subject to the Examiner's supervision as to the § 4.230 Examiner; authority and duties. extent and manner of presentation of The authority of the Examiner in all such evidence. hearings in estate proceedings includes, but is not limited to, authority: (b) The Examiner may admit letters or copies thereof, affidavits, or other (a) To administer oaths and affirma- evidence not ordinarily admissible under tions: the generally accepted rules of evidence, (b) To issue subpoenas under the pro- the weight to be attached to evidence visions of 25 U.S.C. 374 (1964) upon his presented in any particular form being own initiative or within his discretion within the discretion of the Examiner, upon the request of any party in inter- taking into consideration all the circum- test, to any person whose testimony he stances of the particular case. believes to be material to a hearing. (c) Stipulations of fact and stipula- Upon the failure or refusal of any per- tions of testimony that would be given son upon whom a subpoena shall have by witnesses were such witnesses pres- been served to appear at a hearing or ent, agreed upon by the parties in in- to testify, the Examiner may file a peti- terest, may be used as evidence at the tion in the appropriate U.S. District hearing. Court for the issuance of an order requiring the appearance and testimony ( d) The Examiner may in any case of the witness: require evidence in addition to that offered by the parties in interest. (c) To permit any party in interest to cross-examine any witness; § 4.233 Proof of wills, codicils, and rev- (d) To appoint a guardian ad !item ocations. to represent any minor or incompetent (a) Self-proved wills. A will executed party in interest at hearings; as provided in § 4.260 may, at the time ( e) To rule upon offers of proof and of its execution, be made self-proved, receive evidence; and testimony of the witnesses in the (f) To take and cause depositions to probate thereof may be made unneces- be taken and to determine their scope; sary by the affidavits of the testator and and attesting witnesses, made before an (g) To otherwise regulate the course officer authorized to administer oaths, of the hearing and the conduct of wit- such affidavits to be attached to such nesses, parties in interest, and attorneys will and to be in form and contents sub- at law appearing therein. stantially as follows:

83 § 4.234 PUBLIC LANDS: INTERIOR

place of hearing and who are of sound ~:::t:f ~; ..... : : : : : : : : : : . : : : : ~~:: : : ~- ss. mind must be produced and examined. I, ...... , being first If none of the attesting witnesses resides duly •worn, on oath, depose and say: That I am an (enrolled or unenrolled) member of the in the reasonable vicinity of the place ...... Tribe of Indians of hearing at the time appointed for in the State of...... proving the will, the Examiner may that on the ...... day of...... , 19 ... , admit the testimony of other witnesses I requested ...... to prepare a will for me; that the attached will to prove the testamentary capacity of was prepared and I requested ...... the testator and the execution of the and...... to act as witnes.,es will and, as evidence of the execution, thereto; that I declared to said witnesses that said instrument was my last will and testament; that I the Examiner may admit proof of the signed said will in the presence of both witnesses handwriting of the testator and of the and they signed the same as witnesses in my pres- attesting witnesses, or of any of them. ence and in the presence of each other; that said The provisions of § 4.232 are applicable will was read and explained to me ( or read by me), after being prepared and before I signed it with respect to remaining issues. and it clearly and accurately expresses my wishes; and that I willingly made and executed said will § 4.234 Witnesses, interpreters, and as my free and voluntary act and deed for the fees. purposes therein expre~ed. Parties in interest who desire a wit- Testator /Testatrix ness to testify or an interpreter to serve We, ...... and ... at a hearing shall make their own finan- . . . , each being first duly sworn, cial and other arrangements therefor, on oath, depose and state: That on the. . day of ...... , 19. and subpoenas will be issued where nec- . . . . . a member of the. essary and proper. The Examiner may Tribe of Indians of the State of ... call witnesses and interpreters and order . . . . , published and declared the attached payment out of the estate assets of per instrument to be his/her last will and testament, signed the same in the presence of both of us and diem, mileage, and subsistence at a rate requested both of us to sign the same as witnesses; not to exceed that allowed to witnesses that we, in compliance with his/her request, signed called in the U.S. District Courts. In the same as witnesses in his/her presence and in the presence of each other; that said testator/ hardship situations, the Examiner may testatrix was not acting under duress, menace, order payments of per diem and mileage fraud, or undue influence of any person, so far as for indispensable witnesses and inter- we could ascertain, and in our opinion was men. preters called for the parties. In the tally capable of disposing of all his/her estate by will. order for payment he shall specify whether such costs shall be allocated Witness and charged against the interest of the Witness party calling the witness or against the Subscribed and sworn to before me this estate generally. Costs of administra- day of ... ·• 19 ...• by ...... tion so allowed shall have a priority for . testator/testatrix, and by payment greater than that for any and ..... ____ attesting witnesses. creditor claims allowed, except the probate fee. Upon receipt of such order, the Superintendent shall pay such sums im- (Title) mediately from the estate account, if If uncontested, a self-proved will may such funds are insufficient, then out of be approved and distribution ordered the funds as they accrue to such ac- thereunder with or without the testi- count with the proviso that such cost mony of any attesting witness. shall be paid in full with a later alloca- (b) Self-proved codicils and revocation against the interest of a party, if such was ordered. tions. A codicil to, or a revocation of, a will may be made self-proved in the § 4.235 Supplemental hearings. same manner as provided in paragraph After the matter has been submitted (a) of this section with respect to a will. but prior to the time the Examiner has {c) Will contest. If the approval of a rendered his decision, the Examiner may will, codicil thereto, or revocation thereof upon his own motion or upon motion of is contested, the attesting witnesses who any party in interest schedule a supple- are in the reasonable vicinity of the mental hearing if he deems it necessary.

84 TITLE 43 § 4.241

The notice shall set forth the purpose shares of heirs with citations to the law of the supplemental hearing and shall of descent and distribution in accord- ,be served upon all parties in interest in ance with which the decision is made; the manner provided in § 4.211. Where or the fact that the decedent died leav- the need for such supplemental hearing ing no legal heirs. · becomes apparent during any hearing, (2) In testate cases, ( i) approval or the Examiner may announce the time disapproval of the will with construction and place for such supplemental hearing of its provisions, ( ii) the names and to all those present and no further no- relationship to the testator of all bene- tice need be given. In that event the ficiaries and a description of the prop- records shall clearly show who was pres- erty which each is to receive; ent at the time of the announcement. (3) Allowance or disallowance of claims against the estate; § 4.236 Record. ( 4) Whether heirs or devisees are non- (a) After the completion of the hear- Indian, exclusively alien Indians, or ing, the Examiner shall make up the Indians whose property is not subject to official record containing: Federal supervision. ( 1) A copy of the posted public notice (5) A determination of any rights of of hearing showing the posting certifi- dower, curtesy or homestead which may cations; constitute a burden upon the interest of (2) A copy of each notice served on the heirs. interested parties with proof of mailing; (b) When the Examiner issues a de- ( 3) The record of the evidence re- cision, he shall issue a notice thereof to ceived at the hearing, including a tran- all parties who have or claim any inter- script of testimony; est in the estate and shall mail a copy ( 4) Claims filed against the estate; of said notice, together with a copy of (5) Will and codicils, if any; the decision to the Superintendent and (6) Inventories and appraisements of to each party in interest simultaneously. the estate; The decision shall not become final and ( 7) Pleadings and briefs filed; no distribution shall be made thereunder (8) Special or interim orders; until the expiration of the 60 days al- (9) Data for heirship finding and lowed for the filing of a petition for family history; rehearing by aggrieved parties as pro- (10) The decision and the Examiner's vided in § 4.241. notice thereof; and (36 F.R. 7186, Apr. 15, 1971, as amended at 36 (11) Any other material or docu- F.R. 24813, Dec. 23, 1971] ments deemed material by the Exam- iner. § 4.241 Rehearing. (b) The Examiner shall lodge the (a) Any person aggrieved by the de- original record with the designated title cision of the Examiner may, within 60 plant in accordance with § 120.1 of Title days after the date on which notice of 25 of the Code of Federal Regulations; the decision is mailed to the interested a duplicate copy shall be lodged with parties, file with the Superintendent a the Superintendent originating the pro- written petition for rehearing. ,Such a bate. A partial record may also be fur- petition must be under oath and must nished to the Superintendents of other state specifically and concisely the affected agencies. grounds upon which it is based. If the petition is based upon newly-discovered DECISIONS evidence, it shall be accompanied by affidavits of witnesses stating fully what § 4.240 Decision of Examiner and notice the new testimony is to be. It shall also t'hereof. state justifiable reasons for the failure (a) The Examiner shall decide the to discover and present that evidence, issues of fact and law involved in the tendered as new, at the hearings held proceedings and shall incorporate in his prior to the issuance of the dicision. The decision: Superintendent, upon receiving a peti- (1) In all cases, the names, birth tion for rehearing, shall promptly for- dates, relationships to the decedent, and ward it to the Examiner. The Superin-

85 § 4.242 PUBLIC LANDS: INTERIOR

tendent shall not pay claims or decision pending the filing of a notice distribute the estate while such petition of appeal by an aggrieved party as is pending unless otherwise directed by herein provided. the Examiner. [36 F.R. 7186, Apr. 15, 1971, as amended at 36 F.R. 24813, Dec. 23, 1971] (b) If proper grounds are not shown, or if the petition is not filed within the § 4.242 Reopening. time prescribed in paragraph (a) of this (a) Within a period of 3 years from section, the Examiner shall issue an the date of a final decision issued by an order denying the petition and shall set Examiner or by the Board but not there- forth therein his reasons therefor. He after except as provided in §§ 4.203 and. shall furnish copies of such order to 4.206, any person claiming an interest the petitioner, the Superintendent, and in the estate who had no actual notice the parties in interest. of the original proeeedings and who was (c) If the petition appears to show not on the reservation or otherwise in merit, the Examiner shall cause copies the vicinity at any time while the PU:blic of the petition and supporting papers to notices of the hearing were posted may be served on those persons whose interest file a petition in writing for reopening in the estate might be adversely affected of the case. Any such petition shall be by the granting of the petition. The addressed to the Examiner and filed at Examiner shall allow all persons served his headquarters. A copy of such peti- a reasonable, specified time in which to tion shall be furnished also by the peti- submit answers or legal briefs in oppo- tioner to the Superintendent. All grounds sition to the petition. The Examiner for the reopening must be set forth shall then reconsider, with or without fully. If based on alleged errors of fact, hearing as he may determine, the issues all such allegations shall be ·under oath raised in the petition; he may adhere to and supported by affidavits. the former decision, modify or vacate it, (b) If the Examiner finds that proper or make such further order as is war- grounds are not shown, he shall issue ranted. an order denying the petition and set- (d) Upon entry of a final order the ting forth the reasons for such denial. Examiner shall lodge the complete rec- Copies of the Examiner's decision shall ord relating to the petition with the be mailed to the petitioner, the Superin- title plant designated under § 4.236 (b), tendent, and to those persons who share and furnish a duplicate record thereof in the estate. to the Superintendent. ( c) If the petition appears to show ( e) Successive petitions for rehearing merit, the Examiner shall cause copies are not permitted, and, except for the of the petition and all papers filed by issuance of necessary orders nunc pro the petitioner to be served on those per- tune to correct clerical errors in the sons whose interest in the estate might decision, the Examiner's jurisdiction be adversely affected by the granting of shall have terminated upon the issunace the petition. Such persons may resist of a decision finally disposing of a peti- such petition by filing answers, cross- tion for rehearing. Nothing herein shall petitions, or briefs. Such filings shall be be construed as a bar to the remand of made within such reasonable time pe- a case by the Board for further hearing riods as the Examiner specifies. The or rehearing after appeal. Examiner shall then reconsider, with or (f) At the time the final decision is without hearing as he may determine, entered following the filing of a petition prior actions taken in the case and •,may for rehearing, the Examiner shall direct either adhere to, modify, or vacate the a notice of such action with a copy of original decision. Copies of the Exam- the decision to the Superintendent and iner's decision shall be mailed to the to the parties in interest and shall mail petitioner, to all persons who received the same by regular mail to the said copies of the petition, and to the ,Super- parties at their addresses of record. intendent. (g) No distribution shall be made ( d) To prevent manifest error an under such order for a period of 60 days Examiner may reopen a case within a following the mailing of a notice of period of 3 years from the date of the

86 TITLE 43 § 4.251 final decision, after due notice on his (b) The claims of non-Indians shall own motion, or on petition of an officer be filed in triplicate, itemized in detail of the Bureau of Indian Affairs. Copies as to dates and amounts of charges for of the Examiner's decision shall be purchases or services and dates and mailed to all parties in interest and to amounts of payments on account. Such the Superintendent. claims shall show the names and ad- (e) The Examiner may suspend dis- dresses of all parties in addition to the tribution of the estate or the income decedent from whom payment might be therefrom during the pendency of re- sought. Each claim shall be supple- opening proceedings by order directed to mented by an affidavit, in triplicate, of the Superintendent. the claimant or someone in his behalf that the amount claimed is justly due (f) The Examiner shall lodge the from the decedent, that no payments record made in disposing of a reopening have been made on the account which petition with the title plant designated are not credited thereon as shown by under § 4.236 (b) and shall furnish a the itemized statement, and that there duplicate record thereof to the Superin- are no offsets to the knowledge of the tendent. claimant. (g) No distribution shall be made un- (c) Claims of individual Indians der a decision issued pursuant to para- against the estate of a deceased Indian graph (b), (c), or (d) of this section may be presented in the manner set for a period of 60 days following the forth in paragraph (b) of this section mailing of the copy of the decision as or by oral evidence at the hearing where therein provided, pending the filing of the claimant shall be subject to examina- a notice of appeal by an aggrieved party. tion under oath relative thereto. (h) If a petition for reopening is filed ( d) Claims for care may not be al- more than 3 years after the entry of a lowed except upon clear and convincing final decision in a probate, and if it shall evidence that the care was given on a appear to the Examiner that there exists promise of compensation and that com- a possibility for correction of a manifest pensation was expected. injustice, he shall forward the petition to the Board of Indian Appeals with a (e) A claim, whether that of an showing as to all intervening rights and Indian or non-Indian, based on a writ- a recommendation as to the action to be ten or oral contract, express or implied, taken. The Board may, in its discretion, where the claim for relief has existed exercise the power reserved to the Sec- for such a period as to be barred by the retary in § 1.2 of Title 25 of the Code State laws at date of decedent's death, of Federal Regulations, and waive or cannot be allowed. make an exception to the 3-year limita- (f) Claims sounding in tort not re- tion contained in this section. If the duced to judgment in a court of compe- Board shall determine that a reopening tent jurisdiction, and other unliquidated appears proper, then the petition may claims not properly within the jurisdic- be remanded to the Examiner with in- tion of a probate forum, may be barred structions for further proceedings. from consideration by an Examiner's [36 F.R. 7186, Apr. 15, 1971, as amended at 36 F.R. interim order. 24813, Dec. 23, 1971] (g) Claims of a State or any of its CLAIMS political subdivisions on account of social security or old-age assistance pay- § 4.250 Filing and proof of creditor ments shall not be allowed. claims; limitations. [36 F.R. 7186, Apr. 15, 1971, as amended at 36 (a) All claims against the estate of a F.R. 24813, Dec. 23, 1971] deceased Indian held by creditors charge- § 4.251 Priority of claims. able with notice of the hearing under § 4.211(c) shall be :filed with either the After allowance of the costs of ad- Superintendent or the Examiner prior ministration, including the probate fee, to the conclusion of the first hearing, claims shall be allowed: and if they are not so filed, they shall (a) Priority in payment shall be al- be forever barred. lowed in the following order except as

87 ,i 4.260 PUBLIC LANDS: INTERIOR otherwise provided in paragraph (b) of the lands remaining in trust. Further, this section: except as prohibited by law, all trust ( 1) Claims for expenses for last ill- moneys of the deceased on hand or ac- ness not in excess of $500, and for fu- crued at time of death, including bonds, neral expenses not in excess of $500; unpaid judgments, and accounts receiv- (2) Claims of unsecured indebtedness able, may be used for the payment of to the United States or any of its claims, whether the right, title, or inter- agencies; est that is taken by an heir, devisee, or (3) Claims of unsecured indebtedness legatee remains in or passes out of trust. to a Tribe or to any of its subsidiary organizations; WILLS ( 4) Claims of general creditors, in- § 4.260 Making; review as to form; cluding that portion of expenses of last revocation. illness not previously authorized in ex- (a) An Indian of the age of 21 years cess of $500 and that portion of funeral or over and of testamentary capacity, charges not previously authorized in who has any right, title, or interest in excess of $500. trust property, may dispose of such (b) The preference of the probate fee property by a will executed in writing and of other claims may be deferred, in and attested by two disinterested adult the discretion of the Examiner, in mak- witnesses. ing adjustments or compromises bene- (b) When an Indian executes a will ficial to the estate. and submits the same to the Superin- (c) No claims of general creditors tendent of the Agency, the Superintend- shall be allowed if the value of the ent shall forward it to the Office of the estate is $2,500 or less and the decedent Solicitor for examination as to ade- is survived by a spouse or by one or quacy of form, and for submission by more minor children. In no event shall the Office of the Solicitor to the Super- claims be allowed in an aggregate intendent of any appropriate comments. amount which is in excess of the valua- The will or codicil or any replacement tion of the estate; the general creditors' or copy thereof may be retained by the claims may be prorated or disallowed Superintendent at the request of the entirely, and the preferred claims may testator or testatrix for safekeeping. A be prorated subject to the limitations will shall be held in absolute confidence, contained in paragraph (d) of this sec- and no person other than the testator tion. shall admit its existence or divulge its (d) If the income of the estate is not contents prior to the death of the sufficient to permit the payment of al- testator. lowed claims of general creditors within (c) The testator may, at any time 3 years from the date of allowance; or during his lifetime, revoke his will by to permit payment of the allowed claims a subsequent will or other writing exe- of preferred creditors, except the United cuted with the same formalities as are States, within 7 years from the date of required in the case of the execution of allowance, then the unpaid balance of a will, or by physically destroying the such claims shall not be enforceable will with the intention of revoking it. against the estate or any of its assets. No will that is subject to the regulations ( e) In the event that it is determined of this subpart shall be deemed to be that a part or portion -of the estate is revoked by operation of the law of any to lose its trust character pursuant to State. findings made under § 4.206, then the [36 F.R. 7186, Apr. 15, 1971, as amended at 36 Examiner may in his discretion prorate F.R. 21284, Nov. 5, 1971; 36 F.R. 24813, Dec. 23, all claims and reduce the allowance 1971] thereof on a ratio comparable with that existing between the total value of the § 4.261 Anti-lapse provisions. estate and the value of that portion When an Indian testator devises or which is to lose its trust character. bequeaths trust property to any of his lineal descendants, mother or father, § 4.252 Property subject to claims. brothers or sisters, either of the whole Claims are payable from income from or half-blood or their issue, and the de-

88 TITLE 43 § 4.273 visee or legatee dies before the testator as provided in § 4.251. The ,Superintend- leaving lineal descendants, such de- ent shall credit the balance, if any, to scendants shall take the right, title, or the legal heirs. interest so given by the will per stirpes. [36 F.R. 24814, Dec. 23, 1971] Relationship by adoption shall be equivalent to relationship by blood. § 4.272 Omitted property. (a) When, subsequent to the issuance § 4.262 Felonious taking of testator's of a decision under § 4.240 or § 4.296, it life. is found that trust property or interest No person who has been finally con- therein belonging to a decedent has not victed of feloniously causing the death been included in the inventory, the in- or taking the life of, or procuring an- ventory can be modified either adminis- other person to take the life of, the tratively by the Commissioner of the testator, shall take directly or indirectly Bureau of Indian Affairs or by a modi- any devise or legacy under deceased's fication order prepared by him for the will. All right, title, and interest exist- Examiner's approval and signature to ing in such a situation shall vest and be include such omitted property for distri- determined as if the person convicted bution pursuant to the original decision. never existed, notwithstanding § 4.261. Copies of such modifications shall be furnished to the Superintendent and to CUSTODY AND DISTRIBUTION OF ESTATES all those persons who share in the estate. § 4.270 Custody and control of trust (b) When the property to be included estates. takes a different line of descent from The Superintendent may assume cus- that shown in the original decision, the tody or control of all trust personal Commissioner of the Bureau of Indian property of a deceased Indian and he Affairs shall notify the Examiner who may take such action, including sale shall proceed to hold hearings if neces- thereof, as in his judgment is necessary sary and shall issue a decision under for the benefit of the estate, the heirs, § 4.240. The record of any such proceed- legatees, and devisees, pending entry of ing shall be lodged with the title plant the decision provided for in § 4.240, designated under § 4.236 (b). § 4.241, or § 4.296 or decisions in the settlement of the estate as provided for § 4.273 Improperly included property. in § 4.271. All expenses, including ex- (a) When subsequent to a decision penses of roundup, branding, care, and under § 4.240 or § 4.296, it is found that feeding of livestock, shall be a proper property has been improperly included charge against the estate and may be in the inventory of an estate, the inven- paid by the Superintendent from those tory shall be modified to eliminate such funds of the deceased that are under property. A petition for modification his control, or from the proceeds of a may be filed by the Superintendent of sale of the property or a part thereof. the Agency where the property is located, or by any party in interest. § 4.271 Summary distribution. (b) The Examiner shall review the When an Indian dies intestate leaving record of the title upon which the modi- only trust personal property or cash of fication is to be based, and enter an ap- a value of less than $1,000, the Superin- propriate decision. If the decision is en- tendent shall assemble the apparent heirs tered without a hearing, the Examiner and hold an informal hearing to deter- shall give notice of his action to all mine the proper distribution thereof. A parties whose rights are adversely af- memorandum covering the hearing shall fected allowing them 60 days in which be retained in the agency files showing to show cause why the decision should the date of death of the decedent, the not then become final. date of hearing, the persons notified and (c) Where appropriate the Examiner attending, the amount on hand, and the may conduct a hearing at any stage of disposition thereof. In the disposition of the modification proceeding. Any such such funds, the Examiner or Superin- hearing shall be scheduled and conducted tendent shall dispose of creditors' claims in accordance with the rules of this

89 § 4.274 PUBLIC LANDS: INTERIOR subpart. The Examiner shall enter a On estates appraised at: $250 and not exceeding $1,000 ...... $20 final decision based on his findings, mod- Over $1,000 and less than $2,000 ...... 25 ifying or refusing to modify the prop- $2,000 and not exceeding $3,000 ...... 30 erty inventory and his decision shall Over $3,000 and not exceeding $5,000...... 50 become final at the end of 60 days from Over $5,000 and not exceeding $7,500...... 65 Over $7,500 ...... 175 the date it is mailed unless a notice of ' 45 Stat. 992; 25 U.S.C. sec. 377 (1964). appeal is filed by an aggrieved party within such period. Notice of entry of § 4.281 Claims for attorney fees. the decision shall be given in accordance (a) Attorneys representing Indians in with § 4.240(b). proceedings under these regulations may (d) A party aggrieved by the Exam- be allowed fees therefor by the Exam- iner's decision may appeal to the Board iner. At the Examiner's discretion such pursuant to the procedures in §§ 4.291- fees may be chargeable against the in- 4.297. terests of the party thus represented, or ( e) The record of all proceedings shall where appropriate, they may be taxed be lodged with the title plant designated as a cost of administration. Petitions for allowance of fees shall be filed prior under § 4.236 (b). to the close of the last hearing and shall [36 F.R. 24814, Dec. 23, 1971] be supported by such proof as is required by the Examiner. In determining § 4.274 Distribution of estates. attorney fees, consideration shall be (a) Unless the Superintendent shall given to the fact that the property of have received a petition for rehearing the decedent is restricted or held in filed pursuant to the requirements of trust and that it is the duty of the § 4.241 (a) or a copy of a notice of ap- Department to protect the rights of all peal filed pursuant to the requirements parties in interest. of § 4.291 (b), he shall pay allowed (b) Nothing herein shall prevent an claims, distribute the estate, and take attorney from petitioning for additional all other necessary action directed by fees to be considered at the disposition the Examiner's final order. of a petition for rehearing and again (b) The Superintendent may not pay after an appeal on the merits. An order claims nor make distribution of an allowing an attorney's fees is subject to estate during the pendency of proceed- a petition for rehearing and to an ings under § 4.241 or § 4.242 unless the appeal. Examiner orders otherwise in writing. The Board may, at any time, authorize § 4.282 Guardians for incompetents. the Examiner to issue interim orders Minors and other legal incompetents for payment of claims or for partial who are parties in interest shall be rep- distribution during the pendency of pro- resented at all hearings by legally ap- ceedings on appeal. pointed guardians, or by guardians ad litem appointed by the Examiner. [36 F.R. 7186, Apr. 15, 1971, as amended at 36 F.R. 24814, Dec. 23, 1971] APPEAL TO THE BOARD OF INDIAN APPEALS MISCELLANEOUS § 4.290 Who may appeal. Any party in interest aggrieved by § 4.280 Probatt: fees. the action taken by an Examiner on a Upon a determination of the heirs to petition for rehearing or on a petition any trust or restricted Indian property for reopening shall have a right of of the value of $250 or more or to any appeal to the Board of Indian Appeals. allotment, or after approval of any will The scope of the review on appeal shall disposing of such trust or restricted be limited to those issues which were property, the following fees shall be before the Examiner when he ruled paid (a) by the heirs, or (b) by the upon the petition for rehearing or re- beneficiaries under the will, or ( c) from opening. the estate of the decedent, or ( d) from the proceeds of the sale of the allotment, § 4.291 Appeals; how taken. or ( e) from any trust funds belonging (a) Notice of appeal. The appellant to the estate of the decedent: shall file a written notice of appeal signed

90 TITLE 43 § 4.295 by him or by his attorney or other quali- § 4.293 Notice of transmittal of appeal fied representative, in the office of the file. Examiner who issued the decision being The original appeal :file shall be imme- appealed, within 60 days after the date diately forwarded to the Board by cer- of mailing of the notice of the decision tified mail with a return card requested, being appealed. A full statement of the with a letter of transmittal, a copy of errors of fact and law upon which the ap- which shall be addressed and mailed to peal is based shall be included in either the appellant or his attorney. The said the notice of appeal or in any brief copy shall constitute a notice of the which is filed pursuant to § 4.295 (a). transmittal of the said :file. Thereafter, Failure to specify the basis relied upon the :file may be examined at the title will subject the appeal to dismissal. plant or in the office of the Superintend- (b) Service of copies of notice of ap- ent; any objection or request to supple- peal. The appellant shall hand deliver, ment the :file shall be :filed with the Board within 15 days of the date of the or forward by certified mail, to the Examiner, the original and one copy of transmittal letter. Upon failure to file the notice of appeal, and he shall for- such objection or a request to have the ward one copy by regular mail to the file supplemented, it will be conclusively Board. At the time of filing the original presumed that the same is acceptable to the appellant. The appellee shall have notice, he shall forward copies of the notice of appeal by regular mail or an additional 15 days in which to :file his otherwise to all Superintendents named objection to the :file or to request that it on the Examiner's notice of decision, to be supplemented. On his failure to :file all parties who share in the estate under such an objection or request, it will be conclusively presumed that the same is the decision being appealed, and to all other parties who have appeared of rec- satisfactory to the appellee. ord. The notice of appeal shall have § 4.294 Docketing. attached thereto a certificate if filed by Following receipt by the Board of the an attorney of record, or an affidavit if appeal file, it shall be promptly, and in filed by a nonattorney, setting forth the any event within 10 days, docketed and names of parties served and the last all of the following parties advised of known address of each to whom the its docketing: The appellant, the Exam- notice was mailed. iner whose decision is being appealed, (c) Action by Examiner. The Exam- and all interested parties as shown by iner receiving the notice of appeal shall the record on appeal. Said notice shall forthwith advise the Board if the notice further advise the appellant and all was not timely filed, and he shall file the other parties of the time limitations original as a part of the record. He shall within which. briefs may be :filed as set instruct the Superintendent to forthwith forth herein. return the duplicate record :filed under §§4.236(b) and 4.241(d), or under § 4.295 Pleadings. § 4.242 (f), to the title plant designated (a) The appellant may :file a brief or under § 4.236 (b) where the same shall other written statement of his conten- be compared with and made identical to tions and supporting authorities, all the original within 5 days. Thereafter, hereinafter called brief, within 30 days the duplicate shall be made available for of the mailing of the notice of docket- inspection of the parties either at the ing. He shall serve a copy of said brief title plant or at the office of the Super- upon all other interested parties or their intendent as they may request. counsel and a certificate or an affidavit [36 F.R. 7186, Apr. 15, 1971, as amended at 36 to that effect shall be :filed with said F.R. 24814, Dec. 23, 1971] brief. Opposing parties or their counsel shall have 30 days from the date of § 4.292 Appeal file. filing of appellant's brief with the Board The appeal :file shall include the full in which to file any answer briefs, copies record unless, by stipulation :filed with of which shall also be served upon the the notice, the parties shall specify only appellant or his counsel and all other a part thereof. parties in interest not joining in said 91 § 4.296 PUBLIC LANDS: INTERIOR answer brief, and a certificate or an * * * * * * affidavit to that effect shall be filed con- § 17.3 Discrimination prohibited. currently with the Board. * * * * * * (b) Appellant shall have 15 days from (d) Programs for Indians, natives of the date of filing of answer briefs in certain territories, and Alaska natives. which to reply to any new issues raised, An individual shall not be deemed sub- but he shall not raise any new issues jected to discrimination by reason of his therein. A certificate or an affidavit exclusion from the benefits of a program showing service of said briefs upon all which in accordance with Federal law, opposing parties or their counsel shall is limited to Indians, natives of certain be filed concurrently therewith. Except territories, or Alaska natives, if the indi-· by special permission of the Board, no vidual is not a member of the class. to other briefs will be allowed on appeal. which the program is addressed. Such programs include those authorized by § 4.296 Decisions. statutes listed in Appendix B of this Decisions of the Board will be made part. in writing. ,Sufficient copies thereof will * * * * * * be forwarded to the Examiner for immediate simultaneous distribution to all PART 20-EMPLOYEE RESPONSIBILI- parties concerned, the Superintendent, TIES AND CONDUCT the Commissioner, the title plant desig- * * * * * * nated under § 4.236(b), and to such § 20.735-20 Specific types of conduct. other persons as the Board in its discre- * * * * * * tion deems appropriate. Decisions of the (g) Supplies for, and purchases from, Board, which are final upon issuance, Indians. No Federal employee may have shall not be executed prior to the ex- an interest in a contract with the Gov- piration of 60 days following the date ernment or with the Indians for the of issuance of the decision. Immediately purchase, transportation, or delivery of upon expiration of such period, the Ex- goods or supplies for the Indians (18 aminer shall issue any implementing or U.S.C. 437). While Federal employees supplemental order which may be nec- may, under regulations of the Secretary essary in accordance with the Board's of the Interior, purchase products, serv- decision and shall notify the same offices ices, or commodities from Indians, such and parties who received the decision of purchases may not be made for the pur- the Board and the title plant designated poses of resale (25 U.S.C. 87a). Regula- under § 4.236 ( b) . tions on purchases are found in 25 CFR [36 F.R. 24814, Dec. 23, 1971 l 251.5. § 4.297 Disposition of the record. * * * * * * The record filed with the Board under (s) Indian employees and tribal repre- § 4.292 and all documents added during sentatives. An Indian who is employed the appeal proceedings, including the in a regularly established position in the Board's decision, shall be returned by Bureau of Indian Affairs within the the Board to the title plant designated jurisdiction of which his tribal body is a under § 4.236 (b). Upon receipt of the part may not serve as a representative record, the duplicate thereof required by of his tribe, band, or pueblo. Neither § 4.291 (c) shall be conformed to the may an Indian who is serving in such a original and returned to the Superin- representative capacity be employed in a tendent. regularly established position in the [36 F.R. 24814, Dec. 23, 1971 l Bureau of Indian Affairs within the * * * * * * jurisdiction of which his tribal body is a part. PART 17-NONDISCRIMINATION IN (1) These restrictions do not apply to FEDERALLY-ASSISTED PROGRAMS Indians who are employed on an inter- OF THE DEPARTMENT OF THE IN- mittent or irregular basis where such TERIOR-EFFECTUATION OF TITLE employment does not require decisions VI OF THE CIVIL RIGHTS ACT OF or actions which might be influenced by 1964 their official connection with the tribe,

92 TITLE 43 § 417.5 band, or pueblo. Nor shall these restric- by the Regional Director, Bureau of tions prevent an Indian serving as a Reclamation, Boulder City, Nev. (herein representative from being employed on termed "Regional Director"), and Con- such a basis. tractors for municipal and industrial (2) The Commissioner of Indian Af- water may be excluded from the appli- fairs may make exceptions to the re- cation of these procedures at the dis- strictions contained in this paragraph cretion of the Regional Director, and when circumstances justify. (c) procedural methods for implement- (3) The term "representative" as used ing Colorado River water conservation in this paragraph means the occupant measures on Indian Reservations will of an elective or other position in the be in accordance with § 417.5 hereof. official governing body of the tribe, band, * * * * * * or pueblo, or any position established by such governing body which carries with § 417.5 Duties of the Commissioner of it the right to vote in the proceedings of Indian Affairs with respect to Indian that body. Reservations. (a) The Commissioner of Indian Af- * * * * * * fairs (herein termed "Commissioner") Subtitle B-Regulations Relating will engage in consultations with var- to Public Lands ious tribes and other water users on the Indian Reservations listed in Article CHAPTER 1-BUREAU OF II ( D) of said Supreme Court Decree, RECLAMATION similar to those engaged in by the Re- * * * * * * gional Director with regard to Contrac- PART 417-PROCEDURAL METHODS tors as provided in § 417 .2 hereof. After FOR IMPLEMENTING COLORADO consideration of all comments and sug- RIVER WATER CONSERVATION gestions advanced by said tribes and other water users on said Indian Reser- MEASURES WITH LOWER BASIN vations concerning water conservation CONTRACTORS AND OTHERS measures and operating practices in the § 417.1 Scope of part. diversion, delivery, distribution and use The procedures established in this of Colorado River water, the Commis- part shall apply to every public or pri- sioner shall, within the limits pre- vate organization (herein termed "Con- scribed in said decree, make a deter- tractor") in Arizona, California, or mination as to the estimated amount of Nevada which, pursuant to the Boulder water to be diverted for use on each Canyon Project Act or to provisions of Indian Reservation covered by the above other Reclamation Laws, has a valid decree. Said determination shall be made contract for the delivery of Colorado prior to the beginning of each calendar River water, and to Federal establish- year. That determination shall be based ments other than Indian Reservations upon, but not necessarily limited to, enumerated in Article II (D) of the such factors as: The area to be irri- March 9, 1964, Decree of the Supreme gated, climatic conditions, location, land Court of the United States in the case classifications, the kinds of crops raised, of "Arizona v. California et al.", 376 cropping practices, the type of irriga- U.S. 340 (for purposes of this part each tion system in use, the condition of such Federal establishment is consid- water carriage and distribution facili- ered as a "Contractor"), except that ties, record of water orders, and rejec- (a) neither this part nor the term "Con- tions of ordered water, general operat- tractor" as used herein shall apply to ing practices, the operating efficiencies any person or entity which has a con- and methods of irrigation of the tribes tract for the delivery or use of Colorado and water users on each reservation, River water made pursuant to the War- the amount and rate of return flows to ren Act of February 21, 1911 (36 ,Stat. the river, municipal water requirements, 925) or the Miscellaneous Purposes Act and other uses on the reservation. The of February 25, 1920 ( 41 Stat. 451), Commissioner of Indian Affairs shall (b) Contractors and permittees for deliver to the Regional Director written small quantities of water, as determined notice of the amount of water to be

93 § 418.1 PUBLIC LANDS: INTERIOR diverted for use upon each Indian Res- national interest that the fishery resource ervation for each year 60 days prior to of Pyramid Lake be restored, that agri- the beginning of each calendar year and cultural use be developed, and that the the basis for said determination. The water inflow to the Lake be such as to determination of the Commissioner shall allow realization of the great potential be final and conclusive unless within 30 thereof, including recreation. The regu- days of the date of receipt of such no- lations in this part will initiate Depart- tice the Regional Director submits his mental controls, lacking in the past, to written comments and objections to the limit diversions by TCID from the Commissioner of Indian Affairs and re- Truckee River within decreed rights, quests further consultation. If after such and thereby make additional water avail- further consultation, timely taken, the able for delivery to Pyramid Lake. Commissioner does not modify his deter- * * * * * * mination and so advises the Regional § 418.3 Procedures for operation, man- Director in writing or if modifications agement and control of the Truckee are made by the Commissioner but the and Carson Rivers in regard t-0 exer- Regional Director still does not agree cise of water rig'hts of the United therewith, the Regional Director may, States. within 30 days after receipt of the Commissioner's response, appeal to the In order to make the most efficient use Secretary of the Interior for a decision of the available water: on the matter. During the pendency of (a) On or before October 1, 1967, the such appeal and until disposition thereof Regional Director of the Bu_reau of Rec- lamation as chairman, the Area Director by the Secretary, water deliveries will be made to the extent legally and phys- of the Bureau of Indian Affairs, the ically available according to the Com- Regional Director of the Bureau of Sport missioner's determination or according Fisheries and Wildlife, the Regional Di- to the Commissioner's determination for rector of the Federal Water Pollution the preceding calendar year, whichever Control Administration, the Regional Di- is less. rector of the Bureau of Outdoor Recrea- tion, and the designee of the Geological PART 418-NEWLANDS RECLAMA- Survey shall recommend operating cri- TION PROJECT, NEVADA; TRUCKEE teria and procedures consistent with the guidelines set forth herein for the ap- RIVER STORAGE PROJECT, NE- proval of the Secretary for the coordi- VADA; AND WASHOE RECLAMA- nated operation and control of the TION PROJECT, NEVADA-CALI- Truckee and Carson Rivers in regard to FORNIA (TRUCKEE AND CARSON the exercise of water rights of the United RIVER BASINS, CALIFORNIA-NE- States, so as to ( 1) comply with all of VADA); PYRAMID LAKE INDIAN the terms and provisions of the Truckee RESERVATION, NEVADA; STILL- River Decree and the Carson River De- WATER AREA, NEVADA cree; and ( 2) maximize the use of the flows of the Carson River in satisfaction § 418.1 Statement of considerations of Truckee-Carson Irrigation District's leading to the proposed adoption of water entitlement and minimize the di- general operating criteria and prin- version of flows of the Truckee River for ciples relating to the captioned District use in order to make available stream systems. to Pyramid Lake as much water as pos- * * * * * * sible. Any change in subsequent years of (b) Under the Constitution and var- the adopted operating criteria and pro- ious acts of Congress, the United States cedures shall be formulated and ap- is trustee for the Indians and in that proved in the same manner as set forth status it is obligated to protect and pre- above. serve the rights and interests of the (b) The departmental representatives Pyramid Lake Tribe of Indians in the designated in paragraph (a) of this sec- Truckee River and in Pyramid Lake. tion shall select a committee of water This trust responsibility is vested in the contractors and users and other directly Secretary of the Interior. It is in the affected interests, including the Pyramid

94 TITLE 43 § 1855.2

Lake Tribe and those using water for § 418.5 Water rights. fishing, hunting and recreation in both The regulations in this part prescribe river basins. The departmental repre- water uses within existing rights. The sentatives shall consult with this ad- regulations in this part do not, in any visory committee in the formulation of way, change, amend, modify, abandon, the operating criteria and procedures. diminish, or extend existing rights. * * * * * * * * * * * * CHAPTER II-BUREAU OF LAND MANAGEMENT PART 1850-HEARINGS * * * * * * PROCEDURES Subpart 1855-Hearings Upon Pos- sessory Claims to Lands and Subpart 1850 - Hearings Procedures; Waters Used and Occupied by Na- General Sec. tives of Alaska 1850.1 Cross reference. AUTHORITY: The provisions of this Subpart 1855 issued under R.S. 2478, 34 Stat. 197; 43 U.S.C. Subpart 1855-Hearings Upon Possessory 1201, 48 u.s.c. 357. Claims to Lands and Waters Used and SOURCE: The provisions of this Subpart 1855 ap- Occupied by Natives of Alaska pear at 35 F.R. 9531, June 13, 1970, unless other- 1855.1 Petitions of native groups. wise noted. I 855.2 Hearing and notice. I 855.3 Powers of presiding officer. § 1855.1 Petitions of native groups. 1855.4 Appearances. Petitions of native groups of Alaska 1855.5 Evidence. concerning possessory claims to lands I 855.5-1 Rules of evidence. 1855.5-2 Opinion evidence. and waters based upon any of the fore- I 855 .5-3 Stipulations. going statutes or upon use or occupancy 1855.5-4 Depositions. maintained from aboriginal times to the I 855.5-5 Objections. present day, but not evidenced by formal 1855.6 Oral arguments and briefs. 1855.7 Filing the record of the hearing. patent, deed or Executive order, shall be 1855.8 Determination by the Secretary of the filed with the Secretary of the Interior Interior. on or before December 31, 1952. Nb pe- 1855.8-1 Report of findings and conclusions by presiding officer. tition :filed thereafter will be considered 1855.8-2 Rehearing. by the Department. A copy of any such 1855.9 Publication and revision. petition shall be forthwith transmitted 1855.9-1 Public notice of regulations. 1855.9-2 Revision of subpart. to the Commissioner of Indian Affairs and the Director of the Bureau of Land Management for preliminary investiga- Subpart 1850 - Hearing Procedures: tions and reports, and such reports shall General be made a part of the record at the hearing. § 1850.1 Cross reference. For special procedural rules applicable § 1855.2 Hearing and notice. to hearings in public lands cases, includ- The Secretary of the Interior or such ing hearings under the Federal Range other presiding officer as may be desig- Code for Grazing Districts and hearings nated by the Secretary of the Interior in both Government and private contest shall hold public hearings upon the proceedings, within the jurisdiction of possessory claims of native groups of the Boar\J of Land Appeals, Office of Alaska. The Secretary will give notice Hearings and Appeals, see Subpart E of of the hearings by publication of the Part 4 of this title. Subpart A of Part 4 time, place, and subject matter of the and ali if the general rules in Subpart B hearing in the FEDERAL REGISTER. The of Part 4 of this title not inconsistent Secretary will also cause a copy of the with the special rules in Subpart E of said notice to be mailed to the last known Part 4 of this title are also applicable address of all parties who are shown by to such hearings, contest, and protest the preliminary investigations to have procedures. interests in the area concerned which (R.S. 2478, as amended; 43 U.S.C. 1201) [36 F.R. may be adversely affected by the claims 15119, Aug. 13, 1971] asserted. The hearing may be continued

95 § 1855.3 PUBLIC LANDS: INTERIOR from time to time and adjourned to a the record his authority to act as such later date or a different place without counsel or representative. notice other than the announcement § 1855.5 Evidence. thereof by the presiding officer at the (a) The evidence of the witnesses hearing. shall be given under oath. Witnesses may § 1855.3 Powers of presiding officer. be questioned by the presiding officer or (a) The hearing shall be conducted in by any person who has entered an ap- an informal but an orderly manner in pearance for the purpose of assisting the accordance with the rules of practice presiding officer in ascertaining the ma- hereinafter set forth. Matters of proce- terial facts with respect to the subject dure not covered by this section shall be matter of the hearing. determined by the presiding officer. He (b) The evidence, including affidavits, shall have power to: ( 1) Administer records, documents and exhibits received oaths; (2) rule upon motions and re- at the hearing, shall be reported and a quests ; ( 3) examine witnesses and re- transcript thereof shall be made. In the ceive evidence; ( 4) admit or exclude discretion of the presiding officer, writ- evidence and rule upon objections; (5) ten evidence may be received without hear oral arguments and receive memo- being read into the record. Every party randa on facts and law in his discretion; shall be afforded adequate opportunity ( 6) do all acts and take all measures to cross-examine, rebut or offer contra- necessary for the maintenance of order vening evidence. Evidence shall be re- at the hearing and the official conduct of ceived with respect to the matters speci- the proceeding. fied in the notice of the hearing in such (b) At any stage of the hearing, the order as the presiding officer shall an- presiding officer may call for further nounce. evidence upon any matter. In the event § 1855.5-1 Rules of evidence. that the hearing shall be reopened for All evidence having reasonable proba- the purpose of receiving further evi- tive value shall be admitted, regardless dence, due and reasonable notice of the of common law or statutory rules of time and place for the taking of evidence evidence, but immaterial, irrelevant or shall be published in the FEDERAL REGIS- unduly repetitious evidence shall be TER and sent to all parties who appeared excluded. at the hearing. ( c) The presiding officer may take § 1855.5-2 Opinion evidence. official notice of any generally recognized In the discretion of the presiding offi- fact, any established technical or scien- cer, opinion evidence by properly quali- tific fact, or any official public records. fied witnesses may be admitted. § 1855.4 Appearances. § 1855.5-3 Stipulations. Any interested person including any In the discretion of the presiding offi- agency of the Department or other gov- ier, stipulations of facts signed by the ernmental agency shall be given an op- parties or their representatives may be portunity to appear either in person or introduced. through authorized counsel or other representation and to be heard with respect § 1855.5-4 Depositions. to matters relevant and material to the The presiding officer may order evi- proceeding. Each such person or repre- dence to be taken by deposition at any sentative shall be required to inform the stage of the proceeding before any per- presiding officer of his name and address, son designated by him and having the the names, addresses and occupations of power to administer oaths or affirma- persons, if any, whom he represents and tions. Unless notice be waived no depo- the position he takes with respect to the sition shall be taken except after reason- issues of the hearing. Where a person able notice to the parties. Any person appears through counsel or representa- desiring to take a deposition of a wit- tion, such counsel or representative shall ness shall make application in writing before proceeding to testify, or otherwise setting out the reasons why such depo- to participate in the hearing, state for sition should be taken and stating the

96 TITLE 43 § 2091.2-1

time when, the place where, and the written arguments that may have been name and address of the person before filed. This record shall be the sole offi- whom it is desired the deposition should cial record. No free copies of the record be taken, the name and address of the will be available in any proceeding under witness and the subject matter concern- this section. ing which the witness is expected to § 1855.8 Determination by the Secre- testify. If good reason be shown, the tary of the Interior. presiding officer will make and serve upon the parties or their attorneys an § 1855.8-1 Report of findings and con- order naming the witness whose deposi- clusions by presiding officer. tion is to be taken and specifying the Within a reasonable time of the filing time when, the place where, and the of the record of the hearing, the presid- person before whom the witness is to ing officer shall file with the Secretary testify. These may or may not be the of the Interior a report upon the posses- same as those named in the application. sory claims of the petitioner which shall The deponent shall be subject to cross- contain findings of fact and conclusions examination by all the parties appear- of law with respect to such claims. ing. In lieu of oral cross-examination Unless final authority has been dele- parties may transmit written cross- gated by the Secretary to the presiding interrogations to the deponent. The tes- officer, the Secretary of the Interior will timony of the witness shall be reduced approve, disapprove or modify the find- to writing by the officer before whom ings and conclusions of the presiding the deposition is taken, or under his officer. The determinations finally made direction, after which the deposition shall shall be published in the FEDERAL REGIS- be subscribed by the witness and certi- TER and a copy thereof shall be mailed fied in the usual form by the officer. to each party who appeared at the hear- Such deposition, unless otherwise or- ·ing or who received actual written no- dered by the presiding officer for good tice of the hearing. cause shown, shall be filed in the record in the proceeding and a copy thereof § 1855.8-2 Rehearing. supplied to the party upon whose appli- Upon good cause shown within 30 cation said deposition was taken or his days of the publication of the presiding attorney. officer's report, the Secretary in his discretion may order a rehearing. § 1855.5'...5 Objections. It shall not be necessary to make for- § 1855.9 Publication and revision. mal exceptions to adverse rulings of the § 1855.9-1 Public notice of regulations. presiding officer upon objections. Public notice of the issuance of the § 1855.6 Oral arguments and briefs. foregoing rules of practice for hearings shall be given by publishing the same in (a) Oral arguments may be permitted the FEDERAL REGISTER. in the discretion of the presiding officer. Such arguments shall be made a part of § 1855.9-2 Revision of subpart. the transcript, if the presiding officer so This subpart may be revised by the orders. Secretary of the Interior at any time (b) Briefs and proposed findings of without prior notice and such revision fact and conclusions of law may not be shall be published in the FEDERAL filed after 30 days from the close of the REGISTER. hearing unless otherwise ordered by the * * * * * * presiding officer. PART 2090-SPECIAL LAWS AND § 1855. 7 Filing the record of the hear- RULES ing. As soon as practicable after the close Subpart 2091-Segregation of Lands of the hearing the complete record shall * * * * * * be filed with the presiding officer. It § 2091.2-1 Indian allotment. shall consist of the transcript of the Where an allotment application is testimony and include exhibits and any approved by the authorized officer, it

97 § 2091.5 PUBLIC LANDS: INTERIOR operates as a segregation of the land, (c) The act of May 31, 1938 (52 Stat. and subsequent applications for the 593; 48 U.S.C. 353a), authorizes the same land will be rejected. Secretary of the Interior in his discretion to withdraw, subject to any valid § 2091.5 Lands occupied by Indians. existing rights, and permanently re- Authorized officers will ascertain by serve, small tracts of not to exceed 640 any means in their power whether any acres each of the public domain in public lands in their districts are occu- Alaska, for schools, hospitals, and such pied by Indians and the location of their other purposes as may be necessary in improvements, and will suspend all ap- administering the affairs of the Indians, plications made by others than the Indian Eskimos, and Aleuts of Alaska. occupants, upon lands in the possession of Indians who have made improvements (R.S. 2478, 34 Stat. 197; 43 U.S.C. 1201, 48 U.S.C. of any value whatever thereon. 357) * * * * * • • • • • • • § 2091.6-3 Occupied lands. PART 2510-HOMESTEADS Lands occupied by Indians, Aleuts, and • • • • • • Eskimos in good faith are not subject Subpart 2511-Original Homesteads to entry or appropriation by others. • • * * • • * * * * • • § 2511.3-2 Showing required of appli- § 2091.9-5 Application for native allot- cant. ment. • • * • • • The filing of an acceptable application (b) Indian applicants. (1) Certificate for allotment will segregate the lands to required under act of July 4, 1884. (i) the extent that conflicting applications The authorizing officer will require an for such lands will be rejected, except Indian homestead applicant under the when accompanied by a showing that act of July 4, 1884 (23 Stat. 96; 43 the applicant for allotment has perma- U.S.C. 190), to submit a certificate from nently abandoned occupancy of the land. the Commissioner of Indian Affairs that * * * * * * he is entitled, as an Indian, to make PART 2320-WITHDRAWALS FOR such an entry. OTHER INTERIOR AGENCIES (ii) When such an application is pre- * * * * • * sented without this certificate the au- Subpart 2325-Bureau of Indian thorizing officer will suspend the same Affairs and notify the applicant that 90 days are allowed within which to submit such SOURCE: The provisions of this Subpart 2325 certificate as to the right to allotment, appear at 35 F.R. 9556, June 13, 1970, unless otherwise noted. and that upon failure to submit the same within the time allowed the appli- § 2325.1 Designation of Indian reserva- cation will be rejected. tions in Alaska. (iii) Where an Indian has filed an (a) The inherent power conferred allotment application and the applica- upon the Secretary of the Interior by tion has been rejected for the reason section 441, Revised Statutes ( 5 U.S.C. that the applicant is not entitled as an 485), to supervise the public business Indian to an allotment, such action will relating to the Indians includes the su- not prejudice the right of such applicant pervision over reservations in the State to file a homestead application, provided of Alaska created in the interest of the that a certificate from the Commissioner natives and the authority to lease lands of Indian Affairs, showing that the ap- therein for their benefit. Opinion of the plicant is entitled to the benefits of the solicitor, May 18, 1923 (49 L.D. 592). said act of July 4, 1884, is presented. (b) The act of May 1, 1936 (49 Stat. (2) Where Indian makes entry as 1250; 48 U.S.C., Sup. 358a, 362) extends citizen. If an Indian makes application certain provisions of the act of June 18, under the general homestead act, the 1934 (48 Stat. 984; 25 U.S.C. 461-479), authorizing officer will allow such an known as the Wheeler-Howard Act, to Indian, if otherwise qualified, to make Alaska, and provides for the designation entry under that act, without further of Indian reservations in the State. questioning and without requiring any

98 TITLE 43 § 2515.8-3 certificate from the Commissioner of gardless of its acreage, nor can he enter Indian Affairs. a part of a farm unit, nor parts of two (3) Charges, patents. The act of July or more farm units, nor a farm unit and 4, 1884 (23 Stat. 6; 43 U.S.C. 190) ex- adjacent lands not designated as a farm pressly states that no fees or commis- unit, and no person can enter a farm sions shall be charged on account of unit who is not entitled to enter 160 Indian homestead entries, and a patent acres under the homestead laws. different in character from the non- (c) Payment of costs. Persons who Indian homestead patent is issued on enter farm units must pay that part of entries made under said act or the act the cost of building, operating and main- of March 3, 1875 (18 Stat. 420; 43 U.S.C. taining the irrigation works which is 189). assessed against their tracts, in addition to the Indian price or appraised Subpart 2515-Reclamation value of the lands. The building, opera- Homesteads tion, and maintenance charges against any particular unit or allotment will be § 2515.8 Fl!athe,ad Irrigation District, based on the number of acres in it which Mont. can be irrigated and not on the entire § 2515.8-1 Aut:hority._ area of the unit, as there will be no The Flathead irrigation project was building, operation, or maintenance constructed within the Flathead Indian charges against any land in any unit Reservation under the provisions of the which can not be irrigated. The entire act of April 23, 1904 (33 Stat. 302), as Indian price must be paid for each acre amended by section 15 of the act of May in the units, regardless of the area of 29, 1908 (35 Stat. 448), and supple- them which can be irrigated. mented by the act of May 10, 1926 ( 44 (Sec. 15, 35 Stat. 450) Stat. 464), and other ~cts. Only those § 2515.8-3 Assignment. lands designated as farm units on farm- (a) Right to assign. Under the pro- unit plats approved by the Secretary of visions of the act of June 23, 1910 (36 the Interior or under his specific author- Stat. 592; 43 U.S.C. 441) persons who ity and those lands irrigable from the have made or may make homestead en- project embraced in Indian allotments tries subject to the provisions of the are within the Flathead irrigation proj- Reclamation Act of June 17, 1902 (32 ect. The designation of any tract or Stat. 388), may assign their entries in tracts of land as a farm unit or farm their entirety, or in part, at any time units includes those lands in the Flat- from and after filing with the Bureau of head project, and the cancellation of any Land Management of satisfactory proof farm unit or farm units eliminates the of the residence, improvements, and cul- lands formerly designated as such farm tivation required by the ordinary pro- unit or farm units from the project. (Sec. 15, 35 Stat. 450) visions of the homestead law. The act of July 17, 1914 (38 Stat. 510; 43 U.S.C. § 2515.8-2 Requirements and limita- 593), extends the provisions of the act tions on entries. of June 23, 1910, supra, of the Flathead (a) Payment of appraised Indian price project. Assignment of part of an entry of land. An entrymen for land within within the Flathead project may be the Flathead project, in addition to com- made only after the subdivision of the plying with the ordinary provisions of farm units. the homestead laws applicable to his (b) Assignment of part of farm unit. entry, must pay the appraised Indian Where it is desired to assign a part of a price of the land. One-third of the ap- farm unit, an application for the amend- praised value of the land must be paid ment, and subdivision, of such unit when entry is made and two-fifteenths should be filed with the project engineer. of the appraised value, annually there- The assignment, with accompanying after for 5 years beginning 1 year after showing by the assignor and assignee, the date of filing, without interest. must also be filed with the project engi- (b) Acreage limitations. No person neer for his consideration. can enter more than one farm unit, re- (c) Filing of instruments of assign-

99 § 2515.8-4 PUBLIC LANDS: INTERIOR ment. No assignment of a farm unit or noted on the proper office record and, if any part thereof shall be accepted by approved the assignee in each case will, the Bureau of Land Management, or at the proper time, make payment of the recognized as valid for any purpose, water-right charges and submit proof of until after the filing in the proper office reclamation as would the original entry. of the showings and certificates required man, and, after proof of full compliance by paragraph ( d) of this section. with the law, may receive a patent for (d) Showing required. Assignments the land. under this act are expressly made sub- (Sec. 15, ,5 Stat. 450) ject to the limitations, charges, terms, § 2515.8-4 Surveys; plats. and conditions of the act of April 23, (a) Cost of survey. If a survey shall 1904 (33 Stat. 302), as amended by sec- be found necessary to determine the tion 15 of the act of May 29, 1908 (35 boundaries of the subdivision of any such Stat. 448), and acts supplementary farm unit, or the division of the irrigable thereto or amendatory thereof, including area, a deposit equal to the estimated the act of May 10, 1926 (44 Stat. 464), cost of such survey must be made with and inasmuch as the law limits the right the special disbursing agent of the proj- of entry to one farm unit, and forbids ect on the project by or on behalf of the the holding of more than one farm unit parties concerned. Any excess over the prior to payment of all building and bet- actual cost will be returned to the de- terment charges, each assignor must positor or depositors after completion of present a showing to the effect that the the survey, and they will also be required assignment is an absolute sale, divesting to make good any deficiency in their him of all interest in the premises as- deposit. signed and each assignee must present a showing that he does not ow1,1 or hold, (b) Amendatory farm-unit plats. When and is not claiming, any other farm unit the plats describing the amended farm or entry under the act of April 23, 1904 units are approved by the project engi- (33 Stat. 302), and the acts supplemen- neer, he will forward two copies of the tary thereto or amendatory thereof, upon amendatory plat together with the as- which all installments of building and signment and accompanying showings to betterment charges have not been paid the proper office, where the amendatory in full, and has no existing water-right plat will be treated as an official amend- applications covering an area of land ment of the farm-unit plat. A copy of which, added to that taken by assign- the amendatory plat will also be for- ment, will exceed 160 acres, or the maxi- warded promptly by the project engineer mum limit of area fixed by the Secretary to the Area Director, Bureau of Indian of the Interior, and a further showing Affairs, Billings, Montana, for formal approval. in the form of a certificate of the proj- (Sec. 15, ,5 Stat. 450) ect engineer, that water-right application therefor is not yet receivable; or § 2515.8-5 Mortgages. that the assignee has filed in the project (a) Notice of interest by mortgagees. office for acceptance a water-right appli- Mortgagees of lands embraced in home- cation in due form for the land embraced stead entries within the Flathead proj- in the assignment. A married woman ect may file in the proper office for the whose husband is claiming any farm district in which the land is located a unit or entry upon which all installments notice of such mortgage interest, and of building and betterment charges have shall thereupon become entitled to re- not been paid will not be allowed to take ceive and be given the same notice of an assignment under the act of June 23, any contest or other proceedings there- 1910 ( 36 Stat. 592; 43 U .S.C. 441), un- after had affecting the entry as is re- less such assignment is purchased with quired to be given the entryman in con- her own money and for her own use and nection with such proceedings, and a like benefit. notice of mortgage interest may be filed (e) Procedure governing assignments. with the project engineer in case of any Assignments made and filed in accord- lands, whether or not water-right appli- ance with the regulations in paragraph cation has been filed, including home- (a) to (d) of this section should be stead entries, and lands in private own-

100 TITLE 43 § 2515.8-7 ership; and thereupon the mortgagee or on behalf of the mortgagee; and also shall receive copies of all notices of that within such period of 1 year an default in payment of the water-right acceptable water-right application for charges levied by the Secretary of the such land be filed by a qualified person, Interior against such lands, apd shall who, upon submitting satisfactory evi- be permitted to make payment of the dence of transfer of title, shall receive amount so in default within 60 days a credit equal to all payments thereto- from the date of such notice. Any pay- fore made on account of the water-right ment so made shall be credited on the charges for said land. To secure the charges levied by the Secretary of the benefits of this order the mortgagee pur- Interior against such lands. chasing land at foreclosure sale here- (b) Notation of mortgage interest; under must give notice thereof to the effect of notation. Every such notice of authorizing officer of the proper office mortgage interest, filed as provided in and to the engineer in charge of the the preceding section, must be forthwith project within 60 days thereafter. noted upon the records of the project (Sec. 15, 35 Stat. 450) engineer, and of the proper office, and § 2515.8-6 Wid-ows, heirs, or devises of be promptly reported to the Area Direc- entry men. tor, Bureau of Indian Affairs. Relin- (a) Completion of entries by widows, quishment of a homestead entry, or part heirs, or devisees. The widows, heirs, or thereof, within the project, upon which devisees of persons who make entries final proof has been submitted, where within the Flathead project will not be the records show the land to have been required both to reside upon and culti- mortgaged, will not be accepted or noted, vate the lands covered by the entry of unless the mortgagee joins therein; nor the persons from whom they inherit, but will an assignment of such entry, or part they must reclaim at least one-half of thereof under the act of July 17, 1914 the total irrigable area of the entry for (38 Stat. 510; 43 U.S.C. 593), extending agricultural purposes, as required by the to the Flathead project the provisions law, and make payment of all unpaid of the act of June 23, 1910 ( 36 Stat. charges when due. 592; 43 U.S.C. 441), be recognized or (b) Rights of minor heirs. Upon the permitted unless the assignment spe- death of a homesteader having an entry cifically refers to such mortgage and is within the project, leaving no widow made and accepted subject thereto. and only minor heirs, his right may, (c) Rights of mortgagee purchaser at under section 2292, Revised Statutes ( 43 foreclosure sale. If such mortgagee buys U.S.C. 171), be sold for the benefit of in the land at foreclosure sale, no steps such heirs. ( See heirs of Frederick C. will be taken to cancel the water-right DeLong, 36 L.D. 332.) The purchaser application, on account of failure of the and his assignees take subject to the applicant to maintain residence upon or payment of the water-right charges in the neighborhood of the land, until 1 authorized by law and the regulations year after the end of the statutory thereunder and must reclaim one-half period of redemption, if there be such the irrigable area, as required by said statutory period; if not, until 1 year law, but are not required otherwise to after the foreclosure sale; nor on ac- comply with the homestead law. count of the holdings by the same mort- (Sec. 15, 35 Stat. 450) gagee of lands in excess of 160 acres or of the limit per single ownership of pri- § 2515.8-7 Proof. vate lands as fixed by the Secretary of (a) Commutation permitted. These the Interior for which a water right entries are subject to the commutation may be purchased until 2 years after provisions of the homestead law. The such foreclosure purchase, provided that irrigable areas are announced on farm- all charges in connection with the water- unit plats, and public notice, stating the right application that may be due at the amount of the charges and other details time of foreclosure sale and all such concerning payment, is issued by the charges that may become due during the Secretary of the Interior. period when the land is held under the (b) Requirements of reclamation proof. terms hereof shall be promptly paid by Entrymen, in making proof of compli-

101 § 2515.8-8 PUBLIC LANDS: INTERIOR

ance with the law as to reclamation of of compliance with the requirements of one-half of the irrigable area and pay- the law as to reclamation and payment ment of charges due, must submit a of the charges which have become due. showing duly corroborated by two wit- (e) Credit for military or naval serv- nesses, in duplicate, to the project engi- ice. Soldiers and sailors and other per- neer showing those facts. Thereupon it sons entitled to claim credit for military shall be the duty of the project engineer or naval service, as provided in Subpart to verify the statement as to payment 2096 of this chapter, will be allowed to and also make such examination of the claim such credit in connection with land as will enable him to determine entries within the Flathead project, but whether reclamation as required by law will not be entitled to receive final cer- and the regulations has been made. tificate or patent until the requirements Should he find that reclamation has been as to reclamation and payment of the accomplished he will so certify, but if water-right charges have been met. he finds that reclamation has not been (Sec. 15, 35 Stat. 450) accomplished as required he will forward § 2515.8-8 Frnal certificates. the proofs to the authorizing officer of the proper office in which the land is (a) Action on proofs; when final cer- situated, with his report or findings tificate may issue. If such proof show- thereon. ing reclamation and payment of charges (c) What constitutes reclamation and is filed, and the proof of compliance cultivation. To comply with the provi- with the ordinary provisions of the sions of the law requiring the reclama- homestead law as to residence, improve- tion of one-half the irrigable area of an ments, and cultivation is found, on ex- entry within the Flathead project, the amination by the authorizing officer, to land must have been cleared of brush, be sufficient, he will issue final certificate trees, and other encumbrances provided on the entry as provided in subparagraph with sufficient laterals for its effective ( d) ( 1) of this section. irrigation, graded and otherwise put in (b) Procedure where proof is not ac- proper condition for irrigation and crop ceptable. If any proof offered under this growth, planted, watered, and cultivated, law be irregular or insufficient the au- and during at least 2 years next preced- thorizing officer will reject it and allow ing the date of approval by the project the entryman the usual right of appeal. engineer of proof of reclamation, except (c) Acceptance of proof of residence, as prevented by hailstorm or flooding, a cultivation, and improvement. Entrymen satisfactory crop must be grown there- who have resided on, cultivated, and im- upon. A satisfactory crop during any proved their lands for the time required year shall be any one of the following: by the homestead law, and have sub- (a) A crop of annuals producing a yield mitted proof which has been found satis- of at least one-half of the average yield factory thereunder by the Bureau of on similar land under similar conditions Land Management, but who are unable on the project for the year in which it is to furnish proof of reclamation because grown; (b) a substantial stand of al- water has not been furnished, will be falfa, clover, or of other perennial grass excused from further residence on their substantially equal in value to alfalfa lands and will be given a notice reciting or clover, or, (c) a season's growth of that further residence is not required, orchard trees, or vines, of which 75 per- but that final certificate and patent will cent shall be in a thrifty condition. not issue until proof of reclamation by (d) Indian charges, testimony fees, one-half of the irrigable area of' the and final commissions. Upon the submis- entry and payment of all charges due sion of proof on entries within the Flat- under public notices and orders issued head project, authorizing officers will in pursuance of the law. accept only the payments of Indian (d) Liens-(1) Endorsed on final cer- charges and the testimony fees for "re- tificate. (i) Upon receipt of proof of ducing testimony to writing and exam- reclamation and payment of water-right ining and approving testimony," and charges as provided in the act of August will not accept final commissions payable 9, 1912 (37 Stat. 265), extended to the on such entries until proof is received Flathead project by the act of July 17,

102 TITLE 43 § 2530.0-3

1914 ( 38 Stat. 510), if proof of compli- thorizing the construction of the Flat- ance with the homestead law has been head project as to residence, cultivation, previously submitted, and has been ac- improvement, and payments, will render cepted, or if such proof is submitted at the entry subject to cancellation, and the time of the receipt of proof of recla- the money paid subject to forfeiture, mation and payment of charges, and is whether water-right application has found to be sufficient as to residence, been made or not. Failure to make any improvement, and cultivation, the au- two payments of the installments of thorizing officer will issue final certificate water-right charges when due will ren- on the entry. The final certificate so der such entries subject to cancellation; issued must be endorsed by the authoriz- and upon receipt of a statement from ing officer across the face of each cer- the Area Director, Bureau of Indian tificate when issued as follows: "Subject Affairs, that two of such payments re- to lien, under act of August 9, 1912 (37 main due and unpaid, after proper serv- Stat. 265), as extended to the Flathead ice of notice upon the entryman and project by the act of July 17, 1914 (38 upon the mortgagee, if any such there Stat. 510) ." be of record, the date and manner of (ii) A proviso to the act of May 10, service being stated, the entry will, with- 1926 ( 44 Stat. 465) provides: That all out further notice, be cancelled. construction, operation, and maintenance (Sec. 15, 35 Stat. 450) costs, except such construction costs on * * * * * * the Camas Division held and treated as a deferred obligation herein provided PART 2530-INDIAN ALLOTMENTS for, on this project shall be, and are Subpart 2530-Indian Allotments: hereby, made a first lien against all General lands within the project, which lien upon Sec. any particular farm unit shall be re- 2530.0-3 Authority. 2530.0-7 Cross reference. leased by the Secretary of the Interior 2530.0-8 Land subject to allotment after the total amount charged against Subpart 2531-Applications Generally such unit shall have been paid, and a 2531.J Qualifications of applicants. recital of such lien shall be made in any 2531.2 Petition and applications. instrument issued prior to such release 2531.3 Effect of application. by the said Secretary. The contracts Subpart 2532-Allotments executed by such district or districts 2532.1 Certificate of allotment. shall recognize and acknowledge the 2532.2 Trust patent. existence of such lien. Subpart 2533-Allotments Within (2) Release of lien. The Area Direc- National Forests tor, Bureau of Indian Affairs, will, upon 2533.0-3 Authority. the full payment of all buildings and 2533.0-8 Land subject to allotments. betterment charges by any water user, 2533.1 Application. issue certificate of the full payment of 2533.2 Approval. such charges releasing the lien therefor reserved in the patent under the act of Subpart 2530-lndian Allotments: August 9, 1912. General (Sec. 15, 35 Stat. 450) AUTHORITY: The provisions of this Subpart 2530 issued under R.S. 2478, 34 Stat. 197; 43 U.S.C. § 2515.8-9 Cancellation of entries. 1201, 48 u.s.c. 357. All homestead entrymen within the SouRcE: The provisions of this Subpart 2530 ap- Flathead project must, in addition to pear at 35 F.R. 9589, June 13, 1970, unless otherwise noted. paying the appraised value of the land and water-right charges, reclaim at least § 2530.0-3 Authority. one-half of the total irrigable area in (a) General Allotment Act of Febru- their entries for agricultural purposes. ary 8, 1887. Section 4 of the General Failure to make any two payments of Allotment Act of February 8, 1887 (24 the appraised price when due or to re- Stat. 389; 25 U.S.C. 334), as amended claim the land as above indicated, or any by the act of February 28, 1891 (26 Stat. failure to comply with the requirements 794), and section 17 of the act of June of the homestead law and the acts au- 25, 1910 (36 Stat. 859; 25 U.S.C. 336),

103 § 2530.0-7 PUBLIC LANDS: INTERIOR provides that where any Indian entitled any agricultural use other than grazing. to allotment under existing laws shall ( 3) An allotment may be allowed for make settlement upon any surveyed or coal and oil and gas lands, with reserva- unsurveyed lands of the United States tion of the mineral contents to the not otherwise appropriated, he or she United States. shall be entitled, upon application to the proper office for the district in which Subpart 2531-Applications, the lands are located, to have the same Generally allotted to him or her and to his or her children in manner as provided by law SouRcE: The provisions of this Subpart 2531 ap- for allotments to Indians residing upon pear at 35 F.R.9590, June 13, 1970, unless other- reservations, and that such allotments wise noted. to Indians on the public domain shall § 2531.1 Qualifications of applicants. not exceed 40 acres of irrigable land, or (a) General. An applicant for allot- 80 acres of nonirrigable agricultural ment under the fourth section of the act land or 160 acres of nonirrigable grazing of February 8, 1887, as amended, is re- land to any one Indian. quired to show that he is a recognized (b) Act of March 1, 1933. The act of member of an Indian tribe or is entitled March 1, 1933 (47 Stat. 1418; 43 U.S.C. to be so recognized. ,Such qualifications 190a) provides that no further allot- may be shown by the laws and usages ments of lands to Indians on the public of the tribe. The mere fact, however, that domain shall be made in San Juan an Indian is a descendant of one whose County, Utah. name was at one time borne upon the (c) Executive Orders 6910 and 6964, rolls and who was recognized as a mem- Taylor Grazing Act of June 28, 1934. ber of ·the tribe does not of itself make Public land withdrawn by Executive Or- such Indian a member of the tribe. The ders 6910 and 6964 of November 26, possession of Indian blood, not accom- 1934, and February 5, 1935, respectively, panied by tribal affiliation or relation- and land within grazing districts estab- ship, does not entitle a person to an lished under section 1 of the Taylor allotment on the public domain. Tribal Grazing Act of June 28, 1934 (43 U.S.C. membership, even though once existing 315), is not subject to settlement under and recognized, may be abandoned in Section 4 of the General Allotment Act respect to the benefits of the fourth of February 8, 1887, as amended, until section. such settlement has been authorized by (b) Certificate that applicant is In- classification. See Parts 2410, 2420, and dian and eligible for allotment. Any per- 2430 of this chapter. son desiring to file application for an [35 FR 9589, June 13, 1970, as amended at 37 FR 23184, Oct. 31, 1972] allotment of land on the public domain under this act must first obtain from § 2530.0-7 Cross reference the Commissioner of Indian Affairs a For native allotments in Alaska see certificate showing that he or she is an Subpart 2561 of this chapter. Indian and eligible for such allotment, which certificate must be attached to the § 2530.0-8 Land subject to allotment. allotment application. Application for (a) General. (1) The law provides the certificate must be made on the that allotments may include not to ex- proper form, and must contain informa- ceed 40 acres of irrigable land, 80 acres tion as to the applicant's identity, such of nonirrigable agricultural land, or 160 as thumb print, age, sex, height, ap- acres of nonirrigable grazing land. proximate weight, married or single, (2) Irrigable lands are those suscep- name of the Indian tribe in which mem- tible of successful irrigation at a rea- bership is claimed, etc., sufficient to sonable cost from any known source of establish his or her identity with that of water supply; nonirrigable agricultural the applicant for allotment. Each cer- lands are those upon which agricultural tificate must bear a serial number, rec- crops can be profitably raised without ord thereof to be kept in the Indian irrigation; grazing lands are those Office. The required forms may be ob- which can not be profitably devoted to tained as stated in § 2531.2 (b).

104 TITLE 43 § 2531.1

(c) Heirs of Indian settlers and ap- dian woman is married to non-Indian not plicant. ( 1) Allotments are allowable eligible for an allotment under the fourth only to living persons or those in being section of the act of February 8, 1887, at the date of application. Where an as amended, and not a settler or entry- Indian dies after settlement and filing man under the general homestead law, of application, but prior to approval, the her right, and that of the minor chil- allotment will upon final approval be dren born of such marriage, to allot- confirmed to the heirs of the deceased ments on the public domain will be allottee. determined without reference to the (2) In disposing of pending applica- quantum of Indian blood possessed by tions in which the death of the appli- such woman and her children but solely cant has been reported, the heirs of an with reference as to whether they are applicant who was otherwise qualified at recognized members of an Indian tribe the date of application should be noti- or are entitled to such membership. fied that they will be allowed 90 days (2) An Indian woman married to an from receipt of notice within which to Indian man who has himself received submit proof that the applicant person- an allotment on the public domain or is ally settled on the land applied for dur- entitled to one, or has earned the equit- ing his or her lifetime, and while the able right to patent on any form of land was open to settlement, and upon homestead or small holding claim, is not failure to submit such proof within the thereby deprived of the right to file an time allowed the application will be application for herself, provided she is finally rejected. otherwise eligible, and also for her (3) When it is sufficiently shown that minor children where her husband is for an applicant was at the time of death any reason disqualified. occupying in good faith the land settled (3) An Indian woman who is sepa- on, patent will be issued to his or her rated from her husband who has not heirs without further use or occupancy received an allotment under the fourth on the part of such heirs being shown. section will be regarded as the head of ( d) Minor children. An Indian settler a family and may file applications for on public lands under the fourth section herself and for the minor children under of the act of February 8, 1887, as her care. amended, is also eligible upon applica- ( 4) In every case where an Indian tion for allotments made thereunder to woman files applications for her minor his minor children, stepchildren, or other children it must appear that she has children to whom he stands in loco pa- not only applied for herself under the rentis, provided the natural children are fourth section but has used the land in in being at the date of the parent's ap- her own application in some beneficial plication, or the other relationship re- manner. ferred to exist at such date. The law (f) Citizenship. (1) Under section 6 only permits one eligible himself under of the act of February 8, 1887 (24 Stat. the fourth section to take allotments 390; 25 U.S.C. 349), every Indian born thereunder on behalf of his minor chil- within the territorial limits of the United dren or of those to whom he stands in States, to whom allotments were made loco parentis. Orphan children ( those under that act, and every Indian who who have lost both parents) are not voluntarily takes up his residence sep- eligible for allotments on the public arate and apart from any tribe of domain unless they come within the Indians and adopts the habits of civil- last-mentioned class. No actual settle- ized life is declared to be a citizen of ment is required in case of allotments the United States. to minor children under the fourth sec- (2) The act of May 8, 1906 (34 Stat. tion, but the actual settlement of the 182; 8 U.S.C. 3), changed the time parent or of a person standing in loco when an Indian became a citizen by parentis on his own public-land allotment virtue of the allotment made to him to will be regarded as the settlement of the time when patent in fee should be the minor children. issued on such an allotment. ( e) Indian wives. ( 1) Where an In- (3) The act of June 2, 1924 (43 Stat.

W5 § 2531.2 PUBLIC LANDS: INTERIOR

253; 8 U .S.C. 3), conferred citizenship Subpart 2532-Allotments on all noncitizen Indians born within the SouRcE: The provisions of this Subpart 2532 ap- Territorial limits of the United States, pear at 35 F.R. 9590, June 13, 1970, unless other- but expressly reserved to them all rights wise noted. to tribal or other property. These rights include that of allotment on the public § 2532.1 Certificate of allotment. land, if qualified. (a) When the authorizing officer ap- [35 FR 9589, June 13, 1970, as amended at 37 proves an application for allotment, he FR 23185, Oct. 31, 1972] will issue to the applicant a "certificate of allotment", on a prescribed form § 2531.2 Petition and applications. showing the name in full of the appli- (a) Any person desiring to receive an cant, post office address, name of the Indian allotment ( other than those tribe in which membership is claimed, seeking allotments in national forests, serial number of the certificate issued by for which see subpart 2533 of this part) the Commissioner of Indian Affairs, and must file with the authorized officer, an a description of the land allotted. application, together with a petition on (b) Where the application under informs approved by the Director, prop- vestigation is that of a single person erly executed, together with a certificate over 21 years of age, or of the head of from the authorized officer of the Bu- a family, report will also be made as reau of Indian Affairs that the person to the character of the applicant's settle- is Indian and eligible for allotment, as ment and improvements. A similar report specified in paragraph 2531.l(b). How- will be made on applications filed in ever, if the lands described in the appli- behalf of minor children as to the char- cation have been already classified and acter of the settlement and improve- opened for disposition under the provi- ments made by the parent, or the person sions of this part, no petition is required. standing in loco parentis, on his or her The documents must be filed in accordance own allotment under the fourth section. with the provisions of § 1821.2 of this chapter. § 2532.2 Trust patent. The petition and the statement at- (a) To enable an Indian allottee to tached to the application for certificate demonstrate his good faith and inten- must be signed by the applicant. tion, the issuance of trust patent will be (b) Blank forms for petitions and ap- suspended for a period of 2 years from plications may be had from any office of date of settlement; but in those cases the Bureau of Indian Affairs, or from where that period has already elapsed at land offices of the Bureau of Land Man- the time of adjudicating the allotment agement. application, and when the evidence either by the record or upon further § 2531.3 Effect of application. investigation in the field, shows the (a) Where an allotment application allottee's good faith and intention in under the fourth section of the Act of the matter of his settlement, trust pat- February 8, 1887, as amended, 25 U.S.C. ents will issue in regular course. Trust 334, is not accompanied by the requisite patents in the suspended class, when certification from the Bureau of Indian issued, will run from the date of sus- Affairs showing the applicant to be eligi- pension. ble for an allotment, and the applicant (b) In the matter of fourth-section is given time to furnish such certificate, applications filed prior to the regula- the application does not segregate the lations in this part, where, by the record land, and other applications therefor or upon further investigation in the may be received and held to await final field, it appears that such settlement action on the allotment application. has not been made as is contemplated (b) Where an allotment application by the regulations, such applications is approved by the authorized officer, it will not be immediately rejected, but operates as a segregation of the land, the applicant will be informed that 2 and subsequent application for the same years will be allowed within which to land will be rejected. perfect his settlement and to furnish [37 FR 23185, Oct. 31, 1972] proof thereof, whereupon his applica-

106 TITLE 43 § 2561.0-5 tion will be adjudicated as in other forward it to the Commissioner of cases. Indian Affairs. ( c) The application must be filed with Subpart 2533-Allotments Within the authorizing officer of the proper office for the district in which the land National Forests applied for is located. He will then for- SouRcE: The provision, of this Subpart 2533 ap- ward the case to the Bureau of Indian pear at 35 F.R. 9591, June 13, 1970, unless other- Affairs for consideration. If the Com- wise noted. missioner of Indian Affairs approves the § 2533.0-3 Authority. application, he will transmit it to the By the terms of section 31 of the act Bureau of Land Management for issu- of June 25, 1910 (36 Stat. 863; 25 U.S.C. ance of a trust patent. 337), al!otml:mts under the fourth sec- * * * * * * tion of the act of February 8, 1887, as amended, may be made within national PART 2560-ALASKA OCCUPANCY forests. AND USE * * * * * * § 2533.0-8 Land subject to allotment. Subpart 2561-Native Allotments An allotment under this section may SouRcE: The provisions of this Subpart 2561 ap- be made for lands cont:J.ining coal and pear at 35 F.R. 9597, June 13, 1970, unless other- oil and gas with reservation of the wise noted. mineral contents to the United States, § 2561.0-2 Objectives. but not for lands valuable for metallif- It is the program of the Secretary of erous minerals. The rules governing the the Interior to enable individual natives conduct of fourth-section applications of Alaska to acquire title to the lands under the act of February 8, 1887, as they use and occupy and to protect the amended, apply equally to applications lands from the encroachment of others. under said section 31. § 2561.0-3 Authority. § 2533.l Application. The act of May 17, 1906 (34 Stat. 197), An Indian who desires to apply for an as amended August 2, 1956 (70 Stat. allotment within a national forest under 954; 48 U.S.C 357, 357a, 357b), autho- this act must submit the application to rizes the Secretary of the Interior to the supervisor of the particular forest allot not to exceed 160 acres of vacant, affected, by whom it will be forwarded unappropriated, and unreserved nonmin- with appropriate report, through the eral land in Alaska or, subject to the district forester and Chief, Forest Serv- provisions of the act of March 8, 1922 ice, to the Secretary of Agriculture, in ( 42 Stat. 415; 48 U .S.C. 376-377), of order that he may determine whether vacant, unappropriated, and unreserved the land applied for is more valuable public land in Alaska that may be val- for agriculture or grazing than for the uable for coal, oil, or gas deposits, or, timber found thereon. under certain conditions, of national § 2533.2 Approval. forest lands in Alaska, to any Indian, (a) Should the Secretary of Agricul- Aleut or Eskimo of full or mixed blood ture decide that the land applied for, or who resides in and is a native of Alaska, any part of it, is chiefly valuable for and who is the head of a family, or is the timber found thereon, he will trans- twenty-one years of age. mit the application to the Secretary of § 2561.0-5 Definitions. the Interior and inform him of his deci- As used in the regulations in this sion in the matter. The Secretary of the section. Interior will cause the applicant to be (a) The term "substantially continu- informed of the action of the Secretary ous use and occupancy" contemplates of Agriculture. the customary seasonality of use and (b) In case the land is found to be occupancy by the applicant of any land chiefly valuable for agriculture or graz- used by him for his livelihood and well- ing, the Secretary of Agriculture will being and that of his family. Such use note that fact on the application and and occupancy must be substantial ac-

107 § 2561.0-8 PUBLIC LANDS: INTERIOR tual possession and use of the land, at of the 160-rod limitation (see Part 2094 least potentially exclusive of others, and of this chapter). not merely intermittent ~se. ( c) If surveyed, the land must be de- (b) "Allotment" is an allocation to a scribed in the application according ·to Native of land of which he has made legal subdivisions and must conform to substantially continuous use and occu- the plat or survey when possible. If pancy for a period of five years and unsurveyed, it must be described as ac- which shall be deemed the "homestead" curately as possible by metes and bounds of the allottee and his heirs in perpe- and tied to natural objects. On unsur- tuity, and shall be inalienable and non- veyed lands, the application should be taxable except as otherwise provided by accompanied by a map or approved pro- the Congress. tracted survey diagram showing approximately the lands included in the appli- (c) "Allotment Act" means the Act of cation. May 17, 1906 (34 Stat. 197), as amended (d) An application for allotment shall (48 U.S.C. 357, 357a, 357b). be rejected unless the authorized officer § 2561.0-8 Lands subject to allotment. of the Bureau of Indian Affairs certifies (a) A Native may be granted a single that the applicant is a native qualified allotment of not to exceed 160 acres of to make application under the Allotment land. All the lands in an allotment need Act, that the applicant has occupied and not be contiguous but each separate tract posted the lands as stated in the appli- of the allotment should be in reasonably cation, and that the claim of the appli- compact form. cant does not infringe on other native claims or area of native community use. (b) In areas where the rectangular (e) The filing of an acceptable appli- survey pattern is appropriate, an allot- cation for allotment will segregate the ment may be in terms of 40-acre legal lands. Thereafter subsequent conflicting subdivisions and survey lots on the basis applications for such lands shall be re- that substantially continuous use and jected, except when accompanied by a occupancy of a significant portion of showing that the applicant for allotment such smallest legal subdivision shall has permanently abandoned use and oc- noI'Illally entitle the applicant to the full cupancy of the land. subdivision, absent conflicting claims. (f) By the filing of an application (c) Allotments may be made in na- for allotment the applicant acquires no tional forests if founded on occupancy rights except as provided in paragraph of the land prior to the establishment ( e) of this section. If the applicant does of the particular forest or if an autho- not submit the required proof within six rized officer of the Department of Agri- years of the filing of his application culture certifies that the land in the ap- in the proper office, his application for plication for allotment is chiefly valuable allotment will terminate without affect- for agricultural or grazing purposes. ing the rights he gained by virtue of his ( d) Lands in applications for allot- occupancy of the land or his right to ment and allotments that may be valu- make another application. able for coal, oil, or gas deposits are subject to the regulations of § 2093.4 of § 2561.2 Proof of use and occupancy. this chapter. (a) An allotment will not be made until the lands are surveyed by the § 2561.1 Applications. Bureau of Land Management, and until (a) Applications for allotment prop- the applicant or the authorized officer of erly and completely executed on a form the Bureau of Indian Affairs has made approved by tho Director, Bureau of satisfactory proof of substantially con- Land Management, must be filed in the tinuous use and occupancy of the land proper office which has jurisdiction over for a period of five years by the appli- the lands. cant. Such proof shall be made on a (b) Any application for allotment of form approved by the Director, Bureau lands which extend more than 160 rods of Land Management, and filed in the along the shore of any navigable waters proper land office. If made by the appli- shall be considered a request for waiver cant, it must be signed by him, but if

108 TITLE 43 § 2564.4 he is unable to write his name, his mark sions in truste~ towns. As to Indian pos- or thumb print shall be impressed on the sessions in trustee town-sites in Alaska statement and witnessed by two persons. established under authority of section This proof may be submitted with the 11 of the act of .March 3, 1891 (26 Stat. application for allotment if the appli- 1009; 48 U.S.C. 355), and for which the cant has then used and occupied the town-site trustee has closed his accounts land for five years, or may be made at and been discharged as trustee, and as any time within six years after the to such possessions in other trustee filing of the application when the re- town-sites in Alaska, such person as quirements have been met. may be designated by the Secretary of the Interior will perform all necessary § 2561.3 Effect of allotment. acts and administer the necessary trusts (a) Land allotted under the Act is the in connection with the act of May 25, property of the allottee and his heirs in 1926. perpetuity, and is inalienable and non- (b) Administration of native towns. taxable. However, a native of Alaska The trustee for any and all native towns who received an allotment under the in Alaska which may be established and Act, or his heirs, may with the approval surveyed under authority of section 3 of of the Secretary of the Interior or his said act of May 25, 1926 ( 44 Stat. 630; authorized representative, convey the 48 U.S.C. 355c), will take such action complete title to the allotted land by as may be necessary to accomplish the deed. The allotment shall thereafter be objects sought to be accomplished by free of any restrictions against aliena- that section. tion and taxation unless the purchaser is a native of Alaska who the Secretary § 2564.1 Application for restricted deed. determines is unable to manage the land A native Indian or Eskimo of Alaska without the protection of the United who occupies and claims a tract of land States and the conveyance provides for in a trustee town-site and who desires a continuance of such restrictions. to obtain a restricted deed for such tract (b) Application by an allottee or his should file application therefor on a heirs for approval to convey title to land form approved by the Director, with the allotted under the Allotment Act shall town-site trustee. be filed with the appropriate officer of the Bureau of Indian Affairs. § 2564.2 No payment, publication or proof required on entry for native towns. Subpart 2564-Native Townsites In connection with the entry of lands SouRcE: The provisions of this Subpart 2564 ap- as a native town or viJlage under sec- pear at 35 f.R. 9601, June 13, 1970, unless other- tion 3 of the said act of May 25, 1926, wise noted. no payment need be made as purchase § 2564.0-3 Authority. money or as fees, and the publication and proof which are ordinarily required The act of May 25, 1926, ( 44 Stat. in connection with trustee town-sites will 629; 48 U.S.C. 355a-355d) provides for not be required. the townsite survey and disposition of public lands set apart or reserved for § 2564.3 Native towns occupied partly the benefit of Indian or Eskimo occu- by white occupants. pants in trustee townsites in Alaska and Native towns which are occupied for the survey and disposal of the lands partly by white lot occupants wiJl be occupied as native towns or villages. The surveyed and disposed of under the pro- act of February 26, 1948 ( 62 Stat. 35; visions of both the act of March 3, 1891 48 U.S.C. 355e), provides for the issu- ( 26 Stat. 1095, 1099), and the act of ance of an unrestricted deed to any May 25, 1926 ( 44 Stat. 629). competent native for a tract of land claimed and occupied by him within any § 2564.4 Provisions to be inserted in re- such trustee townsite. stricted deeds. The town site trustee wiJl note a § 2564.0-4 Responsibility. proper reference to the act of May 25, (a) Administration of Indian posses- 1926, on each deed which is issued under

109 § 2564.5 PUBLIC LANDS: INTERIOR authority of that act and each such deed § 2564.6 Application for unrestricted shall provide that the title conveyed is deed. inalienable except upon approval of the Any Alaska native who claims and Secretary of the Interior or his author- occupies a tract of land in a trustee ized representative, and that the issu- town site is the owner of land under a ance of the restricted deed does not sub- restricted deed issued under the act of ject the tract to taxation, to levy and May 25, 1926 ( 44 Stat. 629; 48 U .S.C. sale in satisfaction of the debts, con- 355a-355e) may file an application for tracts or liabilities of the transferee, or an unrestricted deed pursuant to the act to any claims of adverse occupancy or of February 26, 1948 ( 62 Stat. 36; 48 law of prescription; also, if the estab- U.S.C. 355e), with the town-site trustee. lished streets and alleys of the town site The application must be in writing and have been extended upon and across the must contain a description of the land tract, that there is reserved to the town claimed and information regarding the site the area covered by such streets and competency of the applicant. It must alleys as extended. The deed shall fur- also contain evidence substantiating the ther provide that the approval by the claim and occupancy of the applicant, Secretary of the Interior or his author- except when the applicant has been ized representative of a sale by the issued a restricted deed for the land. A Indian or Eskimo transferee shall vest duplicate copy of the application must in the purchaser a complete and unre- be submitted by the applicant to the stricted title from the date of such Area Director of the Bureau of Indian approval. Affairs.

§ 2564.5 Sale of land for whic'h re- § 2564. 7 Determination of competency stricted deed was issued. or noncompetency; issuance of un- When a native possessing a restricted restricted deed. deed for land in a trustee town site (a) Upon a determination by the Bu- issued under authority of the act of reau of Indian Affairs that the applicant May 25, 1926 ( 44 Stat. 629; 48 U .S.C. is competent to manage his own affairs, 355a-355d), desires to sell the land, he and in the absence of any conflict or should execute a deed on a form ap- other valid objection, the town-site trus- proved by the Director, prepared for the tee will issue an unrestricted deed to approval of the Secretary of the Inte- the applicant. Thereafter all restrictions rior, or his authorized representative, as to sale, encumbrance, or taxation of and send it to the town-site trustee in the land applied for shall be removed, Alaska. The town-site trustee will for- but the said land shall not be liable to ward the deed to the Area Director of the satisfaction of any debt, except obli- the Bureau of Indian Affairs who will gations owed to the Federal Government, determine whether it should be approved. contracted prior to the issuance of such Where the deed is approved it shall be deed. Any adverse action under this sec- returned by the Area Director, Bureau tion by the town-site trustee shall be of Indian Affairs, through the town-site subject to a right of appeal to the trustee to the vendor. In the event the Director, Bureau of Land Management, Area Director determines that the deed and to the Secretary of the Interior, shall not be approved, he shall so inform in accordance with Part 1840 of this the native possessing the restricted deed, chapter. who shall have a rjght of appeal from (b) In the event the Area Director such finding or decision to the Commis- determines that the applicant is not sioner of Indian Affairs within sixty competent to manage his own affairs, he days from the date of notification of shall so inform the applicant, and such such finding or decision. The appeal applicant shall have a right of appeal shall be filed with the Area Director. from such finding or decision to the Should the Commissioner uphold the Commissioner of Indian Affairs, within decision of the Area Director, he shall 60 days from the date of notification of notify the applicant of such action, in- such finding or decision. The appeal shall forming him of his right of appeal to be filed with the Area Director. Should the .Secretary of the Interior. the Commissioner uphold the decision of

110 TITLE 43 § 2650.0-2

the Area Director, he shall notify the ap- 2651.5 Conveyance reservations. plicant of such action, informing him of 2651.6 Airport and air navigation facilities. his right of appeal to the Secretary of Subpart 2652-Regional Selections the Interior. 2652.0---3 Authority. (c) Except as provided in this section, 2652. I Entitlement. 2652.2 Selection period. the town-site trustee shall not issue other 2652.3 Selection limitations. than restricted deeds to Indian or other 2652.4 Conveyance reservations. Alaska natives. ( 44 Stat. 630; 48 U .S.C. 355d. Interpret or apply Subpart 2653-Miscellaneous Selections 44 Stat. 629, 630, 62 Stat. 35; 48 U.S.C. 355a, 355b, 2653.0-3 Authority. 355c, 355e) 2653.0-5 Definitions. 2653.1 Conveyance limitations. * * * * * * 2653.2 Application procedures. Subpart 2567-Alaska: Homestead 2653.3 Lands available for selection. Settlement 2653.4 Termination of selection period. 2653.5 Cemetery sites and historical places. * * * * * * 2653.6 Native group selections. § 2567.0-7 Cross references. 2653.7 Sitka-Kenai-Juneau-Kodiak selections. For Indian and Eskimo allotments, 2653.8 Primary place of residence. Subpart 2561, for school indemnity se- 2653.8-1 Acreage to be conveyed. 2653.8-2 Primary place of residence criteria. lections Subpart 2627; for shore space, 2653.9 Conveyance reservations. Subpart 2094; for soldier's additional rights, Subpart 2616; for trade and Subpart 2654-Native Reserves manufacturing sites, Subpart 2562. 2654.0---3 Authority. 2654.0-5 Definitions. * * * * * * 2654.1 Exercise of option. 2654.2 Application procedures. PART 2650-ALASKA NATIVE 2654.3 Conveyances. SELECTIONS AUTHORITY: Sec. 25 of the Alaska Native Claims Subpart 2650-Alaska Native Selections Settlement Act of December 18, 1971; Administra- -Generally tive Procedure Act (5 U.S.C. 551 et seq.) unless Sec. otherwise noted. 2650.0---1 Purpose. SOURCE: 38 FR 14218, May 30, 1973, unless other- 2650.0---2 Objectives. wise noted. 2650.0---3 Authority. 2650.0---5 Definitions. 2650.0-7 References. Subpart 2650-Alaska Native 2650.0-8 Waiver. Selections-Generally 2650.1 Provisions for interim administration. 2650.2 Application procedures for land selections. § 2650.0-1 Purpose. 2650.3 Lawful entries, lawful settlements, and mining claims. The purpose of the regulations in this 2650.3-1 Lawful entries and lawful settlements. part is to provide procedures for orderly 2650.3-2 Mining claims. and timely implementation of those pro- 2650.4 Conveyance reservations. visions of the Alaska Native Claims 2650.4-1 Existing rights and contracts. 2650.4-2 Succession of interest. Settlement Act of December 18, 1971 2650.4-3 Administration. ( 43 U.S.C. 1601) which pertain to selec- 2650.4-4 Revenues [Reserved]. tions of lands and interests in lands in 2650.4-5 National forest lands. satisfaction of the land selections con- 2650.4-6 National wildlife refuge system lands. 2650.4-7 Public easements. ferred by said act upon Alaska Natives 2650.5 Survey requirements. and Alaska Native corporations. 2650.5-1 General. 2650.5-2 Rule of approximation. § 2650.0-2 Objectives. 2650.5-3 Regional surveys. The program of the Secretary is to 2650.5-4 Village surveys. 2650.5-5 Cemetery sites and historical places. implement such provisions in keeping 2650.5-6 'Adjustment to plat of survey. with the congressional declaration of 2650.6 Selection limitations. policy that the settlement of the Natives' 2650.7 Publication. aboriginal land claims be fair and just 2650.!! Appeals. and that it be accomplished rapidly, Subpart 2651-Village Selections with certainty, in conformity with the 2651.0-3 Authority. real economic and social needs of Na- 2651.i Entitlement. tives, without litigation and with maxi- 2651.2 Eligibility requirements. 2651.3 Selection period. mum participation by Natives in deci- 2651.4 Selection limitations. sions affecting their rights and property.

111 § 2650.0-5 PUBLIC LANDS: INTERIOR

§ 2650.0-3 Authority. unsurveyed lands, and containing all th~ Section 25 of the Alaska Native Claims reservations for easements, rights-of- Settlement Act of December 18, 1971, way, or other interests in land, provided authorizes the Secretary of the Interior by the act or imposed on the land by to issue and publish in the FEDERAL REG- applicable law, subject only to confirma- ISTER, pursuant to the Administrative tion of the boundary descriptions after Procedure Act ( 5 U.S.C. 551, et seq.), approval of the survey of the conveyed such regulations as may be necessary to land. carry out the purposes of the act. (i) "Patent" as used in t.hese regulations means the original conveyance § 2650.0-5 Definitions. granting legal title to the recipient to (a) "Act" means the Alaska Native surveyed lands, and containing all the Claims .Settlement Act of December 18, reservations for easements, rights-of- 1971 (43 U.S.C. 1601) and any amend- way, or other interests in land, provided ments thereto. by the act or imposed on the land by (b) "Secretary" means the Secretary applicable law; or the document issued of the Interior or his authorized delegate. after approval of the survey by the (c) "Native" means a Native as de- Bureau of Land Management, to confirm fined in section 3 (b) of the act. the boundary description of the unsur- ( d) "Native village" means any tribe, veyed lands. band, clan, group, village, community, or association in Alaska, as defined in (j) "Conveyance" as used in these section 3 ( c) of the act. regulations means the transfer of title (e) "Village corporation" means a pursuant to the provisions of the act profit or nonprofit Alaska Native village whether by interim conveyance or patent, corporation which is eligible under whichever occurs first. § 2651.2 of this chapter to select land (k) "National Wildlife Refuge Sys- and receive benefits under the act, and is tem" means all lands, waters, and inter- organized under the laws of the State of ests therein administered on December Alaska in accordance with the provisions 18, 1971, by the Secretary as wildlife of section 8 of the act. refuges, areas for the protection and (f) "Regional corporation" means an conservation of fish and wildlife that Alaska Native regional corporation or- are threatened with extinction, wildlife ganized under the laws of the State of ranges, game ranges, wildlife manage- Alaska in accordance with the provi- ment areas, or waterfowl production sions of section 7 of the act. areas, as provided in the act of October (g) "Public lands" means all Federal 15, 1966, 80 Stat. 927, as amended by lands and interests in lands located in the act of July 18, 1968, 82 Stat. 359 Alaska (including the beds of all non- (16 u.s.c. 668dd). navigable bodies of water) , except: (I) "Protraction diagram" means the (1) The smallest practicable tract, as approved diagram of the Bureau of determined by the Secretary, enclosing Land Management mathematical plan land actually used, but not necessarily for extending the public land surveys having improvements thereon, in con- and does not constitute an official Bureau nection with the administration of a of Land Management survey, and, in the Federal installation; and, absence of an approved diagram of the (2) Land selections of the State of Bureau of Land Management, includes Alaska which have been patented or the State of Alaska protraction diagrams tentatively approved under section 6 (g) which have been authenticated by the of the Alaska Statehood Act, as amend- Bureau of Land Management. ed (72 Stat. 341; 77 Stat. 223; 48 U.,S.C. (m) "Date of filing" shall be the date ch. 2), or identified for selection by the of postmark, except when there is no State prior to January 17, 1969, except postmark, in which case it shall be the as provided in § 2651.4 (a) ( 1) of this date of receipt in the proper office. chapter. (h) "Interim conveyance" as used in § 2650.0-7 References. these regulations means the conveyance (a) Native enrollment procedures are granting to the recipient legal title to contained in 25 CFR 43h.

112 TITLE 43 § 2650.2

(b) Withdrawal procedures are con- withdrawal. To the extent that any such tained in part 2300 of this chapter. land is also subject to the provisions of ( c) Application procedures are con- paragraph ( a) of this section, the pro- tained in subpart 1821 of this chapter. visions of that subsection shall govern. (d) Appeals procedures are contained (c) As provided in section 21(e) of in 43 CFR part 4. the act, so long as there are no substan- (e) Mineral patent application proce- tial revenues from real property inter- dures are contained in part 3860 of this ests conveyed pursuant to this act and chapter. the lands are not subject to State and local real property taxes, such lands § 2650.0-8 Waiver. shall continue to receive forest fire pro- The Secretary may, in his discretion, tection services from the United States waive any nonstatutory requirement of at no cost. The Secretary will promul- these regulations. When the rights of gate criteria, after consultation with the third parties will not be impaired, and concerned Native corporations and the when rapid, certain settlement of the State of Alaska, for determining when claims of Natives will be assisted, minor substantial revenues are accruing as to procedural and technical errors should lands for which forest fire protection be waived. services are furnished by the Depart- § 2650.1 Provisions for interim admin- ment of the Interior and no discontinu- istration. ance of such service will be ordered by (a) (1) Prior to any conveyance under the Secretary unless he finds, after no- the act, all public lands withdrawn pur- tice and opportunity for submission of suant to sections 11, 14, and 16, or cov- views, that such discontinuance is in ered by section 19 of the act, shall be conformity with the criteria. administered under applicable laws and § 2650.2 Application procedures for regulations by the >Secretary of the Inte- land selections. rior, or by the Secretary of Agriculture (a) Applications for land selections in the case of national forest lands, as must be filed on forms approved by the provided by section 22 ( i) of the act. The Director, Bureau of Land Management. authority of the Secretary of the Inte- Applications must be filed in accordance rior and of the Secretary of Agriculture with subpart 1821 of this chapter. to make contracts and to issue leases, (b) Each regional corporation shall permits, rights-of-way, or easements is submit with its initial application under not impaired by the withdrawals. this section a copy of the resolution au- (2) (i) Prior to the Secretary's mak- thorizing the individual filing the appli- ing contracts or issuing leases, permits, cation to do so. rights-of-way, or easements, the views (c) Each village corporation under of the concerned regions or villages shall subpart 2651 of this chapter must submit be obtained and considered, except as with its initial application under this provided in subdivision (ii) of this section a certificate of incorporation, evi- subparagraph. dence of approval of its articles of (ii) Prior to making contracts, or incorporation by the regional corporation issuing leases, permits, rights-of-way, or for that region, and a copy of the autho- easements on lands subject to election rization of the individual filing the appli- pursuant to section 19 (b) of the act, cation to do so. the Secretary shall obtain the consent of ( d) ( 1) Regional and village corpora- the representatives of the Natives living tions authorized by the act subsequently on those lands. filing additional or amendatory applica- (b) As provided in section 17(d) (3) of tions need only refer to the serial num- the act, any lands withdrawn pursuant ber of the initial filing. to section. 17(d) shall be subject to ad- (2) Any change of the officer author- ministration by the Secretary under ap- ized to act for any corporation in the plicable laws and regulations and his matter of land selections should be authority to make contracts, and to issue promptly submitted to the appropriate leases, permits, rights-of-way, or ease- office of the Bureau of Land Manage- ments shall not be impaired by the ment.

113 § 2650.3 PUBLIC LANDS: INTERIOR

( e) ( 1) If the lands applied for are Statehood Act), contracts, permits, surveyed, the legal description of the rights-of-way, or easements. lands in accordance with the official plats (b) The right of use and occupancy of survey shall be used. of persons who initiated lawful settle- (2) If the lands applied for are un- ment or entry of land, prior to August surveyed, they shall be described by pro- 31, 1971, is protected: Provided, That: traction diagrams. (1) Occupancy has been or is being maintained in accordance with the ap- (3) If the lands applied for are not propriate public land law, and surveyed and are not covered by pro- (2) Settlement or entry was not in traction diagrams, they must be de- violation of Public Land Order No. 4582, scribed by metes and bounds commencing as amended. Any person who entered or at a readily identifiable topographic fea- settled upon land in violation of that ture, such as a mountain peak, mouth public land order has gained no rights. of a stream, etc., or a monumented point (c) In the event land excluded from of known position, such as a triangula- conveyance under paragraph (a) of this tion station, and the description must section reverts to the United States, the be accompanied by a topographic map grantee or his successor in interest shall delineating the boundary of the area be afforded an opportunity to acquire applied for. such land by exchange pursuant to sec- ( 4) Where 1 :63,360 U.S.G.S. quad- tion 22 (f) of the act. rangle maps with the protraction diagram plotted thereon have been published, § 2650.3-2 Mining claims. these maps shall be used to portray and (a) Possessory rights.-Pursuant to describe the lands applied for. Where section 22 ( c) of the act, on any lands 1 :63,360 U.S.G.S. quadrangle maps with to be conveyed to village or regional the protraction diagram plotted thereon corporations, any person who prior to have not been published, then the August 31, 1971, initiated a valid mining 1:250,000 U.S.G.S. quadrangle maps with claim or location, including millsites, the protraction diagrams plotted thereon under the general mining laws and re- shall be used. corded notice thereof with the appro- ( 5) If the written description shown priate State or local office, shall not be on the application and the map por- challenged by the United ,States as to trayal accompanying the application do his possessory rights, if all requirements not agree the delineation shown on the of the general mining laws are met. map shall be controlling. However, the validity of any mining (f) The selected areas may be adjust- claim may be challenged by the United ed by the Secretary with the consent of States or by the grantee or his successor the applicant and amendment of the in interest at any time. application by the applicant, provided (b) Patent requirements met.-An ac- that the adjustment will not create an ceptable mineral patent application must excess over the selection entitlement. be filed with the appropriate Bureau of Land Management office not later than § 2650.3 Lawful entries, lawful settle- December 18, 1976, on lands conveyed to ments, and mining claims. village or regional corporations. § 2650.3-1 Lawful entries and lawful (1) Upon a showing that a mineral settlements. survey cannot be completed by Decem- (a) Pursuant to sections 14(g) and ber 18, 1976, the filing of an application 22 (b) of the act, all conveyances issued for a mineral survey, which states on its under the act shall exclude any lawful face that it was filed for the purpose of entries or entries which have been per- proceeding to patent, will constitute an fected under, or are being maintained acceptable mineral patent application, in compliance with, laws leading to the provided all applicable requirements acquisition of title, but shall include under the general mining laws have land subject to valid existing rights of been met. a temporary or limited nature such as (2) The failure of an applicant to those created by leases (including leases prosecute diligently his application for issued under section 6 (g) of the Alaska mineral patent to completion will result

114 TITLE 43 § 2650.4-6 in the loss of benefits afforded by sec- or easement, unless there is a finding by tion 22 ( c) of the act. the Secretary that the interest of the (3) The appropriate office of the Bu- United States requires continuation of reau of Land Management shall give the administration by the United States. notice of the filing of an application In the latter event, the Secretary shall under this section to the village or re- not renegotiate or modify any lease, gional corporation which has selection contract, right-of-way or easement, or rights in the land covered by the appli- waive any right or benefit belonging to cation. the grantee until he has notified the (c) Patent requirements not met.- grantee and allowed him an opportunity Any mineral patent application filed to present his views. after December 18, 1976, on land conveyed tp any village or regional corpora- § 2650.4-4 Revenues [Reserved] tion pursuant to this act, will be rejected § 2650.4-5 National forest lands. for lack of departmental jurisdiction. Every conveyance which includes la-nds After that date, patent applications may within the boundaries of a national continue to be filed on land not conveyed forest shall, as to such lands, contain to village or regional corporations until reservations that: such land is conveyed. (a) Until December 18, 1976, the sale § 2650.4 Conveyance reservations. of any timber from the land is subject § 2650.4-1 Existing rights and con- to the same restrictions relating to the tracts. export of timber from the United States Any conveyance issued for surface and as are applicable to national forest lands subsurface rights under this act will be in Alaska under rules and regulations of subject to any lease, contract, permit, the ,Secretary of Agriculture; and, right-of-way, or easement and the rights (b) Until December 18, 1983, the land of the lessee, contractee, permittee, or shall be managed under the principles grantee to the complete enjoyment of of sustained yield and under manage- all rights, privileges, and benefits there- ment practices for protection and en- by granted him. hancement of environmental quality no less stringent than such management § 2650.4-2 Succession of interest. practices on adjacent national forest Upon issuance of any conveyance un- lands. der this authority, the grantee thereunder shall succeed and become entitled § 2650.4-6 National wildlife refuge sys- to any and all interests of the State of tem lands. Alaska or of the United States as lessor, (a) Every conveyance which includes contractor, permitter, or grantor, in any lands within the national wildlife refuge such lease, contrast, permit, right-of- system shall, as to such lands, provide way, or easement covering the estate that the United States has the right of conveyed, subject to the provisions of first refusal so long as such lands remain section 14(g) of the act. within the system. The right of first refusal shall be for a period of 120 days § 2650.4-3 Administration. from the date of notice to the United Leases, contracts, permits, rights-of- States that the owner of the land has way, or easements granted prior to the received a bona fide offer of purchase. issuance of any conveyance under this The United States shall exercise such authority shall continue to be adminis- right of first refusal by written notice to tered by the State of Alaska or by the the village corporation within such 120- United States after the conveyance has day period. The United States shall not been issued, unless the responsible be deemed to have exercised its right of agency waives administration. Where the first refusal if the village corporation responsible agency is an agency of the does not consummate the sale in accord- Department of the Interior, administra- ance with the notice to the United States. tion shall be waived when the convey- (b) Every conveyance which covers ance covers all the land embraced within lands lying within the boundaries of a a lease, contract, permit, right-of-way, national wildlife refuge in existence on

115 § 2650.4-7 PUBLIC LANDS: INTERIOR

December 18, 1971, shall provide that served. Upon the definite location of an the lands shall remain subject to the easement or easements for which a cor- laws and regulations governing use and ridor was reserved, the reservation to development of such refuge so long as the extent not used for the easement or such lands remain in the refuge. Regula- easements shall be of no further force tions governing use and development of or effect. refuge lands conveyed pursuant to sec- ( 4) A corridor location shall be no tion 14 shall permit such uses that will more extensive in width or length than not materially impair the values for is reasonably necessary to locate any which the refuge was established. easement to be reserved, taking into consideration climate, topography, ter- § 2650.4-7 Public easements. rain, and available data. (a) Prior to reserving any public ( d) The State and the Federal-State easements under section 17 (b) of the Land Use Planning Commission shall be act, the concerned village and regional afforded 90 days after notice by the corporations shall be afforded notice and ,Secretary to make recommendations opportunity for submission of views. If with respect to the inclusion of public the Secretary determines that a public easements in any conveyance. easement should be reserved in any conveyance, the reasons for that determina- § 2650·.5 Survey requirements. tion will be provided in writing, upon § 2650.5-1 General. request of the grantee. (a) Selected areas are to be surveyed (b) ( 1) A public easement shall be as provided in section 13 of the act. Any reserved only if it is specific as to use survey or description used as a basis for and corridor location and size and both conveyance must be adequate to identify use and corridor location and size shall the lands to be conveyed. be reasonably related to an anticipated (b) Surveys shall take into account public use or a planned or existing gov- the navigability or nonnavigability of ernmental function. bodies of water. The beds of all bodies (2) No public easement shall be re- of water determined by the Secretary served in such manner as to: to be navigable shall be excluded from (i) Deprive the grantee or its succes- the gross area of the surveys and sor in interest of reasonable access to shall not be charged to total acreage bodies of water or highways in or bor- entitlements under the act. Prior to mak- dering upon the land embraced in the ing his determination as to the naviga- conveyance without his consent. bility of a body of water, the Secretary (ii) Constitute a so-called scenic ease- shall afford the affected regional cor- ment. poration the opportunity to review the (c) A reserved public easement shall data submitted by the State of Alaska be subject to the following conditions: on the question of navigability and to (1) The Secretary shall terminate a submit its views on the question of public easement if it is not used for its navigability. Upon request of a regional purpose by the date specified in the con- corporation or the State of Alaska, the veyance, but in any event not later than Secretary shall provide in writing the December 18, 2001, or if he finds that basis upon which his final determination conditions are such that its retention is of navigability is made. The beds of all no longer needed for public use or gov- bodies of water not determined to be ernmental function. navigable shall be included in the sur- (2) The grantee or its successor in veys as public lands, shall be included interest shall be entitled to just compen- in the gross area of the surveys, and sation for the loss of value of any im- shall be charged to total acreage entitle- provements existing on the date of the ments under the act. The beds of all reservation of the easement which are nonnavigable bodies of water comprising impaired or required to be removed by one half or more of a section shall be the exercise of the easement. excluded from the gross area of the (3) The easement shall be no more surveys and shall not be charged to total extensive in size than is reasonably re- acreage entitlement under the act, unless quired for the purpose for which re- the section containing the body of water

116 TITLE 43 § 2650.6 is expressly selected or unless all the f2) Lands shown by the records of riparian land surrounding the body of the Bureau of Land Management as not water is selected. No ground survey or having been conveyed to the village cor- monumentation will be required to be poration will be excluded by adjustments done by the Bureau of Land Manage- on the map by the Bureau of Land Man- ment of bodies of water. agement. No surveys shall begin prior to final written approval of the map by the § 2650.5-2 Rule of approximation. village corporation and the Bureau of To assure full entitlement, the rule Land Management. After such written of approximation may be applied with approval, the map will constitute a plan respect to the acreage limitations appli- of survey. Surveys will then be made in cable to conveyances and surveys under accordance with the plan of survey. No this authority, i.e., any excess must be further changes will be made to accom- less than the deficiency would be if the modate additional section 14 ( c) trans- smallest legal subdivision were elimi- ferees, and no additional survey work nated (see 62 I.D. 417, 421). desired by the village corporation or § 2650.5-3 Regional surveys. municipality within the area covered by Lands to be conveyed to a regional the plan of survey or immediately adja- corporation, when selected in contiguous cent thereto will be performed by the units, shall be together for the purpose Secretary. of survey and surveyed as one tract, § 2650.5-5 Cemetery sites and historical with monuments being established on the places. exterior boundary at angle points and Only those cemetery sites and histor- at intervals of approximately 2 miles ical places to be conveyed under section on straight lines. If requested by the 14(h) (1) of the act shall be surveyed. grantee, the Secretary may survey, insofar as practicable, the individual selec- § 2650.5-6 Adjustment to plat of sur- tions that comprise the total tract. vey. All conveyances issued for lands not § 2650.5-,1 Village surveys. covered by officially approved surveys of ( a) Only the exterior boundaries of the Bureau of Land Management shall contiguous entitlements for each village note that upon the filing of an official corporation will be surveyed. Where land plat of survey, the boundary of the se- within the outer perimeter of a selection lected area, described in terms of pro- is not selected, the boundaries along the traction diagrams or by metes and area excluded shall be deemed exterior bounds, shall be redescribed in accord- boundaries. The survey will be made ance with the plats of survey. However, after the total acreage entitlement of no change will be made in the land the village has been selected. selected. (b) Surveys will be made within the village corporation selections to delineate § 2650.6 Selection limitations. those tracts required by law to be con- (a) Notwithstanding any other provi- veyed by the village corporations pur- sions of the act, no village or regional suant to section 14 ( c) of the act. corporation may select lands which are (c) (1) The boundaries of the tracts within 2 miles from the boundary of any described in paragraph (b) of this sec- home rule or first-class city ( excluding tion shall be posted on the ground and boroughs) as the boundaries existed and shown on a map which has been ap- the cities were classified on December 18, proved in writing by the affected village 1971, or which are within 6 miles from corporation and submitted to the Bureau the boundary of Ketchikan, except that of Land Management. Conflicts arising a village corporation organized by Na- among potential transferees identified tives of a community which is itself a in section 14 ( c) of the act, or between first class or home-rule city is not pro- the village corporation and such trans- hibited from making selections within ferees, will be resolved prior to sub- 2 miles from the boundary of that first mission of the map. Occupied lots to be class or home-rule city, unless such se- surveyed will be those which were occu- lections fall within 2 miles from the pied as of December 18, 1971. boundary of another first class or home-

117 § 2650.7 PUBLIC LANDS: INTERIOR

rule city which is not itself a Native of this title. All hearings held in con- village or within G miles from the bound- nection with such appeals shall be con- ary of Ketchikan. ducted in the State of Alaska. The deci- (b) Determination as to which cities sion of the ad hoc Board shall be were classified as home rule or first class submitted to the Secretary for his per- as of December 18, 1971, and their sonal approval. boundaries as of that date will be made in accordance with the laws of the State Subpart 2651-Village Selections of Alaska. (c) If any village corporation whose § 2651.0-3 Authority. land withdrawals encompass Dutch Sections 12 and 16 (b) of the act pro- Harbor is found eligible under this act, vide for the selection of lands by eligi- it may select lands pursuant to subpart ble village corporations. 2651 of this chapter and receive a conveyance under the terms of section 14 (a) § 2651.1 Entitlement. of the act. (a) Village corporations eligible for land benefits under the act shall be § 2650. 7 Publication. entitled to a conveyance to the surface In order to determine whether there estate in accordance with sections 14 (a) are any adverse claimants to the land, and 16(b) of the act. the applicant should publish notice of (b) In addition to the land benefits his application. If the applicant decides in paragraph (a) of this section, each to avail himself of the privilege of pub- eligible village corporation shall be en- lishing a notice to all adverse claimants titled to select and receive a conveyance and request it, the authorized officer to the surface estate for such acreage will prepare a notice for publication. The as is reallocated to the village corpora- publication will be in accordance with tion in accordance with section 12 (b) of the following procedure: the act. (a) The applicant will have the notice published allowing all persons claiming § 2651.2 Eligibility requirements. the land adversely to file in the appro- (a) Pursuant to sections ll(b) and priate land office their objections to the 16 (a) of the act, the Director, Juneau issuance of any conveyance. The notice Area Office, Bureau of Indian Affairs, shall be published once a week for 4 shall review and make a determination, consecutive weeks in a newspaper of not later than December 19, 1973, as to general circulation. which villages are eligible for benefits (b) The applicant shall file a state- under the act. ment of the publisher, accompanied by ( 1) Review of listed native villages. a copy of the published notice, showing The Director, Juneau Area Office, Bu- that publication has been had for 4 con- reau of Indian Affairs, shall make a secutive weeks. The applicant must pay determination of the eligibility of vil- the cost of publication. lages listed in section 11 (b) ( 1) and (c) Any adverse claimant must serve 16 (a) of the act. He shall investigate on the applicant a copy of his objections and examine available records and evi- and furnish evidence of service thereof dence that may have a bearing on the to the appropriate land office. character of the village and its eligibility pursuant to paragraph (b) of this § 2650.8 Appeals. section. . (a) Any decision adversely affecting (2) Findings of fact and notice of any land selection shall become final, proposed decision.-After completion of unless appealed to the Secretary by a the investigation and examination of notice filed in the office issuing the records and evidence with respect to the decision. eligibility of a village listed in sections (b) Appeals to the Secretary shall be ll(b) (1) and 16(a) of the act for land to the ad hoc Board as established in benefits, the Director, Juneau Area §2651.2(a) (5) of this chapter. Appeals Office, Bureau of Indian Affairs, shall shall be filed and governed by the ap- publish in the FEDERAL REGISTER and in plicable regulations in part 4, subpart G one or more newspapers of general cir-

118 TITLE 43 § 2651.2 culation in Alaska his proposed decision is based shall be mailed to the affected with respect to such eligibility and shall village, all villages located in the region mail a copy of the proposed decision to in which the affected village is located, the affected village, all villages located all regional corporations within the in the region in which the affected village State of Alaska, the State of Alaska, is located, all regional corporations with- and any other party of record. Such in the State of Alaska and the State of decision shall become final unless ap- Alaska. His proposed decision is subject pealed to the Secretary by a notice filed to protest by any interested party within with the ad hoc board as established in 30 days of the publication of the pro- paragraph (a) (5) of this section, within posed decision in the FEDERAL REGISTER. 30 days of its publication in the FEDERAL If no valid protest is received within the REGISTER. 30-day period, such proposed decision (5) Action on appeals.-Appeals to shall become final and shall be pub- the Secretary shall be to the ad hoc lished in the FEDERAL REGISTER. If the Board which he has personally ap- final decision is in favor of a listed pointed. At least one member of the ad village, the Director, Juneau Area Office, hoc Board shall be familiar with Native Bureau of Indian Affairs, shall issue a village life. Among those otherwise qual- certificate as to the eligibility of the ified to serve on the ad hoc Board, pref- village in question for land benefits un- erence will be given to those familiar der the act, and certify the record and the with Native village life. Appeals shall be decision to the Secretary. Copies of the filed and governed by the applicable reg- final decisions and certificates of village ulations in part 4, subpart G, of this eligibility shall be mailed to the affected title, except that the appellant shall have village, all villages located in the region not more than 15 days from the date of in which the affected village is located, filing of his notice of appeal within all regional corporations within the State which to file an appeal brief, and the of Alaska, and the state of Alaska. opposing parties shall have not more (3) Protest.-Within 30 days from the than 15 days from the date of receipt of date of publication of the proposed deci- the appellant's brief within which to file sion in the FEDERAL REGISTER, any inter- an answering brief. No more than 15 ested party may protest a proposed deci- days shall be allowed for the filing of sion as to the eligibility of a village. No additional briefs in connection with such protest shall be considered which is not appeals. All hearings held in connection accompanied by supporting evidence. with such appeals shall be conducted in The protest shall be mailed to the Di- the State of Alaska. The decision of the rector, Juneau Area Office, Bureau of ad hoc Board shall be submitted to the Indian Affairs. Secreta1·y for his personal approval. (4) Action on protest.-Upon receipt (6) Applications by unlisted villages of a protest, the Director, Juneau Area for determination of eligibility.-The Office, Bureau of Indian Affairs, shall head or any authorized subordinate offi- examine and evaluate the protest and cer of a Native village not listed in sec- supporting evidence required herein, to- tion 11 (b) of the act may file on behalf gether with his record of findings of fact of the unlisted village an application for and proposed decision, and shall render a determination of its eligibility for land a decision on the eligibility of the Native benefits under the act. Such application village that is the subject of the protest. shall be filed in duplicate with the Direc- Such decision shall be rendered within tor, Juneau Area Office, Bureau of 30 days from the receipt of the protest Indian Affairs, prior to September 1, and supporting evidence by the Director, 1973. If the application does not consti- Juneau Area Office, Bureau of Indian tute prima facie evidence of compliance Affairs. The decision of the Director, with the requirements of paragraph (b) Juneau Area Office, Bureau of Indian of this section, he shall return the appli- Affairs, shall be published in the FEDERAL cation to the party filing the same with REGISTER and in one or more newspapers a statement of reasons for return of the of general circulation in the State of application, but such filing, even if re- Alaska and a copy of the decision and turned, shall constitute timely filing of findings of fact upon which the decision the application. The Director, Juneau

119 § 2651.2 PUBLIC LANDS: INTERIOR

Area Office, Bureau of Indian Affairs, tive or representatives of the village, all shall immediately forward an applica- villages in the region in which the village tion which appears to meet the criteria is located, all regional corporations for eligibility to the appropriate office of within Alaska, the State of Alaska, and the Bureau of Land Management for any other parties of record. If no pro- filing. Each application must identify the test is received within the 30-day period, township or townships in which the the decision shall become final and the Native village is located. Director, Juneau Area Office, Bureau of (7) Segregation of land.-The receipt Indian Affairs, shall certify the record of the selection application for filing by and the decision to the Secretary. No the Bureau of Land Management shall protest shall be considered which is not operate to segregate the lands in the accompanied by supporting evidence. vicinity of the village as provided in sec- Anyone protesting a decision concern- tions 11 (a) (1) and (2) of the act. ing the eligibility or ineligibility of an (8) Action on application for eligibil- unlisted Native village shall have the ity.-Upon receipt of an application burden of proof in establishing that the which appears to meet the criteria for decision is incorrect. Anyone appealing eligibility, the Director, Juneau Area a decision concerning the eligibility or Office, Bureau of Indian Affairs, shall ineligibility of an unlisted Native village have a notice of the filing of the applica- shall have the burden of proof in estab- tion published in the FEDERAL REGISTER lishing that the decision is incorrect. and in one or more newspapers of gen- (10) Action on protest, appeal.-Upon eral circulation in Alaska and shall receipt of a protest, the Director, Juneau promptly review the statements con- Area Office, Bureau of Indian Affairs, tained in the application. He shall shall follow the procedure outlined in investigate and examine available rec- paragraph (a) ( 4) of this section. If an ords and evidence that may have a bear- appeal is taken from a decision on eligi- ing on the character of the village and bility, the prov1s10ns of paragraph its eligibility pursuant to this subpart (a) (5) of this section shall apply. 2651, and thereafter make findings of (b) Except as provided in subpara- fact as to the character of the village. graph ( 4) of this paragraph, villages No later than December 19, 1973, the must meet each of the following criteria Director, Juneau Area Office, Bureau of to be eligible for benefits under sections Indian Affairs, shall make a determina- 14 (a) and (b) of the act: tion as to the eligibility of the village as (1) There must be 25 or more Native a Native village for land benefits under residents of the village on April 1, 1970, the act and shall issue a decision. He as shown by the census or other evidence shall publish his decision in the FEDERAL satisfactory to the Secretary. A Native REGISTER and in one or more newspapers properly enrolled to the village shall be of general circulation in Alaska and shall deemed a resident of the village. mail a copy of the decision to the repre- (2) The village shall have had on sentative or representatives of the vil- April 1, 1970, an identifiable physical lage, all villages in the region in which location evidenced by occupancy con- the village is located, all regional cor- sistent with the Natives' own cultural porations, and the State of Alaska. patterns and life style and at least 13 (9) Protest to eligibility determina- persons who enrolled thereto must have tion.-Any interested party may protest used the village during 1970 as a place a decision of the Director, Juneau Area where they actually lived for a period Office, Bureau of Indian Affairs, regard- of time: Provided, That no village which ing the eligibility of a Native village for is known as a traditional village shall be land benefits under the provisions of disqualified if it meets the other criteria sections 11 (b) (3) (A) and (B) of the specified in this subsection by reason of act by filing a notice of protest with the having been temporarily unoccupied in Director, Juneau Area Office, Bureau of 1970 because of an act of God or govern- Indian Affairs, within 30 days from the ment authority occurring within the date of publication of the decision in preceding 10 years. the FEDERAL REGISTER. A copy of the pro- (3) The village must not be modern test must be mailed to the representa- and urban in character. A village will be

120 TITLE 43 § 2651.4 considered to be of modern and urban lands within the township or town- character if the Secretary determines ships within which all or part of the that it possessed all the following attri- village is located, and shall complete its butes as of April 1, 1970: selection from among all other avail- (i) Population over 600. able lands. Selections shall be contiguous (ii) A centralized water system and and, taking into account the situation sewage system that serves a majority of and potential uses of the lands involved, the residents. the total area selected shall be reason- (iii) Five or more business establish- ably compact, except where separated ments which provide goods or services by lands which are unavailable for selec- such as transient accommodations or tion or a section in which a body of eating establishments, specialty retail water comprises more than one-half of stores, plumbing and electrical services, the total acreage of a section. The total etc. area selected will not be considered to (iv) Organized police and fire protec- be reasonably compact if (1) it excludes tion. other lands available for selection within (v) ResidenLmedical and dental serv- its exterior boundaries; or (2) lands ices, other than those provided by Indian which are similar in character to the Health Service. village site or lands ordinarily used by (vi) Improved streets and sidewalks the village inhabitants are disregarded maintained on a year-round basis. in the selection process; or (3) an iso- ( 4) In the case of unlisted villages, a lated tract of public land of less than majority of the residents must be Native, 1,280 acres remains after selection. but in the case of villages listed in sec- (c) The lands selected under sections tions 11 and 16 of the act, a majority of 12 (a) or (b) shall be in whole sections the residents must be Native only if the where they are available, or shall include determination is made that the village all available lands in less than whole is modern and urban pursuant to subsections, and, wherever feasible, shall be paragraph (3) of this paragraph. in units of not less than 1,280 acres. § 2651.3 Selection period. Lands selected under section 16 (b) of the act shall conform to paragraph (b) Each eligible village corporation must of this section and shall conform as file its selection application(s) not later nearly as practicable to the U.S. land than December 18, 1974, under sections survey system. 12(a) or 16(b) of the act; and not later than December 18, 1975, under section (d) Village corporation selections 12 (b) of the act. within sections 11 (a) (1) and (a) (3) areas shall be given priority over § 2651.4 Selection limitations. regional corporation selections for the (a) Each eligible village corporation same lands. may select the maximum surface acreage (e) Village or regional corporations entitlement under sections 12 (a) and (b) are not required to select lands within and section 16 (b) of the act. Village an unpatented mining claim or millsite. corporations selecting lands under sec- Unpatented mining claims and millsites tions 12 (a) and (b) may not select more shall be deemed to be selected, unless than: they are excluded from the selection by (1) 69,120 acres from land that, prior metes and bounds or other suitable de- to January 17, 1969, has been selected by, scription and there is attached to the or tentatively approved to, but not yet selection application a copy of the notice patented to the State under the Alaska of location and any amendments thereto. Statehood Act; and If the village or regional corporation (2) 69,120 acres of land from the Na- selection omits lands within an un- tional Wildlife Refuge System; and patented mining claim or millsite, this ( 3) 69,120 acres of land from the Na- will not be construed as violating the tional Forest System. requirements for compactness and con- (b) To the extent necessary to obtain tiguity. If, during the selection period, its entitlement, each eligible village the excepted mining claims or millsites corporation shall select all available are declared invalid, or under the State

121 § 2651.5 PUBLIC LANDS: INTERIOR of Alaska mmmg laws are determined other navigation aids, together with to be abandoned, the selection will no such additional acreage or easements as longer be considered as compact and are necessary to provide related services contiguous. The corporation shall be and to insure safe approaches to airport required to amend its selection, upon runways, shall be conveyed by the village notice from the authorized officer of the corporation to the State of Alaska, and Bureau of Land Management, to include the Secretary will include in the convey- the lands formerly included in the min- ance to any village corporation any and ing claim or millsite. If the corporation all covenants which he deems necessary fails to amend its selection to include to insure the fulfillment of this such lands, the selection may be rejected. obligation. (f) Eligible village corporations may file applications in excess of their total Subpart 2652-Regional Selections entitlement. To insure that a village acquires its selection in the order of § 2652.0-3 Authority. its priorities, it should identify its Sections 12 (a) (1) and (c) (3) provide choices numerically in the order it wishes for selections by regional corporations; them granted. Such selections must be and sections 14 (e), (f), (h), (1), (2), filed not later than December 18, 197 4, (3), (5), and (8), provide for the convey- as to sections 12(a) or 16(b) selections ance to regional corporations of the and December 18, 1975, as to section selected surface and subsurface estates, 12 (b) selections. as appropriate. (g) Whenever the Secretary determines that a dispute exists between vil- § 2652.1 Entitlement. lages over land selection rights, he shall (a) Eligible regional corporations may accept, but not act on, selection applica- select the maximum acreage granted pur- tions from any party to the dispute until suant to section 12 ( c) of the act. They the dispute has been resolved in accord- will be notified by the Secretary of their ance with section 12 ( e) of the act. entitlement as expeditiously as possible. (b) Where subsurface rights are not § 2651.5 Conveyance reservations. available to the eligible regional corpora- In addition to the conveyance reservations in lands whose surface has been tions in § 2650.4 of this chapter, convey- conveyed under section 14 of the act, the ances issued to village corporations shall regional corporations may select an equal provide for the transfer of the surface subsurface acreage from lands with- estates specified in section 14(c) of the drawn under sections 11 (a) (1) and (3) act, and shall be subject to valid existing of the act, within the region, if possible. rights under section 14 (g) of the act. (c) As appropriate, the regional cor- § 2651.6 Airport and air navigation porations will receive title to the subsur- facilities. face estate of lands, the surface estate (a) Every airport and air navigation of which is conveyed pursuant to section facility owned and operated by the 14 of the act. United States which the Secretary deter- ( d) If a 13th regional corporation is mines is actually used in connection organized under section 7 ( c) of the act, with the administration of a Federal it will not be entitled to any grant of program will be deemed a "Federal in- lands. stallation" under the provisions of sec- § 2652.2 Selection period. tion 3 ( e) of the act, and the Secretary All regional corporations must file will determine the smallest practicable their selection applications not later than tract which shall enclose such Fede1il December 18, 1975, for lands other than installations. Such Federal installations those allocated under section 14 (h) (8) are not public lands as defined in the act of the act. and are therefore not "lands available for selection" under the provisions of § 2652.3 Selection limitations. these regulations. (a) To the extent necessary to obtain (b) The surface of all other lands of its entitlement, each regional corpora- existing airport sites, airway beacons, or tion must select all available lands with-

122 TITLE 43 § 2653.0-5 drawn pursuant to sections ll(a) (1) (B) the subsurface estate of lands whose sur- and (C) of the act, before selecting lands face has been conveyed to village corpo- withdrawn pursuant to section 11 (a) (3) rations shall provide that the right to of the act, except that regional corpora- explore, develop, or remove minerals tions selecting lands withdrawn pursu- from the subsurface estate in the lands ant to sections ll(a) (1) (B) and (C) within the boundaries of any Native vil- may select only even-numbered town- lage shall be subject to the consent of ships in even-numbered ranges and only the village corporation. odd-numbered townships in odd-numbered ranges. Subpart 2653-Miscellan eous (b) Village corporation selections within ·section 11 (a) (1) and section 11 Selections (a) (3) areas shall be given priority over § 2653.0-3 Authority. regional corporation selections for the same lands. Section 14 (h) of the act requires the (c) Whenever a regional selection is Secretary to withdraw and to convey 2 made in any township, the regional cor- million acres of unreserved and unappro- poration shall select all available lands priated public lands located outside the in that township: Provided, That such areas withdrawn by sections 11 and 16 selection would not exceed the entitle- of the act. The Secretary will convey the ment of that regional corporation. land in part as follows: ( d) Subsurface selections made by a (a) Title to existing cemetery sites and regional corporation pursuant to section historical places to the regional corpora- 12(a) of the act shall be contiguous and tions for the regions in which the lands the total area selected shall be reason- are located; (b) Title to the surface estate to any ably compact, except as separated by Native group that qualifies pursuant to subsurface interests that are not the property of the United States including this subpart 2653; (c) Title to the surface estate of lands subsurface interests under bodies of to the Natives residing in each of the water, and the selection shall be in whole sections where they are available, or shall ci_ties of Sitka, ~enai, Juneau, and Ko- diak, who have mcorporated; and, include all available subsurface interests ( d) Title to the surface estate of land in less than whole sections and, wherever to a Native as a primary place of feasible, shall be in units of not less than residence. 1,280 acres. The total area selected shall not be considered to be reasonably com- § 2653.0-5 Definitions. pact if (1) it excludes other subsurface (a) "Cemetery site" means a burial interests available for selection within ground consisting of the gravesites of its exterior boundaries; or (2) an iso- one or more Natives. lated tract of subsurface interests owned (b) "Historical place" means a dis- by the United States of less than 1,280 tinguishable tract of land or area upon acres remains after selection. which occurred a significant Native his- ( e) Regional corporations are not re- torical event, which is importantly asso- quired to select lands within unpatented ciated with Native historical or cultural mining claims or millsites, as provided events or persons, or which was subject in§ 2651.4(e) of this chapter. to sustained historical Native activity (f) Regional corporations may file but sustained Native historical activit; applications in excess of their total shall not include hunting, fishing, berry- entitlement. To insure that a regional picking, wood gathering, or reindeer corporation acquires its selections in the husbandry. order of its priorities, it should identify (c) "Native group" means any tribe, its choices numerically in the order it band, clan, village, community or village wishes them granted. association of Natives composed of less § 2652.4 Conveyance reservations. than 25, but more than 3 Natives, who In addition to the conveyance reserva- comprise a majority of the residents of tions in § 2650.4 of this chapter, convey- a locality and who have incorporated ances issued to regional corporations for under the laws of the State of Alaska.

123 § 2653.1 PUBLIC LANDS: INTERIOR

( d) "Primary 'place of residence" with the provisions of section 14(h) (8) means a place comprising a primary of the act. place of residence of an applicant on (c) No Native allotment applications August 31, 1971, at which he regularly pending before the Secretary on Decem- resides on a permanent or seasonal basis ber 18, 1971, will be rejected solely for for a substantial period of time. the reason that the acreage set aside by paragraph (a) (3) of this section has § 2653.1 Conveyance limitations. been exhausted. (a) Under section 14(h) of the act, a total of 2 million acres may be selected § 2653.2 Application procedures. for cemetery sites and historical places, (a) All applications must be filed in Native groups, corporations formed by accordance with the procedures in the Native residents of Sitka, Kenai, Ju- § 2650.2(a) of this chapter. neau, and Kodiak, for primary places of (b) Applications by corporations of residence, and for Native allotments ap- Native groups under section 14 (h) (2) proved as provided in section 18 of the and by a Native for a primary place of act. Selections must be made within 4 residence under section 14(h) (5) of the years from December 18, 1971. Of this act must be accompanied by written con- total amount: ( 1) 500,000 acres will be currence of the affected regional corpora- set aside to be used by the Secretary to tion. In the case of Native groups, such satisfy applications filed pursuant to sec- concurrence must also indicate how tions 14(h) (1), (2), and (5) of the act. much land per member of the Native The 500,000 acres will be allocated by: group, not to exceed 320 acres per mem- (i) Dividing 200,000 acres among the ber, the regional corporation recom- regions, based on population; and, (ii) mends that the Secretary convey. Any dividing 300,000 acres equally among the application not accompanied by the nec- regions; (2) 92,160 acres will be set aside essary concurrence and recommendation for possible allocation by the Secretary of the affected region will be rejected. to corporations formed by the Natives (c) Native groups, and Natives resid- residing in Sitka, Kenai, Juneau, and ing in Sitka, Kenai, Juneau, and Kodiak, Kodiak; ( 3) 400,000 acres will be set as provided in sections 14 (h) (2) and aside to be used by the Secretary to sat- (3), respectively, must comply with the isfy Native allotment applications ap- applicable terms of §§2650.2(a), (c), proved prior to December 18, 1975, under (d), (e), and (f) of this chapter. the act of May 17, 1906 (34 Stat. 197), ( d) The filing of an application under the act of February 8, 1887 (24 Stat. the regulations of this section will con- 389), as amended and supplemented, and stitute a request for withdrawal of the the act of June 25, 1910 (36 Stat. 863). lands, and will segregate the lands from Any Native allotment applications pend- all other forms of appropriation under ing before the Bureau of Indian Affairs the public land law, including the min- or the Bureau of Land Management on ing and mineral leasing laws, and from December 18, 1971, will be considered as selection under the Alaska Statehood "pending before the Department". Those Act, as amended, subject to valid exist- allotment applications which have been ing rights, but will not segregate the determined to meet the requirements of lands from selections under section 12 the acts cited herein and for which sur- or 16 of the act. The segregative effect vey has been requested before Decem- of such an application will terminate if ber 18, 1975, shall be considered the application is rejected. "approved" under section 14(h) (6) of the act, and shall be charged against the § 2653.3 Lands available for selection. acreage. (a) Selections may be made for exist- (b) After subtracting the number of ing cemetery sites or historical places, acres used in accordance with alloca- Native groups, corporations formed by tions in paragraphs (a) (1), (2), and (3) the Natives residing in Sitka, Kenai, of this section, from 2 million acres, the Juneau, and Kodiak, and for primary remainder will, after December 18, 1975, places of residence, from any lands be reallocated by the Secretary among which the Secretary may withdraw for the regional corporations in accordance those purposes out of the National Wild- 124 TITLE 43 § 2653.7 life Refuge System lands or the national as cemetery sites or historical places by forest lands which are outside of areas the regional corporation, in accordance withdrawn by sections 11 and 16, as pro- with the provisions. for conveyance reser- vided by section 14(h) (7) of the act. vations in § 2653.9. (b) After December 18, 1975, selection (b) The survey of selected sites shall of the lands allocated pursuant to include only the area actually used and § 2653.1 (b), shall be made from any a reasonable buffer zone, not over 66 feet lands previously withdrawn under sec- wide around abandoned cemeteries; not tions 11 or 16 of the act which are not over 330 feet wide around an area iden- otherwise appropriated. If the public tified as an historical place; and an area lands withdrawn within the region pur- to provide reasonable future expansion suant to sections 11 or 16 of the act, and around active cemeteries. not otherwise appropriated, are insufficient for the selection of the full entitle- § 2653.6 Native group selections. ment of the regional corporations pur- (a) Native groups in existence on suant to § 2653.1 (b), then three times December 18, 1971, who incorporate in the amount of the entitlement which accordance with the laws of the State of cannot be satisfied from lands previously Alaska may file applications to select withdrawn pursuant to sections 11 or 16 the surface estate of not more than 7,680 of the act will be withdrawn pursuant to acres. section 14(h) of the act. (b) Native group selections must meet (c) A withdrawal made pursuant to the criteria of compactness and con- section 17 (d) (1) or (2) of the act shall tiguity specified in § 2651.4 (b) and (d) not preclude a withdrawal pursuant to of this chapter. section 14(h) of the act. ( c) Native group selections shall not exceed the amount recommended by the § 2653.4 Termination of selection pe- regional corporation or 320 acres for each riod. Native member of a group, or 7,680 acres Applications for selections under this for each Native group, whichever is less. subpart will be rejected after all allo- Application must be for land in the area cated lands, as provided in § 2653.1, have surrounding the locality in which the been exhausted, or if the application is Native members of a group reside and received after the following dates, which- are enrolled. Non-Native members of a ever occurs first: group are not eligible for any benefit (a) As to primary place of residence- hereunder. December 18, 1973. (b) As to all recipients described in § 2653.7 Sitka-Kenai-Juneau-Kodiak se- sections 14(h), (1), (2), and (3) of the lections. act-December 18, 1975. (a) The corporations representing the ( c) As to all recipients under section Natives residing in Sitka, Kenai, Juneau, 14(h) (8) of the act and § 2653.l(b)- and Kodiak, who incorporate under the December 18, 1977. laws of the State of Alaska, may each select the surface estate of up to 23,040 § 2653.5 Cemetery sites and historical acres of lands of smiliar character places. located in reasonable proximity to those (a) The appropriate regional corpora- municipalities. tion may apply to the Secretary for the (b) The corporations representing the conveyance of existing cemetery sites _Qr Natives residing in Sitka, Kenai, Juneau, historical places pursuant to section and Kodiak, shall nominate not less than 14(h) of the act. The Secretary may give 92,160 acres of lands within 50 miles of favorable consideration to these applica- each of the four named cities which are tions: Provided, That the Secretary similar in character to the lands in which determines that the criteria in these regu- each of the cities is located. After review lations are met: And provided further, and public hearings, the Secretary shall That the regional corporation agrees to withdraw up to 46,080 acres near each accept a covenant in the conveyance that of the cities from the lands nominated. these cemetery sites or historical places Each corporation representing the Native will be maintained and preserved solely residents of the four named cities may

125 § 2653.8 PUBLIC LANDS: INTERIOR

select not more than one-half the area of the area as a cemetery site or his- withdrawn for selection by that corpora- torical place; and (2) that the United tion. The Secretary shall convey the area States reserves the right to seek enforce- selected. ment of the covenant in an action in equity. The covenant placed in a convey- § 2653.8 Primary place of residence. ance pursuant to this subsection may be (a) An application under this subpart released by the Secretary, in his discre- may be made by a Native who occupied tion, upon application of the regional land as a primary place of residence on corporation grantee showing that extra- August 31, 1971. ordinary circumstances, of a nature to (b) Applications for a primary place warrant the release, have arisen subse- of residence must be filed not later than quent to the conveyance. December 18, 1973. (c) Conveyances for cemetery sites and § 2653.8-1 Acreage to be conveyed. historical places shall also contain the A Native may secure title to the sur- covenant required by § 2650.4-6 of this face estate of only a single tract not to chapter. exceed 160 acres under the provisions of this subpart, and shall be limited to the Subpart 2654-Natives Reserves acreage actually occupied and used. An application for title under this subpart § 2654.0-3 Aut'hority. shall be accompanied by a certification Section 19(b) of the act authorizes any by the applicant that he will not receive village corporation(s) located within a title to any other tract of land pursuant reserve defined in the act to acquire title to sections 14 (c) (2), (h) (2), or 18 of to the surface and subsurface estates in the act. any reserve set aside for the use and benefit of its stockholders or members § 2653.8-2 Primary place of residence prior to December 18, 1971. Such acquisi- criteria. tion precludes any other benefits under (a) Period'8 of occupancy.-Casual or the act. occasional use will not be considered as occupancy sufficient to make the tract § 2654.0-5 Definitions. applied for a primary place of residence. "Reserve landF-" means any lands re- (b) Improvements constructed on the served prior to the date of enactment of land.-(1) Must have a dwelling. the act which are subject to being taken (2) May include associated structures in lieu of other benefits under the act such as food cellars, drying racks, caches, pursuant to section 19 (b) of the act. etc. · (c) Evidence of occupancy. - Must § 2654.1 Exercise of option. have evidence of permanent or seasonal (a) Any village corporation which has occupancy for substantial periods of not, by December 18, 1973, elected to time. acquire title to the reserve lands will be deemed to have elected to receive for § 2653.9 Conveyance reservations·. itself and its members the other benefits (a) Conveyances issued pursuant to under the Act. this subpart are subject to the convey- (b) The election of a village to acquire ance reservations described in § 2650.4 title to the reserve lands shall be exer- of this chapter. cised in the manner provided by its (b) In addition to the reservations pro- articles of incorporation. However•,when vided in paragraph (a) of this section, two or more villages are located on the conveyances for cemetery sites or his- same reserve there must be a special torical places will contain a covenant election to acquire title to the reserve running with the land providing that (1) lands. A majority vote of all the stock- the regional corporation grantee shall holders or members of all corporations not authorize mining or mineral activi- located on the reserve is required to ties of any type, any commercial activi- acquire title to the reserve lands. For the ties, or any other use which is incompati- purpose of this paragraph the stock- ble with or is in derogation of the values holders or members shall be determined 126 TITLE 43 § 2781.1-1 on the basis of the roll of village resi- were reconveyed to the United States by dents proposed to be promulgated under deeds of conveyance executed on Novem- 25 CFR 43h.7. The regional corporation ber 29, 1950 by the principal chief of the or village corporations or any member Choctaw Nation and the Governor of the or stockholder of the village corporations Chickasaw Nation or which have been or involved may request that the election may be reconveyed to the United States be observed by the Bureau of Indian by any further or supplemental convey- Affairs. ances made under the authority of the ( c) The results of any election by a Interior Department Appropriation Act village corporation or corporations to of June 28, 1944 (58 Stat. 463, 483), the acquire title to the reserve lands shall joint resolution of June 24, 1948 (62 be certified by such village corporation Stat. 596), and the First Deficiency or corporations as being in conformity Appropriation Act of May 24, 1949 (63 with the articles of incorporation and Stat. 76, 84). Such reconveyed lands are bylaws of the village corporation or referred to in this Part as "Choctaw- corporations. Chickasaw lands" and the act of August 3, 1955 is referred to as "the act". § 2654.2 Application procedures. (a) If the corporation or corporations (b) The act of June 28, 1944 (58 Stat. elect to take title to the reserve lands, 463, 483), declared the Choctaw-Chicka- submission to the Secretary of the certi- saw lands to be part of the public domain ficate of election will constitute an appli- subject to the applicable public land cation to acquire title to those lands. mining and mineral leasing laws. (b) If the village corporation or cor- § 2781.1 Disposal of surface fee. porations do not elect to take the reserve Subject to the reservation of all rights lands, they shall apply for their land of the United States to minerals in the selections pursuant to subpart 2651 of lands and to the payment of the pro- this chapter. portionate cost of any survey which may § 2654.3 Conveyances. be necessary to describe properly any (a) Conveyances under this subpart lands to be disposed of under the act, are subject to the provisions of section Choctaw-Chickasaw lands are subject to 14(g) of the act, as provided by § 2650.4 disposal as follows: of this chapter. (a) Private sale of tracts to any (b) Conveyances under this subpart person having a legal or equitable to two or more village corporations will interest therein under the regulations of be made to them as tenants-in-common, § 2781.1-1. having undivided interests proportionate (b) Private sales to occupants under to the number of their respective mem- the regulations of § 2781.1-2. bers or stockholders determined on the (c) Public sale of tracts and private basis of the final roll promulgated by the sale of tracts unsold after offer at Secretary pursuant to section 5 of the public auction, under the regulations of act. § 2781.1-2. ( d) Private sale of tracts under the PART 2780-SPECIAL AREAS provisions of the act of June 4, 1954 (68 Stat. 173; 42 U.S.C. 869) and the regula- Subpart 2781-Choctaw-Chickasaw tions thereunder (Part 2740 of this AUTHORITY: The provisions of this Subpart 2781 chapter). issued under 'sec. 1, 69 Stat. 445; 43 U.S.C. 1102. SouRcE: The provisions of this Subpart 2781 ap- § 2,781.1-1 Sales to persons. claiming a pear at 35 F.R. 9626, June 13, 1970, unless otherwise noted. legal or equitable interest. (a) Subparagraph 2(a)(2) of the act § 2781.~3 Authority. authorizes the Secretary of the Interior (a) The act of August 3, 1955 (69 to relinquish any tract of Choctaw- Stat. 445), authorizes the Secretary of Chickasaw lands to any person having a the Interior to provide for the manage- legal or equitable interest therein. ment and di(lposition of any interest of (b) To qualify under subparagraph the United States in those lands which 2 (a) (2) of the act, a claim of legal or 127 § 2781.1-2 PUBLIC LANDS: INTERIOR

equitable interest must rest on uncer- published, showing that publication had tainty as to the title to the tract applied been had for the required time. for, resulting from such things as inade- (e) The land applied for will be quate surveys, judgments, decrees, or appraised on the basis of its fair market orders of condemnation in court proceed- value at the time of appraisal. How- ings in which the United States did not ever, in determination of the price pay- consent to be a party to the suit, or able by the applicant, value resulting otherwise. No such claim will be recog- from improvements by the applicant or nized if it is based solely on a lease or his predecessors in interest will be de- permit from the Bureau of Land Man- ducted from the appraised price, and agement or its predecessors in interest consideration will be given to the equities to the lands. of the applicant. In no case will the land (c) Any individual, group, or corpo- be sold for less than a total of $10. rafion which believes it has a legal or (f) Applicants will be required to equitable interest in one or more tracts make payment of the sale price of the of Choctaw-Chickasaw lands may make land and for the cost of survey, if any, an application therefore by filing, in dup- within the time stated in the request for licate, an application captioned "Claim payment. of legal or equitable interest in Choctaw- § 2781.1-2 Sales to occupants. Chickasaw lands" with the Authorizing officer of the proper office at Santa Fe, (a) Subparagraph 2(b) of the act authorizes the Secretary of the Interior, New Mexico. No particular form of in selling any tract of Choctaw-Chicka- application is required but it must be saw lands, to grant a preference right of typewritten or in legible handwriting purchase to any occupant of the tract and signed by the applicant. Every who has, or whose predecessors in inter- application must be accompanied by a est have, lawfully and continuously filing fee of $10 which will be non- occupied the tract for home, business, or returnable. The application must contain school purposes since April 30, 1949, a description of the land claimed suffi- or earlier. ciently complete to identify the location, (b) Before offering any tract at public boundary, and area of the land and, if sale, the authorizing officer at Santa Fe, possible, the approximate description or New Mexico, will give any such occupant location of the land by section, township, an opportunity to purchase the tract at and range. It must contain the full name its fair market value as appraised by the and full post-office address of the claim- authorized officer of the Bureau of Land ant. It must also contain a full state- Management. In the event the occupant ment showing the basis for the claim of elects to purchase the tract, he will be legal or equitable interest in the lands. required to comply with the require- The applicant may be called upon to ments of paragraphs 2781.1-1 (d) and submit documentary or other evidence (f). In the event the occupant elects not in support of his claim. Valuable docu- to purchase the tract, the land office ments submitted by the applicant will manager will give the occupant an appro- be returned to him. priate period within which the occupant, (d) The applicant will be required to in the occupant's discretion, may remove publish once a week for four consecutive improvements on the tract constructed weeks, at his expense, in a designated by him or his predecessors in interest or newspaper and in a designated form, a elect to receive compensation for such notice allowing all persons claiming the improvements from the successful pur- land adversely to file with the proper chaser of the tract in an amount equal office at Santa Fe, New Mexico, their to the appraised value of the improve- objections to the issuance of a relin- ments as determined by the authorized quishment under the application. A officer of the Bureau of Land Manage- protestant must serve on the applicant ment. a copy of the objections and furnish evidence of such service. The applicant § 2781.1-3 Public and subsequent pri- must file a statement of the publisher, vate sales. accompanied by a copy of the notice (a) Subparagraph 2(a) (1) of the act

128 TITLE 43 § 2781.2 authorizes the Secretary of· the Interior award of the lands, the award will be to sell tracts of Choctaw-Chickasaw determined through drawing. lands at public sale to the highest respon- (f) An awardee of a tract at public sible bidder, or at private sale. sale will be granted a reasonable time (b) Upon request of any interested in which to pay the purchase price of party or upon his own motion, the the lands, the cost of publication, the authorizing officer of the proper office at cost of survey, if any, and the value of Santa Fe, New Mexico, may subject to the improvements of the former occu- the regulations in this part, expose to pant of the lands,. if any, and if he is sale at public auction tracts of Choctaw- a preference claimant, to submit proof Chickasaw lands at not less than their of his ownership in fee simple of lands fair market value as appraised by the adjoining the offered tract. Such proof authorized office of the Bureau of Land must consist of (1) a certificate of the Management. local recorder of deeds or an authorized (c) The authorizing officer will cause a abstracter, or (2) an abstract of title notice of sale to be published and posted or a certificate of title prepared and consistent with the requirements of Sub- certified by a title company or by an part 2710 of this chapter. The successful abstracting company, showing that the purchaser of a tract will be required to claimant owns adjoining land in fee reimburse the Government for the cost simple at the date of the sale. After a of publication of such notices, or if more case has been closed, the data filed pur- than one successful purchaser is in- suant to this section may be returned. volved, the several purchasers will be In the event that the awardee does not required to pay their proportionate share submit within the time specified the of such costs determined on an acreage ·amounts requested or the proof of owner- basis. ship, the lands will be awarded under (d) The land will be offered for sale at the same conditions to the drawee next public auction, at not less than its in order, if any, or to the next highest appraised value, at the time and place bidder, if any. fixed in the public notice. Bids may be (g) Lands remaining unsold after offer made by the principal or his agent, at public sale, for a period of one year either personally at the sale or by mail. after date of sale, will be available, at Bids sent by mail will be considered only the discretion of the authorized officer if received at the place and prior to the of the Bureau of Land Management and hour fixed in the notice of the sale. at not less than the price at which they Sealed bids must be accompanied by were appraised for the public sale, for certified checks, post office money orders, purchase by the first qualified applicant bank drafts, or cashiers' checks for the who tenders to the Authorizing officer, amounts of the bids and must be enclosed Santa Fe Office, an amount equal to the in sealed envelopes which must be price specified by the authorizing officer, marked as prescribed in the notice of the cost of publication, and if any, the sale. In the event that two or more bids cost of survey and the value of the sent by mail are identical in amount, improvements of the former occupant. they will be considered in the award of (h) Until a cash certificate has been the lands in the order of their receipt as issued, the authorized officer may at any shown by the hour and date noted on the time determine that the lands should not envelope. be sold, and no bidder or applicant for ( e) At the close of bidding, owners in private sale shall have any contractual fee simple of lands contiguous to the or other rights as against the United offered tract, providing that they or their States, and no action taken will create agents are present at the sale, will be any contractual right or obligation of granted a preference right of purchase the United States. by offering at the sale to meet the highest bid for such tract. In the event two § 2781.2 Leases and permits for non- or more preference claimants offer to mineral resources. meet the highest bid and in the absence (a) Unless otherwise provided for by of an agreement among them as to the the regulations in this part, the Choctaw-

129 § 2781.3 PUBLIC LANDS: INTERIOR

Chickasaw lands will not be subject to laws are not subject to disposition or, lease or permit for the development and except by an authorized Federal agency, use of nonmineral resources except (1) to prospecting. where disposal of fee title to the tract, (b) All minerals in the Choctaw- in the discretion of the authorized officer Chickasaw lands, subject to the exception of the Bureau of Land Management, is and qualifications in paragraph (a) of not in the public interest, (2) where the this section, are subject to the applicable public interest will be served by the public land mining and mineral leasing issuance of a lease or permit having a laws and the regulations thereunder term of not to exceed one year, or (3) (see Groups 3100 and 3800 of this where the public interest will be served chapter). by the issuance of a lease under the (c) Deeds for Choctaw-Chickasaw regulations of Subpart 2232. lands disposed of under the regulations (b) Leases and permits issued under in this part will contain any provision paragraph (a) (2) of this section, will the authorized officer of the Bureau of be renewable in the discretion of the Land Management deems necessary in authorized officer of the Bureau of Land order to protect the rights of the holders Management for periods not exceeding of existing interests in the lands, or to one year for each renewal. permit access to any of the lands in (c) The authorized officer of the Bu- which the Federal Government retains reau of Land Management, in his dis- an interest. cretion, may specify the terms and condi- § 2781.4 Disposal of materials. tions of leases and permits issued under paragraphs (a) (1) and (2) of this sec- Materials on the Choctaw-Chickasaw tion consistent with the policies and lands, other than minerals subject to disposal under the public land mining and procedures of the Department of the mineral leasing laws, are subject to dis- Interior. posal under the regulations of Parts (d) Except for applications to lease 3600 and 5510 of this chapter. under the regulations of part 2740, no particular form of application is § 2781.5 Rights-of-way. required. The applicant, however, must Easements and permits for rights-of- describe the lands desired and the pur- way over the Choctaw-Chickasaw lands pose for which he desires them. Every may be secured under the regulations of application must be accompanied by a Group 2800. filing fee of $10 which will not be returnable. § 2781.6 Contributions and donations of money, s.ervices, and property. § 2781.3 Deeds; disposition of minerals. (a) Section 6 of the act authorizes the (a) All deeds for lands disposed of Secretary of the Interior to accept contri- under the act of August 3, 1955 (69 Stat. butions or donations of money, services, 445), will contain a reservation to the and property to further the provisions of United States of all its rights to mineral the act. deposits in the lands, together with the (b) Contributions and donations may right to prospect for, mine, and remove be offered to the Authorizing officer of them. Any minerals subject to the public the proper office at Santa Fe, New land leasing laws so reserved to the Mexico. United States may be disposed of to any (c) Amounts of money contributed in qualified person under applicable laws excess of their appropriate share of and regulations, subject to such condi- expenses as determined by the authorized tions as the authorized officer of the officer of the Bureau of Land Manage- Bureau of Land Management deems ment, will be refunded to contributors, necessary for the protection of the sur- purchaser, the usual cash certificates face and other nonmineral values of the and receipts will be issued by the Bureau lands. Until rules and regulations are of Land Management, and should no issued, reserved minerals other than objection appear patent will issue in due those subject to the public land leasing course of business. 130 TITLE 43 § 3825.1

PART 2800-RIGHTS-OF-WAY, laws and regulations thereunder, with PRINCIPLES AND PROCEDURES the additional requirements prescribed in this section. Subpart 2802-Procedures (b) In addition to complying with the SouRcE: The provisions of this Subpart 2802 ap- existing laws and regulations governing pear at 35 F.R. 9635, June 13, 1970, unless other- the recording of mining locations with wise noted. the proper local recording officer, the locator of a mining claim within the § 2802.1-6 Indian lands. Papago Indian Reservation shall furnish The Bureau of Indian Affairs has to the superintendent or other officer in jurisdiction over applications for rights- charge of the reservation, within 90 days of-way over and upon Indian lands. All of such location, a copy of the location applications for use and occupancy of notice, together with a sum amounting Indian lands for right-of-way purposes to 5 cents for each acre and 5 cents for should, therefore, be filed with the Super- each fractional part of an acre embraced intendent of the Indian Agency or other in the location for deposit with the superintendent in charge of the reserva- Treasury of the United States to the tion on which the lands involved are credit of the Papago Tribe as yearly situated, in accordance ·with the regula- rental. Failure to make the required tions contained in 25 CFR Part 161. annual rental payment in advance each year until an application for patent has PART 3820-AREAS SUBJECT TO been filed for the claim shall be deemed SPECIAL MINING LAWS sufficient grounds for invalidating the claim. The payment of annual rental Subpart 3825-Papago Indian must be made to the superintendent or Reservation, Arizona other officer in charge of the reservation SOURCE: The provisions of this Subpart 3825 ap- each year on or prior to the anniversary pear at 35 F.R. 9747, June 13, 1970, unless other- date of the mining location. wise noted. (c) Where a mining claim is located within the reservation, the locator shall § 3825.0~3 Authority. pay to the superintendent or other officer (a) The act of June 18, 1934 ( 48 Stat. in charge of the reservation damages 984; 25 U.S.C. 461-479), as amended by for the loss of any improvements on the the act of August 28, 1937 (50 Stat. 862; land in such a sum as may be determined 25 U.S.C. 463), revokes departmental by the Secretary of the Interior to be a order of October 28, 1932, which tempo- fair and reasonable value of such im- rarily withdrew from all forms of min- provements, for the credit of the owner eral entry or claim the lands within the thereof. The value of such improvements Papago Indian Reservation and restores, may be fixed by the Commissioner, Bu- as of June 18, 1934, such lands to explo- reau of Indian Affairs, with the approval ration, location and purchase under the of the Secretary of the Interior, and existing mining laws of the United payment in accordance with such deter- States. mination shall be made within 1 year (b) The regulations in this part apply from date thereof. to entries made prior to May 27, 1955. (d) At the time of filing with the man- By virtue of the act of May 27, 1955 ager an application for mineral patent (69 Stat. 67; 25 U.S.C. 463) mineral for lands within the Papago Indian Res- entries may no longer be made within the ervation the applicant shall furnish, in Papago Indian Reservation. addition to the showing required under the general mining laws, a statement § 3825.1 Mining locations in Papago from the superintendent or other officer Indian Reservation in Arizona. in charge of the reservation, that he has (a) The procedure in the location of deposited with the proper official in mining claims, performance of annual charge of the reservation for deposit in labor and the prosecution of patent pro- the Treasury of the United States to the ceedings therefor shall be the same as credit of the Papago Tribe a sum equal provided by the United States mining to $1 for each acre and $1 for each frac-

131 § 3825.1 PUBLIC LANDS: INTERIOR tional part of an acre embraced in the terms of the said act of August 28, 1937, application for patent in lieu of annual except under permit from the Secretary rental, together with a statement from of the Interior approved by the Papago the superintendent or other officer in Indian Council. charge of the reservation that the annual (g) A mining location may not be rentals have been paid each year and located on any portion of a 10 acre legal that damages for loss of improvements, subdivision containing water reservoirs, if any, have been paid. charcos, water holes, springs, wells -or (e) The act provides that in case pat- any other form of water development by ent is not acquired the sum deposited the United States or the Papago Indians in lieu of annual rentals shall be re- except under a permit from the Secre- funded. Where patent is not acquired, tary of the Interior approved by the such sums due as annual rentals but not Papago Indian Council which permit paid during the period of patent appli- shall contain such stipulations, restric- cation shall be deducted from the sum tions, and limitations regarding the use deposited in lieu of annual rental. Appli- of the land for mining purposes as may cations for refund shall be filed in the be deemed necessary and proper to per- office of the manager and should follow mit the free use of the water thereon by the general procedure in applications for repayment. the United States or the Papago Indians. (f) Water reservoirs, charcos, water (h) The term "locator" wherever used holes, springs, wells, or any other form in this section shall include and mean of water development by the United his successors, assigns, grantees, heirs, States or the Papago Indians shall not be and all others claiming under or through used for mining purposes under the him.

132 TITLE 45-PUBLIC WELFARE

CHAPTER I-OFFICE OF EDUCATION

PART 186 - INDIAN ELEMENTARY IV of Public Law 92-318 (the Indian AND SECONDARY SCHOOL AS- Education Act). SISTANCE ACT § 186.2 Definitions._ Subpart A-Scope; Definitions As used in this part: Sec. "The Act" means title III of Public I 86. I Scope. Law 81-874, the Indian Elementary and 186.2 Definitions. Secondary School Assistance Act, as I 8G.:l-l 86. IO [Reserved] added by Public Law 92-318, part A, Subpart B-Applications; Use of Federal section 411 (a). Funds (20 U.S.C. 24laa.) I 86.11 Applications. "Child" means any child who is within 186.12 Contents of applications. the age limits for which the applicable I 86.13 Approval of applications. State provides free public education. 186.14 Public hearings. (20 u.s.c. 244 (2).) 186.15 Parent committee nominations. 186.16 Selection of parent committee. "Combined fiscal effort" means the 186.17 Procedures for community involvement. expenditures per pupil by a local educa- I 86. I 8 Needs assessment. tional agency and the State with respect 186.19 Use of Federal funds. to the provision of free public education Subpart C-Arnount of Grants; by that local educational agency other Payments; Reallocations than expenditures from funds derived 186.21 Formula for determination of amount of from Federal sources, such as funds un- grants for local educational agencies. der titles I, II, and III of the Elementary ! Hfi.2'.Z Assi'itancc to nonlocal educational agencies. and Secondary Education Act, title III of I 86.23 Limitation with regard to eligibility of local cd ucational agencies for State aid. the National Defense Education Act, title I 86.24 Limitation with regard to combined fiscal I of Public Law 81-874, and the Eco- effort. nomic Opportunity Act. I 86.25 Adjustments where necessitated by appro- (20 U.S.C. 24lee(b).) priations. I 86.27-186.30 [Reserved] "Commissioner" means the U.S. Com- missioner of Education. Subpart D-General Provisions (20 U.S.C. 24Iaa.) Sec. "Current expenditures" means expendi- 186.31 Retention of records. tures for free public education, including 186.32 Audits. I 86.33 Limitations on costs. expenditures for administration, instruc- I 86.34 Final accounting. tion, attendance, and health services, AunIORITY.-Title IV of Public Law 92-318, 86 pupil transportation services, operation Stat. 334 (20 U.S.C. 24laa-24lff), unless otherwise and maintenance of plant, fixed charges, noted. and net expenditures to cover deficits for SouRcE: 38 FR 18018, July 6, 1973, unless other- food services and student body activities, wise noted. but not including expenditures for community services, capital outlay, and debt Subpart A-Scope and Definitions service, or any expenditures made from § 186.1 Scope. funds granted under title II of Public Law 81-874, or title II or III of the The regulations in this part govern the Elementary and Secondary Education provision of financial assistance under Act of 1965. the Indian Elementary and Secondary (20 u.s.c. 244(5).) School Assistance Act, title III of Public "Elementary or secondary school" Law 81-874, as added by part A of title means a day or residential school which

133 § 186.3 PUBLIC WELFARE provides elementary education or secon- tive use of equipment or personnel in dary education, as determined under space used or to be used for programs or State law, except that it does not include projects meeting the assessed needs of any education provided beyond grade 12. Indian children. The term may include (20 U.S.C. 241aa.) the extension of utility lines, such as for "Equipment" includes machinery and water and electricity, for points beyond includes all other items of tangible per- the confines of the space in which the sonal property necessary for the func- minor remodeling is undertaken but tioning of a particular facility as a facil- within the confines of such previously ity for the provision of educational and completed building, to the extent needed related services, including items such as to make effective use of the equipment. instructional equipment and necessary The term does not include structural furniture, printed, published, and audio- alterations to buildings, building con- visual instructional materials, and books, struction, maintenance, or repair. periodicals, documents, and other related (20 U.S.C. 24Icc(2).) materials. Equipment does not include "Nonlocal educational agency" means "supplies." the governing body of a nonprofit insti- (20 U.S.C. 24lcc(2).) tution or organization of an Indian tribe "Free public education" means educa- which operates for Indian children an tion which is provided at public expense, elementary or secondary school or school under public supervision and direction, system, located on or near a reservation, and without tuition charge, and which and which is not a local educational is provided as elementary or secondary agency as defined herein. school education in an applicable State. (20 U.S.C. 24Ibb(b).) Free public education may, if in accor- "State aid" with respect to free public dance with State law, include education education means any contribution, no below grade 1 meeting the above criteria. (20 u.s.c. 244 (4).) repayment for which is expected, made "Indian" means any individual, living by a State to or on behalf of a local edu- on or off a reservation, who: (a) Is a cational agency within the State for the member of a tribe, band, or other or- support of free public elementary and ganized group of Indians, including secondary education. those tribes, bands, or groups terminated (20 U.S.C. 24lee(b) (!).) since 1940 and those recognized now or "State educational agency" means the in the future by the State in which they officer or agency primarily responsible reside, or who is a descendant, in the for the State supervision of public ele- first or second degree, of any such mem- mentary and secondary schools. (20 u.s.c. 244(7).) ber; or ( b) is considered by the Secre- tary of the Interior to be an Indian for §§ 186.3-186.10 [Reserved] any purpose; or ( c) is an Eskimo or Aleut or other Alaska Native. (20 u.s.c. l22lb.) Subpart B-Applications; Use of "Local educational agency" means a Federal Funds board of education or other legally con- stituted local school authority having § 186.11 Applications. administrative control and direction of A grant under the act to a local edu- free public education in a reservation, cational agency may be made o!).ly upon county, township, independent, or other application to the Commissioner, 'on such school district located within a State. forms as may be prescribed by him, when Such term includes any State agency such application meets the requirements which directly operates and maintains of this subpart. facilities for providing free public (20 U.S.C. 24Idd(a).) education. (20 U.S.C. 24laa; 20 U.S.C. 244(6)(A), S. Rept. § 186.12 Contents of applications. :-lo. 92-384, 92d Cong., !st Sess. 18 (1971).) An application, in accordance with "Minor remodeling" means minor al- section 305 (a) of the act, shall: terations, in a previously completed (a) Provide that the activities and building, which are needed to make effec- services for which assistance is sought

134 TITLE 45 § 186.14

will be administered by or under the § 186.13 Approval of applications. supervision of the applicant; (a) In general. An application may (20 U.S.C. 24ldd(a)(I).) be approved only if it is consistent with (b) Set forth an elementary or secon- the applicable provisions of the act and dary school program specially designed this part and meets the requirements set to meet the special educational needs of forth in § 186.12 and in this section. Indian students and provide for such (b) Utilization of talents; increase of methods of administration (both fiscal educational opportunities. An applica- and educational) as are necessary for the tion shall provide satisfactory assurance proper and efficient operation of the that the program or project for which program; the application is made: (20 U.S.C. 24ldd(a)(2).) . (1) Will utilize the best available tal- (c) Provide that effective procedu:es, ents and resources (including persons including provisions for appropriate from the Indian community), and objective measurement of educational (2) Will substantially increase educa- achievement, will be adopted for evaluat- tional opportunities of Indian children ing at least annually the effective_ness in the area to be served by the applicant. of the applicant's programs and proJects The talents and resources utilized to sub- in meeting the special educational needs stantially increase educational opportu- of Indian students; nities of Indian children may include any (20 U.S.C. 24ldd(a)(4).) ( d) Set forth policies and procedures individuals or organizations which have which assure that Federal funds made a particular and uncommon skill, ability, available under the act for any fiscal or delivery system, based on knowledge, year will be so used to supplement and, assets, or existing capacities, to increa~e to the extent practical, increase the level educational opportunities of Indian chil- of funds that would, in the absence of dren. Educational opportunities may in- such Federal funds, be made available clude, but shall not be limited to, instruc- by the applicant for the education of tional and supportive activities, services Indian children and in no case supplant or experiences designed to meet the such funds; and assessed needs of Indian children to be (20 U.S.C. 24ldd(a)(5).) served in the application. (20 U.S.C. 24Idd (b) (2) (A).) ( e) Provide for such fiscal control an_d (c) Consultation and hearings. An fund accounting procedures by the appli- application shall provide satisfactory cant as are necessary to assure proper assurance that the program or project disbursement of, and accounting for, for which application is made has been Federal funds paid to the applica_!lt developed: under the act, and for such reports as (1) In open consultation with parents the Commissioner may require to carry of Indian children, teachers, and, where out his functions under the act. such program or project will serve sec- (20 U.S.C. 24ldd(a)(6) and (a) (7); 20 U.S.C. 1232c.) ondary school students, Indian secondary (f) In the case of an application for school students, including not less than payments for planning, provide satisfac- one public hearing at which such p~rsons tory assurance that: have been given a full opportumty to (1) The planning was or will be di- understand the program for which assis- rectly related to programs or projects to tance is sought and to offer recommenda- be carried out under this part and has tions thereon; and resulted, or is reasonably likely to result, (2) With the participation and appro- in a program or project which will be val of a committee selected in accordance carried out under this part; and with §§ 186.15 and 186.16. Such assur- (2) The planning funds are needed ance shall include at the minimum a bec'ause of the innovative nature of the description of the steps taken by the program or project or because the local applicant to meet the requirements of edui:ational agency lacks the resources this paragraph. necessary to plan adequately for pro- (20 U.S.C. 24ldd(b) (2) (B).) grams and projects to be carried· out under the act. § 186.14 Public hearings. (20 U.S.C. 24ldd(a)(3).) The public hearing required by § 186.13

135 § 186.15 PUBLIC WELFARE

(c) (1) shall provide an opportunity for § 186.16 Selection of parent committee. discussion of, among other appropriate (a) The parent committee shall be subjects: selected by parents of the Indian children (1) The adequacy of current programs to be served, teachers and, where the to meet the special educational needs of program or project will serve secondary Indian children enrolled in the local edu- school students, Indian secondary school cational agency; and students. (2) The manner in which the program (b) Selection of the parent committee or project for which application is made shall not limit the continuing participa- will be coordinated with other programs tion of the Indian community in the to meet the special educational needs of operation and evaluation of the program such children. pursuant to § 186.17. (20 U.S.C. 24ldd(b)(2)(B)(i).) (c) The applicant will arrange the mechanism for selection procedures after § 186.15 Parent committee nominations. consultation with the groups listed in The committee formed for the pur- §186.15(a), and shall provide prior no- poses of § 186.13(c) (2) shall be nomi- tice and dissemination of information to nated and selected by procedures appro- the community concerning the selection priate to the Indian community to be procedures. served, such as sanction by the tribal (d) Membership of a parent committee governor where necessary. This commit- shall be in proportion to the total number tee shall be known as the "parent com- of Indian children to be served, with a mittee." maximum membership of 40 persons. The (a) Identification of individuals for committee shall include only parents of consideration for membership on the the Indian children to be served, teach- committee shall not be determined by ers, and where the program or project the applicant alone, but, to the extent will serve secondary school students. practicable, shall be determined by con- Indian secondary school students, with sultation with such groups as parents of parents constituting at least half of the Indian children to be served, Indian members. Each member shall be desig- tribes, tribal councils, institutions, and nated by name and address in the organizations which are part of the application. affected Indian community. (20 U.S.C. 24ldd(b)(2)(B)(ii).) (b) The recommendation of such indi- § 186.17 Procedures for community in- viduals by such groups shall be designed volvement. to result in the identification of persons An application shall set forth policies representative of the interests of the and procedures assuring that the pro- Indian children to be served by the grant gram will be operated and evaluated in for which application is made. consultation with, and the involvement (c) Representative factors in the nom- of, parents of the Indian children and ination and selection of members of the representatives of the area to be served, parent committee shall include, but not including the committee established be limited to, the following: under § 186.16. Such policies and proce- ( a) Geographical location; dures shall at a minimum include the (b) Previous or current membership in provision by the local educational agency a parent advisory committee; of the following: ( c) Experience with target schools; (a) A repository available to the com- (d) Prior school or community activ- munity of documentation concerning ity; parent committee functions such as rec- ( e) Willingness to participate actively ords of meetings, minutes of meetings, and make recommendations concerning committee selection procedures, and a the special educational needs of the In- roster of committee membership; dian children to be served; and (b) Dissemination and interpretations (f) Representation of reservation and of bilingual proceedings and materials off-reservation Indian children where where necessary; necessary. (c) An established role for the com- (20 U.S.C. 24Jdd(b)(2)(B).) mittee to be played in needs assessments, 136 TITLE 45 § 186.21

and priority determinations for meeting (6) Social work services; such identified needs; (7) Pupil transportation; and (d) Access by the committee to budget (8) Special services for physically and financial reports and analyses to handicapped and mentally retarded determine that grant funds are being children. used to supplement the level of funds (20 U.S.C. 24lcc.) available to the community for the edu- § 186.19 Use of Federal funds. cation of Indian children; (a) Grants under the Act may be used (e) Planned activities to assure review for of application implementation, ongoing (1) The planning and development of review of program or project activities programs specifically designed to meet or services, and continuing analysis for the special educational needs of Indian evaluation and dissemination activities children, including pilot projects de- and other related programs and projects; signed to test the effectiveness of plans (f) Formal mechanism for written so developed; and approval, by a majority of the committee (2) The establishment, maintenance, voting in open session, of the application and operation of programs specifically and of projects and activities to be designed to meet the special educational implemented by the applicant which needs of Indian children. affect the community to be served. (b) Grants under the Act also may be (20 U.S.C. 24ldd(b)(2)(B) and (c).) used for the acquisition of necessary equipment, and for the minor remodel- § 186.18 Needs assessment. ing of classroom or other space used for In designing a program which meets such programs currently meeting the the special educational needs of the special educational needs of Indian Indian children to be served, the local children. educational agency ( after consultation (20 U.S.C. 24lbb(a)(2)(B).) with the parent committee and the Indian community) must consider the inclu- Subpart C-Amount of Grant; sion of activities which build upon and Payments; Reallocations support the heritage, traditions, and life- § 186.21 Formula for determination of style of the community being served. amount of grants for local educa- The determination of those needs shall tional agencies. include consideration of such instruc- (a) For the purpose of computing the tional or supportive services, activities, amount to which a local educational and experiences as the following: agency is entitled under the Act for any ( a) Instructional services, activities fiscal year ending prior to July 1, 1975, and experiences. (1) Arts (music, the Commissioner shall determine, on graphics, etc.); the basis of the most satisfactory data (2) Language arts, including speech available, the number of Indian children therapy, reading and language instruc- who were enrolled in the schools of such tion such as bilingual or English as a agency and for whom such agency pro- second language programs; vided free public education, during such (3) Vocational and industrial arts; fiscal year. ( 4) Mathematics and natural science; (20 U.S.C. 24lbb(a)(!).) (5) Social sciences and humanities; (b) The amount of the grant to which (6) Physical education; and a local educational agency is entitled (7) Cultural enrichment. under the Act for any fiscal year shall (b) Supportive activities, services or be an amount equal to experiences. (1) Academic guidance, (1) The average per pupil expenditure counseling and testing; for such agency, as determined in ac- (2) Use of dormitory and recreation cordance with paragraph ( c) of this sec- facilities; tion, multiplied by (3) Food and clothing; (2) The sum of the number of Indian ( 4) Medical and dental care; children determined under paragraph ( 5) Psychological or psychiatric test- (a) of this section. ing and care; (20 U.S.C. 24lbb(a)(2)(A).)

137 § 186.22 PUBLIC WELFARE

(c) The average per pupil expenditure educational agencies (i) which have not for a local educational agency shall be been local educational agencies for more the aggregate current expenditures dur- than 3 years and (ii) which enroll a sub- ing the second fiscal year preceding the stantial proportion of Indian children. fiscal year for which the computation is (b) Assistance may be made available made, for all of the local educational under this section to meet the costs of agencies in the State in which such programs and projects which meet the agency is located, plus any direct current purposes of this part, including costs in- expenditures by such State for the opera- curred in connection with the establish- tion of such agencies (without regard to ment of such agencies. Applications for the sources of funds from which either assistance under this section shall meet of such expenditures are made), divided the appropriate requirements of subpart by the aggregate number of children who B of this part. were in average daily membership in (20 U.S.C. 24lbb(b); S. Rept. 92-346, 92d Cong., elementary and secondary schools for 1st Sess. 1971, p. 99.) whom such agencies provided free public § 186.23 Limitation with regard to eli- education during the second preceding gibility of local educational agencies fiscal year. for State aid. (20 U.S.C. 24lbb(a)(2)(C).) No payment will be made under this (d) Per pupil expenditure data for the part for any fiscal year to any local edu- purposes of this part shall be determined cational agency in a State which has by the Commissioner on the basis of the taken into consideration payments under best data available to him. Such data for this part in determining the eligibility the purposes of average per pupil expen- of such local educational agency in that diture determinations shall be in accor- State for State aid, or the amount of dance with the provisions of section that aid, with respect to free public edu- 303(a) (2) (C) of the act and of this cation of children during that year or the subpart. preceding fiscal year. (20 U.S.C. 24lbb(a)(2)(C).) (20 U.S.C. 24lee(b)(l).) (e) A grant shall not be made to a § 186.24 Limitation with regard to com- local educational agency under the act bined fiscal effort. unless the number of Indian children (a) No payments under the act to any enrolled in the schools of that agency local educational agency in any State for is at least 10 or constitutes at least 50 any fiscal year may be made by the percent of that agency's total enroll- Commissioner unless the State educa- ment. This requirement shall not apply tional agency of the respective State to local educational agencies serving finds that the combined fiscal effort of Indian children in Alaska, California, that local educational agency and the and Oklahoma, or located on, or in prox- State with respect to the provision of imity to, an Indian reservation. (For free public education by that agency for a local educational agency to be in prox- the preceding fiscal year was not less imity to an Indian reservation, the than such combined fiscal effort for that Indian child's attendance area must be purpose for the second preceding fiscal within reasonable pupil transportation year. distance of the reservation lands, which (b) Expenditures by a State with re- determination shall be based on criteria spect to a local educational agency, including length of schoolday, route rather than by such a local educational traveltime, and population density fac- agency itself, shall be deemed to have tors.) been maintained at the same level in the (20 U.S.C. 24lbb(a)(2)(B).) preceding fiscal year as in the second § 186.22 Assistance to nonlocal educa- preceding fiscal year, unless the basis for tional agencies. making such expenditures has been altered or unless such expenditures are (a) The Commissioner may, in accor- assumed by such a local educational dance with section 303 (b) of the act, agency. In such an event, the actual provide financial assistance to schools on expenditures of that nature shall be taken or near reservations which are: (1) Non- into account in both years in determin- local educational agencies or (2) local ing combined fiscal effort.

138 TITLE 45 § 186.31

(c) A combined fiscal effort in the pre- proposed project relative to the amount ceding fiscal year shall not be deemed to available to it under this part. The Com- be a reduction from that in the second missioner shall, in fixing such date or preceding fiscal year unless the per pupil dates, notify local educational agencies expenditure in the preceding fiscal year which are eligible for assistance under is less than that in the second preceding this part that the failure to file an appli- fiscal year by more than 5 percent. Any cation pursuant to subpart B of this such reduction in fiscal effort by a local part, by such date or dates, will result in educational agency for any fiscal year by the reallocation of the ratably reduced more than 5 percent will disqualify a maximum amounts which such agencies local educational agency unless such are eligible to receive under this part to ageticy demonstrates to the satisfaction other eligible local educational agencies of the State educational agency that such pursuant to this section. a reduction was the result of an unusual (2) Following the submission of such event, such as an unanticipated increase reports, the Commissioner will determine in school enrollment, that was beyond those local educational agencies which the control of the local educational will need additional funds to carry out agency, and that the fiscal effort of such approved applications under this part. agency does not otherwise indicate a Such additional funds may be allocated diminished fiscal effort. to such agencies by the Commissioner (i) (20 U.S.C. 241ee(b) (2).) from amounts which he determines in § 186.25 Adjustment where necessi- accordance with subparagraph (1) of tated by appropriations. this paragraph, will not be used by local (a) Ratable reductions. As prescribed educational agencies during their period by section 307 (a) of the act, if the sums of availability and (ii) from amounts appropriated for a fiscal year for mak- which he determines would have been ing payments under this part are not available to local educational agencies sufficient to pay in full the total amounts that did not submit approvable applications and will not be used by su_ch which all local educational agencies are eligible to receive under this part for agencies. (3) No amount may be reallocated to such fiscal year (as determined in accor- a local educational agency under sub- dance with § 186.21), the Commissioner paragraph (2) of this paragraph, if such will ratably reduce the maximum amounts amount, when added to the amount which all such agencies are eligible to available to such agency in accordance receive under this part for such year. (20 U.S.C. 241ff(a).) with paragraph (a) of this section, ex- ceeds the maximum grant for which such (b) Reallocation of funds. (1) In any agency is eligible in accordance with fiscal year in which the maximum § 186.21. amounts for which local educational (20 u.s.c. 2411£.) agencies are eligible under this part have been ratably reduced in accordance with §§ 186.27-186.30 [Reserved] paragraph (a) of this section (and in which additional funds have not been Subpart D-General Provisions made available to pay in full such maximum amounts), the Commissioner shall § 186.31 Retention of records. fix a date or dates by appropriate notice (a) Records. Each recipient shall keep for the reporting, by each local educa- intact and accessible records relating to tional agency which is eligible for a the receipt and expenditure of Federal grant under this part determined in funds (and to the expenditure of the accordance with § 186.21, of the amount recipient's contribution to the cost of the of funds available to such agency under project, if any, in accordance with sec- this part which it estimates it would tion 434 (a) of the General Education expend under an approved application. Provisions Act), including all accounting If such agency is applying for a grant records and related original and sup- under this part, its estimate shall set porting documents that substantiate forth a detailed projection of the amount direct and indirect costs charged to the it deems necessary for carrying out its award.

139 § 186.33 PUBLIC WELFARE

(b) Period of retention. (1) Except § 186.33 Limitations on costs. as provided in paragtaphs (b) (2) and The amount of the award shall be set ( d) of this section the records specified forth in the grant award document. The in paragraph (a) of this section shall be total cost to the Federal Government retained (a) for 3 years after the date of will not exceed the amount set forth in the submission of the final expenditure the grant award document or any modi- report, or (b) for grants and contracts fication thereof approved by the Com- which are renewed annually, for 3 years missioner which meets the requirements after the·date of the submission of the of applicable statutes and regulations. annual expenditure report. The Federal Goverment shall not. be (2) Records for nonexpendable per- obligated to reimburse the recipient for sonal property which was acquired with costs incurred in excess of such amount Federal funds shall be retained for 3 unless and until the Commissioner has years after its final disposition. notified the recipient in writing that ( c) Microfilm copies. Recipients may such amount has been increased and has substitute microfilm copies in lieu of specified such increased amount in a original records in meeting the require- revised grant award document. Such re- ments of this section. vised amount shall thereupon constitute (d) Audit questions. The records in- the revised total cost of the performance volved in any claim or expenditure which of the grant. has been questioned by Federal audit (20 U.S.C. 241aa.) shall be further retained until resolution § 186.34 Final accounting. of any such audit questions. (e) Audit and examination. The Sec- (a) In addition to such other account- retary and the Comptroller General of ing as the Commissioner may require the the United States, or any of their duly recipient shall render, with respect to authorized representatives, shall have the project, a full account of funds access for the purpose of audit and expended, obligated, and remaining. examination to all such records and to (b) A report of such accounting shall any other pertinent books, documents, be submitted to the Commissioner within papers, and records of the recipient. 90 days of the expiration or termination (0MB Circular No. A-73; 0MB Circular No. of the grant or contract, and the recipi- A-102, attachment C; 20 U.S.C. 1232c(a).) ent shall remit within 30 days of the § 186.32 Audits. receipt of a written request therefor any (a) All expenditures by recipients shall amounts found by the Commissioner to be audited by the recipient or at the be due. Such period may be extended at recipient's direction to determine, at a the di!;icretion of the Commissioner upon minimum, the fiscal integrity of financial the written request of the recipient. transactions and reports, and the com- (20 U.S.C. 1232c(b)(3); 31 U.S.C. 628.) pliance with laws and regulations. (b) The recipient shall schedule such PART 187-FINANCIAL ASSISTANCE audits with reasonable frequency, usually FOR THE IMPROVEMENT OF EDU- annually, but not less frequently than CATIONAL FACILITIES FOR INDIAN once every 2 years, considering the nature, site, and complexity of the activity. CHILDREN (c) Copies of audit reports shall be Subpart A-Scope; Definitions made available to the Commissioner to Sec. assure that proper use has been made 187 .! Scope. of the funds expended. The results of I 87 .2 Definitions. such audits will be used to review the Subpart B-Applications for Financial recipient's records and shall be made Assistance available to Federal auditors. Federal 187.5 Eligibility. for, and nature of, available auditors shall be given access to such assistance. records or other documents as may be 187.6 Applications. 187.7 Community participation. necessary to review the results of such 187.8 Coordination of resources. audits. 187.9 Training of personnel. (20 U.S.C. 1232c(b)(2); 0MB Circular No. A-102, 187.10 Indian preference. attachment G,2, attachment C,1.) 187.11 Evaluation.

140 TITLE 45 § 187.2

Subpart C-Criteria for Assistance ture, printed, publi_shed and audiovisual I 87 .21 Criteria for consideration of applications. instructional materials, and books, peri- 187.22 Additional criteria for projects for improv- odicals, documents, and other related ing educational opportunities . 187.23 Additional criteria for educational enrich- materials. ment and exemplary programs. (20 u.s.c. 881 (d).) 187.24 Additional criteria for training programs or "Exemplary," as applied to an educa- projects. tional program, project, service, or activ- 187.25 Additional criteria for projects for dissemination and evaluation. ity, includes a program, project, service or activity designed to be so education- Subpart D-General Provisions ally effective or outstanding that it could I 87 .3 I Retention of records. be identified as a promising solution to a 187.32 Audits. basic Indian educational problem. 187.33 Limitations on cost. (20 U.S.C. 887c(c).) 187.34 Final accounting. AuTJIORITY.~Scc. 810, Public Law 89-10, as "Federally supported elementary and amended, 86 Stat. 339 (20 U .S.C. 887c), unless secondary school for Indian children" otherwise noted. means an elementary or secondary school SouRcE: 38 FR 19826, July 24, 1973, unless other- for Indian children operated or sup- wise noted. ported by the Department of the Interior. (20 U .S.C. 887c(b).) Subpart A-Scope; Definitions "Guidance and counseling" refers to (a) services to Indian pupils to assist § 187.1 Scope. them in assessing and understanding This part governs the provision of their particular abilities, educational assistance to State and local educational needs, and career and vocational inter- agencies; Indian tribes, organizations, ests, and (b) assistance in personal and and institutions; federally supported ele- social development, including the devel- mentary and secondary schools for In- opment of a positive self-concept for dian children; and institutions of higher Indian children and their parents. education for carrying out special pro- (20 U.S.C. 887(c)(l)(D).) grams and projects to improve educa- "Handicapped children" means men- tional opportunities for Indian children tally retarded, hard of hearing, deaf, under section 810 of the Elementary and speech impaired, visually handicapped, Secondary Education Act of 1965 (as seriously emotionally disturbed, crippled, added by § 421 of the Indian Education or other health impaired children, who Act, title IV of Public Law 92-318). by reason thereof require special educa- (20 U .s.c. 887c.) tional and related services. (20 U.S.C. 887c(c) (I) (E).) § 187.2 Definitions. "Indian" means any individual, living As used in this part: on or off a reservation, who (a) is a "Act" means section 810 of title VIII member of a tribe, band or other orga- of the Elementary and Secondary Edu- nized group of Indians, including those cation Act of 1965. tribes, bands, or groups terminated since (20 u.s.c. 887c.) 1940 and those recognized now or in the "Elementary school" means a day or future by the State in which they reside, residential school which provides ele- or who is a descendant, in the first or mentary education including early child- second degree, of any such member, or hood education, as determined under (b) is considered by the Secretary of the State law. Interior to be an Indian for any purpose, (20 U.S.C. 887c; 20 U.S.C. 881(c).) or (c) is an Eskimo or Aleut or other "Equipment" includes machinery, utili- Alaska Native. ties, and built-in equipment and any (20 u.s.c. 1221h.) necessary enclosures or structures to "Secondary school" means a day or house them, and includes all other items residential school which provides sec- necessary for the functioning of a par- ondary education, as determined under ticular facility as a facility for the pro- State law, except that such term does vision of educational services for Indian not include any education provided be- children, including items such as instruc- yond grade 12. tional equipment and necessary furni- (20 u.s.c. 881 (h).)

141 § 187.5 PUBLIC WELFARE

Subpart B-Applications for Financial or projects to encourage the dissemina- Assistance tion of information and materials relating to, and the evaluation of the effec- § 187.5 Eligibility for, and nature of, tiveness of, educational programs which available assistance. may offer educational opportunities to (a) Demonstration projects for im- Indian children. proving educational opportunities. State (20 U.S.C. 887c (a)(4) and (e).) and local educational agencies, federally § 187.6 Applications. supported elementary and secondary Any eligible group, tribe, organization, schools for Indian children, and Indian or school or school system may submit an tribes, organizations and institutions application for assistance under this part may apply for grants to support plan- which shall set forth (a) the problem ning, pilot and demonstration projects to be addressed, (b) the overall objec- which are designed to plan for, and test tives of the proposed program or project, and demonstrate the effectiveness of, (c) the m:i,nner in which the proposed programs (including early childhood pro- program or project carries out the pur- grams) for improving educational oppor- pose, as set forth in § 187.5, to which it tunities for Indian children. relates, ( d) the type and size of the (20 U.S.C. 887c(a)(l) and (b).) (b) Educational enrichment and exem- proposed staff (including the staff train- plary programs. State and local educa- ing proposed), (c) the amount of the tional agencies, and tribal and other grant being requested, and such other Indian community organizations may information as the Commissioner may apply for grants to assist them (1) to require. The description of the proposed provide educational services not avail- program or project in the application able to Indian children in sufficient shall also include a specific discussion of quantity or quality (such as programs the manner in which the program or pro- described in section 810(c) (1) of the ject relates to the applicable criteria Act) ; or (2) to establish and operate set forth in subpart C. The application exemplary and innovative educational shall also describe methods of adminis- programs and centers which involve tration which will provide proper and new educational approaches, methods, efficient administration of the program and techniques designed to enrich pro- or project for which assistance is grams of elementary and secondary edu- requested. (20 U.S.C. 887c(f).) cation for Indian children and which will serve as models for regular elementary § 187.7 Community participation. and secondary school programs in which Applications under§ 187.5 (a) and (b) Indian children are educated. must describe the manner in which (20 U.S.C. 887c(a)(2) and (c).) parents of the Indian children to be (c) Training. Institutions of higher served and tribal communities: (a) Were education ( as defined in section 801 ( e) consulted and involved in the planning of the Elementary and Secondary Educa- and development of the project; and (b) tion Act) and State and local educational will be actively participating in the agencies in combination with institutions further planning, development, opera- of higher education, may apply for tion, and evaluation of the project. grants to assist them in carrying out (20 U.S.C. 887c(f).) programs or projects (1) to prepare persons to serve Indian children as teachers, § 187.8 Coordination of resources. teacher aides, social workers, or ancillary Applications for assistance under educational personnel, and (2) to im- § 187 .5 (b) ( educational enrichment and prove the qualifications of such persons exemplary programs) must contain an who are serving Indian children in such assurance that the program or project capacities. to be assisted will be coordinated with (20 U.S.C. 887c(a) (3) and (d), and 881 (e).) programs or projects carried out with (d) Dissemination and evaluation. other resources which may be available Public agencies and institutions, and In- to the applicant in order that funds dian tribes, institutions and organiza- under this part and those other resources tions may a'I)ly for assistance (by grant will be used for a comprehensive pro- or contract) for carrying out programs gram for the improvement of educational

142 TITLE 45 § 187.22

opportunities of Indian children. particular educational needs of Indian (20 U.S.C. 887c(f) (2).) children; § 187.9 Training of personnel. (c) The relative isolation (geographic Applications under § 187.5 (b) (relat- or social) of the Indian community ing to educational enrichment and exem- which will be served by the program or plary programs) must provide a descrip- project; tion of the methods to be used for the (d) The degree to which the activities training of personnel who will be parti- supported under this part will be coor- cipating in the project. Before he may dinated with other activities to meet the approve an aplication under § 187.5(b), special educational needs of Indian chil- the Commissioner must be satisfied that dren (including program supported under such methods are adequate for the pur- part A of the Indian Education Act, the pose of carrying out the project. Elementary and Secondary Education (20 U.S.C. 887c(f)(3).) Act, and the Vocational Education Act) ; ( e) The adequacy of the qualifications § 187.10 Indian preference. and experience of the personnel desig- (a) In approving applications under nated to carry out the proposed project; this part, the Commissioner will give (f) The adequacy of facilities and priority to applications submitted by other resources; Indian educational agencies, organiza- (g) The reasonableness of the esti- tions, and institutions. mated cost in relation to the anticipated (b) In approving applications under results; § 187.5 ( c), the Commissioner will give (h) The expected potential for utiliz- preference to those projects which ining the results of the proposed project volve the training of Indians. In carry- in other projects or programs for simi- ing out an approved project the appli- lar educational purposes; cant shall give preference to the train- (i) The sufficiency of the size, scope, ing of Indians. quality, and duration of the program or (20 U.S.C. 887c(f).) project so as to secure productive results; and § 187.11 Evaluation. (j) The soundness of the proposed plan An application under this part must of operation, including consideration of contain an assurance to the Commis- the extent to which: sioner that (a) the applicant will arrange (1) The objectives of the proposed for an independent and objective evalua- project are sharply defined, clearly tion of the effectiveness of the project stated, capable of being attained by the in achieving its purposes and the pur- proposed procedures, and capable of be- poses of the act, and (b) the applicant ing measured or evaluated; will cooperate with any evaluation con- (2) Provision is made for adequate ducted or arranged by the Commissioner. evaluation of the effectiveness of the (20 U.S.C. 887c(f) (4).) project and for determining the extent to which the objectives are accomplished; Subpart C-Criteria for Assistance (3) Where appropriate, provision is made for inservice training connected § 187.21 Criteria for consideration of with project services; and applications. ( 4) Provision is made for disseminat- In considering whether to approve ap- ing the results of the project and for plications and in determining the amount making materials and techniques result- of the award under approved applica- ing therefrom available to the general tions, the Commissioner will take into public and those concerned with educa- account the following general criteria: tion of Indian children. (a) The number of Indian children (20 U.S.C. 887c.) involved in the program or project and number of children that would be affected § 187.22 Additional criteria for projects by a successful outcome of the program for improving educational oppor- or project; tunities. (b) The degree to which the program (a) In considering whether to approve or project to be assisted addresses the applications submitted under § 187.5 (a),

143 § 187.23 PUBLIC WELFARE

and in determining the amount of the (2) The significance, in terms of long awards under those applications, the term improvement of the educational Commissioner will take into account the opportunities of Indian children, of the following criteria (in addition to the cri- provision of the educational service, or teria set forth in § 187.21): the widespread application of the exem- (1) The degree to which the project plary program, for which assistance is addresses a demonstrated and substan- requested; tial educational need of Indian children (3) In the case of an exemplary edu- which is not being adequately met by cational program, the degree to which projects supported with resources under the application demonstrates that the other Federal, State, or local programs; educational approach, method, or tech- (2) The degree to which the successful nique involved in the program has not carrying out of the project will measur- previously been tested or applied in the ably contribute to improving the educa- education of Indian children; tional opportunities of Indian children (4) The extent to which the program throughout the Nation; or project involves Indian parents in the (3) The numbers of Indian children educational process and demonstrates who are estimated to require educational new methods for involving those parents or other related services or programs of generally in activities to meet the edu- the kind which will be demonstrated or cational needs of Indian children. improved by the proposed project; (b) In considering applications under ( 4) In the case of projects which ad- § 187.5(b), priority will be given to (1) dress themselves primarily to academic programs which are directed at meeting needs, the degree to which the level of the needs of Indian children who are academic achievement of Indian chil- handicapped; (2) programs designed to dren is likely to be improved by the assist and encourage Indian children to carrying out or replication of the results enter, remain in, or reenter elementary of the proposed project; or secondary school; and (3) programs (5) The degree of innovation of the designed to assist Indian children to pre- proposed project; and pare to enter postsecondary or career (6) The degree to which the project education programs. can be replicated for the purpose of pro- (20 U.S.C. 887c(c).) viding educational services or programs § 187.24 Additional criteria for training for Indian children. programs or projects. (b) In considering applications under this section priority will be given to proj- (a) In addition to the criteria set forth ects which will provide models for coor- in § 187.21, the Commissioner will apply dinating the operation, at the local level, the following criteria in evaluating appli- of federally assisted programs or proj- cations submitted under § 187 .5 ( c) : ects designed to assist in meeting the (1) The need with regard to Indian educational needs of Indian children. education for the type of educational or (20 U.S.C. 887c(b).) other personnel for which the training is provided; § 187.23 Additional criteria for educa- (2) The likelihood that the training to tional enrichment and exemplary be assisted will be applied to meet the programs. educational needs of Indian children; (a) In considering whether to approve (3) The degree to which the training applications submitted under § 187.5(b) will involve educational approaches and in determining the amount of the which take into account the culture and awards under those applications, the heritage of Indian children; and Commissioner will take into account the (4) The degree to which the training following criteria (in addition to the cri- program focuses on approaches, meth- teria set forth in § 187.21); ods, and techniques which are pertinent (1) The degree to which the applica- to the education of Indian children. tion demonstrates that the services to (b) (1) Assistance under § 187.5(c) is be stimulated by the project are not available for the establishment of fellow- available in sufficient quantity or quality ship programs leading to an advanced to the Indian children to be served; degree; for institutes and for seminars, 144 TITLE 45 § 187.33 symposia, workshops, and conferences volved in any claim or expenditure which which are part of a continuing program. has been questioned by Federal audit (2) In providing assistance under shall be further retained until resolution § 187.5(c), projects including inservice of any such audit questions. training for qualified persons already (e) Audit and examination. The Sec- serving in the education of Indian chil- retary and the Comptroller General of dren and projects involving short-term the United States, or any of their duly training (6 months or less) will be given authorized representatives, shall have special consideration. access for the purpose of audit and (20 U.S.C. BB7c(a) (3); 887c(d).) examination to all such records and to § 187.25 Additional criteria for projects any other pertinent books, documents, for dissemination and evaluation. papers, and records of the recipient. (0MB Circular No. A-73; 0MB Circular No. In the evaluation of applications for A-102, attachment C; 20 U.S.C. 1232c(a).) assistance under§ 187.5(d), priority will be given to projects involving the dis- § 187.32 Audits. semination of information and materials (a) All expenditures by recipients relating to, and the evaluation of the shall be audited by the recipient or at the effectiveness of, academic programs and recipient's direction to determine, at a educational services which affect aca- minimum, the fiscal integrity of financial demic achievement in basic educational transactions and reports, and the compli- areas (such as reading, language arts, ance with laws and regulations. mathematics, and sciences). (20 U.S.C. BB7c(e).) (b) The recipient shall schedule such audits with reasonable frequency, usually annually, but not less frequently than Subpart D-General Provisions once every 2 years, considering the nature, site, and complexity of the activity. § 187.31 Retention of records. (a) Records. Each recipient shall keep (c) Copies of audit reports shall be intact and accessible records relating to made available to the Commissioner to the receipt and expenditure of Federal assure that proper use has been made of funds (and to the expenditure of the the funds expended. The results of such recipient's contribution to the cost of the audits will be used to review the recipi- project, if any, in accordance with sec- ent's records and shall be made available tion 434 (a) of the General Education to Federal auditors. Federal auditors Provisions Act), including all accounting shall be given access to such records or records and related original and support- other documents as may be necessary to ing documents that substantiate direct review the results of such audits. and indirect costs charged to the award. (20 U.S.C. 1232c(b)(2); 0MB Circular No. A-102, attachment G, 2, attachment C, I.) (b) Period of retention. (1) Except as provided in paragraphs (b) (2) and § 187.33 Limitations on costs. (d) of this section the records specified The amount of the award shall be set in paragraph (a) of this section shall be forth in the grant award document. The retained (i) for 3 years after the date of total cost to the Federal Government will the submission of the final expenditure not exceed the amount set forth in the report, or (ii) for grants and contracts grant award document or contract or which are renewed annually, for 3 years any modification thereof approved by the after the date of the submission of the Commissioner which meets the require- annual expenditure report. ments of applicable statutes and regula- (2) Records for nonexpendable per- tions. The Federal Government shall not sonal property which was acquired with be obligated to reimburse the recipient Federal funds shall be retained for 3 for costs incurred in excess of such years after its final disposition. amount unless and until the Commis- (c) Microfilm copies. Recipients may sioner has notified the recipient in writ- substitute microfilm copies in lieu of ing that such amount has been increased original records in meeting the require- and has specified such increased amount ments of this section. in a revised grant award document. Such (d) Audit questions. The records in- revised amount shall thereupon consti-

145 § 187.34 PUBLIC WELFARE

tute the revised total cost of the perform- agencies, to Indian tribes, institutions, ance of the grant. and organizations, and to public agen- (20 u.s.c. 887c.) cies and institutions to support planning, § 187.34 Final accounting. pilot, and demonstration projects which (a) In addition to such other account- are designed to plan for, and test and ing as the Commissioner may require the demonstrate the effectiveness of, pro- recipient shall render, with respect to the grams for improving educational oppor- project, a full account of funds expended, tunities for adult Indians under section obligated, and remaining. 314 of the Adult Ed1·cation Act (as (b) A report of such accounting shall added by section 431 of the Indian Edu- be submitted to the Commissioner within cation Act, title IV of Public Law 92- 90 days of the expiration or termination 318). of the grant or contract, and the recipi- (b) Assistance provided under this ent shall remit within 30 days of the part is subject to applicable provisions receipt of a written request therefor any contained in section 303 of the Adult amounts found by the Commissioner to Education Act (20 U.S.C. 1202) and be due. Such period may be extended at regulations thereunder. the discretion of the Commissioner upon (20 U .S.C. 12lla.) the written request of the recipient. § 188.2 Definitions. (20 U.S.C. 1232c(b)(3); 31 U.S.C. 623.) "Act" means section 314 of the Adult Education Act (20 U.S.C. 1201). PART 188-FINANCIAL ASSISTANCE (20 U.S.C. 12lla.) FOR THE IMPROVEMENT OF EDU- "Adult" means any individual who has CATIONAL OPPORTUNITIES FOR attained the age of 16. (20 U.S.C. I202(a).) ADULT INDIANS "Adult education" means services or Subpart A-Scope; Definitions instruction below the college level, for Sec. adults who (1) do not have a certificate !BB.I Scope. of graduation from a school providing I 88.2 Definitions. secondary education and who have not achieved an equivalent level of educa- Subpart B--Applications for Financial tion, and (2) are not currently required Assistance to be enrolled in schools. 188.5 Eligibility for, and nature of, available (20 u.s.c. 1202 (b).) assistance. 188.6 Applications. "Indian" means any individual, living 188.7 Community participation. on or off a reservation, who (1) is a I 88.8 Indian preference. member of a tribe, band, or other 188.9 Evaluation. organized group of Indians, including Subpart C-Criteria for Assistance those tribes, bands, or groups terminated 188.15 General criteria for consideration of appli- since 1940 and those recognized now or cations. in the future by the State in which they 188.16 Additional criteria for survey and evalua- reside, or who is a descendant, in the tion projects. first or second degree, of any such mem- Subpart D-General Provisions ber, or (2) is considered by the Secre- tary of the Interior to be an Indian for 188.21 Retention of records. 188.22 Audits. any purpose, or (3) is an Eskimo or I 88.23 Limitations on costs. Aleut or other Alaska Native. 188.24 Final accounting. (20 u.s.c. li12lh.) AUTHORITY.-Sec. 314. Public Law 89-750, as amended, 86 Stat. 342 (20 U.S.C. 121 la), unless otherwise noted. Subpart B-Applications for Financial SOURCE: 38 FR 19829, July 24, 1973, unless other- Assistance wise noted. § 188.5 Eligibility for, and nature of, Subpart A-Scope; Definitions available assistance. (a) Planning, pilot, and demonstra- § 188.1 Scope. tion projects. State educational agen- (a) This part governs the provision of cies (as defined in 20 U.S.C. 1202 (g) ) assistance to State and local educational and local educational agencies (as

146 TITLE 45 § 188.8

defined in 20 U .S.C. 1202 ( e) ) , and In- circumstances the Commissioner will give dian tribes, institutions, and organiza- special consideration to (1) projects to tions may apply for grants to support provide a basic survey (and evaluation planning, pilot, and demonstration proj- thereof) designed to define the extent of ects which are designed to plan for, and the problems of adult illiteracy and lack test and demonstrate the effectiveness of high school completion on Indian of, programs for providing adult educa- reservations, and (2) demonstration tion for Indians. Such projects may be projects to develop model programs for designed (1) to test and demonstrate the achievement of basic literacy or high the effectiveness of programs to improve school equivalency which meet the special employment and educational opportuni- needs of Indian adults. ties; (2) to assist in the establishment (20 U.S.C. 121 la.) and operation of programs designed to § 188.6 Applications. stimulate the provision of (i) basic liter- Any party eligible for assistance under acy opportunities to all nonliterate In- this part may submit an application dian adults, and (ii) high school equiva- therefor on such forms as may be pre- lency opportunities in the shortest period scribed by the Commissioner. Such appli- of time feasible; (3). to support a major cation shall set forth (a) the problem research and development program to to be addressed; (b) the overall objec- develop more innovative and effective tives of the proposed project; (c) the techniques for achieving the literacy and activities to be carried out; ( d) the man- high school equivalency goals; ( 4) to ner in which the proposed project carries provide for basic surveys (and evalua- out the purpose, as set for in § 188.5, tions of such surveys) to define accu- to which it relates; (e) the type and size rately the extent of the problems of of the staff envisioned; (f) the amount illiteracy and lack of high school comple- of the assistance being requested; and tion on Indian reservations; and ( 5) to (g) such other information as the Com- encourage the· dissemination of informa- missioner may require. The description tion and materials relating to, and the of the proposed project in such applica- evaluation of the effectiveness of, education shall also include a specific discus- tion programs which may offer educa- sion of the manner)n which such project tional opportunities to Indian adults. relates to the applicable criteria set forth (20 U.S.C. 12Ila(a).) in subpart C of this part. The applica- (b) Dissemination and evaluation proj- tion shall also provide for such methods ects. The Commissioner may also make of administration as are necessary for grants to, and contracts with, public the proper and efficient administration of agencies and institutions, and Indian the project for which assistance is tribes, institutions, and organizations for requested. (1) the dissemination of information (20 U.S.C. 12Ila(c).) concerning educational programs, services, and resources available to Indian § 188.7 Community participation. adults, including evaluations thereof; Applications submitted under § 188.5 and (2) the evaluation of the effective- (a) must describe the manner in which ness of federally assisted programs (in individuals to be served and tribal com- which Indian adults may participate) in munities (a) participated in the plan- achieving their purposes with respect to ning and development of the project, and such adults. (b) will be actively participating in the (20 U.S.C. 121 la(b).) further planning, development, opera- ( c) Special considerations applicable tion, and evaluation of the project. (See to assistance for fiscal year 1973. For section 314(c) of the act.) fiscal year 1973 it is expected that only (20 U.S.C. I21Ia(c).) a very limited number of grants will be § 188.8 Indian preference. made under the program and that the In approving applications under Commissioner will be unable to make § 188.5 (a) the Commissioner will give grants in all the categories set forth in priority to applications submitted by In- paragraphs (a) and (b) of this section. dian educational agencies, organizations, (The fiscal year 1973 appropriation for and institutions. the program is $500,000.) Under these (20 U.S.C. 12Ila (c).)

147 § 188.9 PUBLIC WELFARE

§ 188.9 Evaluation. to which the objectives are accom- An application under this part must plished; contain an assurance to the Commis- (3) Where appropriate, prov1s10n is sioner that (a) the applicant will arrange made for satisfactory inservice training for an independent and objective evalu- connected with project services; and ation of the effectiveness of the project (4) Provision is made for disseminat- in achieving its purposes and the pur- ing the results of the project and for poses of the act, and (b) the applicant making materials and techniques result- will cooperate with any evaluation con- ing therefrom available to the general ducted or arranged by the Commissioner. public and specifically to all those con- (20 U.S.C. 12lla(c)(2).) cerned with education of Indian adults. (20 U.S.C. 12lla.) Subpart C-Criteria for Assistance § 188.16 Additional criteria for survey and evaluation projects. § 188.15 General criteria for consideration of applications. In the evaluation of applications sub- In considering whether to approve mitted under § 188.5(a) (4) to provide applications, and in determining the basic surveys and evaluations thereof to amount of the award under approved define the extent of the problems of illit- applications, the Commissioner will take eracy and lack of completion of high into account the following general school on Indian reservations, the Com- criteria: missioner will take into account the fol- (a) The degree to which the program lowing criteria (in addition to those con- or project to be assisted will involve the tained in § 188.15) : use of innovative methods, systems, ma- (a) The adequacy of the survey instru- terials, or programs which may be of ment and data collection system to be special value in developing effective pro- used; grams for improving employment and (b) The adequacy of the methods pro- educational opportunities for adult posed for processing, analyzing, and Indians; evaluating the data to be obtained, and for making available the results thereof; (b) The extent to which activities and supported under this part will be coordi- ( c) The adequacy of the plan for ad- nated with other programs to improve ministration of the survey, including: educational and employment opportuni- (1) The personnel to be used; (2) the ties of adult Indians (including pro- comprehensiveness of the survey sample; grams supported under the Adult Educa- (3) the number of Indian adults to be tion Act and the Vocational Education surveyed; (4) the practicability of the Act); time schedule to be followed relative to (c) The adequacy of the qualifications the proposed survey procedures; and (5) and experience of the personnel desig- the provision for verification by the proj- nated to carry out the proposed projects; ect director of the validity of the survey. (d) The adequacy of facilities and (20 U.S.C. 12lla(a)(4).) other resources; (e) The reasonableness of the esti- Subpart D-General Provisions mated cost in relation to the anticipated results; and § 188.21 Retention of records. (f) The soundness of the proposed (a) Records. Each recipient shall keep plan of operation, including considera- intact and accessible records relating to tion of the extent to which: the receipt and expenditure of Federal (1) The objectives of the proposed funds (and to the expenditure of the project are sharply defined, clearly recipient's contribution to the cost of the stated, capable of being attained by the project, if any, in accordance with sec- proposed procedures, and capable of be- tion 434(a) of the General Education ing measured or evaluated; Provisions Act), including all accounting (2) Provision is made for adequate records and related original and support- evaluation of the effectiveness of the ing documents that substantiate direct project and for determining the extent and indirect costs charged to the award.

148 TITLE 45 § 188.24

(b) Period of retention. (1) Except assure that proper use has been made of as provided in paragraphs (b) (2) _and the funds expended. The results of such (d) of this section the records specified audits will be used to review the recipi- in paragraph (a) of this section shall be ent's records and -shall be made available retained (i) for 3 years after the da~e to Federal auditors. Federal auditors of the submission of the final expendi- shall be given access to such records or ture report, or (ii) for grants and con- other documents as may be necessary to tracts which are renewed annually, for review the results of such audits. (20 U.S.C. l232c(b)(2); 0MB Circular No. A-102. 3 years after the date of the submission attachment G, 2, attachment C, l.) of the annual expenditure report. (2) Records for nonexpendl;ble p~r- § 188.23 Limitations on c-osts. sonal property which was acqmred with The amount of the award shall be set Federal funds shall be retained for 3 forth in the grant award document or years after its final disposition. contract. The total cost to the Federal (c) Microfilm copies. ~eci~ient~ may Government will not exceed the amount substitute microfilm copies m !Ieu of set forth in the grant award document original records in meeting the require- or contract or any modification thereof men ts of this section. approved by the Commissioner which meets the requirements of applicable (d) Audit questions. The records in- statutes and regulations. The Federal volved in any claim or expenditure which Government shall not be obligated to re- has been questioned by Federal audit imburse the recipient for costs incurred shall be further retained until resolution in excess of such amount unless and until of any such audit questions. the Commissioner has notified the recipi- (e) Audit and examination. The Sec- ent in writing that such amount has been retary and the Comptroller General of increased and has specified such in- the United States, or any of their duly creased amount in a revised grant award authorized representatives, shall have document or contract. Such revised access for the purpose of audit and ex- amount shall thereupon constitute the amination to all such records and to any revised total cost of the performance of other pertinent books, documents, papers, the grant. and records of the recipient. (20 U.S.C. 12lla.) (O~Ill Circular No. A-73; 0MB Circular No. A-102, attachment C; 20 U.S.C. 1232c(a).) § 188.24 Final accounting. (a) In addition to such other account- § 188.22 Audits. ing as the Commissioner may require the fa) All expenditures by recipients recipient shall render, with respect to shall be audited by the recipient or at the project, a full account of funds ex- the recipient's direction to, determine, at pended, obligated, and remaining. a minimum, the fiscal integrity of finan- (b) A report of such accounting shall cial transactions and reports, and the be submitted to the Commissioner within compliance with laws and regulations. 90 days of the expiration or termination (b) The recipient shall schedule such of the grant or contract, and the recipi- audits with reasonable frequency, usu- ent shall remit within 30 days of the ally annually, but not less frequently receipt of a written request therefor any than once every 2 years, considering the amounts found by the Commissioner to nature, site, and complexity of the be due. Such period may be extended at activity. the discretion of the Commissioner upon (c) Copies of audit reports shall be the written request of the recipient. made available to the Commissioner to (20 U.S.C. 1232c(b)(3); 31 U.S.C. 628.)

149 TITLE SO-WILDLIFE AND FISHERIES

CHAPTER I-BUREAU OF SPORT FISHERIES AND WILDLIFE

SUBCHAPTER B-TAKING, POSSESSION, TRANSPORTATION, SALE, PURCHASE, BARTER, EXPORTATION, AND IMPORTATION OF WILDLIFE

PART 11-PROTECTION OF BALD tion or from one Indian to another in EAGLES AND GOLDEN EAGLES accordance with tribal or religious Sec. customs. 11.1 Eagles protected. * * * § 11.6 Applications for permits. I 1.5 Possession and use for religious purposes. (a) Applications for permits must be 11.6 Applications for permits. addressed to the Regional Director at 11.i Permit requirements. the Regional Office of the Bureau of * * * l 1.9 Jurisdiction and address of regional or area Sport Fisheries and Wildlife having ad- offices. ministrative supervision over Bureau At1THORITY: The provisions of this Part 11 issued functions in the State in which permit under sec. 2, 54 Stat. 251, as amended; 16 U.S.C. 668a. activities are proposed. (See § 11.9 of SoVRCE: The provisions of this Part 11 ippcar at this part for addresses.) 31 F.R. 16011, Dec. IS, 1966, unless otherwise noted. * * * * * * § 11.1 Eagles protected. ( d) Applications for permits to take The taking, possession, or transporta- and possess bald eagles or golden eagles tion of the bald eage (Haliaeetus leuco- for the religious purposes of Indian cephalus), commonly known as the tribes must be submitted by individual American eagle, or the golden eagle Indians. Such applications must state ( Aquila chrysaetos) , or their parts, nests, the name and address of the applicant, or eggs is prohibited, except as per- his age, the name of his tribe, the species mitted in this part. No bald eagle or and number of eagles proposed to be golden eagle, or their parts, nests, or taken, and the State and area where eggs may be purchased, sold, traded, taking is to be done. Further, the appli- or bartered, or offered for sale, trade, or cant must name the religious ceremony barter in the United States or in any for which such eagles or their parts will place subject to its jurisdiction. be used and must enclose a statement from a duly authorized official of the * * * * * * religious group in question verifying that § 11.5 Possession and use for religious the applicant is authorized to participate purposes. in such ceremonies. Whenever the Secretary determines that the taking and possession of bald or § 11.7 Permit requirements. golden eagles for the religious purposes (a) Any permit issued pursuant tc of Indian tribes is compatible with the this part will specify the date of issue preservation of such birds, he may issue and expiration, the number of bale permits for such taking and possession eagles or golden eagles or their nest, to those individual Indians who are au- or eggs that may be taken, the persor. thentic, bona fide practitioners of such or persons who may take such eagles 01 religion. Any birds or their parts taken their nests or eggs, the places where, thE or possessed under permits issued pur- time when, the means or methods b) suant to this section are not transferable, which they may be taken, and the dis- except such birds or their parts may be position or utilization to be made o1 handed down from generation to genera- such birds, nests, or eggs.

150 TITLE 50 § 11.9

(b) Permits issued under this part ing, Fort Snelling, Twin Cities, Minn. are not transferable. In addition to 55111. other penalties prescribed for violation (e) Southeast Region (Region 4- of regulations in this part, permits may comprising: (1) The States of Alabama, be revoked at any time by the Regional Arkansas, Florida, Georgia, Kentucky, Director for violation of any require- Louisiana, Maryland, Mississippi, North ments of the permit or the provisions Carolina, South Carolina, Tennessee, and of this part. If revoked, they must be Virginia; and (2) The District of Colum- surrendered on demand. Within thirty bia, Puerto Rico, and the Virgin Islands), (30) days after the expiration date, the Peachtree-Seventh Building, Atlanta, holder must complete and mail to the Ga. 30323. Regional Director a report of his activities on a form provided for this purpose. (f) Northeast Region (Region 5- ( c) Nothing in this part or in any comprising the States of Connecticut, permit issued thereunder authorizes the Delaware, Maine, Massachusetts, New taking, possession, or transportation of Hampshire, New Jersey, New York, Penn- bald eagles or golden eagles, or their sylvania, Rhode Island, Vermont, and parts, nests, or eggs in any State con- West Virginia) U.S. Post Office and trary to the laws and regulations of that Courthouse, Boston, Mass. 02109. State: Provided, Such laws and regula- [35 F.R. 11633, July 21, 1970; 35 F.R. 12658, Aug. tions are for the purpose of giving fur- 8, 1970] ther protection to such eagles and are * * not inconsistent with the provisions of * * * * any Federal law for the protection of PART 18-MARINE MAMMALS such birds. Further, no permit issued under this part authorizes the taking, Subpart A-Introduction possession, or transportation of bald Sec. eagles or golden eagles or their parts, 18. I Purpose of regulations. 18.2 Scope of regulations. nests, or eggs unless the holder also I 8.3 Definitions. possesses whatever permit may be re- 18.4 State lalvs and regulations. quired for such activities by the State Subpart B-Prohibitions concerned. 18.11 Prohibited taking. * * * I 8.12 Prohibited importation. * * * 18.13 Prohibited uses, possession, transportation, § 11.9 Jurisdiction and address of re- and sales. gional or area offices. The geographic jurisdiction and ad- Subpart C-General Exceptions, 18.21 Actions permitted by international treaty, dresses of the Bureau of Sport Fisheries convention, or agreement. and Wildlife regional or area offices are I 8.22 Taking by State or local government officials. as follows: 18.23 Native exceptions. 18.24 Taking incidental to commercial fishing oper- (a) Alaska Area Office ( comprising ations. the State of Alaska), 6917 ,Seward High- 18.25 Exempted marine mammals or marine mam- way, Anchorage, Alaska 99502. mal products. (b) Pacific Region (Region 1-com- Subpart D-Special Exceptions prising the States of California, Hawaii, 18.3 I Scientific research permits [Reserved]. 18.32 Public display permits [Reserved]. Idaho, Montana, Nevada, Oregon, and 18.33 Undue economic hardship. Washington) Post Office Box 3737, Port- land, Oreg. 97208. Subpart E-Depleted Species or Stocks (c) Southwest Region (Region 2- [Reserved] comprising the States of Arizona, Colo- Subpart F-Procedures for rado, Kansas, New Mexico, Oklahoma, Civil Violations Tfxas, Utah, and Wyoming) Post Office 18.51 Assessment and hearings, Box 1306, Albuquerque, N. Mex. 87103. 18.52 Holding, return, and disposal of seized property. (d) North Central Region (Region 3- 18.53 Forfeiture of seized property. comprising the States of Illinois, Indiana, AUTHORITY: Marine Mammal Protection Act of Iowa, Michigan, Minnesota, Missouri, 1972, 86 Stat. 1027, 16 USC 1361 note, Public Law Nebraska, North Dakota, Ohio, ·South 92-522. SOURCE: 37 F.R. 28173, Dec. 21, 1972, unless Dakota, and Wisconsin) Federal Build- otherwise noted.

151 § 18.1 WILDLIFE AND FISHERIES

Subpart A-Introduction handicrafts without the use of pantographs, multiple carvers, or similar mass § 18.1 Purpose of regulations. copying devices, or other improved The regulations contained in this part methods of production utilizing modern implement the Marine Mammal Protec- implements, such as sewing machines. tion Act of 1972, 86 Stat. 1027,--U.S.C. Traditional native handicrafts include, --, Public Law 92-522, which among but are not limited to, weaving, carving, other things, restricts the taking, posses- stitching, sewing, lacing, beading, draw- sion, transportation, selling, offering for ing, and painting. sale, and importing of marine mammals. "Endangered species" means a species or subspecies of marine mammal listed § 18.2 Scope of regulations. This Part 18 applies solely to marine pursuant to the Endangered Species mammals and marine mammal products Conservation Act of 1969 ( See Part 17 of as defined in § 18.3. For regulations under this subchapter). the Act with respect to other marine "Marine mammal" means a specimen mammals and marine mammal products, of the following species or subspecies of see 50 CFR Part 216. mammal, whether alive or dead, and any part thereof, including but not limited § 18.3 Definitions. to, any raw, dressed, or dyed fur or skin: In addition to definitions contained in Scientific name Common name the Act and unless the context otherwise Ursus maritimus Polar bear. requires, in this Part 18: Enhydra lutris lutris Northern sea otter. "Act" means the Marine Mammal Pro- Enhydra lutris nereis Southern sea otter. Odobenus rosmarus tection Act of 1972, 86 Stat. 1027, Public rosmarus Atlantic walrus. Law 92-522. Odobenus rosmarus diver gens Pacific walrus. "Alaskan Native" means a person de- Dugong dugong .. Dugong. fined in the Alaska Native Claims Settle- Trichechus manatus West African manatee. ment Act [43 U.S.C. section 1603 (b) (85 Trichechus inunguis West Indian manatee. Stat. 588)] as a citizen of the United Trichechus senegalensis Amazonian manatee. States who is of one-fourth degree or NOTE: Common names given may be at variance more Alaska Indian (including Tsim- with local usage, they are not required to be provided by the Act, and they have no legal signifi- shian Indians enrolled or not enrolled cance. in the Metlaktla Indian Community), Eskimo, or Aleut blood, or combination "Native village or town" means any thereof. The term includes any Native, as tribe, band, clan, group, village, com- so defined, either or both of whose adop- munity, or association in Alaska which tive parents are not Natives. It also the Alaska Native Claims Settlement Act includes, in the absence of proof of a or the Secretary finds eligible for land minimum blood quantum, any citizen of conveyances under subsection 14 (a) of the United States who is regarded as an that Act. Alaska Native by the Native village or "Pregnant" means pregnant near term. town of which he claims to be a member "Subsistence" means the use by Alas- and whose father or mother is ( or, if kan Natives of marine mammals taken deceased, was) regarded as Native by by Alaskan Natives for food, clothing, any Native village or Native town. Any shelter, heating, transportation, and such citizen enrolled by the .Secretary other uses necessary to maintain life of pursuant to section 5 of the Alaska the taker or for those who depend upon Native Claims Settlement Act shall be the taker to provide them with such conclusively presumed to be an Alaskan subsistence. Native for purposes of this part. "Take" means to harass, hunt, capture, "Authentic native articles of handi- or kill, or attempt to harass, hunt, cap- crafts and clothing" means items which ture, or kill any marine mammal, in- (a) were commonly produced on or be- cluding, without limitation, any of the fore December 21, 1972, and (b) are following: The restraint or detention of composed wholly or in some significant a marine mammal, no matter how tem- respect of natural materials, and ( c) porary; tagging a marine mammal; or which are produced, decorated, or fash- the operation of an aircraft or vessel, or ioned in the exercise of traditional native the doing of any other acts which results

152 TITLE 50 § 20.1

in the disturbing or molesting of a marine eign commerce by any person, unless: mammal. (i) It has first been transformed into "Wasteful manner" means any taking an authentic native article or handi- or method of taking which is likely to craft or clothing, or result in the killing or injuring of marine (ii) It is an edible portion and sold in mammals beyond those needed for sub- Alaskan native villages and towns. sistence purposes or for the making of ( 2) No person who is not an Indian, authentic native articles of handicrafts Aleut, or Eskimo may purchase or other- and clothing or which results in the waste wise acquire, or possess any marine of a substantial portion of the marine mammal taken pursuant to this section mammal and includes without limitation except as permitted in this subsection. the employment of a method of taking ( 3) No person shall use any aircraft which is not likely to assure the capture to take any marine mammal in violation or killing of a marine mammal, or which of 16 U.S.C. 742j-1, 85 Stat. 480, Public is not immediately followed by a reason- Law 92-159. able effort to retrieve the marine (c) Notwithstanding the preceding mammal. provisions of this section, whenever, un- * * * * der the Act, the .Secretary determines * * any species or stock of marine mammals Subpart C-General Exceptions to be depleted, he may prescribe regula- § 18.21 Actions permitted by interna- tions pursuant to section 103 of the Act tional treaty, convention, or agree- upon the taking of such marine mam- ment. mals by any Indian, Aleut, or Eskimo The Act and these regulations shall and, during the existence of such regu- not apply to the extent that they are lations, all takings of such marine mam- inconsistent with the provisions of any mals by such persons shall conform to international treaty, convention or agree- such regulations. ment, or any statute implementing the * * * * * * same, relating to the taking or importa- PART 20-MIGRATORY BIRD tion of marine mammals or marine mam- HUNTING mal products, which was existent and in force prior to December 21, 1972, and to Subpart A-Introduction which the United States was a party. Sec. 20.1 Scope of regulations. * * * * * * * * * * * * § 18.23 Native exceptions. Subpart L-Administrative and Miscellaneous Provisions (a) Taking. Notwithstanding the prohibitions of Subpart B of this Part 18, 20.132 Subsistence use in Alaska. * * * * * * but subject to the restrictions contained AuTHORITv.-:Migratory Bird Treaty Act, section in this section, any Indian, Aleut, or 3, 40 Stat. 755. Eskimo who resides on the coast of the SouRcE: Rcdcsignatcd from Part 10 and revised at 38 F.R. 22021, Aug. 15, 1973, unless otherwise North Pacific Ocean or the Arctic Ocean noted. may take any marine mammal without a permit, if such taking is: Subpart A-Introduction (1) By Alaskan Natives who reside in Alaska and such taking is for subsis- §20.1 Scope of regulations. tence, or (a) In general.-The regulations con- (2) For purposes of creating and sell- tained in this part relate only to the ing authentic native articles of handi- hunting of migratory game birds, and craft and clothing, and crows. (3) In each case, not accomplished in (b) Procedural and substantive re- a wasteful manner. quirements.-Migratory game birds may (b) Restrictions. (1) No marine mam- be taken, possessed, transported, shipped, mal taken pursuant to this section may exported, or imported only in accordance be sold or otherwise transferred to any with the restrictions, conditions, and re- person other than an Indian, Aleut, or quirements contained in this part. Crows Eskimo, or delivered, carried, trans- may be taken, possessed, transported, ported, or shipped in interstate or for- exported, or imported only in accordance

153 § 20.132 WILDLIFE AND FISHERIES with subpart H of this part and the re- guillemots, murres, and puffins and their strictions, conditions, and requirements eggs for food and their skins for cloth- prescribed in § 20.133. ing, but the birds and eggs so taken shall * * * * * * not be sold or offered for sale. Subpart L-Administrative and (b) In Alaska, any person may, for Miscellaneous Provisions subsistence purposes, take, possess, and * * * * * * transport, in any manner and at any § 20.132 Subsistence use in Alaska. time, snowy owls and cormorants and (a) In Alaska, Eskimos and Indians their eggs for food and their skins for may take, possess, and transport, in any clothing, but the birds and eggs so taken manner and at any time, auks, auklets, shall not be sold or offered for sale.

CHAPTER II-NATIONAL MARINE FISHERIES SERVICE SUBCHAPTER C-MARINE MAMMALS § 216.2 Definitions. Except as otherwise set forth in this PART 216-REGULATIONS GOVERN- section, the definitions in the Act shall ING THE TAKING AND IMPORTING apply for purposes of this part. OF MARINE MAMMALS (a) "Act" shall mean the Marine Mammal Protection Act of 1972, Public Subpart A-General Law 92-522, 86 Stat. 1027. Sec. 216.J Purpose and objectives. (b) "Authentic native articles of 21-0.2 Definitions. handicrafts and clothing" means items 216.3 Other laws and regulations. composed wholly or in some significant respect of natural materials, and which Subpart B-Moratorium and Prohibitions 216.4 Moratorium. are produced, decorated, or fashioned in 216.5 Prohibitions. the exercise of traditional native handicrafts without the use of pantographs, Subpart C-Exceptions multiple carvers, or similar mass copying 216.6 Scope and purpose. 216.7 Exceptions not requiring prior Secretarial devices, or other improved methods of action-actions permitted by international production utilizing modern implements, treaty, convention and related statutes. such as sewing machines. Traditional 216.8 Same-takings and related acts by state or local government officials or employees. native handicrafts include, but are not 216.9 Same-takings and related acts by certain limited to, weaving, carving, stitching, natives. sewing, lacing, beading, drawing, and * * * * * * painting. The formation of traditional AuTHORITY: Title I of the Marine Mammal Pro- native groups, such as cooperatives, is tection Act of 1972, 86 Stat. !027, Public Law No. 92-522. This part applies solely to marine mam- permitted so long as no large scale mass mals and marine mamal products which are, or production industry results. consist of, members of the Order Cetacea and mem~ (c) "Commercial fishing operation" hers, other than walruses, of the Order Pinnipedia, which are morphologically adapted to the marine shall mean the lawful harvesting of fish environment. For regulations under the aforesaid from the marine environment for profit Act with respect to other marine mammals and as part of an on-going business enter- marine mammal products, see 50 CFR Part 18. prise. Such term shall not include sport SOURCE: 37 F.R. 28177, Dec. 21, 1972, unless otherwise noted. fishing activities whether or not carried out by charter boat or otherwise, and whether or not the fish so caught are Subpart A-General subsequently sold. § 216.1 Purpose and objectives. (d) "Endangered species" shall mean The following regulations implement a species or subspecies of marine mam- the Marine Mammal Protection Act of mal listed as threatened with extinction 1972, 86 Stat. 1027, Public Law No. 92- pursuant to the Endangered Species 522, which, among other things, restricts Conservation Act of 1969. the taking, possession, transportation, (e) "Incident catch" shall mean the selling, offering for sale, and importing taking of a marine mammal (1) because of marine mammals and marine mam- it is directly interfering with commercial mal products. fishing operations, or (2) as a conse-

154 TITLE 50 § 216.6 quence of the steps used to secure the (k) "Pregnant" as to any marine fish in connection with commercial fish- mammal, shall mean near term. A mar- ing operations: Provided, however, That ine mammal shall be presumed to be the taking of a marine mammal which pregnant and near term, unless proven otherwise meets the requirements of this otherwise, if, at the time with respect to definition shall not be considered an in- which such condition is sought to be cidental catch of that mammal if it is established, such mammal would custom- used subsequently to assist in commer- arily have been pregnant and near term cial fishing operations. by reason of the season of the year, the (f) "Indian, Aleut, or Eskimo" shall location of the animal in the migratory mean a citizen of the United States who pattern, or other relevant circumstances. is one-fourth degree or more American (1) "Products from fish" shall include or Alaskan Indian (including Tsimshian the primary processed products of fish, Indians enrolled or not enrolled in the such as fish meal, fish protein deriva- Metlaktla· Indian Community), Eskimo, tives, or processed fish oil. or Aleut blood, or combination thereof. (m) "Secretary" shall mean the Sec- The term includes any such person either retary of Commerce or his authorized or both of whose adoptive parents do not representative. fall within such definition. It also in- (n) "Subsistence purposes" shall mean, cludes, in the absence of proof of a mini- with respect to any marine mammal, the mum bloo-d quantum, any citizen of the direct consumption by Alaskan natives of United States residing in the State of all usable portions of such mammal for Alaska who is regarded as being an In- food, clothing, shelter, heating, transpor- dian, Aleut or Eskimo by the native vil- tation, and the other necessities of life. lage or town in Alaska of which he claims ( o) "Take" shall mean to harass, hunt, to be a member and whose father or capture, or kill, or attempt to harass, mother is (or, if deceased, was) regarded hunt, capture, or kill any marine mam- as being an Indian, Aleut, or Eskimo by mal, including, without limitation, any any native village or native town in of the following: The restraint or deten- such State. Any citizen enrolled by the tion of a marine mammal, no matter how Secretary of the Interior pursuant to sec- temporary; tagging a marine mammal; tion 5 of the Alaska Native Claims ,Set- or the operation of an aircraft or vessel, tlement Act shall be conclusively pre- or the doing of any other acts, which sumed to be an Indian, Aleut, or Eskimo results in the harassment of a marine for purposes of this part. mammal. (g) "Marine environment" shall in- ( p) "Wasteful manner" shall mean clude estuarine and brackish waters. the employment of a method of taking (h) "Marine mammal" shall mean which is not likely to assure the capture those members of the order Cetacea and or killing of a marine mammal, or which those members, other than walruses, of is not immediately followed by a reasonable effort to retrieve the marine mam- the order Pinnipedia, which are morpho- mal, or which is likely to result in the logically adapted to the marine environ- killing or injuring of marine mammals ment, and includes any part of any such beyond those needed for subsistence pur- marine mammal, including its raw, poses or for the making of authentic dressed, or dyed fur or skin. native articles of handicrafts and cloth- (i) "Native" shall mean any Indian ing. Aleut, or Eskimo as defined in paragraph [37 FR 28178, Dec. 21, 1972, as amended at 38 (f) of this section, and "Alaskan native" FR 7987, Mar. 27, 1973] shall mean any such person who is a resident of the State of Alaska. * * * * * * ( j) "Native village or town" shall Subpart C-Exceptions mean any tribe, band, clan, group, village, community, or association of Alas- § 216.6 Scope and purpose. kan natives in Alaska which the Alaska Notwithstanding the moratorium and Native Claims Settlement Act or the Sec- prohibitions set forth in Subpart B of retary of the Interior finds eligible for this part and the Act, marine mammals land conveyances under subsection 14 (a) may be taken, marine mammals and of that Act. marine mammal products may be im-

155 § 216.7 WILDLIFE AND FISHERIES ported into the United States, places sub- Ocean or the Arctic Ocean in the States ject to the jurisdiction of the United of Alaska, Washington, Oregon, or Cali- States may be used for such taking and fornia, and no permit shall be required, importation, and it shall be lawful to if the taking is : possess, transport, sell, or offer for sale (1) By Alaskan Natives for subsis- any marine mammal, or transport, sell, tence purposes of Alaskan Natives, or or offer for sale any marine mammal (2) For purposes of creating and sell- product, as and to the extent provided in ing authentic native articles of handi- the regulations in this subpart and the craft and clothing, and applicable provisions of the Act. (3) In each case, not accomplished in a wasteful manner. § 216. 7 Exceptions not requiring prior In addition, any such Indian, Aleut, or Secretarial action-actions permitted Eskimo, and direct and indirect trans- by international treaty, convention, fer~es of such native may, incidental to and related statutes. such taking and disposition, possess and The Act and the regulations in this transport such marine mammal or a ma- part shall not apply to the extent that rine mammal product made therefrom, they are inconsistent with the provisions and use any port, harbor, or other place of any international treaty, convention or under the jurisdiction of the United agreement, or any statute implementing States. No marine mammal taken pur- the same, relating to the taking, or im- suant t6 subparagraph (2) of this para- portation, of marine mammals or marine graph may be sold except when trans- mammal products, which was existing formed into authentic native articles of and in force prior to December 21, 1972, handicraft and clothing, provided that and to which the United States was a edible portions of such marine mammal party. Specifically, the regulations in may be sold in Alaskan Native villages Subpart B of this part and the provisions and towns or for native consumption so of the Act shall not apply to activities long as, in each case, no interstate com- carried out pursuant to the Interim Con- merce is involved. vention on the Conservation of North (b) Notwithstanding the preceding Pacific Fur Seals signed at Washington provisions of this section, whenever, un- on February 9, 1957, and the Fur Seal der the Act, the Secretary determines Act of 1966, 16 U.S.C. 1151-1187, as, in any species or stock of marine mammals each case, from time to time amended. to be depleted, he may prescribe regulations pursuant to section 103 of the * * * * * * Act upon the taking of such marine mam- § 216.9 Same-taking and related acts mals by any Indian, Aleut, or Eskimo by certain natives. and, during the existence of such regu- (a) Any marine mammal may be taken lations, all takings of such marine mam- by any Indian, Aleut, or Eskimo who re- mals by such persons shall conform to sides on the coast of the North Pacific such regulations.

156 INDEX

Page ADMINISTRATIVE PERSONNEL ------1 Administrative practice, Department of the Interior ______68

AGRICULTURE Farmers Home Administration Nondiscrimination by recipients of financial assistance __ 4 Loans to Indians______4 Food donation and distribution ______3 Food stamps------4 ALASKA Designation of reservations ______98 Hunting and fishing ------151, 154 Native allotments ______98, 107 Native land selections ------111 Miscellaneous selections ______123 Native reserves ------126 Regional selections ------122 Village selections ------'------118 Native townsites ------109 Occupancy and use------107 Possessory claims to lands and water, hearing procedure __ 95

ALIENS AND NATIONALITY ------6 ALLOTMENTS, generally ______97, 103 Alaska ______98, 107 Within national forests ------107 American Indians born in Canada ______6 Appeals, See Hearings and appeals Bald and golden eagles ------150 Birds, migratory------153 Canada, American Indians born in ------6 Carson River reclamation project ------94 Choctaw-Chickasaw lands ------127 Civil Rights Act of 1964, Title VI ______4, 92 Civil Rights Division, Department of Justice ______8 Civil Service Commission ------1 Colorado River Basin, water conservation ______93 Contagious diseases afflicting Indians ______66 Contracts, Bureau of Indian Affairs ______61 Eagles, bald and golden ------150

157 Page EDUCATION Elementary and Secondary School Assistance Act ______133 Financial assistance for improvement of facilities ______140 Financial assistance for improvement of adult educational opportunities ______146

EMPLOYMENT Excepted personnel schedules ------1 Regulation of employees in dealings with Indians ______92 Farmers Home Administration ------4 Federally-assisted programs, nondiscrimination in ______4, 92

FISCAL ASSISTANCE TO STATE AND LOCAL GOVERNMENTS ------38 Entitlement, computation ------42 Restrlctions on use ------48 Tribes and villages as units of local government ______39 Fisheries ______151, 154 Flathead irrigation district, reclamation homesteads ______99 Food donation and distribution ------3 Food stamps------4 Geological Survey ------10 Government employment, See Employment Health------64

HEALTH, EDUCATION AND WELFARE, DEPARTMENT OF Excepted personnel schedule ______1 Office of Education ------133 Public Health Service ------64

HEARINGS AND APPEALS Bureau of Land Management______95 Interior Department ------74 Mineral Resources------37 Probate------77 Highways ------7 Homesteads------98 Hunting and possession of wildlife ______105 Immigration and naturalization ------6

INDIAN AFFAIRS, BUREAU OF Excepted personnel schedule ______1 Public contracts ------61

158 Page INTERIOR, DEPARTMENT OF THE Employee responsibility and conduct 92 Excepted personnel schedule 1 Nondiscrimation in federally-assisted programs 92 Practice and procedure 68

Jl;DICIAL ADMINISTRATION 8 Justice, Department of 8 Land Management, Bureau of 95 Land and Natural Resources Division, Department of Justice 8 Loans to Indians, Farmers Home Administration 4 Marine mammals 151,154 Migratory birds 153

MINERAL RESOURCES Appeals procedure 37 Operating regulations Oil and gas 10 Other minerals 27 Papago Reservation 131

MONEY AND FINANCE: TREASURY 38 ;{ational forest allotments 107 Nationality 6 Natives, See Alaska Nevada-California reclamation project 94 Newlands reclamation project 94 Oil and gas operating regulations 10 Papago Indian Reservation, mining claims 131 Practice and procedure, Department of the Interior 68 Preference in hiring 1 Probate 77 Procurement, Bureau of Indian Affairs 61

PUBLIC CONTRACTS AND PROPERTY MANAGEMENT 61

PUBLIC HEALTH 64

PUBLIC LANDS Alaska, See Alaska Allotments _97, 103 Hearings and appeals 74,95 Homesteads 98 Practice and procedure 68,95 Reclamation homesteads 99

159 Page Rights-of-way ------131 Segregation of lands ------97 Special areas------127 Withdrawals ------98

PUBLIC WELFARE ------133 Pyramid Lake, water rights ------94 Reclamation, Bureau of ______93 Reclamation homesteads, Flathead irrigation district ______99

REVENUE SHARING ------38 Entitlement, computation ______42 Restrictions on use ______48 Tribes and villages as units of local government ______39 Rights-of-way ------131 Royalties ------19,35 Segregation of lands ------97 Stillwater area, water rights ------94 Treasury, Department of the ______38 Truckee River storage project ______94 Tuberculosis ------66 Washoe reclamation project ______94

WILDLIFE AND FISHERIES Hunting and possession of wildlife ______150 Eagles, bald and golden ------150 Marine mammals ______151, 154 Migratory birds ------153 Wills------77

-(::r U.S. GOVERNMENT PRINTING OFFICE 1975-552-836

160