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. Consequently, 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-HIGHW AYS ------------------------------------ 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 

SUBPART C-EXCEPTED SCHEDULES 

SCHEDULE A 

§ 213.3101 Positions other than those of 

a confidential or policy-determining 

character for which it is not practicable to examine. 

(a) The positions enumerated in 

§§ 213.3102 to 213.3199 are positions 

other than those of a confidential or 

policy-determining character for which 

it is not practicable to examine and 

which are excepted from the competitive 

service and constitute Schedule A. 

* * * * * * 

§ 213.3112 Department of the Interior. 

* * * * * * 

(7) All positions in the Bureau of 

Indian Affairs and other positions in 

the Department of the Interior directly 

and primarily related to the providing of 

services to Indians when filled by the 

appointment of Indians who are onefourth or more Indian blood. 

* * * * * * 

(b) Bureau of Indian Affairs. (1) 

Housekeeper positions at a gross salary 

not in excess of the entrance rate of 

grade GS-4 or its equivalent when, because of isolation or lack of quarters, 

appointment through competitive examination is, in the opinion of the Commission, impracticable. 

(2) Subject to prior approval of the 

Commission, assistants in Alaska native 

schools (not including teachers and instructors) at a salary rate not in excess 

of that of GS-4 or its equivalent where 

the schools are in isolated or remote 

areas or lack suitable quarters. 

(c) Indian Arts and Crafts Board. 

(1) The Executive Director. 

* * * * * * 

§ 213.3116 Department of Health, Education, and Welfare. 

* * * * * * 

1 

(b) Public Health Service. 

* * * * * * 

( 8) Positions directly and pri_marily 

related to the providing of services to 

Indians when filled by the appointment 

of Indians who are one-fourth or more 

Indian blood. 

* * * * * * 

(d) Social Security Administration. 

(1) Six positions of social insurance 

representative in the dist~i~t offi_ces ?f 

the Social Security Admm1strat10n mthe State of Arizona when filled by the 

appointment of persons of one-fourth or 

more Indian blood. 

(2) Seven positions of social insurance representative in the district offices 

of the ,Social Security Administration in 

the State of New Mexico when filled 

by the appointment of persons of onefourth or more Indian blood. 

(3) Two positions of social insurance 

representative in the district offices of 

the Social Security Administration in 

the State of Alaska when filled by the 

appointment of persons of one-fourth or 

more Alaskan Native blood (Eskimos, 

Indians, or Aleuts). 

* * * * * * 

§ 213.3199 Temporary boards and commissions. 

(a)-(f) [Reserved] 

(g) The National Council on Indian 

Opportunity. (1) Positions at GS-15 and 

below on the staff of the Council when 

filled by Indians who are of one-fourth 

or more Indian blood. 

* * * * * * 

SCHEDULE B 

§ 213.3201 Positions other than those of 

a confidential or policy-determining 

character for which it is not practicable to hold a competitive examination. · 

The positions enumerated in §§213.3202 

to 213.3299 are positions other than 

those of a confidential or policy-deter-
§ 213.3212 ADMINISTRATIVE PERSONNEL 

mining character for which it is not 

practicable to hold a competitive examination and which are excepted from the 

competitive service and constitute Schedule B. Appointments to these positions 

are subject to such noncompetitive examination as -may be prescribed by the 

Commission. 

* * * * * * 

§ 213.3212 Department of the Interior. 

(a) Any competitive position at an 

Indian school when filled by the spouse 

of a competitive employee of the school, 

when because of isolation or lack of 

quarters, the Commission deems appointment through competitive examination 

impracticable. 

* * * * * * 

2 

SCHEDULE C 

§ 213.3301 Positions of a confidential or 

policy-determining c'haracter. 

The positions enumerated in §§213.3302 

to 213.3399 are positions of a confidential or policy-determining character 

which are excepted from the competitive 

service, to which appointments may be 

made without examination by the Commission and which constitute Schedule C. 

* * * * * * 

§ 213.3312 Department of the Interior. 

* * * * * * 

(j) Bureau of Indian Affairs. (1) One 

Assistant to the Commissioner. 

* * * * * * 

§ 213.3345 Indian Claims Commission. 

(a) One Private Secretary to each 

Commissioner. 
TITLE 7-AGRICULTURE 

* * * * * * 

CHAPTER II-FOOD AND NUTRITION SERVICE 

SUBCHAPTER 8-GENERAL REGULATIONS AND POLICIESFOOD DISTRIBUTION 

* * * * * * 

PART 250-DONATION OF FOODS 

FOR USE IN UNITED STATES, ITS 

TERRITORIES AND POSSESSIONS 

AND AREAS UNDER ITS JURISDICTION 

* * * * * * 

§ 250.3 Definitions. 

* * * * * * 

(s) "Welfare agencies" means public 

(Federal, State or local) or private 

agencies offering assistance on a charitable or welfare basis to needy persons 

who are not residents of an institution, 

and to Tribal Councils designated by 

the Bureau of Indian Affairs. 

* * * * * * 

§ 250.6 Obligations of distributing 

agencies. 

* * * * * * 

( e) Household distribution. Distributing agencies, prior to making distribution to welfare agencies or households, 

shall submit a plan of operation for approval by the appropriate Food and 

Nutrition Service Regional Office. Such 

plan shall incorporate the procedures 

and methods to be used in certifying 

households as in need of food assistance; 

in making distribution to households; 

and in providing a fair hearing to households whose claims for food assistance 

under the plan are denied or are not 

acted upon with reasonable promptness, 

or who are aggrieved by an agency's 

interpretation of any provision of the 

plan. No amendment to the plan of 

operation of a distributing agency shall 

be made without prior approval of FNS, 

3 

and FNS may require amendment of 

any plan as a condition of continuing 

approval. Distributing agencies shall 

require welfare agencies making distribution to households to conduct distribution programs in accordance with all 

provisions of the State plan of operation. 

As a minimum, the plan shall include the 

following: 

* * * * * * 

( 4) Assurance that Tribal Councils 

serving Indian households on reservations have been designated by the Bureau of Indian Affairs to so act. 

* * * * * * 

§ 250.15 Operating expense funds for 

distributing agencies. 

* * * * * * 

(c) Apportionment of funds. From the 

funds available for the purpose of this 

section for any fiscal year, the Department shall first reserve funds in an 

amount sufficient to meet the requirements of subparagraph (3) of this paragraph and then shall apportion the 

remaining funds, as follows: 

(1) Twelve and one-half percent of 

the remaining available funds shall 

be apportioned among the distributing 

agencies for Guam, Puerto Rico, the 

Virgin Islands, American Samoa, the 

Trust Territory of the Pacific Islands, 

and the governing bodies of Indian reservations which are also distributing 

agencies. The proportion of funds apportioned to each of these distributing 

agencies shall be such amount as FNS 

determines is necessary to effectuate the 

purpose of this section. 

* * * * * * 
§ 271.3 AGRICULTURE 

SUBCHAPTER C-FOOD STAMP PROGRAM 

* * * * * * 

PART 271-PARTICIPATION OF STATE 

AGENCIES AND ELIGIBLE HOUSEHOLDS 

* * * * * * 

§ 271.3 Household eligibility. 

* * * * * * 

( 4) Resource definition and standards-(i) Maximum allowable resources. 

The 'maximum allowable resources-including both liquid and nonliquid assetsof all members of each household shall 

not exceed $1,500 for each household, 

except, for households of two or more 

persons with a member or members age 

60 or over whose resources are not excluded under subdivision (iii) (c) of this 

subparagraph, the resources shall not 

exceed $3,000. 

* * * * * * 

(iii) Exclusions from resources. In 

determining the resources of a household, there shall be excluded: 

* * * * * * 

(d) Indian lands held jointly with the 

Tribe, or land that can be sold only 

with the approval of the Bureau of 

Indian Affairs. 

* * * * * * 

CHAPTER XVIII-FARMERS HOME ADMINISTRATION 

* * * * * * 

PART 1890 - NONDISCRIMINATION 

BY RECIPIENTS OF FINANCIAL 

ASSISTANCE 

* * * * * * 

§ 1890.1 Purpose. 

This part supplements Subpart A of 

Part 1821, .Subparts C, D, E, F, G, and I 

of Part 1822, Subparts A, B, C, D, E, F, 

and H of Part 1823 and Subpart A of 

Part 1831 of this chapter. The purpose 

of this part is to implement the regulations of the Department of Agriculture 

issued pursuant to title VI of the Civil 

Rights Act of 1964 as they relate to the 

activities of the Farmers Home Administration (FHA). Title VI provides that 

no person shall, on the ground of race, 

color or national origin, be excluded 

from participation in, be denied the 

benefits of, or be subjected to discrimination under any program or activity 

receiving Federal financial assistance. 

* * * * * * 

PART 1890f-LOANS TO INDIANS 

Sec. 

I 890f. l General. 

l 890L2 Loan making. 

AUTHORITY: The provisions of this Pa rt I 890f 

issued under sec. 510, 63 Stat. 437; 42 U.S.C. 1480, 

sec 339, 75 Stat. 318; 7 U.S.C. 1989, 29 F.R. 

16210, 32 F.R. 6650, 33 F.R. 9677. 

SouRcE: The provisions of this Part I 890f appear 

at 35 F.R. 13980, Sept. 3, 1970, unless otherwise 

noted. 

§ 1890f.1 General. 

This part supplements Subparts A and 

B of Part 1821, Subparts A, B, C, D, E, 

4 

F, and G of Part 1822, Subpart A of 

Part 1831, and Subpart A of Part 1832, 

all of this chapter. This part outlines the 

additional policies and procedures to be 

followed in making and servicing Farmers Home Administration ( FHA) loans 

to Indians secured by trust or restricted 

land is the States of Florida, Michigan, 

Mississippi, North Carolina, Wisconsin, 

and all States west of the Mississippi 

River except Arkansas, Missouri, and 

Texas, and in selected counties of these 

states. 

§ 1890f.2 Loan making. 

The following is a joint statement by 

the Department of Agriculture and the 

Department of the Interior. This statement was prepared by representatives of 

the two Departments to make it possible 

to expedite and simplify the processing 

of FHA loans to eligible Indians. 

(a)-

JOINT STATEMENT BY DEPARTMENT OF AGRICULTURE 

AND DEPARTMENT OF THE INTERIOR 

Loans by Farmers Home Administration to Indians, and to Permittees and Lessees or Indian trust 

of restricted lands. 

Whereas, the Secretary of Agriculture and the 

Secretary of the Interior executed a memorandum 

of understanding on August 27, 1957, and July 26, 

1957, respectively, the purpose of which was to 

outline the general procedures to be followed by 

the Farmers Home Administration (FHA) and the 

Bureau of Indian Affairs (BIA) on loans by the 

FHA to Indians, and 

Whereas, the working relationships between FHA 

and BIA have now been well established and are 

understood by field personnel, it is mutually agreed 

that the detail provisions of said memorandum are 

no longer necessary; and 
TITLE 7 § 1890f.2 

Whereas, we deem it advisable that Indian applicants for FHA financing should be treated in the 

same manner as non-Indians: 

Therefore, it is agreed that said memorandum of 

understanding is hereby nullified and henceforth 

applications from Indians for loans will be handled 

by FHA in the same manner as applications from 

nbn-Indians, except in those instances where Indian 

trust or restricted property is involved. When a lien 

is to be taken on trust or restricted property in 

connection with a loan to be made or insured by 

FHA, the BIA will assist FHA to the fullest extent 

necessary in accordance with the statutory requirements affecting such property. This will include 

furnishing advice requested by FHA as to conditions under which BIA will approve a lien on the 

property. It is further agreed that upon request by 

FHA, BIA will furnish relevant information which 

it has with respect to the property and the individual loan applicant including that on his reputation for industry and payment of debts. 

(1) It is the policy to accept and 

process applications from Indians in the 

same manner as non-Indians except in 

those instances where Indian trust or restricted property is to serve as security. 

(2) FHA loans which are to be secured by real estate liens may be made 

to Indians holding land in severalty under trust patents or deeds containing 

restriction against alienation subject to 

statutes under which they may, with the 

approval of the Secretary of the Interior, give mortgages on their land which 

are valid and enforceable. These statutes 

include, but may not be limited to, the 

Act of March 29, 1956 (70 ,Stat. 62, 63). 

5 

(i) An Indian applicant who owns 

land in a trust or restricted status and 

applies for a loan to buy land to enlarge 

a farm will not be required to convert 

the trust or restricted land he owns to 

an unrestricted status. 

(ii) Land in trust or restricted status 

purchased with FHA loan funds may be 

acquired and held by the Indian in trust 

or restricted status. 

(3) When a lien is to be taken on 

trust or restricted property in connection with a loan to be made or insured 

by FHA, the local representatives of 

the Bureau of Indian Affairs will furnish requested advice and information 

with respect to the property and each 

applicant. The request will indicate the 

specific information needed. 

(4) The FHA State director should 

arrange with the area director or other 

appropriate local official of the Bureau 

of Indian Affairs as to the manner in 

which the information will be requested 

and furnished. The State director will 

issue instructions to prescribe the actions 

to be taken by FHA personnel to implement the making of loans under such 

conditions. 

(b) Loan servicing. Loans made to 

Indians will be serviced in accordance 

with the applicable procedures contained 

in this chapter. 
TITLE 8-ALIENS AND NATIONALITY 

CHAPTER I-IMMIGRATION AND NATURALIZATION SERVICE 

PART 289-AMERICAN INDIANS 

BORN IN CANADA 

Sec. 

289. I Definition. 

289.2 Lawful admission for permanent residence. 

289.3 Recording the entry of certain American 

Indians born in Canada. 

AUTHORITY: The provisions of this Part 289 

issued under secs. 103, 262, 289, 66 Stat. 173, 224, 

234; 8 U.S.C. II03, 1302, 1339; 45 Stat. 401, 54 

Stat. 670; 8 U.S.C. 226a, 451. 

SOURCE: The provisions of this Part 289 appear 

at 29 F.R. II494, Aug. II, 1964. 

§ 289.1 Definition. 

The term "American Indian born in 

Canada" as used in section 289 of the 

Act includes only persons possessing 50 

per centum or more of the blood of the 

American Indian race. It does not include a person who.. is the spouse or child 

of such an Indian or a person whose 

membership in an Indian tribe or family 

is created by adoption, unless such person possess at least 50 per centum or 

more of such blood. 

§ 289.2 Lawful admission for permanent residence. 

Any American Indian born in Canada 

who at the time of entry was entitled to 

the exemption provided for such person 

6 

by the Act of April 2, 1928 ( 45 Stat. 

401), or section 289 of the Act, and has 

maintained residence in the United States 

since his entry, shall be regarded as 

having been lawfully admitted for permanent residence. A person who does 

not possess 50 per centum of the blood 

of the American Indian race, but who 

entered the United States prior to December 24, 1952, under the exemption 

provided by the Act of April 2, 1928, 

and has maintained his residence in the 

United States since such entry shall also 

be regarded as having been lawfully 

admitted for permanent residence., In 

the absence of a Service record of arrival 

in the United States, the record of registration under the Alien Registration 

Act, of 1940 ( 54 Stat. 670; · 8 U .S.C. 

451), or section 262 of the Act, or other 

satisfactory evidence may be accepted to 

establish the date of entry. 

§ 289.3 Recording the entry of certain 

American Indians born in Canada. 

The lawful admission for permanent 

residence of an American Indian born 

in Canada shall be recorded on Form 

I-181. 

[33 F.R. 7485, May 21, 1968] 
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 

DEPARTMENT OF JUSTICE 

* * * * * * 

Subpart J-Civil Rights Division 

0.50 General functions. 

* * * * * * 

Subpart M-Land and Natural Resources 

Division 

Sec. 

0.65 General functions. 

* * * * * * 

Subpart J-Civil Rights Division 

§ 0.50 General functions. 

Subject to the general supervision of 

the Attorney General and under the direction of the Deputy Attorney General, the 

following-described matters are assigned 

to, and shall be conducted, handled, or 

supervised by, the Assistant Attorney 

General in charge of the Civil Rights 

Division: 

(a) Enforcement of all Federal statutes affecting civil rights, including 

those pertaining to elections and voting, 

public accommodations, public facilities, 

school desegregation, employment, housing, and the constitutional and civil 

rights of Indians arising under 25 U.S.C. 

1301 et seq. and authorization of litigation in such enforcement, including 

criminal prosecutions and civil actions 

and proceedings on behalf of the Government, and designation of attorneys 

to present evidence to grand juries; and 

appellate proceedings in all such cases. 

Notwithstanding the provisions of the 

foregoing sentence, the responsibility 

for the enforcement of the followingdescribed provisions of the United States 

Code is assigned to the Assistant Attorney General in charge of the Criminal 

Division-

(1) Sections 591 through 593 and sections 595 through 612 of title 18, United 

States Code, relating to elections and 

political activities; 

(2) Sections 241, 242, and 594 of title 

18, and sections 1973i and 1973j of title 

42, United ,States Code, insofar as they 

relate to voting and election matters not 

8 

involving discrimination or intimidation 

on grounds of race or color, and section 

245(b) (1) of title 18, United States 

Code, insofar as it relates to matters not 

involving discrimination or intimidation 

on grounds of race, color, religion, or national origin; 

(3) Section 245(b) (3) of title 18, 

United States Code, pertaining to forcible interference with persons engaged in 

business during a riot or civil disorder; 

and 

( 4) Sections 241 through 256 of title 

2, United States Code (Federal Corrupt 

Practices Act). 

(b) Requesting and reviewing investigations arising from reports or complaints of public officials or private citizens with respect to matters affecting 

civil rights. 

(c) Conferring with individuals and 

groups who call upon the Department in 

connection with civil rights matters, advising such individuals and groups 

thereon, and initiating action appropriate thereto. 

( d) Coordination within the Department of Justice of all matters affecting 

civil rights. 

(e) Consultation with and assistance 

to other Federal departments and agencies and State and local agencies on 

matters affecting civil rights. 

(f) Research on civil rights matters, 

and the making of recommendations to 

the Attorney General as to proposed policies and legislation relating thereto. 

(g) Representation of Federal officials 

in private litigation arising under 42 

U.S.C. 2000d or under other statutes pertaining to civil rights. 

[Order 423-60, 34 F.R. 20388, Dec. 31, 1969, as 

amended by Order 484-72, 37 F.R. 11317, June 7, 

1972; Order 540-73, 38 F.R. 26910, Sept. 27, 1973; 

Order No. 543-73, 38 F.R. 29584, Oct. 23, 1973] 

* * * * * * 

Subpart M-Land and Natural 

Resources Division 

§ 0.65 General functions. 

Subject to the general supervision of 

the Attorney General, and under the di-
TITLE 28 § 0.65 

rection of the Deputy Attorney General, 

the following-described matters are assigned to, and shall be conducted, handled, or supervised by, the Assistant Attorney General in charge of the Land and 

Natural Resources Division: 

(a) Civil suits and matters in Federal 

and State courts (and administrative 

tribunals), by or against the United 

.States, its agencies, officers, or contractors, or in which the United States has 

an interest, whether for specific or 

monetary relief, and also nonlitigation 

matters, relating to 

( 1) The public domain lands and the 

outer continental shelf of the United 

States, 

(2) Other lands and interests in real 

property owned, leased, or otherwise 

claimed or controlled, or allegedly impaired or taken, by the United States, its 

agencies, officers, or contractors, including the acquisition of such lands by condemnation proceedings or otherwise, 

(3) The water and air resources controlled or used by the United States, its 

agencies, officers, or contractors, without 

regard to whether the same are in or 

related to the lands enumerated in subparagraphs (1) and (2) of this paragraph, and 

( 4) The other natural resources in or 

related to such lands, water, and air, 

except that the following matters which 

would otherwise be included in such assignment are excluded therefrom: 

(i) Suits and matters relating to the 

use or obstruction of navigable waters 

or the navigable capacity of such waters 

by ships or shipping thereon, the same 

being specifically assigned to the Civil 

Division; 

(ii) Suits and matters involving tort 

claims against the United States under 

the Federal Tort Claims Act and special 

acts of Congress, the same being specifi9 

cally assigned to the Civil Division; 

(iii) Suits and matters involving the 

foreclosure of mortgages and other liens 

held by the United States, the same being specifically assigned to the Civil and 

Tax Divisions according to the nature 

of the lien involved; 

(iv) Suits arising under 28 U.,S.C. 

2410 to quiet title or to foreclose a mortgage or other lien, the same being 

specifically assigned to the Civil and Tax 

Divisions according to the nature of the 

lien held by the United States, and all 

other actions arising under 28 U.S.C. 

2410 involving federal tax liens held by 

the United States, which are specifically 

assigned to the Tax Division; 

(v) Matters involving the immunity 

of the Federal Government from State 

and local taxation specifically delegated 

to the Tax Division by § 0.71. 

(b) Representation of the interests of 

the United States in all civil litigation in 

Federal and State courts, and before the 

Indian Claims Commission, pertaining 

to Indians, Indian tribes, and Indian 

affairs, and matters relating to restricted 

Indian property, real or personal, and 

the treaty rights of restricted Indians 

( except matters involving the constitutional and civil rights of Indians assigned to the Civil Rights Division by 

Subpart J of this part). 

( c) Rendering opinions as to the 

validity of title to all lands acquired by 

the United States, except as otherwise 

specified by statute. 

( d) Criminal suits and matters involving air and water pollution. 

(c) Criminal suits and matters involving obstruction to navigation, and illegal dredging or filling (33 U.S.C. 403). 

[Order No. 423-69, 31 F.R. 20388, Dec. 31, 1969, 

as amended by Order No. 457-74, 36 F.R. 10362, 

June 4, 1971; Order 465-72, 37 FR 11724, June 13, 

1972; Order 540-74, 33 FR 27910, Sept. 27, 1973; 

Order No. 543-73, 38 FR 29385, Oct. 26, 1973] 
TITLE 30-MINERAL RESOURCES 

CHAPTER II-GEOLOGICAL SURVEY 

PART 221-OIL AND GAS OPERATING 

REGULATIONS 1 

Sec. 

221.1 

221.2 

INTRODUCTION: DEFINITIONS 

Introduction. 

Definitions. 

]URISDICTION AND FUNCTIONS OF SUPERVISOR 

221.3 Jurisdiction. 

221.4 General functions. 

221.5 Supervision of operations. 

221.6 Reports and recommendations. 

221. 7 Reports and notices. 

221.8 Required samples, tests, and surveys. 

221.9 Damage to mineral deposits, directional 

drilling, lease obligations, well abandon· 

ment. 

221.10 Well potentials and permissible flow. 

Sec. 

221.11 Well-spacing and well-casing; technical assistance to lessees. 

221.12 Production records; rentals, royalties, and 

payments; drainage and waste. 

221.13 Division orders, run tickets, sales agreements 

or contracts. 

221.14 Suspension of operations and production. 

221.15 Beginning or resumption of drilling or producing operations. 

221. I 6 Enforcement. 

221.17 Appeals action. 

REQUIREMENTS FOR ALL LESSEES ( INCLUDING 

DESIGNATED OPERATORS) 

221.18 Lease terms, regulations, instructions of 

supervisor, waste, damage, safety, and 

221.19 

221.20 

221.21 

bond. 

Designated operator (or agent). 

Well-location restrictions. 

Well-spacing and well-casting program, well 

operations, required offsets, diligence, 

compensation in lieu of drilling. 

221.22 Well designations, property boundaries, 

markers for abandoned wells. 

221.23 Well records and reports, plats and maps, 

samples, tests, and surveys. 

221.24 Precautions necessary in areas where high 

221.25 

221.26 

221.27 

221.28 

221.29 

221.30 

221.3 I 

221.32 

221.33 

221.34 

221.35 

221.36 

221.37 

221.38 

221.39 

pressures are likely to exist. 

Cable tool drilling precautions. 

Rotary tool drilling precautions. 

Vertical drilling. 

Water shut-offs; formation tests. 

Protection of upper productive strata. 

Open flows and control of "wild" wells. 

Emulsion and dehydration. 

Pollution and surface damage. 

Gaging and storing oil. 

Well abandonment. 

Waste prevention; beneficial use. 

Accidents and fires. 

Workmanlike operations. 

Sales contracts; division orders. 

Relief from operating, royalty, and rental 

requirements. 

10 

221.40 Royalty and rental payments. 

221.41 Surface rights on'Indian lands. 

221.42 Costs or damages. 

MEASUREMENT OF PRODUCTION AND COMPUTATION 

221.43 

221.44 

221.45 

OF ROYALTIES 

Measurement of oil. 

Measurement of gas. 

Determination of gasoline content of natural 

gas. 

221.46 Quantity basis for computing royalties on 

natural gasoline, butane, propane, and 

other liquid hydrocarbon substances extracted from gas. 

Sec. 

221.47 Value basis for computing royalties. 

221.48 Royalty rates on oil; flat-rate leases. 

221.49 Royalty rates on oil; sliding- and step-scale 

leases (public land only). 

221.50 Royalty on gas. 

221.51 Royalty on casing-head or natural gasoline, 

butane, propane, or other liquid hydrocarbon substances extracted from gas. 

221.52 Royalty on drip gasoline or other natural 

condensate. 

PROCEDURE IN CASE OF DEFAULT BY LESSEE 

221.53 Shutting down operations; lease cancella221.54 

221.55 

221.56 

tions. 

Liquidated damages. 

Payment of damages. 

Damages to Indian property. 

REPORTS To BE MADE BY ALL LESSEES 

(INCLUDING OPERATORS) 

221.57 General requirements. 

221.58 Sundry notices and reports on wells (Form 

9-33!A Public; Form 9-331B Indian). 

221.59 Log and history of well (Form 9-330). 

221.60 Monthly report of operations (Form 9-329 

Public; Form 9-329A Indian). 

221.61 Daily report of gas-producing wells (Form 

9-352). 

221.62 Statement of oil and gas runs and royalties 

(Form 9-361 Public; Form 9-361A Indian). 

221.63 Royalty and rental remittance (Form 

9-614A Indian). 

221.64 Royalty and rental remittance (Form !IND 

Naval Petroleum Reserves). 

221.65 Special forms or reports. 

221.66 Appeals. 

221.67 Effective date; repeal of prior regulations. 

AUTHORITY: The provisions of this Part 221 issued 

under sec. 3, 26 Stat. 795, secs. 18, 14, 27, 28, 32, 

41 Stat. 426, 442, as amended, 448, as atnended, 449, 

as amended, 450 sec. 7, 42 Stat. 1450, 43 Stat. 244, 

sec. 6, 46 Stat. 374, sec. 39, 47 Stat. 793, as amended, 

sec. 40, 48 Stat. 977, sec. 3, 49 Stat. 679, 50 Stat. 

842, as amended, sec. 4, 52, Stat. 348, sec. I 0, 61 

Stat. 915; 25 U.S.C. 397, 356, 30 U.S.C. 223, 184, 

I 85, I 89, 230, 25 U .S.C. 398, 30 U .S.C. 306, 209, 

229a, 236a, 2211. 25 U.S.C. 396d. 30 U.S.C. 359. 

SouRcE: The provisions of this Part 221 appear at 

7 F .R. 4 I 32, June 2, 1942, unless otherwise noted. 
TITLE 30 § 221.2 

INTRODUCTION; DEFINITIONS 

§ 221.1 Introduction. 

The regulations in this part will govern the development and production of 

deposits of oil, gas, and casing-head or 

natural gasoline, including propane, butane and other hydrocarbons, and fluids, 

and lands containing such deposits 

owned or controlled by the United States, 

and under jurisdiction of the Secretary 

by law or administrative arrangement. 

The regulations in this part shall be 

administered under the Director of the 

Geological Survey, except that as to 

lands within naval petroleum reserves 

they shall be administered under such 

official as the Secretary of the Navy 

shall designate. 

§ 221.2 Definitions. 

The following terms as used in the 

regulations in this part shall have the 

meanings here given: 

(a) Secretary. The Secretary of the 

Interior, except where lands in naval 

petroleum reserves are involved, and in 

that case the Secretary of the Navy. 

(b) Director.-The Director of the 

Geological Survey, Washington, D.C., 

having direction of the enforcement of 

the regulations in this part. 

(c) Supervisor.-The Area Oil and 

Gas Supervisor, Conservation Division 

of the Geological Survey; a representative of the Secretary, subject to the 

<lirection and supervisory authority of 

the Director, the Chief, Conservation 

Division, Geological Survey, and the 

appropriate Regional Conservation Manager, Conservation Division, Geological 

Survey, authorized and empowered to 

supervise and direct oil and gas operations and to perform other duties prescribed in the regulations in this part, or 

any subordinate acting under his direction. 

( d) Officer in charge. The supervisor 

or such other officer as the Secretary 

may designate to supervise technical 

operations for the development and production of oil and gas on restricted 

Indian lands. Over such lands the officer 

so designated shall exercise the authority and power and perform the duties 

of supervisor as provided in the regulations in this part. 

( e) Superintendent. The superintendent of an Indian agency, or other officer 

authorized to act in matters of record, 

11 

law, and collections with respect to oil 

or gas leases for restricted Indian lands. 

(f) Lease. An agreement which in 

consideration of covenants to be observed, 

grants to a lessee the exclusive right 

and privilege of developing and producing oil or gas deposits owned by the 

lessor subject to the regulations in this 

part. 

(g) Leased lands, leasehold. Lands and 

deposits covered by a lease as defined in 

paragraph (f) of this section. 

(h) Producing lease. A producing 

lease is one including land on which there 

is a producible well, either active or shut 

in, or land determined by the supervisor 

to be subject to subsurface drainage. 

(i) Lessor. The party to a lease who 

holds title to the leased lands. 

(j) Lessee. The party authorized by a 

lease, or approved assignment thereof, 

to develop and produce oil or gas on the 

leased lands in accordance with the regulations in this part, including all parties 

holding such authority by or through 

him. 

(k) Register. A representative of the 

Bureau of Land Management in charge 

of a District Land Office. 

(1) Operator. The individual, partnership, firm, or corporation that has control or management of operations on the 

leased land or a portion thereof. The 

operator may be a lessee, designated 

agent of the lessee, or holder of rights 

under an approved operating agreement. 

(m) Designated operator or agent. 

The local representative of the lessee or 

of the operator; may be the holder of 

operating rights under an approved operating agreement. 

(n) Waste of oil or gas. Waste of oil 

or gas, in addition to its ordinary meaning, shall mean the physical waste of oil 

or gas, and waste, loss, or dissipation of 

reservoir energy existent in any deposit 

containing oil or gas and necessary or 

useful in obtaining the maximum recovery from such deposit. 

(1) Physical waste of oil or gas shall 

be deemed to include the loss or destruction of oil or gas after recovery thereof 

such as to prevent proper utilization and 

benefiicial use thereof, and the loss of 

oil or gas prior to recovery thereof by 

isolation or entrapment, by migration, 

by premature release of natural gas from 

solution in oil, or in any other manner 
§ 221.3 MINERAL RESOURCES 

such as to render impracticable the recovery of such oil or gas. 

(2) Waste of reservoir energy shall be 

deemed to include the failure reasonably 

to maintain such energy by artificial 

means and also the dissipation of gas 

energy, hydrostatic energy, or other natural reservoir energy, at any time at a 

rate or in a manner which would constitute improvident use of the energy available or result in loss thereof without 

reasonably adequate recovery of oil. 

( o) Gas.1 Any fluid, either combustible 

or noncombustible, which is produced in 

a natural state from the earth and which 

maintains a gaseous or rarefied state at 

ordinary temperature and pressure conditions. 

( p) Oil, crude oil. Any liquid hydrocarbon substance which occurs naturally 

in the earth, including drip gasoline or 

other natural condensates recovered 

from gas, without resort to manufacturing process. 

[7 FR 4132, June 2, 1942, as amended by 38 FR 

10001, Apr. 23, 19731 

JURISDICTION AND FUNCTIONS OF 

SpPERVISOR 

§ 221.3 Jurisdiction. 

Subject to the supervisory authority 

of the Secretary and the Director, drilling and producing operations, handling 

and gaging of oil, and the measurement 

of gas or other products, determination 

of royalty liability, receipt and delivery 

to those entitled thereto of royalty accruing to the lessor and paid in amount 

of production, determination of amount 

and manner of payment of damages 

assessed under authority of the regulations in this part for defaults or noncompliance with duties by the lessee and, 

in general, all operations subject to the 

regulations in this part are under the 

jurisdiction of the supervisor for any 

area as delineated by the Director. As 

to producing leases of Indian lands, the 

officer in charge, and as to lands within 

naval petroleum reserves, the supervisor 

shall determine rental liability, record 

rentals, royalties, and other payments, 

and maintain lease accounts. Upon request, the supervisor will advise any 

person concerning the regulations in 

this part, and will furnish technical information and advice relative to oil and 

gas development and operation on lands 

12 

subject hereto. In the exercise of his 

jurisdiction, the supervisor shall be 

subject to the direction and supervisory 

authority of the Chief, Conservation 

Division, Geological Survey and the appropriate Regional Conservation Manager, Conservation Division, Geological 

Survey, each of whom may exercise the 

jurisdiction of the supervisor. 

[38 F.R. 10001, Apr. 23, 1973] 

§ 221.4 General functions. 

The supervisor is hereby authorized to 

require compliance with lease terms, with 

the regulations in this part, and all other 

applicable regulations, and with applicable law to the end that all operations 

shall conform to the best practice and 

shall be conducted in such manner as 

to protect the deposits of the leased lands 

and result in the maximum ultimate recovery of oil, gas, or other products with 

minimum waste. Inasmuch as conditions 

in one area may vary widely from conditions in another area, the regulations in 

this part are general, and detailed procedure hereunder in any particular area 

is subject to the judgment and discretion 

of the supervisor, and to any real plan of 

development that may be adopted pursuant to law. The supervisor may require 

satisfactory evidence that a lease is in 

good standing, that the lessee or operator 

is authorized to conduct operations, and 

that an acceptable bond has been filed 

before permitting operations on the 

leased land. 

§ 221.5 Supervision of operation& 

The supervisor shall inspect and supervise operations under the regulations in 

this part; prevent waste, damage to formations or deposits containing oil, gas, 

or water or to coal measures or other 

mineral deposits, and injury to life or 

property; and shall issue instructions 

necessary, in his judgment, to accomplish 

these purposes. 

§ 221.6 Reports and recommendations. 

The supervisor shall make reports to 

his superior administrative officer as to 

the general condition of leased lands, and 

the manner in which operations are being 

conducted and departmental orders are 

being obeyed, and submit from time to 

time information and recommendations 

for safeguarding and protecting surface 
TITLE 30 § 221.13 

property and underlying mineral-bearing 

formations. 

§ 221. 7 Reports and notices. 

The supervisor shall prescribe the 

manner and form in which records of all 

operations, reports, and notices shall be 

made by lessees and operators. 

§ 221.8 Required samples, tests, and 

surveys. 

When deemed necessary or advisable, 

the supervisor is authorized to require 

that adequate samples be taken and tests 

or surveys be made in acceptable manner 

without cost to the lessor to determine 

the identity and character of formations; 

the presence or waste of oil, gas, water, 

or reservoir energy; the quantity and 

quality of oil, gas, or water; the amount 

and direction of deviation of any well 

from the vertical; formation, casing, tubing, or other pressures; and whether 

operations are being conducted with due 

regard to the interests of the lessor'" 

§ 221.9 Damage to mineral deposits, 

directional drilling, lease obligations, 

well abandonment. 

The supervisor shall require correction, 

in a manner to be prescribed, or approved 

by him, of any condition which is causing or is likely to cause damage to any 

formation containing oil, gas, or water 

or to coal measures or other mineral 

deposits, or which is dangerous to life or 

property or wasteful of oil, gas, or water; 

require substantially vertical drilling 

when necessary to protect interests in 

other properties; demand drilling in 

accordance with the terms of the lease or 

of the regulations in this part; and 

require plugging and abandonment of 

any well or wells no longer used or useful in accordance with such plan as may 

be approved or prescribed by him, and, 

upon failure to secure compliance with 

such requirement, perform the work at 

the expense of the lessee, expending 

available public funds, and submit such 

report as may be needed to furnish a 

basis for appropriate action to obtain 

reimbursement. 

§ 221.10 Well potentials and permissible flow. 

The supervisor is authorized to fix the 

percentage of the potential capacity of 

any oil or gas well that may be utilized 

13 

or the permissible production of any 

such well when, in his opinion, such 

action is necessary to protect the interests of the lessor, or to conform with 

proration rules established for the field; 

and to specify the time and method for 

determining the potential capacity of 

such wells. 

§ 221.11 Well-spacing and well-casing; 

technical assistance to lessees. 

The supervisor shall approve wellspacing and well-casing programs determined to be necessary for the proper 

development of the leases and assist and 

advise lessees in the planning and conduct of tests and experiments for the 

purpose of increasing the efficiency of 

operations. 

§ 221.12 Production records; rentals, 

royalties, and payments; drainage 

and waste. 

The supervisor shall compile and 

maintain records of production and 

prices and determine royalties accrued, 

estimate drainage and compute losses 

to the lessor resulting therefrom, and 

estimate the amount and value of oil, 

gas, and other products wasted. The 

supervisor shall render monthly to the 

lessee, or his agent, statements, showing 

the amount of oil, gas, casing-head or 

natural gasoline, propane, butane, or 

other hydrocarbons produced or sold and 

the amount or value of production accruing to the lessor as royalty from each 

lease; the loss by drainage or waste and 

the compensation due to the lessor as 

reimbursement; and, except as to any 

disposal of gas that shall have been 

determined by the ,Secretary of the Interior to be sanctioned by the laws of 

the United States and of the State in 

which it occurs, the amount and full 

value, computed at a price of not less 

than 5 cents per 1,000 cubic feet, of all 

gas wasted by blowing, release, escape 

into the air, or otherwise. Also, as to 

producing leases of Indian lands and 

lands within naval petroleum reserves, 

the supervisor shall determine rental 

liability, record rental, royalty, and 

other payments, and maintain lease 

accounts. 

§ 221.13 Division orders, run tickets, 

sales agreement or contracts. 

The supervisor is authorized to ap-
§ 221.14 MINERAL RESOURCES 

prove, subject to such conditions as he 

shall prescribe, division orders or temporary purchase agreements granting to 

transportation agencies or purchasers 

authority to receive products from leased 

lands in accordance with Government 

rules and regulations; sign run tickets or 

other receipts for royalty oil or gas delivered to a representative of the lessor 

or to the lessor's account; and approve 

sales agreements and contracts, subject 

to any conditions, modification, or revocation that may be prescribed on review 

thereof by the Director. 

CRoss REFERENCE: For regulations relating to approval of sales agreements or contracts, see Part 223 

of this chapter. 

§ 221.14 Suspension of operations and 

production. 

On receipt of an application for suspension of operations or production or 

for relief from any drilling or producing requirement under a lease, the supervisor shall forward such application, 

with a report and recommendation, to 

the appropriate official and, pending 

action thereon, grant such temporary 

approval as he may deem warranted in 

the premises, or reject such application, 

subject to the right of appeal as provided 

in part 290 of this chapter. 

[7 FR 4132, June 2, 1942, as amended at 38 FR 

10001, Apr. 23, 1973] 

§ 221.15 Beginning or resumption of 

drilling or producing operations. 

Where drilling or producing operations 

have been suspended on a lease, the 

supervisor may approve in writing notice 

by the lessee of intention to begin or 

resume such operations: Provided, That 

whenever it appears from facts adduced 

by or furnished to him that the interests 

of the lessor require additional drilling 

or producing operations, the supervisor 

may require by notice in writing the beginning or resumption of such operations. 

§ 221.16 Enforcement. 

The supervisor shall enforce the regulations in this part, and his orders issued 

pursuant thereto by action provided for 

in §§ 221.53 and 221.54 whenever, in his 

judgment, such action is necessary or 

advisable. 

§ 221.17 Appeals action. 

The supervisor shall receive and 

promptly render his decision on any mat14 

ter presented for reconsideration under 

the regulations in this part and shall 

receive and promptly transmit for review 

all appeals filed pursuant to part 290 of 

this chapter. 

[38 FR 10001, Apr. 23, 1973] 

REQUIREMENTS FOR ALL LESSEES 

(INCLUDING DESIGNATED OPERATORS) 

§ 221.18 Lease terms, regulations,, instructions of supervisor, waste, damage, safety, and bond. 

The lessee shall comply with the terms 

of the lease, and of the regulations in 

this part and any amendments thereof, 

and with the written instructions of the 

supervisor, shall take all reasonable precautions to prevent waste, damage to 

formations or deposits containing oil, 

gas, or water or to coal measures or 

other mineral deposits, and injury to life 

of property, and before drilling or other 

operations are started, shall have submitted a satisfactory bond. 

§ 221.19 Designated operator (or 

agent). 

(a) In all cases where operations on 

a lease are not conducted by the record 

owner, but are to be conducted under 

authority of an operating agreement, an 

unapproved assignment, or other arrangement, a "designation of operator" shall 

be submitted to the supervisor, in a manner and form approved by the supervisor, 

prior to commencement of operations. If 

the designation of operator form cannot 

be obtained from the lessee without undue inconvenience to the operator, the 

supervisor in his discretion may accept 

in lieu thereof a valid operating agreement approved by the Secretary. A designation of operator will be accepted as 

authority of operator or his local representative to fulfill the obligations of the 

lessee and to sign, as operator, any papers or reports required under the regulations in this part. It will rest '·in the 

discretion of the supervisor to determine 

how a local representative of the operator empowered to act in whole or in part 

in his stead shall be identified. 

(b) If the designated operator shall at 

any time be incapacitated for duty or 

absent from his designated address, the 

operator or the lessee shall designate in 

writing a substitute to serve in his stead, 

and, in the absence of such operator or 
TITLE 30 § 221.22 

of notice of the appointment of a substitute, any employee of the lessee who 

is on the leased lands or the contractor 

or other person in charge of operations 

will be considered the agent of the lessee 

for the service of orders or notices and 

service in person or by ordinary mail 

upon any such employee, contractor, or 

other person will be deemed service upon 

the operator and the lessee. All changes 

of address and any termination of the 

operator's authority shall be immediately 

reported, in writing, to the supervisor or 

his representative. In case of such termination or of controversy between the 

lessee and the designated operator, the 

operator, if in possession of the leasehold will be required to protect the 

interests of the lessor. 

§ 221.20 Well-location restrictions. 

(a) The lessee shall not drill any well 

within 200 feet of any of the outer 

boundaries of the leased lands except 

where necessary to protect those lands 

against wells on land the title to which 

is not held by the lessor, and then only 

on consent first had in writing from the 

supervisor: Provided, That for good 

cause shown in any particular case, and 

where not prohibited by law, a lessee 

may be relieved of such restrictions on 

written consent of the supervisor. The 

lessee shall not drill any well within 200 

feet of the boundary of any legal subdivision without first submitting adequate reasons therefor and obtaining 

consent in writing from the supervisor, 

such consent to be subject to such conditions as may be prescribed by said 

official. 

(b) Lessees of Indian lands shall not 

drill any well within 200 feet of any 

house or barn standing on the leased 

lands without the lessor's written consent, approved by the officer in charge 

and the superintendent. 

§ 221.21 Well-spacing and well-casing 

program, well operations,, required 

offsets, diligence, compensation in 

,, ,lieu of drilling. 

(a) When required by the supervisor, 

the ,· lessee shall submit an acceptable 

well0spacing and well-casing program for 

the lease or area. Such program must be 

approved by the supervisor and may be 

modified from time to time as conditions 

15 

warrant, with the consent and approval 

of the supervisor. 

(b) The lessee shall not begin to drill, 

redrill, repair, deepen, plug back, shoot, 

or plug and abandon any well, make 

water shut-off or formation test, alter the 

casing or liner, stimulate production by 

vacuum, acid, gas, air, water injection, or 

any other method, change the method of 

recovering production, or use any formation or well for gas storage or water 

disposal without first notifying the supervisor of his plan and intention and receiving written approval prior to commencing the contemplated work. The 

approval by the supervisor of a drilling 

plan does not constitute a determination 

or opinion that the lessee will be entitled 

to an extension of his lease under any 

extension provisions of the public-land 

or acquired lands mineral leasing laws if 

he carries out his plan. 

(c) The lessee shall drill diligently and 

produce continuously from such wells as 

are necessary to protect the lessor from 

loss of royalty by reason of drainage, or, 

in lieu thereof, with the consent of the 

supervisor, he must pay a sum estimated 

to reimburse the lessor for such loss of 

royalty, the sum to be computed monthly 

by the supervisor. 

( d) The lessee, whenever drilling or 

producing operations are suspended for 

24 hours or more, shall close the mouth 

of the well with a suitable plug or other 

fittings acceptable to the supervisor. 

[7 FR 4131, June 2, 1942, as amended at 31 FR 

6415, Apr. 28, 1966] 

§ 221.22 Well designations, property 

boundaries, markers for abandoned 

wells. 

The lessee shall mark each and every 

derrick or well in a conspicuous place 

with his name or the name of the operator, the serial number of the lease or the 

name of the lessor if on Indian land, 

and the number and location of the well, 

and shall take all necessary means and 

precautions to preserve these markings. 

All abandoned wells shall be marked 

with a permanent monument, on which 

shall be shown the number and location 

of the well, unless this requirement is 

waived in writing by the supervisor. 

This monument shall consist of a piece 

of pipe not less than 4 inches in diameter and not less than 10 feet in length, 
§ 221.23 MINERAL RESOURCES 

of which 4 feet shall be above the general ground level, the remainder being 

embedded in cement. The top of the pipe 

must be closed with a screw cap, cement 

plug, or by other approved means. 

§ 221.23 Well records and reports, plats 

and maps, samples, tests, and surveys. 

(a) The lessee shall keep on the leased 

lands or at his headquarters in the field, 

or otherwise conveniently available to 

the supervisor, accurate and complete 

records of the drilling, redrilling, deepening, repairing, plugging, or abandoning of all wells and of all other well 

operations, and of all alterations to casing. These records shall show all the 

formations penetrated, the content and 

character of oil, gas, or water in each 

formation, and the kind, weight, size, and 

landed depth of casing used in drilling 

each well on the leased lands, and any 

other information obtained in the course 

of well operations. 

(b) Within 15 days after the completion of any well and within 15 days after 

the completion of any further operations 

on it, the lessee shall transmit to the 

supervisor copies of these records on 

forms furnished by the supervisor. (For 

reports to be made by all lessees or their 

designated operators, see §§ 221.57 to 

221.65.) 

( c) The lessee shall take such samples 

and make such tests and surveys as may 

be required by the supervisor with a view 

to determining conditions in the well and 

obtaining information concerning materials (formations) drilled and shall 

furnish such characteristic samples of 

each formation or substance, or reports 

thereon, as may be requested by the 

supervisor. The lessee shall gage the 

production of oil, gas, and water from 

individual wells continuously or at reasonably frequent intervals to the satisfaction of the supervisor. 

(d) The lessee shall also submit in 

duplicate such other reports and records 

of operations as may be required and in 

the manner and form prescribed by the 

supervisor. 

(e) Upon request and in the manner 

and form prescribed by the supervisor 

the lessee shall furnish a copy of the 

daily drilling report, a plat showing the 

location, designation, and status of all 

16 

wells on the leased lands, together with 

such other pertinent information as the 

supervisor may require. 

§ 221.24 Precautions necessary in areas 

where high pressures are likely to 

exist. 

When drilling in "wildcat" territory, 

or in any field where high pressures 

are likely to exist, the lessee shall take 

all necessary precautions for keeping the 

well under control at all times and shall 

provide at the time the well is started 

the proper high-pressure fittings and 

equipment; under such conditions the 

conductor string of casing must be cemented throughout its length, unless 

other procedure is authorized or prescribed by the supervisor, and all strings 

of casing must be securely anchored. 

§ 221.25 Cable tool drilling precautions. 

When drilling with cable tools, the 

lessee shall provide at least one properly prepared slush pit, into which must 

be deposited mud and cuttings from clay 

or shale free of sand that will be suitable 

for the mudding of a well. When necessary or required, the lessee shall provide 

a second pit for sand pumpings and 

other materials obtained from the well 

during the process of drilling that are 

not suitable for mudding. 

§ 221.26 Rotary tool drilling precautions. 

When drilling with rotary tools, the 

lessee shall provide, when required by 

the supervisor, an auxiliary mud pit or 

tank of suitable capacity and maintain 

therein a supply of mud having the 

proper characteristics for emergency use 

in case of blowouts or lost circulation. 

§ 221.27 Vertical drilling. 

The lessee shall drill substantially vertical wells, material deviation from the 

vertical being permitted only on written 

approval of the supervisor and where 

interests in other properties will not be 

unfairly affected. 

§ 221.28 Water shut-offs; formation 

tests. 

(a) By approved methods, the lessee 

shall shut off and exclude all water 

from any oil- or gas-bearing stratum 

to the satisfaction of the supervisor, and 

to determine the effectiveness of such 

operations, the lessee shall make a cas-
TITLE 30 § 221.34 

ing and a water shut-off test before suspending drilling operations or drilling 

into the oil or gas sand and completing 

the well. 

(b) The lessee shall test for commercial productivity all formations that give 

evidence of carrying oil or gas, the test 

to be made to the satisfaction of and in 

a manner approved in advance by the 

supervisor. Unless otherwise specifically 

approved by the supervisor, formation 

tests shall be made at the time the formations are penetrated and in the absence 

of excessive back pressure from a column 

of water or mud fluid. Records of such 

tests shall be furnished in duplicate. 

§ 221.29 Protection of upper productive 

strata. 

The lessee shall not deepen an oil or 

gas well for the purpose of producing oil 

or gas from a lower stratum until all 

upper productive strata are protected to 

the satisfaction of the supervisor. 

§ 221.30 Open flows and control of 

"wild" wells. · 

The lessee shall take reasonable precautions to prevent any oil, gas, or water 

well from blowing open, or "wild", and 

shall take immediate steps and exercise 

due diligence to bring under control any 

such well or burning oil or gas well. 

§ 221.31 Emulsion and dehydration. 

The lessee shall complete and maintain 

his wells in such mechanical condition 

and operate them in such manner as 

to prevent, as far as possible, the formation of emulsion, or so-called B. S., and 

the infiltration of water. If the formation of emulsion, or B. S., or the infiltration of water, cannot be prevented or 

if all or any part of the product is 

unmarketable by reason thereof or on 

account of any impurity or foreign substance, the lessee shall put into marketable condition, if commercially feasible, 

all products produced from the leased 

land and pay royalty thereon without 

recourse to the lessor for deductions on 

account of costs of treatment or of costs 

of shipping. To avoid excessive losses 

from evaporation, oil shall not be heated 

to temperatures above the minimum required to put the oil into marketable 

condition. If excessive temperatures are 

required to break down an emulsion, then 

other means of dehydration must be 

17 

utilized. Under such circumstances the 

supervisor must be consu1ted, and his 

approval obtained. 

§ 221.32 Pollution and surface damage. 

The lessee shall not pollute streams 

or damage the surface or pollute the 

underground water of the leased or other 

land. If useless liquid products of wells 

cannot be treated or destroyed or if the 

volume of such products is too great 

for disposal by usual methods without 

damage, the supervisor must be consulted, and the useless liquids disposed 

of by some method approved by him. 

§ 221.33 Gaging and storing oil. 

All production run from leased lands 

shall be gaged or measured according to. 

methods approved by the supervisor. 

The lessee shall provide tanks located on 

the leasehold, unless otherwise approved 

by the supervisor, suitable for containing 

and measuring accurately all crude oil 

produced from the wells and shall 

furnish to the supervisor at least two 

acceptable positive copies of 100 percentcapacity tank tables. Meters for measuring oil must be first approved by the 

supervisor, and tests of their accuracy 

shall be made when directed by that officiaL The lessee shall not, except during 

an emergency and except by special permission of the supervisor, confirmed in 

writing, permit oil to be stored or retained in earthen reservoirs or in any 

other receptacle in which there may be 

undue waste of oil. 

§ 221.34 Well abandonment. 

(a) The lessee shall promptly plug 

and abandon or condition as a water 

well any well on the leased land that 

is not used or useful for the purposes 

of the lease, but no productive well shall 

be abandoned until its lack of capacity 

for further profitable production of oil 

or gas has been demonstrated to the 

satisfaction of the supervisor. Before 

abandoning a well the lessee shall submit to the supervisor a statement of reasons for abandonment and his detailed 

plans for carrying on the necessary work, 

together with duplicate copies of the log, 

if it has not already been submitted. A 

well may be abandoned only after receipt 

of written approval by the supervisor, in 

which the manner and method of abandonment shall be approved or prescribed. 
!i 221.35 MINERAL RESOURCES 

Equipment shall be removed and premises at the well-site shall be properly 

conditioned immediately after plugging 

operations are completed on any well. 

(b) In case the lessee of lands of the 

United States strikes water while drilling, instead of oil or gas, and the water 

is of sufficient quantity and suitable 

quality to be valuable and usable at a 

reasonable cost, the .Secretary may take 

over the well as provided in section 40 

of the Mineral Leasing Act approved 

June 16, 1934, 48 Stat. 977, 30 U.S.C. 

299a. If a satisfactory agreement is 

reached, the lessee may condition the well 

for a water well in lieu of plugging and 

abandonment. 

(c) Drilling equipment shall not be 

removed from any suspended drilling 

well without first securing the written 

consent of the supervisor. 

§ 221.35 Waste prevention; beneficial 

use. 

The lessee is obligated to prevent the 

waste of oil or gas and to avoid physical 

waste of gas the lessee shall consume 

it beneficially or market it or return it 

to the productive formation. If waste or 

gas occurs the lessee shall pay the lessor 

the full value of all gas wasted by blowing, release, escape, or otherwise at a 

price not less than 5 cents for each 

1,000 cubic feet, unless, on application by 

the lessee, such waste of gas under the 

particular circumstances involved shall 

be determined by the Secretary to be 

sanctioned by the laws of the United 

States and of the State in which it occurs. 

The production of oil and gas shall be 

restricted to such amount as can be put 

to beneficial use with adequate realization of values, and in order to avoid excessive production of either oil or gas, 

when required by the Secretary, shall be 

limited by the market demand for gas 

or by the market demand for oil. 

§ 221.36 Accidents and fires. 

The lessee shall take all reasonable 

precautions to prevent accidents and 

fires, shall notify the supervisor within 

24 hours of all accidents or fires on the 

leased land, and shall submit a full 

report thereon within 15 days. 

§ 221.37 Workmanlike operations. 

The lessee shall carry on all operations 

and maintain the property at all times in 

18 

a safe and workmanlike manner, having 

due regard for the preservation and the 

conservation of the property and for the 

health and safety of employees. The 

lessee shall take reasonable steps to prevent and shall remove accumulations of 

oil or other materials deemed to be fire 

hazards from the vicinity of well locations and lease tanks, and shall remove 

from the property or store in orderly 

manner all scrap or other materials not 

in use. 

§ 221.38 Sales contracts; division orders. 

The lessee shall file with the supervisor triplicate ( quadruplicate for production of restricted Indian lands or 

naval petroleum reserves) executed copies of all contracts for the disposition 

of all products of the leased land except 

that portion used for purposes of production on the leased land or unavoidably lost, and he shall not sell or otherwise dispose of said products except in 

accordance with a sales contract, division order, or other arrangement first 

approved, as provided in § 221.13. 

§ 221.39 Relief from operating, royalty, 

and rental requirements. 

Applications for any modification authorized by law of the operating requirements of a lease for lands of the United 

States shall be filed in triplicate (quintuplicate for applications involving leases 

for lands within the naval petroleum 

reserves) with the supervisor, and shall 

include a full statement of the circumstances that render such modification 

necessary or proper. Applications for 

any modification authorized by law of 

the royalty or rental requirements of a 

lease for lands of the United States shall 

be filed in triplicate in the office of the 

supervisor. 

CRoss REFERENCE: For regulations of the Bureau 

of Land Management relating to royalty and rental 

relief, and suspension of operations and production, 

see 43 CFR Parts 3100 to 3104. 

[13 F.R. 9496, Dec. 31, 1948] 

§ 221.40 Royalty and rental payments. 

(a) When due in money, the lessee 

shall tender all payments of rental and 

royalty by check or draft on a solvent 

bank, or by money order drawn to the 

order of the appropriate receiving officer, 

in accordance with statements rendered 
TITLE 30 § 221.44 

by the supervisor pursuant to § 221.12, or 

in the case of public-land leases in accordance with instructions of the Bureau of 

Land Management. 

(b) If the lessor elects to take royalty 

in oil or gas, unless otherwise agreed 

upon, such royalty shall be delivered on 

the leasehold, by the lessee to the order 

of and without cost to the lessor, as 

instructed by <;he supervisor. Upon the 

lessor's request, storage for royalty oil 

for 30 days after the end of the calendar month in which the royalty accrues, 

shall be furnished free of charge. Storage shall be provided on the leased lands 

or at a place mutually agreed upon by 

the supervisor and the lessee. 

§ 221.41 Surface rights on Indian lands. 

Lessees of Indian land shall have only 

such surface rights as are specifically 

granted in the lease, but additional 

rights may be exercised under written 

agreement with the owner, such agreement to be subject to the prior approval 

of the superintendent of the Indian 

agency having jurisdiction. On demand 

of the supervisor, pipe lines on Indian 

land shall be buried below plow depth. 

§ 221.42 Costs or damages. 

The lessee shall pay all costs or damages assessed under the provisions of the 

regulations in this part. 

CRoss REFERENCE: For other liabilities of the lessee 

in case of default, see also § § 221.53 to 221.58. 

MEASUREMENT OF PRODUCTION AND 

COMPUTATION OF ROYALTIES 

§ 221.43 Measurement of oil. 

The volume of production shall be computed in terms of barrels of clean oil of 

42 standard United States gallons of 231 

cubic inches each, on the basis of meter 

measurements (meter must be approved 

by supervisor), or tank measurements of 

oil-level difference, made and recorded 

to the nearest quarter inch of 100-percent-capacity tables, or with such greater 

accuracy as shall be required by the 

supervisor, and subject to the following 

corrections. 

(a) Correction for impurities. The percentage of impurities (water, sand, and 

other foreign substances not constituting 

a natural component part of the oil) 

shall be determined to the satisfaction of 

the supervisor, and the observed gross 

19 

volume of oil shall be corrected to exclude 

the entire volume of such impurities. 

(b) Temperature correction. The observed volume of oil corrected for impurities shall be further corrected to the 

standard volume at 60° F. in accordance with table 2 of Circular C-410 of 

the National Bureau of ,Standards 

(March 4, 1936), or any revisions thereof 

and any supplements thereto, or any 

close approximation thereof approved by 

the supervisor. 

(c) Gravity determination. The gravity of the oil at 60° F. shall be determined in accordance with table 1 of 

Circular C-410 of the National Bureau 

of Standards (March 4, 1936), or any 

revisions thereof and any supplements 

thereto. 

( d) Lease production, pipe-line runs. 

For the convenience of the lessor and 

lessee, monthly statements of production and royalty shall be based in general on production recorded in pipe-line 

runs or other shipments. When shipments are infrequent or do not approximate actual production, the supervisor 

may require statements of production 

and royalty to be made on such other 

basis as he may prescribe, gains, or losses 

in volume of storage being taken into 

account when appropriate. Evidence of 

all shipments of oil shall be furnished 

by pipe-line or other run tickets signed 

by representatives of the lessee and of 

the purchaser who have witnessed the 

measurements reported and the determinations of gravity, temperature, and 

the percentage of impurities contained 

in the oil. Signed run tickets shall be 

filed with the supervisor within 5 days 

after the oil has been run. 

§ 221.44 Measurement of gas. 

Gas of all kinds ( except gas used for 

purposes of production on the leasehold 

or unavoidably lost) is subject to royalty, 

and all gas shall be measured by meter 

(preferably of the orifice-meter type) 

unless otherwise agreed to by the supervisor. All gas meters must be approved 

by the supervisor and installed at the 

expense of the lessee at such places as 

may be agreed to by the supervisor. For 

computing the volume of all gas produced, sold, or subject to royalty, the 

standard of pressure shall be 10 ounces 

above an atmospheric pressure of 14.4 
§ 221.45 MINERAL RESOURCES 

pounds to the square inch, regardless 

of the atmospheric pressure at the point 

of measurement, and the standard of 

temperature shall be 60° F. All measurements of gas shall be adjusted by 

computation to these standards, regardless of the pressure and temperature at 

which the gas was actually measured, 

unless otherwise authorized in writing by 

the supervisor. 

§ 221.45 Determination of gasoline content of natural gas. 

Tests to determine the gasoline content 

of gas delivered to plants manufacturing 

gasoline are required to check plant efficiency and to obtain an equitable basis 

for allocating the gasoline output of any 

plant to the several sources from which 

the gas treated is derived. The gasoline 

content of the gas delivered to each gasoline plant treating gas from leased lands 

shall be determined periodically by field 

tests, as required by the supervisor, to 

be made at the place and by the methods 

approved by him and under his supervision. 

§ 221.46 Quantity basis for computing 

royalties on natural gasoline, butane, 

propane, and other liquid hydrocarbon substances extracted from gas. 

The primary quantity basis for computing monthly royalties on casing-head 

or natural gasoline, butane, propane, or 

other liquid hydrocarbon substances extracted from gas is the monthly net output of the plant at which the substances 

are manufactured, "net output" being 

defined as the quantity of each such substance that the plant produces for sale. 

(a) If the net output of a plant is 

derived from the gas obtained from only 

one leasehold, the quantity of gasoline 

or other liquid hydrocarbon substances 

of which computations of royalty for the 

lease are based is the net output of the 

plant. 

(b) If the net gasoline output of a 

plant is derived from gas obtained from 

several leaseholds producing gas of uniform gasoline content, the proportion of 

net output of gasoline allocable to each 

lease as a basis for computing royalty 

will be determined by dividing the 

amount of gas delivered to the plant 

from each leasehold by the total amount 

of gas delivered to the plant from all 

leaseholds. 

20 

( c )' If the net gasoline output of a 

plant is derived from gas obtained from 

several leaseholds producing gas of diverse gasoline content, the proportion of 

net output of gasoline allocable to each 

leasehold as a basis for computing royalty will be determined by multiplying 

the amount of gas delivered to the plant 

from the leaseholds by the gasoline content of the gas and dividing the arithmetical product thus obtained by the 

sum of the similar arithmetical products 

separately obtained for all leaseholds 

from which gas is delivered to the plant. 

(d) If the net output of butane, propane, or other liquid hydrocarbon substances of a plant is derived from gas 

obtained from several leaseholds, the 

proportion of net output of such substances allocable to each leasehold as a 

basis for computing royalty will be 

determined by substituting the butane, 

propane, or other liquid hydrocarbon 

content for the gasoline content and following the method outlined in paragraph 

(b) or (c) of this section, whichever is 

applicable: Provided, That when in the 

judgment of the supervisor it is impracticable to test gas to determine the content of butane, propane, or other liquid 

hydrocarbon substances, the gasoline 

content will be used in determining the 

proportion of the net output of such substances allocable to each leasehold. 

( e) The supervisor is authorized, whenever irt his judgment neither method 

prescribed in paragraph (b) and ( c) of 

this section is practicable, to estimate 

the production of natural gasoline, butane, propane, or other liquid hydrocarbon substances from any leasehold 

from ( 1) the quantity of gas produced 

from the leasehold and transmitted to 

the extraction plant, (2) the gasoline, 

butane, propane, or other liquid hydrocarbon content of such gas as determined 

by test, and (3) a factor based on plant 

efficiency or recovery and so determined 

as to insure full protection of the royalty 

interest of the lessor. 

§ 221.47 Value basis for computing 

royalties. 

The value of production, for the purpose of computing royalty shall be the 

estimated reasonable value of the product 

as determined by the supervisor, due 

consideration being given to the highest 
TITLE 30 § 221.49 

price paid for a part or for a majority 

of production of like quality in the same 

field, to the price received by the lessee, 

to posted prices and to other relevant 

matters. Under no circumstances shall 

the value of production of any of said 

substances for the purposes of computing 

royalty be deemed to be less than the 

gross proceeds accruing to the lessee 

from the sale thereof or less than the 

value as shall have been determined by 

the Secretary. In the absence of good 

reason to the contrary, value computed 

on the basis of the highest price per barrel, thousand cubic feet, or gallon paid 

or offered at the time of production in a 

fair and open market for the major portion of like-quality oil, gas, or other 

products produced and sold from the field 

or area where the leased lands are situated will be considered to be a reasonable 

value. 

§ 221.48 Royalty rates on oil; flat-rate 

leases. 

The royalty on crude oil shall be the 

percentage ( established by the terms of 

the lease) of the value or amount of the 

crude oil produced from the leased lands. 

§ 221.49 Royalty rates on oil; slidingand step-scale leases (public land 

only). 

Sliding- and step-scale royalties are 

based on the average daily production 

per well. The supervisor shall specify 

which wells on a leasehold are commercially productive, including in the category all wells, whether produced or not, 

for which the annual value of permissible 

production would be greater than the 

estimated reasonable annual lifting cost, 

but only wells which yield a commercial 

volume of production during at least part 

of the month shall be considered in ascertaining the average daily production per 

well. The average daily production per 

well for a lease is computed on the basis 

of a 28-, 29-, 30-, or 31-day month ( as 

the case may be), the number of wells 

on the leasehold counted as producing 

and the gross production from the leasehold. (Tables for computing royalty on 

the sliding-scale and on the step-scale 

basis may be obtained upon application 

to the supervisor.) The supervisor will 

determine which commercially productive wells shall be considered each month 

as producing wells for the purpose of 

21 

computing royalty in accordance with 

the following rules, and in his discretion 

may count as producing any commercially productive well shut-in for conservation purposes: 

(a) For a previously producing leasehold, count as producing for every day 

of the month each previously producing 

well that produced 15 days or more during the month, and disregard wells that 

produced less than 15 days during the 

month. 

(b) Wells approved by the supervisor 

as input wells shall be counted as producing wells for the entire month if so 

used 15 days or more during the month 

and shall be disregarded if so used less 

than 15 days during the month. 

(c) When the initial production of a 

leasehold is made during the calendar 

month, compute royalty on the basis of 

producing well-days. 

( d) When a new well is completed for 

production on a previously producing 

leasehold and produces for 10 days or 

more during the calendar month in 

which it is brought in, count such new 

wells as producing every day of the 

month, in arriving at the number of producing well-days. Do not count any new 

well that produces for less than 10 days 

during the calendar month. 

( e) Consider "head wells" that make 

their best production by intermittent 

pumping or flowing as producing every 

day of the month, provided they are regularly operated in this manner, with 

approval of the supervisor. 

(f) For previously producing leaseholds on which no wells produced for 15 

days or more, compute royalty on a basis 

of actual producing well-days. 

(g) For previously producing leaseholds on which no wells were producing 

during the calendar month but from 

which oil was shipped, compute royalty 

at the same royalty percentage as that of 

the last preceding calendar month in 

which production and shipments were 

normal. 

(h) Rules for special cases not subject 

to definition, such as those arising from 

averaging the production from two distinct sands or horizons when the production of one sand or horizon is relatively 

insignificant compared to that of the 

other, shall be made by the supervisor as 

need arises. 
§ 221.50 MINERAL RESOURCES 

(i) (1) In the following summary of 

operations on a typical leasehold for the 

month of June, the wells considered for 

the purpose of computing royalty on the 

entire production of the property for the 

months are indicated. 

Count 

Well Record (marked 

No. X) 

I. Produced full time for 30 days X 

2. Produced for 26 days; down 4 days 

for repairs X 

3. Produced for 28 days; down June 

5, 12 hours, rods; June 14, 6 

hours, engine down; June 25, 24 

hours; June 26, 24 hours, pullinp; rods and tubing X 

4. Produced for 12 days; down June 

13 to 30 

5. Produced for 8 hours every other 

day (head well) X 

6. Idle producer (not operated) 

7. New well. completed June I 7; 

produced for 14 days X 

8. New well, completed June 22; 

produced for 9 days 

(2) In this example there are eight 

wells on the leasehold, but wells 4, 6, and 

8 are not counted in computing royalties. 

Wells 1, 2, 3, 5, and 7 are counted 

as producing for 30 days. The average 

production per well per day is determined by dividing the total production 

of the leasehold for the month (including 

the oil produced by wells 4 and 8) by 5, 

the number of wells counted as producing, and dividing the quotient thus obtained by the number of days in the 

month. 

§ 221.50, Royalty on gas. 

The royalty on gas shall be the percentage established by the terms of the 

lease of the value or amount of the gas 

produced. 

(a) Royalty accrues on dry gas, 

whether produced as such or as residue 

gas after the extraction of gasoline. 

(b) If the lessee derives revenue on 

gas from two or more products, a royalty 

normally will be collected on all such 

products. 

( c) For the purpose of computing royalty the value of wet gas shall be either 

the gross proceeds accruing to the lessee 

from the sale thereof or the aggregate 

value determined by the Secretary of all 

commodities, including residue gas, obtained therefrom, whichever is greater. 

22 

§ 221.51 Royalty on casing-head or natural gasoline, butane, propane, or 

other liquid hydrocarbon substances 

extracted from gas. 

A royalty as provided in the lease shall 

be paid on the value of one-third· ( or the 

lessee's portion if greater than onethird) of all casing-head or natural gasoline, butane, propane, or other liquid 

hydrocarbon substances extracted from 

the gas produced from the leasehold. 

The value of the remainder is an allowance for the cost of manufacture, and no 

royalty thereon is required. The value 

shall be so determined that the minimum 

royalty accruing to the lessor shall be the 

percentage established by the lease of the 

amount or value of all extracted hydrocarbon substances accruing to the lessee 

under an arrangement, by contract or 

otherwise, for extraction and sale that 

has been approved by the supervisor: 

(a) When a minimum price established by the Secretary is used in determining the value of natural gasoline 

accruing to the lessee, the volume of such 

gasoline may be corrected when deemed 

necessary by the supervisor to such 

standard and by such method as may 

be approved by the supervisor, in order 

that volumetric differences between natural gasolines of various specifications 

may be equitably adjusted. 

(b) The present policy is to allow the 

use of a reasonable amount of dry gas 

for operation of the gasoline plant, the 

amount allowed being determined or approved by the supervisor, but no allowance shall be made for boosting residue 

gas, or other expenses incidental to marketing. 

§ 221.52 Royalty on drip gasoline or 

other natural condensate. 

The royalty on all drip gasoline, or 

other natural condensate recovered from 

gas produced from the leased lands without resort to manufacturing process shall 

be the same percentage as provided in 

the lease for other oil, except that such 

substance, if processed in a casing-head 

gasoline plant shall be treated for royalty 

purposes as though it were gasoline. 

PROCEDURE IN CASE OF DEFAULT 

BY LESSEE 

§ 221.53 S 'h u t ti n g down operations; 

lease cancellations. 
TITLE 30 § 221.56 

The supervisor has authority to shut 

down any operation and place under 

seal any property or equipment for failure to comply with the oil and gas 

operating regulations in this part or 

orders issued under this part, to enter 

upon any leasehold and perform any 

operation that the lessee fails to perform 

when ordered so to do in writing, and to 

recommend cancellation of the lease and 

forfeiture under the bond for noncompliance with the applicable law, lease terms, 

and regulations. 

§ 221.54 Liquidated damages. 

Administrative costs arising out of certain defaults or violations of orders requiring the performance of certain duties 

by lessees, as set forth in the regulations 

in this part constitute loss or damage to 

the United States the amount of which is 

difficult or impracticable of ascertainment. Therefore, the following amounts 

shall be deemed to cover such loss or 

damage and shall be payable upon receipt 

of notice from the oil and gas supervisor 

of such loss or damage: Provided, That 

as to paragraph (f) of this section the 

specified loss or damage shall be applicable to each week or fraction thereof 

during which the violation continues and 

as to paragraph (h) of this section the 

specified loss or damage shall be applicable to each day or fraction thereof during which the violation continues: 

(a) For failure to perform any operation ordered in writing by the supervisor, 

if said operation is thereafter performed 

by or through the supervisor, the actual 

cost of performance thereof and an additional 25 percent to compensate the Government for administrative costs. 

(b) For failure to maintain inviolate 

any seal placed upon any property or 

equipment by the supervisor, $50 for each 

such violation. 

( c) For failure to file notice of intention and to obtain approval before starting to drill, or for failure to :file notice 

and obtain approval before making any 

changes iri the originally approved notice 

of intention, $25 for each violation. 

( d) ,,For failure to :file notice and to 

obtain approval before repairing, redrilling, de~pening, plugging-back, plugging, 

or abandoning any well, in pulling or 

altering casing, stimulating productiop 

by vacuum, acid, or shot, or gas, air, or 

23 

water injection, or using any well or formation for gas storage or water disposal, 

$25 for each violation. 

(e) For failure to mark wells or derricks, $10 for each violation. 

(f) For failure to install required highpressure fittings and equipment, to 

cement conductor string, or to anchor 

properly all strings of casing, $50 for 

each violation. 

(g) For failure to construct and maintain in proper condition slush or mud 

pits, $10 for each violation. 

(h) For failure to comply with § 221.32, 

$25 for each violation. 

(i) For failure to file sales contracts 

or division orders as required by lease 

terms, $25 for each violation, and for 

failure to submit pipe-line run tickets, 

or other proper evidence of disposal as 

required by these regulations, $10 for 

each violation. 

(j) For failure to file the following 

reports within the time specified in the 

regulations in this part, or within such 

other time designated in writing by the 

supervisor, $10 for each violation: 

(1) Log of well, subsequent report of 

driIIing, redrilling, deepening, pluggingback, plugging and abandonment, making water shut-off or formation test, 

stimulating production by acid or shot. 

(2) Lessee's Monthly Report of Operations. Daily Report of Gas-Producing 

Wells, when required. Lessee's Statement of Oil and Gas Runs and Royalties. 

(3) Special forms or reports as required by the supervisor. 

§ 221.55 Payment of damages. 

(a) Payment or request for payment 

for any of the damages assessed for administrative costs under the regulations 

in this part shall not relieve the lessee 

from compliance with the provisions of 

the regulations in this part, or for liability for waste or any other damage. A 

waiver of any particular cause for the 

payment of damages shall not be construed as precluding the assessment of 

damages for any other cause herein 

specified or for the same cause occurring 

at any other time. 

(b) Damages shall be paid in the manner and as directed by the supervisor. 

§ 221.56 Damages to Indian property. 

Damage to lands, crops, buildings, and 
§ 221.57 MINERAL RESOURCES 

other improvements on Indian land shall 

be assessed by the superintendent and 

payments for such damages shall be 

made to the superintendent. 

REPORTS To BE MADE BY ALL LESSEES 

(INCLUDING OPERATORS) 

§ 221.57 General requirements. 

Information required to be submitted 

in accordance with the regulations in this 

part shall be furnished in the manner 

and form prescribed in the regulations in 

this part or as directed by the supervisor. 

Prescribed standard forms in general use 

are described in §§ 221.58-221.64. Copies 

of such forms can be obtained from the 

supervisor and must be filled out completely and filed punctually with that 

official. Failure of the lessee to submit 

the information and reports required 

herein constitutes noncompliance with 

the terms of the regulations in this part 

and is cause for the assessment of specific damages as prescribed by the regulations in this part and the cancellation 

of the lease. 

§ 221.58 Sundry notices and reports on 

wells (Form 9-331A Public; Form 

9-331B Indian). 

Forms 9-331A and 9-331B cover all 

notices of intention and all subsequent 

reports pertaining to individual wells 

except those for which special blanks 

are provided. The forms may be used 

for any of the purposes listed thereon, 

or a special heading may be inserted in 

the blank to adapt it for use for similar purposes. Any written notice of intention to do work or to change plans 

previously approved must be filed in triplicate, unless otherwise directed, and 

must reach the supervisor and receive his 

approval before the work is begun. The 

lessee is responsible for receipt of the 

notice by the supervisor in ample time 

for proper consideration and action. If, 

in case of emergency, and notice is given 

orally or by wire, and approval is obtained, the transaction shall be confirmed 

in writing as a matter of record. The 

following paragraphs illustrate some of 

the uses to which Forms 9-331A and 

9-331B may be put and indicate the requirements with respect to each use. 

(a) Notice of intention to drill. The 

notice of intention to drill a well must be 

filed with the supervisor and approval 

24 

received before the work is begun. This 

notice must give the location, in feet, and 

direction from the nearest lines of established public survey; the altitude of the 

ground and derrick floor above sea level 

and how obtained; and the geologic name 

of the surface formation. Under the 

heading "Details of Work", the proposed 

drilling and casing plan should be outlined in detail. Essential information includes type of tools, proposed depth to 

which the well will be drilled, estimated 

depths to the top of important markers, 

estimated depths at which water, oil, gas, 

and mineral beds are expected, the proposed casing record, including the size 

and weight of casing, the depth at which 

each string is to be set, and the amount 

of cement and mud to be used. Information also shall be given relative to the 

drilling plan, such as making drill-stem 

tests, drilling in with oil, using reversed 

circulation, perforating opposite pays, 

using special types of mud in rotary drilling, coring at specified depths, and using 

electric logging together with any other 

information which may be required by 

the supervisor. 

(b) Notice of intention to change 

plans. Where unexpected conditions 

necessitate any change in the plans of 

proposed work already approved, complete details of the changes must be submitted to the supervisor and approval 

thereof obtained before the work is 

undertaken. 

(c) Notice of date for casing and 

water shut-off test. The protection and 

segregation of oil, gas, or water-bearing 

formations is an important item of conservation, and the supervisor will witness 

all casing and water shut-off tests. Notice must be filed with the supervisor in 

advance of the date on which the lessee 

expects to make such test. Later by 

agreement the exact time shall be fixed. 

The casing test and the test of water 

shut-off must be approved before further 

drilling can proceed. In the event of 

failure, casing must be repaired or replaced or recemented, whichever the conditions may require. 

( d) Subsequent report of casing and 

water shut-off test. Within 15 days after 

making a casing or water shut-off test, 

the results of the test must be reported. 

The report must give complete and accurate details, amount of mud and cement 
TITLE 30 § 221.58 

used, lapse of time between running and 

cementing the casing and making the 

test, method of testing, and· results. 

(e) Notice of intention to redrill, repair, or condition well. Before repairing, 

deepening, or conditioning a well, a detailed written statement of the plan of 

work must be filed with the supervisor 

and approval obtained before the work is 

started. In work that affects only rods, 

pumps, or tubing, or other routine work, 

_such as cleaning out to previous total 

depth, no report is necessary unless specifically required by the supervisor. 

(f) Subsequent report of redrilling, repairing, or conditioning. Within 15 days 

after completion of the repair work a 

detailed report of work done and the 

results obtained should be filed. Such 

report shall show the amount of production of oil, gas, and water, both before 

and after the work is done, and shall also 

include a complete statement of the work 

accomplished and methods employed, including all dates. 

(g) Notice of intention to use explosive 

or chemicals. Before using explosive or 

chemicals ( shooting or acidizing) in any 

well, whether for increasing production 

or in drilling, repair, or abandonment, 

notice of intention shall be filed and approval obtained before the work is done. 

When such notice of intention forms a 

part of a notice of intention to redrill, 

repair, or abandon a well, the supervisor 

may accept such notice in lieu of a separate notice of intention to use explosive 

or chemicals. The notice of intention to 

use explosive or chemicals must be accompanied by the complete log of the 

well to date, provided the complete log 

has not previously been filed, and must 

state the object of the work to be done, 

the amount and nature of the material 

to be used, its exact location and distribution in the well by depths, the method 

of localizing its effects, and the name of 

the company that is to do the work. The 

notice shall also contain an accurate 

statement of the dates and daily production of oil, gas, and water from the well 

for each of the last preceding 10 producing days. 

(h) Subsequent report of use of explosive or chemicals. After using explosive 

or chemicals in any well a subsequent 

report must be filed with the supervisor. 

This report shall be filed separately with25 

in 15 days after the work is done, unless 

such report is included in the log as a 

part of a report of other subsequent work 

done or as a part of an abandonment 

report any one of which shall have been 

filed within that period. The subsequent 

report of use of explosive or chemicals 

shall include a statement of the amount 

and the nature of the material used, its 

exact location and distribution in the well 

by depths, and the method used to localize its effects. The report shall also contain an accurate statement of the dates 

and daily production of oil, gas, and 

water for each of the last 10 producing 

days preceding the use of explosive or 

chemicals and a similar statement of production after the work is done. In addition, this rep91"t must include other 

pertinent information, such as the depth 

to which the well was cleaned out, the 

time spent in bailing and cleaning out, 

and any injuries to the casing or well. 

(i) Notice of intention to pull, perforate, or otherw·ise alter casing. If any 

casing is to be pulled, perforated, or 

otherwise altered, notice of intention must 

be filed and approved before the work is 

started. Such notice must give full details of the contemplated work, stating 

fully what changes are intended and 

what results are anticipated. A notice of 

intention to perforate the casing shall 

state the conditions of the well that 

make such work desirable; whether it is 

to be ripped or shot, the depth, number, 

and size of shots, or if ripped, the depths 

of the rips proposed; the production of 

oil, gas, and water; and, if a log of the 

well has not already been filed, the notice 

should be accompanied by a duplicate 

copy of the log showing all casing seats 

as well as all water strata and all oil and 

gas shows. 

(j) Subsequent report of pulling, perforating, or otherwise altering casing. If 

any casing has been pulled, perforated, 

or otherwise altered, the results of the 

work should be reported within 15 days 

after the completion of such work, stating exactly what was done and the results obtained, including any change in 

production. The report of perforating 

casing also should include the number, 

depth, and size of shots, the date shot, 

and who did the shooting. If ripped, the 

depths and number of rips should be 

stated. The production of oil, gas, and 
§ 221.59 MINERAL RESOURCES 

water obtained by the work should be 

shown. 

(k) Notice of intention to abandon 

well. Before beginning abandonment 

work on any well, whether drilling well, 

oil or gas well, water well, or so-called 

dry hole, notice of intention to abandon 

shall be filed with the supervisor and 

approval obtained before the work is 

started. The notice must show the reason 

for abandonment and must be accompanied by a complete log, in duplicate, 

of the well to date, provided the complete 

log has not been filed previously, and 

must give a detailed statement of the 

proposed work, including such information as kind, location, and length of plugs 

(by depths), and plans for mudding, 

cementing, shooting, testing, and removing casing, as well as any other pertinent 

information. 

(1) Subsequent report of abandonment. After a well is abandoned or 

plugged a subsequent record of work done 

must be filed with the supervisor. This 

report shall be filed separately within 15 

days after the work is done. The report 

shall give a detailed account of the manner in which the abandonment or plugging work was carried out, including the 

nature and quantities of materials used 

in plugging and the location and extent 

(by depths) of the plugs of different materials; records of any tests or measurements made and of the amount, size, and 

location (by depths) of casing left in the 

well; and a detailed statement of the volume of mud fluid used, and the pressure 

attained in mudding. If an attempt was 

made to part any casing, a complete 

report of the methods used and results 

obtained must be included. 

§ 221.59 Log and history of well (Form 

9-330). 

The lessee shall furnish in duplicate, 

on Form 9-330, to the supervisor, not 

later than 15 days after the completion of each well, a complete and accurate 

log and history, in chronologic order, of 

all operations conducted on the well. If a 

log is compiled for geologic information 

from cores or formation samples, duplicate copies of such log shall be filed in 

addition to the regular log. Duplicate 

copies of all electric logs, temperature 

surveys, or direction surveys shall be 

furnished. The lessee shall require the 

26 

drillers, whether using company labor 

or contract labor, to record accurately 

the depth, character, fluid content, and 

fluid levels, where possible, of each formation as it is penetrated, together with 

all other pertinent information obtained 

in drilling the well. The practice of compiling well logs from memory, after the 

work has been completed, will not be 

permitted. 

§ 221.60 Monthly report of operations 

(Form 9-329 Public; Form 9-329A 

Indian). 

A separate report of operations for 

each lease must be made on Form 9-329 

for public land and on Form 9-329A for 

Indian land, for each calendar month, 

beginning with the month in which drilling operations are initiated, and must 

be filed in duplicate with the supervisor 

on or before the 6th day of the succeeding month, unless an extension of time 

for the filing of such report is granted 

by the supervisor. The report on this 

form shall disclose accurately all operations conducted on each well during each 

month, the status of operations on the 

last day of the month, and a general 

summary of the status of operations on 

the leased lands, and the report must 

be submitted each month until the lease 

is terminated or until omission of the 

report is authorized by the supervisor. 

It is particularly necessary that the 

report shall show for each calendar 

month: 

(a) The lease be identified by inserting the name of the United States land 

office and the serial number, or in the 

case of Indian land the lease number 

and lessor's name, in the space provided 

in the upper right corner; 

(b) Each well be listed separately by 

number, its location be given by 40-acre 

subdivision ( 1⁄4 1⁄4 sec. or lot), section 

number, township, range, and meridian; 

(c) The number of days each well 

produced, whether oil or gas, and the 

number of days each input well was in 

operation be stated; 

(d) The quantity of oil, gas, and 

water produced, the total amount of 

gasoline, and other lease products recovered, and other required information. 

When oil and gas, or oil, gas, and gasoline, or other hydrocarbons are concurrently produced from the same lease, 
TITLE 30 § 221.67 

separate reports on this form should be 

submitted for oil and for gas and gasoline, unless otherwise authorized or directed by the supervisor. 

(e) The depth of each active or suspended well, and the name, character, 

and depth of each formation drilled during the month, the date each such depth 

was reached, the date and reason for 

every shut-down, the names and depths 

of important formation changes and 

contents of formation, the amount and 

size of any casing run since last report, 

the dates and results of any tests such 

as production, water shut-off, or gasoline content, and any other noteworthy 

information on operations not specifically provided for in the form. 

(f) The footnote must be completely 

filled out as required by the supervisor. 

If no runs or sales were made during 

the calendar month, the report must so 

state. 

§ 221.61 Daily report of gas-producing 

wells (Form 9-352). 

Unless otherwise directed by the supervisor, the readings of all meters 

showing production of natural gas from 

leased lands shall be submitted daily on 

Form 9-352, together with the meter 

charts. After a check has been had the 

meter charts will be returned. 

§ 221.62 Statement of oil and gas runs 

and royalties (Form 9-361 Public; 

Form 9-361A Indian). 

When directed by the supervisor, a 

monthly report shall be made by the 

lessee in duplicate, on Form 9-361 or 

9-361A, showing each run of oil, all 

sales of gas, gasoline, other lease products, and the royalty accruing therefrom to the lessor. When use of this 

form is required it must be completely 

filled out and sworn to. 

§ 221.63 Royalty and rental remittance 

(Form 9-614A Indian). 

Form 9-614A, completely filled out 

and signed, shall be submitted to the 

supervisor in triplicate and shall accompany each remittance covering payments 

of royalty or rental on Indian lands. 

§ 221.64 Royalty and rental remittance 

(Form llND Naval Petroleum Reserves). 

Form llND, completely filled out and 

27 

signed, must accompany each remittance 

covering payments of royalty or rental 

on Naval Petroleum Reserves. The remittance and the original form shall be sent 

direct to the Property Accounting Officer, 

United States Navy, Bureau of Supplies 

and Accounts, Navy Department, Washington, D.C. 20360, and the duplicate and 

triplicate copies of the form shall be sent 

to the oil and gas supervisor. 

§ 221.65' Special forms or reports. 

When special forms or reports other 

than those referred to in the regulations 

in this part may be necessary, instructions for the filing of such forms or 

reports will be given by the supervisor. 

§ 221.66 Appeals. 

Orders or decisions issued under the 

regulations in this part may be appealed 

from as provided in part 290 of this 

chapter. Compliance with any such order 

or decision shall not be suspended by 

reason of an appeal having been taken 

unless such suspension is authorized in 

writing by the Director or the Board of 

Land Appeals (depending upon the official before whom the appeal is pending) 

and then only upon a determination that 

such suspension will not be detrimental 

to the lessor or upon submission and 

acceptance of a bond deemed adequate to 

indemnify the lessor from loss or damage. 

[38 FR 1000!, Apr. 23, 1973] 

§ 221.67 Effective date; repeal of prior 

regulations. 

The regulations in this part shall become effective on the 1st day of June 

1942, and shall supersede the oil and gas 

operating regulations of November 1, 

1936, as amended, 30 CFR, 1938 ed., 221.1 

to 221.56, except as to leases and unit 

agreements in force and effect on June 1, 

1942, to which the regulations in this 

part are not applicable.' 

PART 231 - OPERATING REGULATIONS FOR EXPLORATION DEVELOPMENT, AND PRODUCTION 

ADMINISTRATION OF REGULATIONS AND DEFJ;>;ITio:,.,;s 

Sec. 

23!.l 

23!.2 

23!.3 

23!.4 

23 l.5 

Scope and purpose. 

Definitions. 

Responsibilities. 

General obligations of lessees and pcrmittees. 

Public inspection of records. 

MAPS AND PLANS 
§ 231.1 MINERAL RESOURCES 

231.10 Operating plans. 

231.11 Maps of underground workings and surface 

operations and equipment. 

231.12 Other maps. 

BOREHOLES AND SAMPLES 

231.20 Core or test hole, cores, samples, cuttings, 

mill products. 

WELFARE AND SAFETY 

231.25 Sanitary, welfare, and safety arrangements. 

MINING METHODS 

231.30 Good practice to be observed. 

231.31 Ultimate maximum recovery; information 

regarding mineral deposits. 

Sec. 

231.32 Pillap left for support. 

231.33 Boundary pillars and isolated blocks. 

231.34 Development on leased tracts through adjoining mines as part of a mining unit. 

231.35 I\.1inerals soluble in water; brines; minerals 

taken in solution. 

PROTECTION AGAINST MINE HAZARDS 

231.40 Surface openings. 

231.41 Abandonment of underground workings. 

231.42 Flammable gas and dust. 

231.43 Fire protection. 

MILLING; WASTE FROM MINING OR MILLING 

231.50 Milling. 

231.51 Disposal of waste. 

PRODUCTION RECORDS AND AUDIT 

231.60 Books of account. 

231.61 Royalty basis. 

231.62 Audits. 

INSPECTION_, ISSUANCE OF ORDERS AND 

ENFORCEMENT OF ORDERS 

231.70 Inspection of underground and surface conditions; surveying, estimating, and study. 

231.71 Issuance of -orders. 

231. 72 Service of notices, instructions, and orders. 

23 I. 73 Enforcement of orders. 

231.74 Appeals. 

AUTHORITY: The provisions of this Part 231 issued 

under 35 Stat. 312; 35 Stat. 781, as amended; secs. 

32, 6, 26, 41 Stat. 450, 753, 1248; secs. I, 2, 3, 

44 Stat. 301, as amended; secs. 6, 3, 44 Stat. 659, 

710; secs. I, 2, 3, 44 Stat. 1057; 47 Stat. 1487; 49 

Stat. 1482, 1250, 1967, 2026; 52 Stat. 347; sec. 10, 

53 Stat. 1196, as amended; 56 Stat. 273; sec. 10, 61 

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, 

359. Interpret or apply secs. 5, 5, 44 Stat. 302, 1058, 

as amended; 58 Stat. 483-485; 5 U .S.C. 301, 16 

U.S.C. 508b, 30 U.S.C. 189, 192c, 271, 281, 293, 

359, 45 U .s.c. 387. 

SOURCE: 37 FR l 1041, June I, 1972, unless otherwise noted. 

ADMINISTRATION OF REGULATIONS AND 

DEFINITIONS 

§ 231.1 Scope and purpose. 

(a) The regulations in this part shall 

govern operations for the discovery, 

testing, development, mining, and processing of potash, sodium phosphate, sulphur, asphalt, and oil shale ( except for 

operations for the extraction of shale 

oil by in situ retorting methods utilizing 

boreholes or wells) under leases or permits issued for public domain lands pursuant to the regulations in 43 CFR 

Group 3500. These regulations shall also 

28 

apply to operations for the discovery, 

testing, development, mining, and processing of minerals ( except coal, oil, and 

gas) in acquired lands under leases or 

permits issued pursuant to the regulations in 43 CFR Group 3500 and minerals (except coal, oil, and gas) in tribal 

and allotted Indian lands leased under 

the regulations in 25 CFR Parts 171, 

172, 173, 174, and 176. 

(b) The purpose of the regulations in 

this part is to promote orderly and efficient prospecting, exploration, testing, 

development, mmmg, and processing 

operations and production practices without waste or avoidable loss of minerals 

or damage to deposits; to promote the 

safety, health, and welfare of workmen; 

to encourage maximum recovery and use 

of all known mineral resources; to promote operating practices which will 

avoid, minimize, or correct damage to the 

environment-land, water and air-and 

avoid, minimize, or correct hazards-to 

public health and safety; and to obtain a 

proper record and accounting of all minerals produced. 

(c) When the regulations in this part 

relate to matters included in the regulations in 43 CFR Part 23-Surface Exploration, Mining, and Reclamation of 

Lands--pertaining to public domain and 

acquired lands, or 25 CFR Part 177-

Surface Exploration, Mining, and Reclamation of Lands-pertaining to Indian 

lands, the regulations in this part shall 

be considered as supplemental to the 

regulations in those parts, and the regulations in those parts shall govern to 

the extent of any inconsistencies. 

CRoss REFERENCE: See Part 211 of this chapter for 

regulations governing operations under coal permits 

and leases. See Part 221 of this chapter for regulations governing operations under oil and gas leases 

and operations for the extraction of shale oil by 

in situ retorting or other methods utilizing boreholes or wells. 

§ 231.2 Definitions. 

The terms used in this part shall have 

the following meanings: 

(a) Secretary. The Secretary of the 

Interior. 

(b) Director. The Director of the Geological Survey, Washington, D.C. 

(c) Mining Supervisor. The Area Mining Supervisor, Conservation Division of 

the Geological Survey; a representative 

of the Secretary, subject to the direction 
TITLE 30 § 231.3 

and supervisory authority of the Director, the Chief, Conservation Division, 

Geological Survey, and the appropriate 

Regional Conservation Manager, Conservation Division, Geological Survey, authorized and empowered to regulate 

operations and to perform other duties 

prescribed in the regulations in this part, 

or any subordinate acting under his 

direction. 

( d) Lessee. Any person or persons, 

partnership, association, corporation, or 

municipality to whom a mineral lease is 

issued subject to the regulations in this 

part, or an assignee of such lease under 

an approved assignment. 

(e) Permittee. Any person or persons, 

partnership, association, corporation, or 

municipality to whom a mineral prospecting permit is issued subject to the 

regulations in this part, or an assignee 

of such permit under an approved assignment. 

(f) Leased lands, leased permises, or 

leased tract. Any lands or deposits under 

a mineral lease and subject to the regulations in this part. 

(g) Permit lands. Any lands or deposit 

under a mineral prospecting permit and 

subject to the regulations in this part. 

(h) Operator. A lessee or permittee or 

one conducting operations on the leased 

or permit lands under the authority of 

the lessee or permittee. 

(i) Reclamation. The measures undertaken to bring about the necessary reconditioning or restoration of land or water 

that has been affected by exploration, 

testing, mineral development, mining, on 

site processing operations, or waste disposal, in ways which will prevent or 

control onsite and offsite damage to the 

environment. 

[37 FR 11041, June I, 1972, as amended at 38 FR 

10001, Apr. 23, 1973] 

§ 231.3 Responsibilities. 

(a) Subject to the supervisory authority of the Secretary, the regulations in 

this part shall be administered by the 

Director through the Chief, Conservation 

Division, of the Geological Survey. 

(b) The responsibility for health and 

safety inspections of mines subject to the 

regulations in this part is vested in the 

Bureau of Mines in accordance with section 4 of the Federal Metal and Nonmetallic Mine Safety Act (80 Stat. 772, 

29 

773; 30 U.S.C. 723) and the Health and 

Safety Standards contained in Parts 55, 

56, and 57, Chapter I, of this title. 

(c) The mining supervisor, individually, or through his subordinates is 

empowered to regulate prospecting, exploration, testing, development, mining 

and processing operations under the regulations in this part. The duties of the 

mining supervisor or his subordinates 

include the following: 

( 1) Inspections; supervision of operations to prevent waste or damage. Examine frequently leased or permit lands 

where operations for the discovery, testing, development, mining, or processing 

of minerals are conducted or are to be 

conducted; inspect and regulate such 

operations, including operations at accessory plants, for the purpose of preventing waste of mineral substances or 

damage to formations and deposits 

containing them, or damage to other 

formations, deposits, or nonmineral resources affected by the operations, and 

insuring that the terms and conditions 

of the permit or lease and the requirements of the exploration or mining plans 

are being complied with. 

(2) Compliance with regulations, lease 

or permit terms, and approved plans. 

Require operators to conduct their operations in compliance with the provisions 

of applicable regulations, the terms and 

conditions of the leases or permits, and 

the requirements of approved exploration 

or mining plans. 

(3) Reports on condition of lands and 

manner of operations; recommendations 

for protection of property. Make reports 

to the Chief, Conservation Division 

through the Regional Conservation Manager, Conservation Division of Geological Survey, as to the general condition 

of lands under permit or lease and the 

manner in which operations are being 

conducted and orders or instructions are 

being complied with, and to submit information and recommendations for protecting the minerals, the mineral-bearing 

formations and the nonmineral resources. 

(4) Manner and form of records, and 

notices. Prescribe, subject to the concurrence of the Regional Conservation 

Manager, Conservation Division, and the 

approval of the Chief, Conservation Division of the Geological Survey, the manner and form in which records of 
§ 231.4 MINERAL RESOURCES 

operations, reports, and notices shall be 

made. 

( 5) Records of production; rentals and 

royalties. Obtain and check the records 

of production of minerals; determine 

rental and royalty liability of lessees 

and permittees; collect and deposit rental 

and royalty payments; and maintain 

rental and royalty accounts. 

(6) Suspension of operations and production. Act on applications for suspension of operations or production or both 

filed pursuant to 43 CFR 3503.3-2 ( e), 

and terminate such suspensions which 

have been granted; and transmit to the 

Bureau of Indian Affairs for appropriate 

action applications for suspension of 

operations or production or both under 

leases on Indian lands. 

(7) Cesscition and abandonment of 

operations. Upon receipt of a report of 

cessation or abandonment of operations, 

inspect and determine whether the terms 

and conditions of the permit or lease 

and the exploration or mining plans have 

been complied with; and determine and 

report to the agency having administrative jurisdiction over the lands when the 

lands have been properly conditioned for 

abandonment. The mining supervisor, in 

accordance with applicable regulations, 

will consult with, or obtain the concurrence of, the authorized officer of the 

agency having administrative jurisdiction over the lands with respect to compliance by the operator with the surface 

protection and reclamation requirements 

of the lease or permit and the exploration· or mining plan. 

(8) Tresp£LSs involving removal of 

mineral deposits. Report to the agency 

having administrative jurisdiction over 

the lands any trespass that involves removal of mineral deposits. 

(d) Prior to the approval of an exploration or mining plan, the mining supervisor shall consult with the authorized 

officer of the agency having administrative jurisdiction over the land with 

respect to the surface protection and 

reclamation aspects of the plan. 

( e) The mining supervisor shall inspect exploratory and mining operations 

to determine the adequacy of water management and pollution control measures 

for the protection and control of the 

quality of surface and ground water resources and the adequacy of emission 

30 

control measures for the protection and 

control of air quality. 

(f) The mining supervisor shall issue 

such orders and instructions not in conflict with the laws of the State in which 

the leased or permit lands are situated 

as necessary to assure compliance with 

the purposes of the regulations in this 

part. 

(g) In the exercise of his jurisdiction 

unde: the regulations in this part, the 

mining supervisor shall be subject to the 

direction and supervisory authority of 

the Chief, Conservation Division, and 

the appropriate Regional Conservation 

Manager, Conservation Division of the 

Geological Survey, each of whom may 

exercise the jurisdiction of the mining 

supervisor. 

(37 FR I I 041, June I, I 972, as amended at 38 FR 

10001, Apr. 23, 1973] 

§ 231.4 General obligations of lessees 

and permittees-. 

(a) Operations for the discovery, testing, development, mining, or processing 

of minerals shall conform to the provisions of applicable regulations, the 

terms and conditions of the lease or permit, the requirements of approved exploration or mining plans, and the orders 

and instructions issued by the mining 

supervisor or his subordinates under the 

regulations in this part. Lessees and permittees shall take precautions to prevent 

waste and damage to mineral-bearing 

formations, and shall take such steps as 

may be needed to prevent injury to life 

or health and to provide for the health 

and welfare of employees. 

(b) Lessees and permittees shall take 

such action as may be needed to avoid, 

minimize, or repair soil erosion; pollution of air; pollution of surface or ground 

water; damage to vegetative growth, 

crops, including privately owned forage, 

or timber; injury or destruction of fish 

and wildlife and their habitat; creation 

of unsafe or hazardous conditions; a,nd 

damage to improvements, whether owned 

by United States, its permittees, licensees 

or lessees, or by others; and damage to 

recreational, scenic, historical, and ecological values of the land. The surface 

of leased or permit lands shall be reclaimed in accordance with the terms 

and conditions prescribed in the lease or 

permit and the provisions of the approved 
TITLE 30 §231.10 

exploration or mmmg plan. Where any 

question arises as to the necessity for 

or the adequacy of an action to meet the 

requirements of this paragraph, the determination of the mining supervisor 

shall be final subject to the right of 

appeal as provided in part 290 of this 

chapter. 

( c) All operations conducted under 

the regulations in this part must be consistent with Federal and State water and 

air quality standards. 

(d) When the mining supervisor determines that a water pollution problem 

exists, the mining supervisor may require 

that a lessee or permittee maintain records of the use of water, quantity and 

quality of waste water produced, and the 

quantity and quality of waste water disposal, including mine drainage discharge, 

process wastes and associated wastes. 

In order to obtain this information, the 

lessee or permittee may be required to 

install a suitable monitoring system. 

(e) Full reports of accidents, inundations, or fires shall be promptly mailed 

to the mining supervisor by the operator 

or his representative. Fatal accidents, 

accidents threatening damage to the mine, 

the lands, or the deposits, or accidents 

which could cause water pollution shall 

be reported promptly to the mining supervisor by telegram or telephone. The 

reports required by this section shall be 

in addition to those required by Parts 

55, 56, or 57, Chapter I of this title or 

other applicable regulations. 

(f) Lessees and permittees shall submit the reports required by 25 CFR Part 

177; Part 200 of this chapter, and 43 

CFR Part 23. 

[37 FR 1l041, June I, 1972, as amended at 38 FR 

l0001, Apr. 23, 1973] 

§ 231.5 Public inspection of records. 

Geological and geophysical interpretations, maps, and data and commercial 

and financial information required to be 

submitted under this part shall not be 

available for public inspection without 

the consent of the permittee or lessee so 

long as the permittee or lessee furnishing such data, or his successors or assignees, continues to hold a permit or 

lease of the lands involved. 

MAPS AND PLANS 

§ 231.10 Operating plans. 

31 

(a) General. Before conducting any 

operations under a permit or lease, the 

operator shall submit, in quintuplicate, 

to the mining supervisor for approval an 

exploration or mining plan which shall 

show in detail the proposed exploration, 

prospecting, testing, development, or mining operations to be conducted. Exploration and mining plans shall be consistent 

with and responsive to the requirements 

of the lease or permit for the protection 

of nonmineral resources and for the 

reclamation of the surface of the lands 

affected by the operations. The mining 

supervisor shall consult with the other 

agencies involved, and shall promptly 

approve the plans or indicate what modifications of the plans are necessary to 

conform to the provisions of the applicable regulations and the terms and conditions of the permit or lease. No operations 

shall be conducted except under an 

approved plan. 

(b) Exploration plans. The mining 

supervisor may require that an exploration plan include any or all of the 

following: 

(1) A description of the area within 

which exploration is to be conducted; 

(2) Five copies of a suitable map or 

aerial photograph showing topographic, 

cultural, and drainage features; 

( 3) A statement of proposed exploration methods, i.e., drilling, trenching, etc., 

and the location of primary support 

roads and facilities; 

( 4) A description of measures to be 

taken to prevent or control fire, soil erosion, pollution of surface and ground 

water, pollution of air, damage to fish 

and wildlife or other natural resources, 

and hazards to public health and safety 

both during and upon abandonment of 

exploration activities. 

(c) Mining plans. The mining supervisor may require that a mining plan 

include any or all of the following: 

(1) A description of the location and 

area to be affected by the operations; 

(2) Five copies of a suitable map, or 

aerial photograph showing the topography, the area covered by the permit or 

lease, the name and location of major 

topographic and cultural features, and 

the drainage plan away from the area 

affected; 

(3) A statement of proposed methods 

of operating, including a description of 
§231.11 MINERAL RESOURCES 

the surface or underground mmmg 

methods; the proposed roads or vehicular 

trails; the size and location of structures 

and facilities to be built; 

( 4) An estimate of the quantity of 

water to be used and pollutants that 

are expected to enter any receiving 

waters; 

( 5) A design for the necessary impoundment, treatment or control of all 

runoff water and drainage from workings so as to reduce soil erosion and 

sedimentation and to prevent the pollution of receiving waters; 

( 6) A description of measures to be 

taken to prevent or control fire, soil 

erosion, pollution of surface and ground 

water, pollution of air, damage to fish 

and wildlife or other natural resources, 

and hazards to public health and safety; 

(7) A statement of the proposed manner and time of performance of work to 

reclaim areas disturbed by the operations. 

( d) Revegetation; regrading; backfilling. In those instances in which the permit or lease requires the revegetation of 

an area to be affected by operations the 

exploration or mining plan shall show: 

( 1) Proposed methods of preparation 

and fertilizing the soil prior to replanting; 

(2) Types and mixtures of shrubs, 

trees, or tree seedlings, grasses or legumes to be planted; and 

(3) Types and methods of planting, 

including the amount of grasses or legumes per acre, or the number and spacing 

of trees, or tree seedlings, or combinations of grasses and trees. 

If the permit or lease requires regrading 

and backfilling, the exploration or mining 

plan shall show the proposed methods 

and the timing of grading and backfilling 

of areas of lands affected by the operations. 

(e) Changes in plans. Exploration and 

mining plans may be changed by mutual 

consent of the mining supervisor and the 

operator at anytime to adjust to changed 

conditions or. to correct an oversight. To 

obtain approval of a changed or supplemental plan the operator shall submit 

a written. statement of the proposed 

changes or supplement and the justification for tl:l.e changes proposed. 

(f) Partial plan. If circumstances 

warrant, or if development of an explo32 

ration or mining plan for the entire 

operation is dependent upon unknown 

factors which cannot or will not be determined except during the progress of 

the operations, a partial plan may be 

approved and supplemented from time to 

time. The operator shall not, however, 

perform any operation except under an 

approved plan. 

§ 231.11 Maps of underground workings 

and surface operations and equipment. 

Maps of underground workings and 

surface operations shall be drawn to a 

scale acceptable to the mining supervisor. All maps shall be appropriately 

marked with reference to Government 

land marks or lines and elevations with 

reference to sea level. When required by 

the mining supervisor vertical projections 

and cross sections shall accompany plan 

views. Maps shall be based on accurate 

surveys made at least annually and as 

may be necessary at other times. Accurate copies of such maps on reproducible 

material or prints thereof shall be furnished the mining supervisor when and 

as required. The maps shall be posted to 

date and submitted to the mining supervisor at least once each year. The accuracy of maps furnished shall be certified 

by a professional engineer, professional 

land surveyor, or other professionally 

qualified person. 

§ 231.12 Other maps. 

(a) The operator shall prepare such 

maps of the leased lands as in the judgment of the mining supervisor are necessary to show the surface boundaries, 

improvements, and topography, including 

subsidence resulting from mining, and 

the geological conditions so far as determined from outcrops, drill holes, exploration or mining. All excavations in each 

separate bed or deposit shall be shown in 

such manner that the production of 

minerals for any royalty period can be 

accurately ascertained. 

(b) In the event the failure of the 

operator to furnish the maps required, 

the mining supervisor shall employ a 

competent mine surveyor to make a survey and maps of the mine, and the cost 

thereof shall be charged to and promptly 

paid by the operator. 

(c) If any map submitted by an operator is believed to be incorrect, the min-
TITLE 30 § 231.31 

ing supervisor may cause a survey to be 

made, and if the survey shows the map 

submitted by the operator to be substantially incorrect in whole or in part, 

the cost of making the survey and preparing the map shall be charged to and 

promptly paid by the operator. 

BORE HOLES AND SAMPLES 

§ 231.20 Core or test hole, cores, samples, cuttings, mill products. 

(a) The operator shall submit 

promptly to the mining supervisor signed 

copies, in duplicate, of records of all core 

or test holes made on the leased or permit lands, the records to be in such form 

that the position and direction of the 

holes can be accurately located on a map. 

The records shall include a log of all 

strata penetrated and conditions encountered, such as water, quicksand, gas or 

unusual conditions, and copies of analyses 

of all samples analyzed from strata 

penetrated shall be transmitted to the 

mining supervisor as soon as obtained 

or at such time as specified by the mining 

supervisor. All drill holes will be logged 

under supervision of a competent geologist or engineer, and the lessees will 

furnish to the mining supervisor a detailed lithologic log of each drill hole and 

all other in-hole surveys, such as electric logs, gamma ray neutron logs, some 

logs or any other logs produced. The 

core from test holes shall be retained by 

the operator for 1 year and shall be available for inspection at the convenience of 

the mining supervisor, and he shall be 

privileged to cut such cores and receive 

samples of such parts as he may deem 

advisable, or on request of the mining 

supervisor the operator shall furnish 

such samples of strata, drill cuttings, 

and mill products as may be required. 

(b) Drill holes for development or 

holes for prospecting shall be abandoned 

to the satisfaction of the mining supervisor by cementing and/or casing or by 

other methods approved in advance by 

the mining supervisor and in a manner 

to protect the surface and not to endanger any present or future underground 

operation or any deposit of oil, gas, other 

mineral substances, or water strata. 

(c) At the option of the mining supervisor or the operator drill holes may be 

converted to surveillance wells for the 

purpose of determining the effect of sub33 

sequent operations upon the quantity, 

quality, or pressure of ground water or 

mine gases. 

( d) When drilling on lands valuable 

or potentially valuable for oil and gas or 

geothermal resources drilling equipment 

shall be equipped with blowout control 

devices acceptable to the mining supervisor before penetrating more than 100 

feet of consolidated sediments unless a 

greater depth is approved in advance by 

the mining supervisor. 

WELFARE AND SAFETY 

§ 231.25 Sanitary, welfare, and safety 

arrangements. 

The underground and surface sanitary, 

welfare, health, and safety arrangements 

shall be in accordance with the recommendations of the U.S. Public Health 

Service and the applicable standards in 

Parts 55, 56, and 57, Chapter I of the 

title. 

CRoss REFERE:"1:CE: For regulations of the U.S. 

Public Health Service, Department of Health, Education, and Welfare, see 42 CFR Chapter I. 

MINING METHODS 

§ 231.30 Good practice to be observed. 

The operator shall observe good practice following the highest standards in 

prospecting, exploration, testing, development, and mining, sinking wells, shafts, 

and winzes, driving drifts and tunnels, 

stoping, blasting, transporting ore and 

materials, hoisting, the use of explosives, 

timbering, pumping, and other activities 

on the leased or permit lands. 

§ 231.31 Ultimate maxim urn recovery; 

information regarding mineral deposits. 

(a) Mining operations shall be conducted in a manner to yield the ultimate 

maximum recovery of the mineral deposits, consistent with the protection and 

use of other natural resources and the 

protection and preservation of the environment-land, water, and air. All shifts, 

main exits, and passageways, as well as 

overlying beds or mineral deposits that at 

a future date may be of economic importance, shall be protected by adequate pillars in the deposit being worked or by 

such other means as approved by the 

mining supervisor. 

(b) Information obtained regarding 

the mineral deposit being worked and 
§ 231.32 MINERAL RESOURCES 

other mineral deposits on the leased or 

permit lands shall be fully recorded and 

a copy of the record furnished to the 

mining supervisor. 

§ 231.32 Pillars left for support. 

Sufficient pillars shall be left in first 

mining to insure the ultimate maximum 

recovery of mineral deposits when the 

time arrives for the removal of pillars. 

Boundary pillars shall in no case be less 

than 50 feet thick unless otherwise specified in writing by the mining supervisor. 

Boundary and other main pillars shall 

be mined only with the written consent 

or by order of the mining supervisor 

or his authorized subordinates. 

§ 231.33 Boundary pillars and isolated 

blocks. 

(a) If the ore on adjacent lands subject to these regulations has been worked 

out beyond any boundary pillar, if the 

water level beyond the pillar is below 

the lessee's adjacent operations, and if 

no other hazards exist, the lessee shall, 

on the written demand of the mining 

supervisor, mine out and remove all available ore in such boundary pillar, both 

in the lands covered by the lease and 

in the adjoining premises, when the mining supervisor determines that it can be 

mined without undue hardship to the 

lessee. 

(b) If the mining rights in adjoining 

premises are privately owned or controlled, an agreement may be made with 

the owners of such interests for the extraction of the ore in the boundary 

pillars. 

(c) Narrow strips of ore between 

leased lands and the outcrop on other 

lands subject to these regulations and 

small blocks of ore adjacent to leased 

lands that would otherwise be isolated 

or lost may be mined under the provisions specified in paragraphs (a) and 

(b) of this section. 

§ 231.34 Development on leased tract 

through adjoining mines as part of a 

mining unit. 

A lessee may mine his leased tract 

from an adjoining underground mine on 

land privately owned or controlled or 

from adjacent leased lands, under the 

following conditions: 

(a) A mine that is on the land privately owned or controlled shall conform 

34 

to all sections in the regulations in this 

part. 

(b) The only connections between the 

mine on land privately owned or controlled and the mine on leased land shall 

be the main haulageways, the ventilationways, and the escapeways. Substantial concrete frames and fireproof doors 

that may be closed in an emergency and 

opened from either side shall be installed 

in each such connection. Other connections through the boundary pillars shall 

not be made until both mines are about 

to be exhausted and abandoned. The 

mining supervisor may waive any of the 

requirements in this paragraph when, in 

his judgment, such a waiver would not 

conflict with the regulations in Part 57, 

Chapter I of this title and would not 

entail substantial loss of ore. 

( c) Free access for inspection of said 

connecting mine on land privately owned 

or controlled shall be given at any reasonable time to the mining supervisor 

or other representative of the Secretary 

of the Interior. 

· ( d) If a lessee opera ting on a lease 

through a mine on land privately owned 

or controlled does not maintain the mine 

in accordance with the operating regulations, operations on the leased land 

may be ordered stopped or departmental 

seals applied by the mining supervisor, 

and the operations on leased lands shall 

be stopped. 

§ 231.35 Minerals soluble in water; 

brines; mineral taken in solution. 

In mining or prospecting deposits of 

potassium or other minerals soluble in 

water, all well, shafts, prospect holes, 

and other openings shall be adequately 

protected with neat cement or other suitable materials against the coursing or 

entrance of water; and the operator 

shall, on orders of the mining supervisor, 

backfill with rock or other suitable material to protect the roof from breakage 

when there is a danger of the entrance 

of water. On leased or permit land containing brines, due precaution shall be 

exercised to prevent the deposits becoming diluted or contaminated by the mixture of water or valueless solution. 

Where minerals are taken from the earth 

in solution, such extraction shall not be 

within 500 feet of the boundary line of 

the leased lands without the written permission of the mining supervisor. 
TITLE 30 §231.61 

PROTECTION AGAINST MINE HAZARDS 

§ 231.40 Surface openings. 

(a) The operator shall substantially 

fill in, fence, protect or close all surface 

openings, subsidence holes, surface excavations or workings which are a hazard 

to people or animals. Such protective 

measures shall be maintained in a secure 

condition during the term of the permit 

or lease. Before abandonment of operations all openings, including water discharge points, shall be closed to the 

satisfaction of the mining supervisor. 

(b) Reclamation or protection of surface areas no longer needed for operations should commence without delay. 

The mining supervisor shall designate 

such areas where restoration or protective measures, or both, must be taken. 

§ 231.41 Abandonment of underground 

workings. 

No underground workings or part 

thereof shall be permanently abandoned 

and rendered inaccessible without the 

advance and written approval of the 

mining supervisor. 

§ 231.42 Flammable gas and dust. 

Mines in which flammable gas is found 

or explosive dust produced shall be subject to the coal-mining operating regulations in Part 211 of this chapter. An 

"explosive dust" is a combustible solid 

in airborne dispersion capable of propagating flame when ignited. 

§ 231.43 Fire protection. 

All structures within 100 feet of any 

mine opening shall be protected against 

fire and constructed of fire resistant 

material. Flammable material shall not 

be stored within 100 feet of a mine exit. 

All shifts shall be fireproof, or adequate 

fire-control devices, satisfactory to the 

mining supervisor, shall be installed. 

All underground offices, stations, shops, 

magazines, and stores shall be so constructed, equipped, and maintained as 

to reduce the fire hazard to a minimum. 

Sufficient fire-fighting apparatus shall be 

maintained in working condition at the 

mine exits and at convenient points in 

the mine workings for fire emergencies. 

An adequate water supply shall be held 

in storage tanks or reservoirs for fire 

emergencies and shall be available for 

immediate use through connecting pipe35 

lines for either surface or underground 

fires. 

MILLING; WASTE FROM MINING 

OR MILLING 

§ 231.50 Milling. 

It shall be the duty of the operator to 

conduct milling operations pursuant to 

the terms of the lease, the approved mining plan, and the regulations in this part 

and to use due diligence in the reduction, 

concentration, or separation of mineral 

substances by mechanical or chemical 

processes, by distillation, by evaporation 

or other means so that the percentage 

of salts, concentrates, oil, or other mineral substances recovered shall be in 

accordance with approved practices. 

§ 231.51 Disposal of waste. 

The operator shall dispose of all wastes 

resulting from the mining, reduction, 

concentration, or separation of mineral 

substances in accordance with the terms 

of the lease, approved mining plan, the 

regulations in this part, and the directions of the mining supervisor. 

PRODUCTION RECORDS AND AUDIT 

§ 231.60 Books of account. 

Operators shall maintain books in 

which will be kept a correct account of 

all ore and rock mined, of all ore put 

through the mill, of all mineral products 

produced, and of all ore and mineral 

products sold and to whom sold, the 

weight, assay value, moisture content, 

base price, dates, penalties, and price 

received, and the percentage of the mineral products recovered and lost shall be 

shown. 

CROSS REFJ:RE'\'CI·'.: Sec Part 200 of this chapter for 

reports required to be filed zind the forms to be 

used. 

§ 231.61 Royalty basis. 

The sale price basis for the determination of the rates and amount of royalty 

shall not be less than the highest and 

best obtainable market price of the ore 

and mineral products, at the usual and 

customary place of disposing of them at 

the time of sale, and the right is reserved 

to the Secretary of the Interior to determine and declare such market price, if it 

is deemed necessary by him to do so for 

the protection of the interests of the 

lessor. 
§ 231.62 MINERAL RESOURCES 

§ 231.62 Audits. 

An audit of the lessee's accounts and 

books may be made annually or at such 

other times as may be directed by the 

mining supervisor, by certified public 

accountants, and at the expense of the 

lessee. The lessee shall furnish free of 

cost duplicate copies of such annual or 

other audits to the mining supervisor, 

within 30 aays after the completion of 

each auditing. 

INSPECTION, ISSUANCE OR ORDERS, AND 

ENFORCEMENT OF ORDERS 

§ 231.70 Inspection of underground and 

surface conditions; _ surveying, estimating, and study. 

Operators shall provide means at all 

reasonable hours, either day or night, 

for the mining supervisor or his representative to inspect or investigate the 

underground and surface conditions; to 

conduct surveys; to estimate the amount 

of ore or mineral product mined; to study 

the methods of prospecting exploration, 

testing, development, processing, and 

handling that are followed; to determine 

the volumes, types, and composition of 

wastes generated, the adequacy of measures for minimizing the amount of such 

wastes, and the measures for treatment 

and disposal of such wastes; and to determine whether the terms and conditions 

of the permit or lease and the requirements of the exploration or mining plan 

have been complied with. 

§ 231. 71 Issuance of orders. 

Before beginning operations the operator shall inform the mining supervisor 

in writing of the designation and post 

office address of the exploration or mining operation, the operator's temporary 

and permanent post office address, and 

the name and post office address of the 

superintendent or other agent who will 

be in charge of the operations and who 

will act as the local representative of the 

operator. The mining supervisor shall 

also be informed of each change thereafter in the address of the mine office or 

in the name or address of the local 

representative. 

§ 231.72 Service of notices:, instructions, 

and orders. 

The operator shall be considered to 

have received all notices, instructions, 

36 

and orders that are mailed to or posted 

at the mine or mine office, or mailed or 

handed to the superintendent, the mine 

foreman, the mine clerk, or higher officials connected with the mine for transmittal to the operator or his local representative. 

§ 2,31.73 Enforcement of orders. 

(a) If the mining supervisor determines that an operator has failed to 

comply with the regulations in this part, 

other applicable departmental regulation, the terms and conditions of the 

permit or lease, the requirements of an 

approved exploration or mining plan, or 

with the mining supervisor's orders or 

instructions, and such noncompliance 

does not threaten immediate, serious, or 

irreparable damage to the environment, 

the mine or the deposit being mined, or 

other valuable mineral deposits or other 

resources, the mining supervisor shall 

serve a notice of noncompliance upon the 

operator by delivery in person to him or 

his agent or by certified or registered 

mail addressed to the operator at his last 

known address. Failure of the operator 

to take action in accordance with the 

notice of noncompliance shall be grounds 

for suspension by the mining supervisor 

of operations. 

(b) A notice of noncompliance shall 

specify in what respects the operator has 

failed to comply with the provisions of 

applicable regulations, the terms and 

conditions of the permit or lease, the 

requirements of an approved exploration 

or mining plan or the orders and instructions of the mining supervisor, and shall 

specify the action which must be taken 

to correct the noncompliance and the 

time limits within which such action 

must be taken. 

(c) If the judgment of the mining 

supervisor such failure to comply with 

the regulations, the terms and conditions 

of the permit or lease, the requirements 

of approved exploration or mining plans, 

or with the mining supervisor's orders or 

instructions threatens immediate, serious, or irreparable damage to the environment, the mine or the deposit being 

mined, or other valuable mineral deposits or other resources, the mining 

supervisor is authorized, either in writing or orally with written confirmation, 

to suspend operations without prior 

notice. 
TITLE 30 § 290.6 

§ 231. 7 4 Appeals. 

Orders or decisions issued under the 

regulations in this part may be appealed 

as provided in part 290 of this chapter. 

[38 FR 10001, Apr. 23, 1973] 

C:Ro.ss R1-n:e;:v:E: Sec 43 CFR 23.12 for appeals 

under 4'.3 CFR Part 23-Surfacc Exploration, ~fin. 

ing, and Re< la mat ion of Land~. Sec 25 CFR 177 .11 

for appl'ah under 25 CFR Part 177-Surface Ex· 

ploration, .\lining, and Reclamation of Lands. 

PART 290-APPEALS PROCEDURES 

§ 290.1 Scope. 

The rules and procedures set forth 

herein apply to appeals to the Director, 

Geological Survey (and the Commissioner of Indian Affairs when Indian 

lands are involved) from final orders or 

decisions of officers of the Conservation 

Division, Geological Survey, issued un37 

der authority of the regulations in chapter II of this title, 43 CFR part 23, 43 

CFR subtitle B, chapter II, and 25 CFR 

part 177. This part also provides for the 

further right of appeal, to the Board of 

Land Appeals in the Office of Hearings 

and Appeals, Office of the ,Secretary, 

from adverse decisions of the Director 

(and the Commissioner of Indian Affairs 

when Indian lands are involved) rendered under this part. 

* * * * * * 

§ 290.6 Appeals to the Commissioner of 

Indian Affairs. 

The procedure for appeals under this 

part shall be followed for permits and 

leases on Indian land except that with 

respect to such permits and leases, the 

Commissioner of Indian Affairs will 

exercise the functions vested in the Director, Geological Survey. 
TITLE 31-MONEY AND FINANCE: TREASURY 

CHAPTER 1-MONETARY OFFICES, 

DEPARTMENT OF THE TREASURY 

PART 51-FISCAL ASSISTANCE TO 

STATE AND LOCAL GOVERNMENTS 

Subpart A-General Information 

Sec. 

51.0 Scope and application of regulations. 

51.1 Establishment of Office of Revenue Sharing. 

51.2 Definitions. 

51.3 Procedure for effecting compliance. 

51.4 Extension of time. 

51.5 Transfer of funds to secondary recipients. 

Subpart &--Reports and Written 

Communications, 

51.10 Reports to the Secretary; assurances. 

51.11 Report on planned use and actual use of 

funds. 

51.12 Certifications. 

51.13 Publication and publicity of reports; public 

inspection. 

51.14 Reports to the Bureau of the Census. 

Subpart C-Computation and 

Adjustment of Entitlement 

51.20 Data. 

51.21 Adjusted taxes. 

51.22 Date for determination of allocation. 

51.23 Boundary changes, governmental reorganization> etc. 

51.24 Waiver of entitlement; nondelivery of checks; 

insufficient data. 

51.25 Reservation of funds and adjustment of 

entitlement. 

51.26 State must maintain transfers to local governments. 

51.27 Optional formula. 

51.28 Adjustment of data factors. 

51.29 Adjustment of maximum and minimum per 

capita entitlement; 100 per cent criterion. 

Subpart D-Prohibition and Restrictions 

on Use of Funds · 51.30 Matching funds. 

51.31 Permissible expenditures. 

51.32 Discrimination. 

51.33 Wage rates and labor standards. 

51.34 Restriction on expenditures by Indian tribes 

and Alaskan native villages. 

Subpart E-Fiscal Procedures and 

Auditing 

51.40 Procedures applicable to use of funds. 

51.41 Auditing and evaluation; scope of audits. 

Subpart F-Proceedings for Reduction in 

Entitlement, Withholding or Repayment 

of Funds 

51.50 Scope of subpart. 

51.51 Liberal construction 

51.52 Reasonable notice and opportunity for hearing. 

51.53 Opportunity for compliance. 

38 

Sec. 

51.54 Institut10n of proceeding, 

51.55 Contents of complaint. 

51.56 Service of complaint and other papers. 

51.57 Answer; referral to administrative law judge. 

51.58 Supplemental charge. 

51.59 Proof; variance; amendment of pleadings. 

51.60 Representation. 

51.61 Administrative law judge; powers. 

51.62 Hearings. 

51.63 Stipulations. 

51.64 Evidence. 

51.65 Depositions. 

51.66 Stenographic record; oath of reporter transcript. 

51.67 Proposed findings and conclusion. 

51.68 Initial decision of the administrative law 

judge. 

51.69 Certification and transmittal of record and 

decision. 

51.70 What constitutes record. 

51.71 Procedure on review of decision of administrative law judge. 

51.72 Decision of the Secretary. 

51. 73 Effect of order of repayment or withholding 

of funds. 

51. 7 4 Publicity of proceedings. 

51.75 Judicial review. 

AUTHORITY: The provisions of this Part 51 are 

issued under Pub, L. 92-512; and 5 U,S.C. 301. 

SouRcE: 38 FR 9132, Apr. 10, 1973, unless otherwise noted. 

Subpart A-General Information 

§ 51.0 Scope and application of regulations. 

(a) In general. The rules and regulations in this part are prescribed for carrying into effect the State and Local Fiscal Assistance Act of 1972 (Title I, 

Public Law 92-512) applicable to entitlement periods beginning January 1, 1973. 

Subpart A sets forth general information 

and definitions of terms used in this part. 

Subpart B of this part prescribes reports 

required under this part and publicity 

concomitant thereto. Subpart C of this 

part contains rules regarding the computation, allocation and adjustment of 

entitlement. Subpart D of this part prescribes prohibitions and restrictions on 

the use of funds. Subpart E of this part 

prescribes fiscal procedures and auditing 

requirements. Subpart F of this part 
TITLE 31 § 51.1 

contains rules relating to procedure and 

practice requirements where a recipient 

government has failed to comply with 

any provision of this part. 

(b) Saving clause. Any cause of action 

arising out of noncompliance with the 

interim regulations covering payments 

made for the first and second entitlement periods (January 1, 1972, through 

June 30, 1972, and July 1, 1972, through 

December 31, 1972) shall continue to be 

covered by such regulations and any preceeding commenced thereon shall be governed by the procedures set forth in 

Subpart F of this part. 

§ 51.1 Establishment of Office of Revenue Sharing. 

There is established in the Office of the 

Secretary of the Treasury the Office of 

Revenue Sharing. The office shall be 

headed by a Director who shall be appointed by the .Secretary of the Treasury. The Director shall perform the functions, exercise the powers and carry out 

the duties vested in the Secretary of the 

Treasury by the State and Local Fiscal 

Assistance Act of 1972, Title I, Public 

Law 92-512. 

§ 51.2 Definitions. 

As used in this part ( except where the 

context clearly indicates otherwise, or 

where the term is defined elsewhere in 

this part) the following definitions shall 

apply: 

(a) "Act" means the State and Local 

Fiscal Assistance Act of 1972, Title I of 

Public Law 92-512, approved October 20, 

1972. 

(b) "Chief executive officer" of a unit 

of local government means the elected 

official, or the legally designated official, 

who has the primary responsibility for 

the conduct of that unit's governmental 

affairs. Examples of the "chief executive officer" of a unit of local government may be: The elected mayor of a 

municipality, the elected county executive of a county, or the chairman of a 

county commission or board in a county 

that has no elected county executive, or 

such .,other official as may be designated 

pursuant to law by the duly elected governing body of the unit of local government;· or the chairman, governor, chief, 

or president (as the case may be) of an 

Indian tribe or Alaskan native village. 

39 

(c) "Department" means the Department of the Treasury. 

(d) "Entitlement" means the amount 

of payment to which a State government or unit of local government is entitled as determined by the Secretary 

pursuant to an allocation formula contained in the Act and as established by 

regulation under this part. 

( e) "Entitlement funds" means the 

amount of funds paid or payable to a 

State government or unit of local government for the entitlement period. 

(f) "Entitlement period" means one 

of the following periods of time: 

( 1) The 6-month period beginning 

January 1, 1973, and ending June 30, 

1973. 

(2) The fiscal year beginning July 1, 

1973, and ending June 30, 1974. 

(3) The fiscal year beginning July 1, 

1974, and ending June 30, 1975. 

(4) The fiscal year beginning July 1, 

1975, and ending June 30, 1976. 

(5) The 6-month period beginning 

July 1, 1976, and ending December 31, 

1976. 

(g) "Governor" means the Governor 

of any of the 50 States or the Commissioner of the District of Columbia. 

(h) "Independent public accountants" 

means independent certified public accountants or independent licensed public accountants certified or licensed by a 

regulatory authority of a State or other 

political subdivision of the United States. 

(i) "Indian tribes and Alaskan native 

villages" means those Indian tribes and 

Alaskan native villages which have a recognized governing body and which perform substantial governmental functions. Certification to the Secretary by 

the Secretary of the Interior ( or by the 

Governor of a State in the case of a 

State affiliated tribe) that an Indian 

tribe or an Alaskan native village has a 

recognized governing body and performs 

substantial governmental functions, shall 

constitute prima facie evidence of that 

fact. 

(j) "Recipient government" means a 

State government or unit of local government as defined in this section. 

(k) "Secretary" means the Secretary 

of the Treasury or any person duly authorized by the Secretary to perform the 

function mentioned. 

(1) "State government" means the 
§ 51.3 MONEY AND FINANCE: TREASURY 

government of any of the 50 States or 

the District of Columbia. 

(m) "Unit of local government" means 

the government of a county, municipality, township, or other unit of government below the State which is a unit of 

general government and which shall be 

determined on the basis of the same 

principles as used by the Bureau of the 

Census for general statistical purposes. 

The term "unit of local government" 

shall also include the recognized governing body of an Indian tribe or Alaskan 

native village which performs substantial governmental functions. The District of Columbia, in addition to being 

treated as a State, shall also be treated 

as a county area which has no units of 

local government ( other than itself) 

within its geographic area. 

§ 51.3 Procedure for effecting compliance. 

(a) In general. If the Secretary determines that a recipient government has 

failed to comply substantially with any 

provision of this part, and after giving 

reasonable notice and opportunity for a 

hearing to the Governor of the State or 

the chief executive officer of the unit of 

local government pursuant to Subpart F 

of this part, the Secretary shall notify 

the recipient government that if it fails 

to take corrective action within 60 days 

from the date of receipt of such notification further payments to it will be withheld for the remainder of the entitlement 

period and for any subsequent entitlement period until such time as the 

Secretary is satisfied that appropriate 

corrective action has been taken and 

that there will no longer be any failure 

to comply. Until he is satisfied, the Secretary shall make no further payments 

of such amounts. 

(b) Determination to delay payment. 

Whenever the Secretary determines that 

a recipient government has failed to 

comply with the communication requirements of Subpart B, he may delay payment of entitlement funds to such 

recipient. A determination to delay payment of entitlement funds shall not be 

subject to the procedure set forth in 

paragraph (a) of this section and shall 

be in effect only for such time as is necessary to effect compliance. 

[38 FR 18668, July 13, 1973; 38 FR 19801, July 24, 

1973] 

40 

§ 51.4 Extension of time. 

When by these regulations ( other than 

those specified in subpart F of this part) 

an act is required within a specified time, 

the Secretary may grant a request for an 

extension of time if in his judgment it is 

necessary and appropriate. Requests for 

extensions of time shall set forth the 

facts and circumstances supporting the 

need for more time and the amount of 

additional time requested. 

§ 51.5 Transfer of funds to secondary 

recipients. 

Those prohibitions and restrictions set 

forth in Subpart D of this part which 

are applicable to a recipient government's entitlement funds continue to be 

applicable to such funds if they are 

transferred to another governmental unit 

or private organization. A violation of 

Subpart D of this part by a secondary 

recipient shall constitute a violation by 

the recipient government and the applicable penalty shall be imposed on the 

recipient government. 

[38 FR 9132, Apr. 10, 1973, as amended at 38 FR 

18668, July 13, 1973] 

Subpart B-Reports and Written 

Communications 

§ 51.10 Reports to the Secretary; assurances. 

(a) Reports for review and evaluation. 

The Secretary may require each recipient government receiving entitlement 

funds to submit such annual and interim 

reports ( other than those required by 

§ 51.11) as may be necessary to provide a 

basis for evaluation and review of compliance with and effectiveness of the 

provisions of the Act and regulations of 

this part. 

(b) Requisite assurances for receipt 

of entitlement funds. Each Governor of 

a State or chief executive officer of a 

unit of local government, in order to 

qualify for entitlement funds, must file 

a statement of assurances when requested by the Secretary, on a form to 

be provided, that such government will 

abide by certain specific requirements of 

the Act and the prohibitions and restrictions of Subparts D and E of this part, 

with respect to the use of entitlement 

funds. The Secretary will afford each 

Governor the opportunity for review and 
TITLE 31 § 51.14 

comment to the Secretary on the adequacy of the assurances by units of local 

government in his State. 

§51.11 Report on planned use and actual use of funds. 

(a) Planned use report. Each recipient 

government which expects to receive 

funds under the Act shall submit to the 

Secretary a report, on a form to be provided, of the specific amounts and purposes for which is plans to spend the 

funds which it expects to receive for an 

entitlement period. The planned use reports for the third and fourth entitlement periods (the 6-month period beginning January 1, 1973 and ending June 30, 

1973, and the fiscal year beginning July 1, 

1973 and ending June 30, 1974) shall be 

filed with the Secretary on a date he 

shall determine. Thereafter, each planned 

use report shall be filed prior to the 

beginning of an entitlement period as 

defined in § 51.2 (f). 

(b) Actual use report; status of trust 

fund. Each recipient government which 

receives funds pursuant to the Act shall 

submit to the Secretary an annual report, on a form to be provided, of the 

amounts and purposes for which such 

funds have been spent or otherwise 

transferred from the trust fund ( as defined in § 51.40 (a) ) during the reporting period. Such report also shall state 

any interest earned on entitlement funds 

during the period. Such reports shall 

show the status of the trust fund including its balance as of June 30 and shall be 

filed with the Secretary on or before 

September 1 of each calendar year. All 

such funds must be used, obligated, or 

appropriated within the time period 

specified in § 51.40 (b). 

[38 FR 9132, Apr. JO, 1973, as amended at 38 FR 

18668, July 31, 1973] 

§ 51.12 Certifications. 

The Secretary shall require a certification by the Governor, or the chief executive officer of the unit of local government, that no entitlement funds have 

been used in violation of the prohibition 

contained in § 51.30 against the use of 

entitlement funds for the purpose of obtaining matching Federal funds. In the 

case of a unit of local government the 

Secretary shall require a certification by 

the chief executive officer that entitlement funds received by it have been used 

41 

only for priority expenditures as prescribed by § 51.31. The certifications required by this section shall be in such 

form as the Secretary may prescribe. 

§51.13 Publication and publicity of reports; public inspection. 

(a) Publication of required reports. 

Each recipient government must publish in a newspaper a copy of each report 

required to be filed under§ 51.11 (a) and 

(b) prior to the time such report is filed 

with the Secretary. Such publication 

shall be made in one or more newspapers 

which are published within the State and 

have general circulation within the geographic area of the recipient government 

involved. In the case of a recipient government located in a metropolitan area 

which adjoins and extends beyond the 

boundary of the State, the recipient government may satisfy the requirement of 

this section by publishing its reports in 

a metropolitan newspaper of general circulation even though such newspaper 

may be located in the adjoining State 

from the recipient government. 

(b) Publicity.-Each recipient government, at the same time as required for 

publication of reports under paragraph 

( a) of this section, shall advise the news 

media, including minority and bilingual 

news media, within its geographic area 

of the publication of its reports made 

pursuant to paragraph (a) of this section, and shall provide copies of such 

reports to the news media on request. 

( c) Public inspection.-Each recipient 

government shall make available for 

public inspection a copy of each of the 

reports required under § 51.11 (a) and 

(b) and information as necessary to support the information and data submitted 

on each of those reports. ,Such detailed 

information shall be available for public 

inspection at a specified location during 

normal business hours. The Secretary 

may prescribe additional guidelines concerning the form and content of such 

information. 

§51.14 Reports to the Bureau of t'he 

Census. 

It shall be the obligation of each recipient government to comply promptly 

with requests by the Bureau of the Census ( or by the Secretary) for data and 

information relevant to the determination of entitlement allocations. Failure 
§ 51.20 MONEY AND FINANCE: TREASURY 

of any recipient government to so comply 

may place in jeopardy the prompt receipt by it of entitlement funds. 

Subpart C-Computation and 

Adjustment of Entitlement 

§ 51.20 Data. 

( a) In general. The data used in determination of allocations and adjustments thereto payable under this part 

will be the latest and most complete data 

supplied by the Bureau of the Census or 

such other sources of data as in the judgment of the Secretary will provide for 

equitable allocations. 

(b) Computation and payment of entitlements. (1) Allocations will not be 

made to any unit of local government 

if the available data is so inadequate as 

to frustrate the purpose of the Act. Such 

units of local government will receive an 

entitlement and payment when current 

and sufficient data become available as 

necessary to permit an equitable allocation. 

(2) Payment to units of local government for which the Secretary has not 

received an address confirmation will be 

delayed until proper information is available to the Secretary. 

( 3) Where the Secretary determines 

that the data provided by the Bureau of 

the Census or the Department of Commerce are not current enough, or are not 

comprehensive enough, or are otherwise 

inadequate to provide for equitable allocations he may use other data, including estimates. The Secretary's determination shall be final and such other 

additional data and estimates as are 

used, including the sources, shall be publicized by notice in the FEDERAL REGISTER. 

( c) Special rule for 6 month entitlement periods. For entitlement periods 

which encompass only one-half of a year, 

the adjusted taxes and intergovernmental transfers of any unit of local government for that half-year will be estimated to be one-half of the annual 

amounts. 

(d) Units of local government located 

in more than one county area. In cases 

where a unit of local government is located in more than one county, each part 

of such unit is treated for allocation purposes as a separate unit of government, 

42 

and the adjusted taxes, and intergovernmental transfers of such parts are estimated on the basis of the ratio which the 

population of such part bears to the population of the entirety of such unit. 

§ 51.21 Adjusted taxes. 

(a) In general. Tax revenues are compulsory contributions to a unit of local 

government exacted for public purposes, 

as such contributions are determined by 

the Bureau of the Census for general 

statistical purposes. The term "adjusted 

taxes" means the tax revenues adjusted 

by excluding an amount equal to that 

portion of such compulsory contributions 

which is properly allocable to school operations, debt service on school indebtedness, school capital outlays, and other 

educational purposes. 

(b) Procedure for exclusion of tax 

revenues for education. The tax revenues 

exacted by a unit of local government 

shall be adjusted to exclude any such tax 

revenues used for financing education in 

a manner consistent with the following 

provisions: 

(1) Where a unit of local government 

finances education from a specific fund 

and lists tax revenues to the fund or 

levies a separate tax for purposes of education, such amounts as determined will 

constitute the tax revenues for education. 

(2) If tax revenues for purposes of 

education are not separately identifiable 

because education is financed by expenditure or transferring of moneys from a 

general fund (or similarly named fund) 

to a school fund or funds, then the 

ratio of tax revenues ( as defined in paragraph (a) of this section) to the total 

revenues in such fund shall be calculated, 

and that ratio multiplied by the expenditure or transfer of moneys from such 

fund to the school fund shall be equated 

with the tax revenues properly allocable 

to expenses for education. The phrase 

"total revenues in such fund" means cash 

and securities on hand in the general 

fund ( or similiarly named fund) at the 

beginning of the fiscal year, plus all 

revenues to the fund (other than trust 

or agency revenues) less cash and securities on hand at the end of the fiscal 

year. Trust and agency funds are those 

held specifically for individuals or governments for which no discretion can be 

exercised as to the amounts to be paid 

to the recipient. 
TITLE 31 § S 1.23 

(3) If any instance where neither 

paragraph (b) (1) nor (2) of this section permits determination of school 

taxes, then any procedure deemed equitable by the Secretary shall be utilized to 

ascertain adjusted taxes. 

(c) Validity of adjusted tax data. Allocation of funds under the Act will be 

based on data reported by States and 

units of local governments to the Bureau 

of the Census and shall be in accordance with definitions established by the 

Bureau. No unit of government shall 

report to the Department of the Treasury or the Bureau of the Census in a 

manner which attempts to circumvent or 

frustrate the intent of this section. 

§ 51.22 Date for determination of allocation. 

(a) In general. Pursuant to the provisions of § 51.20 (a) and (b) (3), the 

determination of the data definitions 

upon which the allocations and entitlements for an entitlement period is to be 

calculated shall be made not later than 

the day immediately preceding the beginning of the entitlement period. The final 

date upon which determinations of allocations and entitlements, including adjustments thereto, may be made for an 

entitlement period shall be determined 

by the Secretary as soon as practicable 

and shall be publicized by notice in the 

FEDERAL REGISTER. 

(b) Time limitation and minimum adjustment. If prior to the date determined 

by the Secretary pursuant to paragraph 

(a) of this section, it is established to the 

satisfaction of the Secretary by factual 

evidence and documentation that the 

data used in the computation of an allocation is erroneous and, if corrected, 

would result in an increase or decrease 

of an entitlement of $200 or more of 

entitlement funds, an adjustment will be 

made. 

( c) Adjusted taxes and intergovernmental transfers. The dates for determining the amount of adjusted taxes and 

intergovernmental transfers of a unit of 

local government will be the fiscal year 

of such unit ending during the 12 months 

prior to July 1, 1971. If a more recent 

period is used, it shall be such fiscal year 

that can be uniformly assembled for all 

units of government prior to the beginning of the affected entitlement period. 

43 

[38 FR 9132, Apr. IO, 1973, as amended at 39 FR 

8324, Mar. 5, 1974] 

§ 51.23 Boundary changes, governmental reorganization, etc. 

(a) In general. Boundary changes, 

governmental reorganizations, or changes 

in State statutes or constitutions occurring prior to or during an entitlement 

period which were not taken into account 

during the initial allocation shall, if not 

within the scope of paragraph ( d) of 

this section, affect such allocation or 

payments in a manner consistent with 

the following provisions: 

(1) A boundary change, governmental 

reorganization, or change in State statutes or constitution relevant to the computation of an entitlement of a unit 

of local government under the Act, 

occurring prior to the beginning of an 

entitlement period shall result in an 

alteration to the entitlement of that unit 

if brought to the attention of the Bureau 

of the Census within 60 days (or by 

June 30, 1973, in case of the third entitlement period) after the beginning of such 

entitlement period. 

(2) A boundary change, governmental 

reorganization, or change in State statutes or constitution relevant to the computation of entitlement of a unit of 

local government under the Act, occurring during an entitlement period shall 

not result in a change to the entitlement 

of that unit until the next entitlement 

period. However, payment tendered to 

such unit for the entitlement period may 

be redistributed pursuant to the provisions of paragraphs (b) and (c) of this 

section. 

(b) New 11nits of local government. A 

unit of local government which came 

into existence during an entitlement period shall first be eligible for an entitlement allocation for the next entitlement 

period. However, if such unit is a successor government, it shall be eligible to 

receive the entitlement payment of the 

unit or units of local government to 

which it succeeded in accordance with 

the conditions of the succession. 

(c) Dissolution of units of local government. A unit of local government 

which dissolved, was absorbed or ceased 

to exist as such during an entitlement 

period is eligible to receive an entitlement payment for that entitlement period: Provided, That such unit of local 
§ 51.24 MONEY AND FINANCE: TREASURY 

government is in the process of winding 

up its governmental affairs or a successor unit of local government has legal 

capacity to accept and use such entitlement funds. Entitlement payments which 

are returned to the Secretary because 

of the cessation of existence of a unit 

of local government shall be placed in 

the State and Local Government Fiscal 

Assistance Trust Fund until such times 

as they can be redistributed according 

to the c·onditions under which the unit 

of local government ceased to exist. 

( d) Limitations on adjustment for annexations. ( 1) Annexations by units of 

local government having a population 

of less than 5,000 on April 1, 1970, shall 

not affect the entitlement of any unit of 

local government for an entitlement 

period unless the .Secretary determines 

that adjustments pursuant to such annexations would be equitable and would 

not be unnecessarily burdensome, expensive, or otherwise impracticable. 

(2) Annexations of areas with a population of less than 250 or less than 5 percent of the population of the gaining 

government, shall not affect the entitlement of any unit of local government. 

(e) Certification. Units of local government affected by a boundary change, 

governmental reorganization, or change 

in State statutes or constitution shall, 

before receiving an entitlement adjustment or payment redistribution pursuant to this section, obtain State certification that such change was accomplished 

in accordance with State law. The certifying official shall be designated by the 

Governor, and such certification shall be 

submitted to the Bureau of the Census. 

§ 51.24 Waiver of entitlement; nondelivery of checks; insufficient data. 

(a) Waiver. Any unit of local government may waive its entitlement for any 

entitlement period: Provided, The chief 

executive officer with the consent of the 

governing body of such unit notifies the 

Secretary that the entitlement payments 

for a past, current, or the next beginning 

entitlement period are being waived. In 

the event that an entitlement payment 

is returned or a notice of waiver is executed which is not in accordance with 

this procedure, the chief executive officer will be so notified by the Secretary 

44 

and, unless the attempted waiver is 

rescinded within 30 days of the date of 

such notice, it shall be given effect. However, in no event will a notice of waiver 

be given effect for an entitlement period 

which is subsequent to the next beginning entitlement period. The entitlement 

waived, and adjustments thereto, if any, 

resulting from recalculation of earlier 

entitlements, shall be added to and shall 

become a part of the entitlement of the 

next highest unit of government eligible 

to receive entitlement funds in that State 

in which the units of government waiving entitlement is located. However, if 

the governing body of an Indian tribe 

or Alaskan native village waives its 

entitlement for any period, the rules 

relating to distributions within county 

areas (pursuant to section 108(b) (4) of 

the Act) are to apply to the distribution 

within a county area as if such tribe or 

village were not in existence for that 

period. A waiver of entitlement by a unit 

of local government or Indian tribe or 

Alaskan native village shall be deemed 

irrevocable for the entitlement period or 

periods to which it relates. 

(b) Constructive waiver. Any recipient 

government which has not waived and 

is otherwise eligible to receive entitlement payments and which has failed to 

provide required reports, assurances or 

certifications pursuant to Subpart B is 

subject to a determination of having 

constructively waived its entitlement 

funds for the affected entitlement period 

through inaction. The Secretary, prior to 

such a determination, shall notify nonresponsive recipient governments of their 

noncompliance and that their entitlement 

funds are being temporarily withheld 

pursuant to § 51.3 ( b) . If compliance is 

not achieved within a reasonable period 

of time, which shall not be less than 30 

days, the Secretary shall notify the 

affected recipient governments that if 

compliance is not achieved within a 

period of 30 days after mailing such 

notice, a constructive waiver of entitlement funds will be determined to have 

occurred. Entitlement funds thus constructively waived will be redistributed 

pursuant to the provisions of paragraph 

(a) of this section. 

(c) Nondelivery. Entitlement funds for 

any entitlement period which are returned by the U.S. Postal Service to the 
TITLE 31 § 51.26 

Department of the Treasury as being 

nondeliverable because of incorrect address information, or which are unclaimed for any reason, shall be placed 

in the State and Local Government 

Fiscal Assistance Trust Fund until such 

time as payment can be made. 

( d) Insufficient data. Entitlement 

funds for any entitlement period which 

are withheld from payment because of 

insufficient data upon which to compute 

the entitlement, or for which payment 

cannot be made for any other reason, 

shall remain in the State and Local Government Fiscal Assistance Trust Fund 

until such time as payment can be made. 

[38 FR 9132, Apr. 10, 1973, as amended at 38 FR 

18668, July 13, 1973; 39 FR 8324, Mar. 5, 1974] 

§ 51.25 Reservation of funds and adjustment of entitlement. 

(a) Reservation of entitlement funds. 

In order to make subsequent adjustments to an entitlement payment under 

this part which may be necessitated because of insufficient or erroneous data 

or for any other reason, the Secretary 

shall reserve in the State and Local Government Fiscal Assistance Trust Fund 

such percentage of the total entitlement 

funds for any entitlement period as in 

his judgment shall be necessary to insure 

that there will be sufficient funds available so that all recipient governments 

will receive their full entitlements. Such 

reserve shall be known as the Obligated 

Adjustment Reserve and amounts remaining in that reserve will accumulate 

until the liabilities of the Trust Fund are 

discharged or sufficiently diminished to 

permit an allocation to recipient governments. 

(b) Adjustment to entitlement payments. Adjustment to an entitlement of a 

recipient government will ordinarily be 

effected through alteration to entitlement payments unless there is a downward adjustment which is so substantial 

as to make payment alterations impracticable or impossible. In such case the 

Secretary may demand that the funds 

received by the recipient government in 

excess of its entitlement be immediately 

repaid to the Trust Fund of the Department of the Treasury. 

[38 FR 9432, Apr. IO, 1973, as amended at 38 FR 

18669, July 13, 9173; 39 FR 8324, Mar. 5, 1974] 

45 

§ 51.26 State must maintain transfers 

to local governments. 

(a) General rule. The entitlement of 

any State government for any entitlement period beginning on or after July 1, 

1973, shall be reduced by the amount (if 

any) by which-

(1) The average of the aggregate 

amounts transferred by the State government out of its own sources during 

such period ( or during that States fiscal year ending on or immediately prior 

to the end of such period) and the preceding entitlement period ( or such fiscal 

year) to all units of local government 

(as defined in § 51.2(m) in such State, 

is less than, 

(2) The similar aggregate amount for 

the 1-year period beginning July 1, 1971 

( or that State's fiscal year ending on or 

immediately prior to the end of such 

period). 

For purposes of paragraph (a) (1) of 

this section, the amount of any reduction in the entitlement of a State government under this section for any 

entitlement period shall, for subsequent 

entitlement periods, be treated as an 

amount transferred by the State government out of its own sources during 

such period to units of local government 

in such State. The phrase "own sources" 

means all sources of State revenue (including debt proceeds and the State's 

revenue sharing entitlement funds) but 

excluding intergovernmental revenues received from the Federal government. 

(b) Measurement of maintenance of 

effort. In those States that do not have 

an accounting system providing an audit 

trail for all funds concerned (from own 

source to final application) in intergovernmental transfer to units of local gover!}ment ( such as those States in which 

intergovernmental transfers to units of 

local government are made from a commingled fund with no identification as 

to specific revenue source), the following 

formula may be applied by the Secretary 

to establish the base year intergovernmental transfers to units of local government from own sources and to generally 

monitor level of accordance with the 

maintenance provision of paragraph (a) 

of this section during future entitlement 

periods: 

(1) It shall be assumed that the ratir 

of a State's own source intergovern 
§ 51.26 MONEY AND FINANCE: TREASURY 

mental transfers to units of local government to that .State's total intergovernmental transfers to units of local government is equal to the ratio of that 

State's own source revenues to its total 

revenues. Thus, for a State in which such 

formula may be applied, its base year 

own source intergovernmental transfers 

to units of local government shall be 

assumed to equal its total intergovernmental transfers to units of local government in the base year multiplied by 

its own source revenue in the base year 

divided by its total revenues in the base 

year. 

(2) In a State in which the formula is 

applied, the State's own source intergovernmental transfers to units of local 

government in a future entitlement period shall be assumed to equal the average of-

(i) The State's total intergovernmental transfers to units of local government during that period (or that State's 

fiscal year ending on or immediately 

prior to the end of such period) multiplied by its own source revenue in that 

period ( or such fiscal year) divided by 

its total revenues in that period ( or such 

fiscal year) and 

(ii) The State's total intergovernmental transfers to units of local government 

during the preceding entitlement period 

( or that States' fiscal year ending on or 

immediately prior to the end of such 

period) multiplied by its own source 

revenue in that period (or such fiscal 

year) divided by its total revenues in 

that period ( or such fiscal year). 

(3) Therefore, in a State in which the 

formula is applied, maintenance (for a 

given entitlement period) of intergovernmental transfer effort to units of local 

government will be measured by the difference between that State's average 

aggregate intergovernmental transfers to 

units of local government ( over the appropriate periods) as calculated by employing the method described in paragraph (b) (2) of this section and that 

State's own source intergovernmental 

transfers to units of local government in 

the base period as calculated by employing the method described in paragraph 

(b) ( 1) of this section. 

(4) Should the application of this formula during any entitlement period indicate nonmaintenance, for example, should 

46 

a State's calculated own source average 

aggregate intergovernmental transfers 

to units of local government ( over the 

appropriate periods) be less than such 

transfers as calculated for the base 

period, the difference (as defined in paragraph (b) (3) of this section) shall constitute the future indicated reduction in 

that State's entitlement unless such State 

can document to the Secretary that the 

fact or amount of nonmaintenance as 

determined by application of the formula 

is inaccurate. 

( c) Alternative procedure. If the Secretary shall determine that application 

of the formula set forth in paragraph 

(b) of this section in a particular case 

provides an inaccurate or unfair measure of transfer effort, then any formula, 

procedure, or method deemed equitable by 

the Secretary, may be utilized to measure 

such transfer effort for the purpose of 

implementing the maintenance provision. 

(d) Adjustment where State assumes 

responsibility for category of expenditures. If the State government establishes 

to the satisfaction of the Secretary that 

since June 30, 1972, it has assumed responsibility for a category of expenditures which (before July 1, 1972) was 

the responsibility of local governments 

located in such State, then, the aggregate 

amount taken into account under paragraph (a) (2) of this section shall be 

reduced to the extent that increased 

State government spending ( out of its 

own sources) for such category has replaced corresponding amount which for 

the 1-year period beginning July 1, 1971 

( or that State's fiscal year ending on or 

immediately prior to the end of such 

period) it transferred to units of local 

government. 

(e) Adjustment where new taxing 

powers are conferred upon local governments. If a State establishes to the satisfaction of the Secretary that since June 

30, 1972, one or more units of local government within such State havP had conferred upon them new taxing authority, 

then, the aggregate amount taken into 

account under paragraph (a) (2) of this 

section shall be reduced to the extent of 

the larger of-

(1) An amount equal to the amount of 

the taxes collected by reason of the exer-
TITLE 31 § 51.27 

cise of such new taxing authority by 

such local governments, or 

(2) An amount equal to the amount of 

the loss of revenue to the State by reason 

of such new taxing authority being conferred on such local governments. 

No amount shall be taken into consideration under paragraph (e) (1) of this 

section if such new taxing authority is 

an increase in the authorized rate of tax 

under a previously authorized kind of 

tax, unless the State is determined by the 

Secretary to have decreased a related 

State tax. 

(f) Special rule for period beginning 

July 1, 1973. In the case of the entitlement period beginning July 1, 1973, the 

preceding entitlement period for purposes 

of paragraph (a) (1) of this section shall 

be treated as being the 1-year period beginning July 1, 1972, or that State's fiscal year which ends prior to June 30, 

1973. 

(g) Special rule for period beginning 

July 1, 1976. In the case of the entitlement period beginning July 1, 1976, and 

ending December 31, 1976, the aggregate 

amount taken into account under paragraph (a) (1) of this section for the preceding entitlement period and the aggregate amount taken into account under 

paragraph (a) (2) of this section shall be 

one-half of the amounts which (but for 

this paragraph (g) ) would be taken into 

account. 

(h) Report by Governor. Pursuant to 

the authority of § 51.10 and in order to 

effect compliance with this section, the 

Governor of each State shall submit to 

the Secretary within 90 days after the 

end of the State's fiscal year, on a form 

to be provided, the aggregate transfers 

from own source revenues to units of 

local government for those entitlement 

periods or that State's fiscal years specified on the report: 

(1) The State's own source revenues. 

(2) The State's total revenues. 

(3) The State's own source transfers 

to units of local government. 

( 4) The State's total transfers to units 

of local government. 

(i) Reduction in entitlement. If the 

Secretary has reason to believe that 

paragraph ( a) of this section requires a 

reduction in the entitlement of any State 

government for any entitlement period, 

he shall give reasonable notice and op47 

portunity for hearing to the State. If, 

thereafter, he determines that paragraph 

(a) of this section requires the reduction 

of such entitlement, he shall also determine the amount of such reduction and 

shall notify the Governor of such State 

of such determinations and shall withhold from subsequent payments to such 

State government under this subtitle an 

amount equal to such reduction. 

(j) Transfer to general fund. An 

amount equal to the reduction in the entitlement of any State government which 

results from the application of this section (after any judicial review) shall be 

transferred from the Secretary's Trust 

Fund to the general fund of the Treasury on the day on which such reduction 

becomes final. 

[38 FR 9132, Apr. 10, 1973, as amended at 38 FR 

18669, July 13, 1973] 

§ 51.27 Optional formula. 

(a) In general. A State government 

may by law provide for the allocation of 

entitlement funds among county areas, 

or among units of local government 

(other than county governments, Indian 

tribes, and Alaskan native villages): (1) 

On the basis of the population multiplied 

by the general tax effort factors of such 

areas or units of local governments; or, 

(2) on the basis of the population multiplied by the relative income factors of 

such areas or units of local government; 

or, (3) on the basis of a combination of 

those two factors. Any State which provides by law for such a variation in the 

allocation formula provided by subsections 108 (a) or 108 (b) (2) and (3) of 

the Act, shall notify the Secretary of 

such law not later than 90 days before 

the beginning of the first entitlement 

period to which such law is to apply. Any 

such law shall: 

(1) Provide for allocating 100 percent 

of the aggregate amount to be allocated 

under subsections 108(a) or 108(b) (2) 

and (3) of the Act; 

(2) Apply uniformly throughout the 

State; and 

(3) Apply during the period beginning 

on the first day of the first entitlement 

period to which it applies and ending on 

December 31, 1976. 

(b) Single legislation required. If a 

State government alters its county area 

allocation formula or its local govern-
I 51.28 MONEY AND FINANCE: TREASURY 

ment allocation formula, or both, such 

alteration may be made only once and 

must be made in the same legislative 

enactment. 

(c) Certification required. Paragraph 

(a) of this section shall apply within a 

State only if the Secretary certifies that 

the State law complies with the requirements of such paragraph. The Secretary 

shall not certify any such law with respect to which he receives notification 

later than 30 days prior to the first 

entitlement period during which it is to 

apply. 

(38 FR 9132, Apr. 10, 1973, as amended at 39 FR 

8324, Mar. 5, I 974] 

§ 51.28 Adjustment of data factors. 

The data factors and data definitions 

used in computing entitlements under the 

Act for any entitlement period will be 

made available to each State government 

and unit of local government as soon as 

practicable. Each such government will 

be given a reasonable opportunity to 

question those data factors by providing 

the Department with factual documentation demonstrating evidence of error. If 

the Secretary determines that any data 

factors used were erroneous, necessary 

adjustments will be made. Data factors 

which are used for more than one entitlement period will be subject to challenge and adjustment only for the first 

entitlement period in which they were 

used. 

§ 51.29 Adjustment of maximum and 

minimum per capital entitlement; 100 

percent criterion. 

(a) County area maximum and minimum per capita. entitlement--(1) In 

general. Pursuant to section lOS(b) (6) 

of the Act, the per capita amount allocated to any county area shall be not 

less than 20 percent, nor more than 145 

percent, of two-thirds of the amount 

allocated to the State under section 106 

of the Act, divided by the population of 

that State. 

(2) One hundred forty-five-percent 

rule. If a county area allocation is 

greater than the 145-percent limit, its 

allocation shall be reduced to the 145-

percent level and the resulting surplus 

shall be shared proportionately by all 

remaining unconstrained county areas. 

(3) Twenty-percent rule. If, after the 

application of paragraph (a) (2) of this 

48 

section, a county area allocation is less 

than the 20-percent limit, its allocation 

shall be increased to the 20-percent level 

and the resulting deficit shall be shared 

proportionately by all remaining unconstrained county areas. 

(b) Local government ( other than a 

county government)-(1) In general. 

Except as provided below, the per-capita 

amount allocated to any unit of local 

government ( other than a county government) shall be not less than 20-percent, 

nor more than 145-percent, of two-thirds 

of the amount allocated to the State 

under section 106 of the Act, divided by 

the population of that State. 

(2) One hundred forty-five-percent 

rule. If a unit of local government is 

allocated an amount greater than the 

145-percent limit, its allocation shall be 

reduced to that level. 

( 3) Twenty-percent rule. If a unit of 

local government is allocated an amount 

less than the 20-percent limit, its allocation shall be increased to the lower of 

the 20-percent limit or 50 percent of the 

sum of that unit's adjusted taxes and 

transfers. 

(c) One hundred-percent criterion. If 

the amounts allocated to recipient governments of a State do not total 100 

percent of the amount allocated to that 

State, the amount to be allocated to 

county areas shall be adjusted appropriately, and the allocation process shall 

be repeated until the amounts allocated 

to recipient governments of a State total 

100 percent of the amount allocated to 

that State. 

Subpart D-Prohibition and 

Restrictions on Use of Funds 

§51.30 Matching funds. 

(a) In general. Entitlement funds 

may not be used, directly or indirectly, 

as a contribution in order to obtain any 

Federal funds under any Federal program. The indirect use of entitlement 

funds to match Federal funds is defined 

to mean the allocation of entitlement 

funds to a nonmatching expenditure and 

thereby releasing or displacing local 

funds which are used for the purpose of 

matching Federal funds. This prohibition 

on use of entitlement funds as matching 

funds applies to Federal programs where 

Federal funds are required to be matched 
TITLE 31 § 51.J 1 

by non-Federal funds and to Federal programs which allow matching from either 

Federal or non-Federal funds. 

(b) Secondary recipients. The prohibition of paragraph (a) applies to a recipient government's entitlement funds 

which are transferred by it to another 

governmental unit or private organization. A violation of this section by a secondary recipient shall constitute a violation by the recipient government and the 

penalty provided by subparagraph (f) of 

this section shall be imposed on the recipient government. 

(c) Certification required. Pursuant to 

§ 51.12, the chief executive officer of 

each recipient government must certify 

to the Secretary that entitlement funds 

received by it have not been used in 

violation of this section. 

( d) Increased State or local government revenues. No recipient government shall be determined to have used 

funds in violation of paragraph (a) of 

this section with respect to any funds 

received for any entitlement period ( or 

during its fiscal year) to the extent that 

net revenues received by it from its own 

sources during such period exceed the 

net revenues received by it from its own 

sources during the 1-year period beginning July 1, 1971 ( or its fiscal year ending during the same period). In the case 

of the entitlement periods of 6 months, 

one-half of such net revenues shall be 

measured. 

(e) Presumptions of compliance. No 

recipient government shall be determined 

to have used entitlement funds in violation of the indirect prohibition of paragraph (a) of this section to the extent 

that: 

(1) The expenditure of entitlement 

funds was accompanied by an aggregate 

increase in nonmatching funds expenditures. 

(2) The receipt of entitlement funds 

permitted that government to reduce 

taxes: Provided, Nonentitlement revenue 

is sufficient to cover all matching funds 

contributions. 

(3) The matching funds contribution 

in question is accounted for by an inkind contribution which was not financed 

directly or indirectly with entitlement 

funds. 

(f) Determination by Secretary of the 

Treasury. If the Secretary has reason to 

49 

believe that a recipient government has 

used entitlement funds to match Federal 

funds in violation of the Act, the Secretary shall give such government notice 

and opportunity for hearing. If the Secretary determines that such government 

has, in fact, used funds in violation of 

this section, he shall notify such government of his determination and shall 

request repayment to the United States 

of an amount equal to the funds so used. 

To the extent that such government fails 

to repay such amount, the Secretary shall 

withhold from subsequent entitlement 

payments to that government an amount 

of entitlement funds equal to the funds 

used in violation of this section or, if 

this method is impracticable, the Secretary may refer the matter to the Attorney General for appropriate civil action. 

(g) Use of entitlement funds to supplement Federal grant funds. The prohibition on use of entitlement funds contained in paragraph (a) of this section 

does not prevent the use of entitlement 

funds to supplement other Federal grant 

funds. For example, if expenditures for 

a project exceed the amount available 

from non-Federal funds plus matched 

Federal funds, the recipient government 

may use entitlement funds to defray the 

excess costs: Provided, however, That 

the entitlement funds are not used to 

match other Federal funds: And Provided further, That in the case of a unit 

of local government, the use of entitlement funds to supplement Federal grants 

is restricted to the category of expenditures as set forth in § 51.31. 

§ 51.31 Permissible expenditures. 

(a) In general. Entitlement funds received by units of local government may 

be used only for priority expenditures. 

As used in this part, the term "priority 

expenditures" means: 

( 1) Ordinary and necessary maintenance and operating expenses for-

( i) Public safety (including law enforcement, fire protection, and building 

code enforcement); 

(ii) Environmental protection (including sewage disposal, sanitation, and 

pollution abatement) ; 

(iii) Public transportation (including 

transit systems and streets and roads) ; 

(iv) Health; 

(v) Recreation; 
§ 51.32 MONEY AND FINANCE: TREASURY 

(vi) Libraries; 

(vii) Social services for the poor or 

aged; and 

(viii) Financial administration, and 

(2) Ordinary and necessary capital 

expenditures authorized by law. No unit 

of local government may use entitlement 

funds for nonpriority expenditures which 

are defined as any expenditures other 

than those included in paragraph (a) (1) 

and (2) of this section. Pursuant to 

§ 51.12, the chief executive officer of each 

unit of local government must certify to 

the Secretary that entitlement funds received by it have been used only for 

priority expenditures as required by the 

Act. 

(b) Use of entitlement funds for debt 

retirement. The use of entitlement funds 

for the repayment of debt is a permissible expenditure provided that: 

(1) Entitlement funds are not used to 

pay any interest incurred because of the 

debt, 

(2) The debt was originally incurred 

for a priority expenditure purpose as 

defined in this section, 

( 3) The actual expenditure from the 

proceeds of the indebtedness (i.e., for 

materials, contractors, etc.) was made on 

or after January 1, 1972 (the beginning 

of the first entitlement period), 

(4) The actual expenditures from the 

proceeds of the indebtedness were not in 

violation of any restrictions enumerated 

in this subpart. 

(c) Effect of noncompliance. In the 

case of a unit of local government which 

uses an amount of entitlement funds for 

other than priority expenditures as defined in paragraph (a) of this section, it 

will pay over to the Secretary ( for deposit in the general fund of the Treasury) an amount equal to 110 percent of 

any amount expended in violation of 

paragraph (a) of this section, unless 

such amount of entitlement funds is 

promptly repaid to the trust fund of the 

local government after notice by the 

Secretary and opportunity for corrective 

action. 

§ 51.32 Discrimination. 

(a) Discrimination prohibited. No person in the United States shall, on the 

ground of race, color, national origin, or 

sex, be excluded from participation in, be 

denied the benefits of, or be subjected to 

discrimination under, any program or 

50 

activity funded in whole or in part with 

entitlement funds made available pursuant to subtitle A of title I of the Act. 

For purposes of this section "program or 

activity" is defined as any function conducted by an identifiable administrative 

unit of the recipient government, or by 

any unit of government or private contractor receiving entitlement funds from 

the recipient government. "Funded in 

whole or in part with entitlement funds" 

means that entitlement funds in any 

amount have been transferred from the 

recipient government's trust fund to an 

identifiable administrative unit and disbursed in a program or activity. 

(b) Specific discriminatory actions 

prohibited. ( 1) a recipient government 

may not, under any program or activity 

to which the regulations of this section 

may apply, directly or through contractual or other arrangements, on the 

grounds of race, color, national origin, or 

sex: 

(i) Deny any service or other benefit 

provided under the program or activity. 

(ii) Provide any service or other benefit which is different, or is provided in a 

different form from that provided to 

others under the program or activity. 

(iii) Subject to segregated or separate 

treatment in any facility in, or in any 

matter or process related to receipt of 

any service or benefit under the program 

or activity. 

(iv) Restrict in any way the enjoyment of any advantage or privilege 

enjoyed by others receiving any service 

or benefit under the program or activity. 

(v) Treat an individual differently 

from others in determining whether he 

satisfies any admission, enrollment, eligibility, membership, or other requirement 

or condition which individuals must meet 

in order to be provided any service or 

other benefit provided under the program 

or activity. 

(vi) Deny an opportunity to participate in a program or activity as an 

employee. 

(2) A recipient government may not 

utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination on the 

basis of race, color, national origin, or 

sex, or have the effect of defeating or 

substantially impairing accomplishment 

of the objectives of the program or 
TITLE 31 § 51.32 

activity with respect to individuals of a 

particular race, color, national origin, or 

sex. (3) A recipient government in determining the site or location of facilities 

may not make selections of such site or 

location which have the effect of excluding individuals from, denying them the 

benefits of, or subjecting them to discrimination on the grounds of race, color, 

national origin, or sex from, the benefits 

of an activity or program; or which have 

the purpose or e_ffect of defeating or substantially impairing the accomplishment 

of the objectives of the Act and of this 

section. 

( 4) A recipient government shall not 

be prohibited by this section from taking 

any action to ameliorate an imbalance in 

services or facilities provided to any geographic area or specific group of persons 

within its jurisdiction, where the purpose 

of such action is to overcome prior discriminatory practice or usage. 

(5) Notwithstanding anything to the 

contrary in this section, nothing contained herein shall be construed to prohibit any recipient government from 

maintaining or constructing separate 

living facilities or rest room facilities for 

the different sexes. Furthermore, selectivity on the basis of sex is not prohibited when institutional or custodial 

services can properly be performed only 

by a member of the same sex as the 

recipients of the services. 

( c) Assurances required. Pursuant to 

§ 51.00 (b), each Governor of a State or 

chief executive officer of a unit of local 

government shall include, in the assurances to the Secretary required by that 

section, a statement that all programs 

and activities funded in whole or in part 

by entitlement funds will be conducted in 

compliance with the requirements of this 

section. Such assurances shall be in a 

form prescribed by the Secretary. 

(d) Complaints and investigations. 

Any person who believes himself, or any 

specific class of persons who believe 

themselves, to be subjected to discrimination prohibited by this section, may by 

himself or by a representative file with 

the Secretary a written report setting 

forth the nature of the discrimination 

alleged and the facts upon which the 

allegation is based. The Secretary shall 

advise the chief executive officer of the 

51 

recipient government of the receipt of 

such report. If the Secretary has reason 

to believe that the report shows a recipient government has failed to comply 

with the provisions of this part, he will 

cause a prompt investigation to be made 

with respect to the facts and circumstances alleged in the report and with 

respect to the program or activity concerned. Such investigation may be made, 

if necessary, with the assistance of complainants or of the recipient government. 

No representative of a recipient government nor any of its agencies shall intimidate, threaten, coerce, or discriminate 

against any person or class of persons 

because of testimony, assistance or participation in an investigation, proceeding, 

or hearing under this section. 

(e) Compliance reviews. The Secretary shall monitor and determine compliance of recipient governments with 

the requirements of this section and of 

the Act. Compliance reviews will be 

undertaken from time to time, as appropriate, at the discretion of the Secretary. 

(f) Procedure for effecting compliance. (1) Whenever the Secretary determines that a recipient government has 

failed to comply with this section, he 

shall notify the chief executive officer of 

such recipient government and the Governor of the State in which such government is located of the noncompliance 

and shall request the Governor to secure 

compliance. If within a reasonable time, 

not to exceed 60 days, the Governor fails, 

or refuses to secure compliance, the 

Secretary is authorized: ( i) To refer the 

matter to the Attorney General of the 

United States with a recommendation 

that an appropriate civil action be instituted; (ii) to exercise the powers and 

functions and the administrative remedies provided by Title VI of the Civil 

Rights Act of 1964 ( 42 U.S.C. 2000d); 

or ( iii) to take such other action as may 

be authorized by law. 

(2) No action to effect compliance with 

this section by any other means authorized by law shall be taken by the Department until: 

(i) The Secretary has determined that 

compliance cannot be secured by voluntary means, and the recipient government has been notified of such determination; and 

(ii) The expiration of at least 10 days 
§ 51.33 MONEY AND FINANCE: TREASURY 

from the mailing of such notice to the 

recipient government. During this period 

of at least 10 days, additional efforts 

may be made to persuade the recipient 

government to comply with this regulation and to take such corrective action as 

may be appropriate. 

(3) An order pursuant to Title VI of 

the Civil Rights Act of 1964 terminating 

or refusing to grant or continue entitlement payments or demanding the forfeiture, repayment or withholding of 

entitlement funds shall become effective 

'only after the procedures in paragraph 

(f) (1) of this section have been complied with and: 

(i) The Secretary has advised the recipient government of its failure to comply and has determined that compliance 

cannot be secured by voluntary means; 

(ii) There has been an express finding 

on the record, after such notice prescribed in this section, and after opportunity for hearing, of a failure by the 

recipient government to comply with a 

requirement imposed by or under this 

part; 

(iii) The action has been approved 

by the Secretary; and 

(iv) Thirty days have elapsed after 

the Secretary has filed with the Committee on Ways and Means of the House 

of Representatives and the Committee on 

Finance of the Senate a full written 

report of the circumstances and the 

grounds for such action; and 

(v) The forfeiture or repayment of 

entitlement funds shall be limited to the 

particular recipient government as to 

whom a finding of noncompliance is 

made with this section and shall be 

limited to the program or activity in 

which such noncompliance has been so 

found. The amount of entitlement funds 

as are forfeited by the recipient government shall be reflected in a downward 

adjustment to future entitlement payments and shall be deposited in the general fund of the Treasury. If the Secretary determines that adjustment to 

future entitlement payments is impracticable, he may refer the matter to the 

Attorney General for appropriate civil 

action to require repayment of such 

amount to the United States. Furthermore, the Secretary shall withhold payment of all entitlement funds to a recipient government for which there has been 

52 

a finding of noncompliance until such 

time that he is satisfied that such government will comply with the provisions 

of this section. 

(g) Delegation. The Secretary may 

from time to time assign to officials of 

the Department, or to officials of other 

departments or agencies of the Government with the consent of such departments or agencies, responsibilities in 

connection with the effectuation of the 

purposes of this section ( other than the 

review of initial decision of the administrative law judge) including the achievement of effective coordination within the 

executive branch in the implementation 

of Title VI of the Civil Rights Act of 

1964 (42 u.s.c. 2000d). 

(h) Hearing procedure. Whenever a 

procedure which requires due notice and 

opportunity for hearing is involved by 

the Secretary to effect compliance under 

this section, the procedural regulations 

promulgated in Subpart F of this part 

shall govern. 

§ 51.33 Wage rates, and labor standards. 

(a) Construction laborers and mechanics. A recipient government which 

receives entitlement funds under the Act 

shall require that all laborers and mechanics employed by contractors or subcontractors in the performance of work 

on any construction project costing in 

excess of $2,000.00 and of which 25 percent or more of the cost is paid out of 

its entitlement funds: (1) Will be paid 

wages at rates not less than those prevailing on similar construction in the 

locality as determined by the Secretary 

of Labor in accordance with the DavisBacon Act as amended ( 40 U .S.C. 276a276a-5); and (2) will be covered by 

labor standards specified by the Secretary of Labor pursuant to 29 CFR Parts 

1, 3, 5, and 7. 

(b) Request for wage determination. 

In situations where the Davis-Bacon 

standards are applicable, the recipient 

government must ascertain the U.S. Department of Labor wage rate determination for each intended project and insure 

that the wage rates and the contract 

clauses required by 29 CFR 5.5 and 29 

CFR 5a.3 are incorporated in the contract specifications. The recipient government must also satisfy itself that the 

bidder is made aware of his labor stand-
TITLE 31 § 51.41 

ards responsibilities under the DavisBacon Act. Wage rate determinations 

may be obtained by filing a Standard 

Form 308 with the Employment Standards Administration of the applicable 

regional office of the U.S. Department of 

Labor at least 30 days before the invitation for bids or, in case of construction 

covered by general wage rate determinations, the appropriate rate may be obtained from the FEDERAL REGISTER. 

(c) Government employees. A recipient 

government which employs individuals 

whose wages are paid in whole or in part 

from entitlement funds must pay wages 

which are not lower than the prevailing 

rates of pay for persons employed in 

similar public occupations by the same 

employer. However, this subsection shall 

apply with respect to employees in any 

category only if 25 percent or more of 

the wages of all employees of the recipient government in such category are 

paid from the trust fund established by 

it under § 51.40 (a) . [38 FR 9132, Apr. IO, 1973, as amended at 39 FR 

8324, ~far. 5, 1974] 

§ 51.34 Restriction on expenditures by 

Indian tribes and Alaskan native 

villages. 

Indian tribes and Alaskan native villages as defined in § 51.2 are required to 

expend entitlement funds only for the 

benefit of members of the tribe or village 

residing in the county area from which 

the allocation of entitlement funds was 

originally made. Expenditures which are 

so restricted will not constitute a failure 

to comply with the requirement of §51.-

32 (a). 

Subpart E-Fiscal Procedures and 

Auditing 

§ 51.40 Procedures applicable to the use 

of funds. 

A recipient government which receives 

entitlement funds under the Act shall: 

(a) Establish a trust fund and deposit 

all entitlement funds received and all 

interest earned thereon in that trust 

fund. The trust fund may be established 

on the books and records as a separate 

set of accounts, or a separate bank 

account may be established. 

(b) Use, obligate, or appropriate such 

funds within 24 months from the end 

of the entitlement period to which the 

53 

check is applicable. Any interest earned 

on such funds while in the trust fund 

shall be used, obligated, or appropriated 

within 24 months from the end of the 

entitlement period during which the interest was received or credited. An extension of time in which to act on the funds, 

or interest earned thereon, must be 

obtained by application to the Secretary. 

Such application will set forth the facts 

and circumstances supporting the need 

for more time and the amount of additional time requested. The Secretary may 

grant such extensions of time as in his 

judgment appear necessary or appropriate. 

( c) Provide for the expenditure of entitlement funds in accordance with the 

laws and procedures applicable to the 

expenditure of its own revenues. 

( d) Maintain its fiscal accounts in a 

manner sufficient to: 

(1) Permit the reports required by the 

Secretary to be prepared therefrom, 

(2) Document compliance with the 

matching funds certification, and 

(3) Permit the tracing of entitlement 

funds to a level of expenditure adequate 

to establish that such funds have not 

been used in violation of the restrictions 

and prohibitions of this part. 

The accounting for entitlement funds 

shall at a minimum employ the same fis-" 

cal accounting and internal audit procedures as are used with respect to 

expenditures from revenues derived from 

the recipient government's own sources. 

( e) Provide to the Secretary and to the 

Comptroller General of the United 

States, on reasonable notice, access to 

and the right to examine such books, 

documents, papers or records as the Secretary may reasonably require for the 

purpose of reviewing compliance with 

the Act and the regulations of this part 

or, in the case of the Comptroller General, as the Comptroller General may 

reasonably require for the purpose of 

reviewing compliance and operations 

under the Act. 

(38 FR 9132, Apr. 10, 1973, as amended at 39 FR 

8325, l\lar. 5, 1974] 

§ 51.41 Auditing and evaluation; scope 

of audits. 

(a) In general. The Secretary shall 

provide for such auditing and evaluation 

as may be necessary to insure that ex-
§ 51.50 MONEY AND FINANCE: TREASURY 

penditures of entitlement funds by recipient governments comply with the requirements of the Act and regulations of this 

part. Detail audits, reviews and evaluations may be made on a sample basis 

through inspection of records, and of 

reports required under subpart B of this 

part, and through on-site examinations, 

to determine whether the recipient governments have properly discharged their 

financial responsibilities and to evaluate 

compliance with the Act and the regulations of this part. 

(b) Scope of audits. The scope of such 

audits may include a review of entitlement fund transactions, accounts and 

reports. In addition, the scope of such 

audits may include an examination of 

the following areas: 

(1) Compliance with assurances made 

under § 51.10. 

(2) Compliance with the requirement 

that States must maintain transfers to 

local governments as required by section 

107 (b) of the Act. 

(3) Compliance with the reporting requirements and accuracy of the reports 

submitted to th,e Secretary as set forth 

in Subpart B of this part. 

( 4) Accuracy of fiscal data reported 

to the Bureau of the Census. 

( 5) Accuracy of the public records required under § 51.13 ( c). 

( c) Reliance on State and local government audits. It is the intention of the 

Secretary to rely to the maximum extent 

possible on audits of recipient governments by State and local government 

auditors and independent public accountants. The Secretary may accept such 

audits when in his judgment this may 

reasonably be done consistent with the 

provisions of the Act and regulations of 

this part, and provided: 

(1) Audits are performed in accordance with generally accepted auditing 

standards. Recipient governments are 

encouraged to have such audits performed, to the extent they consider practicable, in accordance with standards for 

the Audit of Governmental Organizations, Programs, Activities and Functions issued by the Comptroller General 

in June 1972. 

( 2) Audits include coverage as set 

forth in paragraph (b) of this section. 

(3) Audit workpapers and related au54 

dit reports are retained for 3 years after 

the issuance of the audit report, and are 

available upon request to the Secretary 

and the Comptroller eneral or to their 

representatives; and, 

(4) Audit reports shall contain a clear 

statement of the auditor's findings as to 

compliance or noncompliance with the 

requirements of the Act and the regulations of this part. In the event that an 

auditor is unable to review compliance 

with all of the provisions of paragraph 

(b), the audit report shall reflect those 

areas in which a compliance review was 

not performed. Audit reports which disclose or otherwise indicate a possible 

failure to comply substantially with any 

requirements of the Act or the regulations of this part will be submitted to 

the Secretary by the Governor or chief 

executive officer. 

Subpart F-Proceedings or Reduction 

in Entitlement, Withholding, or Repayment of Funds 

§ 51.50 Scope of subpart. 

The regulations of this subpart govern 

the procedure and practice requirements 

involving adjudications where the Act 

requires reasonable notice and opportunity for hearing. 

§ 51.51 Liberal construction. 

The regulations in this subpart shall 

be liberally construed to secure just, expeditious, and efficient determination of 

the issues presented. The Rules of Civil 

Procedure for the District Courts of the 

United States, where applicable, shall be 

a guide in any situation not provided for 

or controlled by this subpart, but shall be 

liberally construed or relaxed when 

necessary. 

§ 51.52 Reasonable notice and opportunity for hearing. 

Whenever the Secretary has reaso~ to 

believe that a recipient government has 

failed to comply with any section of the 

Act or of the provisions of this part, and 

that repayment, withholding, or reduction in the amount of an entitlement of 

a recipient government is required, he 

shall give reasonable notice and opportunity of hearing to such government 

prior to the invocation of any sanction 

under the Act. 
TITLE 31 § 51.57 

§ 51.53, Opportunity for compliance. 

Except in proceedings involving willfulness or those in which the public interest requires otherwise, a proceeding 

under this part will not be instituted 

until such facts or conduct which may 

warrant such action have been called to 

the attention of the chief executive 

officer of the recipient government in 

writing and he has been accorded an 

opportunity to demonstrate or achieve 

compliance with the requirements of the 

Act and the regulations of this part. If 

the recipient government fails to meet 

the requirements of the Act and regulations within such reasonable time as may 

be specified by the Secretary, a proceeding shall be initiated. If the recipient 

government is a unit of local government, 

regarding the alleged violation shall be 

transmitted by the Secretary to the Governor of the State in which the unit of 

local government is located. 

§ 51.54 Institution of proceeding. 

A proceeding to require repayment of 

funds to the Secretary, or to withhold 

funds from subsequent entitlement of a 

recipient government, shall be instituted 

by the Secretary by a complaint which 

names the recipient government as the 

respondent. 

§ 51.55 Contents of complaint. 

(a) Charges. A complaint shall give a 

plain and concise description of the allegations which constitute the basis for 

the proceeding. A complaint shall be 

deemed sufficient if it fairly informs the 

respondent of the charges against it so 

that it is able to prepare a defense to the 

charges. 

(b) Demand for answer. Notification 

shall be given in the complaint as to the 

place and time within which the respondent shall file its answer, which time 

shall be not less than 30 days from the 

date of service of the complaint. The 

complaint shall also contain notice that 

a decision . by default will be rendered 

against the respondent in the event it 

fails to file its answer as required. 

§ 51.56 Service of complaint and other 

papers. 

(a) Complaint. The complaint or a 

true copy thereof may be served upon_ 

the respondent by first-class mail or by 

certified mail, return receipt requested; 

55 

or it may be served in any other manner 

which has been agreed to by the respondent. Where the service is by certified 

mail, the return Postal Service receipt 

duly signed on behalf of the respondent 

shall be proof of service. 

(b) Service of papers other than complaint. Any paper other than the complaint may be served upon the respondent or upon its attorney of record by 

first-class mail. Such mailing shall constitute complete service. 

( c) Filing of papers. Whenever the 

filing of a paper is required or permitted 

in connection with a proceeding under 

this part, and the place of filing is not 

specified in this subpart or by rule or 

order of the administrative law judge, 

the paper shall be filed with the Director, 

Office of Revenue Sharing, Treasury Department, Washington, D.C. 20226. All 

papers shall be filed in duplicate. 

( d) Motions and requests. Motions 

and requests may be filed with the designated administrative law judge, except 

that an application to extend the time 

for filing an answer shall be filed with 

the Director, Office of Revenue ,Sharing, 

pursuant to § 51.57(a). 

§ 51.57 Answer; referral to administrative law judge. 

(a) Filing. The respondent's answer 

shall be filed in writing within the time 

specified in the complaint, unless on 

application the time is extended by the 

Secretary. The respondent's answer shall 

be filed in duplicate with the Director, 

Office of Revenue Sharing. 

(b) Contents. The answer shall contain a statement of facts which constitute the grounds of defense, and it 

shall specifically admit or deny each 

allegation set forth in the complaint, except that the respondent shall not deny 

a material allegation in the complaint 

which it knows to be true; nor shall a 

respondent state that it is without sufficient information to form a belief when 

in fact it possesses such information. 

The respondent may also state affirmatively special matters of defense. 

( c) Failure to deny or answer allegation in the complaint. Every allegation 

in the complaint which is not denied in 

the answer shall be deemed to be admitted and may be considered as proved, 

and no further evidence in respect of 
§ 51.58 MONEY AND FINANCE: TREASURY 

such allegation need be adduced at a 

hearing. 

( d) Failure to file answer. Failure to 

file an answer within the time prescribed 

in the complaint, except as the time for 

answer is extended under paragraph (a) 

of this section, shall constitute an admission of the allegations of the complaint 

and a waiver of hearing, and the administrative law judge shall make his findings and decision by default without a 

hearing or further procedure. 

(e) Reply to answer. No reply to the 

respondent's answer shall be required, 

and new matter in the answer shall be 

deemed to be denied, but the Secretary 

may file a reply in his discretion and 

shall file one if the administrative law 

judge so requests. 

(f) Referral to administrative law 

judge. Upon receipt of the answer by the 

Director, or upon filing a reply if one 

is deemed necessary, or upon failure of 

the respondent to file an answer within 

the time prescribed in the complaint or 

as extended under paragraph (a) of this 

section, the complaint (and answer, if 

one is filed) shall be referred to the 

administrative law judge who shall then 

proceed to set a time and place for hearing and shall serve notice thereof upon 

the parties at least 15 days in advance 

of the hearing date. 

§ 51.58 Supplemental charges. 

If it appears that the respondent in 

its answer falsely and in bad faith, denies 

a material allegation of fact in the complaint or states that it has no knowledge 

sufficient to form a belief, when in fact 

it does possess such information, or if it 

appears that the respondent has knowingly introduced false testimony during 

the proceedings, the Secretary may 

thereupon file supplemental charges 

against the respondent. Such supplemental charges may be tried with other 

charges in the case, provided the respondent is given due notice thereof and 

is afforded an opportunity to prepare its 

defense thereto. 

§ 51.59 Proof; variance; amendment of 

pleadings. 

In the case of a variance between the 

allegations in a pleading and the evidence adduced in support of the pleading, the administrative law judge may 

56 

order or authorize amendment of the 

pleading to conform to the evidence: 

Provided, The party that would otherwise be prejudiced by the amendment is 

given reasonable opportunity to meet the 

allegation of the pleading as amended. 

The administrative law judge shall make 

findings on any issue presented by the 

pleadings as so amended. 

§ 51.60 Representation. 

A respondent or proposed respondent 

may appear in person through its chief 

executive officer or it may be represented 

by counsel or other duly authorized representative. The Secretary shall be represented by the General Counsel of the 

Treasury. 

§ 51.61 Administrative law judge; powers. 

(a) Appointment. An administrative 

law judge, appointed as provided by section 11 of the Administrative Procedure 

Act ( 5 U .S.C. 3105), shall conduct proceedings upon complaints filed under this 

subpart. 

(b) Powers of administrative law 

judge. Among other powers provided by 

law, the administrative law judge shall 

have authority, in connection with any 

proceeding under this subpart, to do the 

following things: 

(1) Administer oaths and affirmations; 

(2) Make ruling upon motions and 

requests. Prior to the close of the hearing 

no appeal shall lie from any such ruling 

except, at the discretion of the administrative law judge, in extraordinary 

circumstances; 

( 3) Determine the time and place of 

hearing and regulate its course and conduct. In determining the place of hearing the administrative law judge may 

take into consideration the requests and 

convenience of the respondent or its 

counsel; 

(4) Adopt rules of procedure and 

modify the same from time to time as 

occasion requires for the orderly disposition of proceedings; 

(5) Rule upon offers of proof, receive 

relevant evidence, and examine witnesses; 

(6) Take or authorize the taking of 

depositions; 

(7) Receive and consider oral or 

written arguments on facts or law; 

(8) Hold or provide for the holding 

of conferences for the settlement or sim-
TITLE 31 § 51.65 

plification of the issues by consent of the 

parties; 

(9) Perform such acts and take such 

measures as are necessary or appropriate to the efficient conduct of any proceeding; and 

(10) Make initial findings and decision. 

§ 51.62 Hearings. 

( a) In general. The administrative 

law judge shall preside at the hearing 

on a complaint. Testimony of witnesses 

shall be given under oath or affirmation. 

The hearing shall be stenographically 

recorded and transcribed. Hearings will 

be conducted pursuant to section 7 of 

the Administrative Procedure Act ( 5 

u.s.c. 556). 

(b) Failure to appear. If a respondent 

fails to appear at the hearing, after due 

notice thereof has been served upon it or 

upon its counsel of record, it shall be 

deemed to have waived the right to a 

hearing and the administrative law 

judge may make his findings and decision against the respondent by default. 

( c) Waiver of hearing. A respondent 

may waive the hearing by informing the 

administrative law judge, in writing, on 

or before the date set for hearing, that 

it desires to waive hearing. In such event 

_the administrative law judge may make 

his findings and decision based upon the 

pleadings before him. The decision shall 

plainly show that the respondent waived 

hearing. 

§ 51.63 Stipulations. 

The administrative law judge shall 

prior to or at the beginning of the hearing require that the parties attempt to 

arrive at such stipulations as will eliminate the necessity of taking evidence 

with respect to allegations of facts concerning which there is no substantial dispute. The administrative law judge shall 

take similar action, where it appears 

appropriate, throughout the hearing and 

shall call and conduct any conferences 

which he deems advisable with a view to 

the simplification, clarification, and disposition of any of the issues involved. 

§ 51.64 Evidence. 

(a) In general. Any evidence which 

would be admissible under the rules of 

evidence governing proceedings in matters not involving trial by jury in the 

57 

Courts of the United States, shall be 

admissible and controlling as far as possible: Provided that, the administrative 

law judge may relax such rules in any 

hearing when in his judgment such relaxation would not impair the rights of 

either party and would more speedily 

conclude the hearing, or would better 

serve the ends of justice. Evidence which 

is irrelevant, immaterial or unduly repetitious shall be excluded by the administrative law judge. 

(b) Depositions. The deposition of any 

witness may be taken pursuant to § 51.65 

and the deposition may be admitted. 

( c) Proof of documents. Official documents, records, and papers of a respondent shall be admissible as evidence 

without the production of the original 

provided that such documents, records 

and papers are evidenced as the original 

by a copy attested or identified by the 

chief executive officer of the respondent 

or the custodian of the document, and 

contain the seal of the respondent. 

( d) Exhibits. If any document, record, 

paper, or other tangible or material thing 

is introduced in evidence as an exhibit, 

the administrative law judge may authorize the withdrawal of the exhibit 

subject to any conditions he deems 

proper. An original document, paper or 

record need not be introduced, and a 

copy duly certified (pursuant to paragraph (b) of this section) shall be 

deemed sufficient. 

(e) Objections. Objections to evidence 

shall be in short form, stating the 

grounds of objection relied upon, and 

the record shall not include argument 

thereon, except as permitted by the administrative law judge. Rulings on such 

objections shall be a part of the record. 

No exception to the ruling is necessary 

to preserve the right of either party to 

the proceeding. 

§ 51.65 Depositions. 

(a) In general. Depositions for use at 

a hearing may, with the written approval 

of the administrative law judge, be taken 

by either the Secretary or the respondent or their duly authorized representatives. Depositions may be taken upon 

oral or written interrogatories, upon not 

less than 15 days written notice to the 

other party, before any officer duly authorized to administer an oath for gen-
§ 51.66 MONEY AND FINANCE: TREASURY 

eral purposes. Such written notice shall 

state the names of the witnesses and the 

time and place where the depositions are 

to be taken. The requirement of 15 days 

written notice may be waived by the parties in writing, and depositions may then 

be taken from the persons and at times 

and places mutually agreed to by the 

parties. 

(b) Written interrogatories. When a 

deposition is taken upon written interrogatories, any cross-examination shall 

be upon written interrogatories. Copies 

of such written interrogatories shall be 

served upon the other party with the 

notice, and copies of any written crossinterrogatories shall be mailed by first 

class mail or delivered to the opposing 

party at least 10 days before the date 

of taking the depositions, unless the parties mutually agree otherwise. A party 

upon whose behalf a deposition is taken 

must file it with the administrative law 

judge and serve one copy upon the opposing party. Expenses in the reporting 

of depositions shall be borne by the party 

at whose instance the deposition is taken. 

§ 51.66 Stenographic record; oath of 

reporter; transcript. 

(a) In general. A stenographic record 

shall be made of the testimony and proceedings, including stipulations and admissions of fact in all proceedings, but 

not arguments of counsel unless otherwise ordered by the administrative law 

judge. A transcript of the proceedings 

(and evidence) at the hearing shall be 

made in all cases. 

(b) Oath of reporter. The reporter 

making the stenographic record shall 

subscribe an oath before the administrative law judge, to be filed in the record of 

the case, that he ( or she) will truly and 

correctly report the oral testimony and 

proceedings at such hearing and accurately transcribe the same to the best of 

his (or her) ability. 

( c) Transcript. In cases where the 

hearing is stenographically reported by 

a Government contract reporter copies 

of the transcript may be obtained from 

the reporter at rates not to exceed the 

maximum rates fixed by contract between the Government and the reporter. 

Where the hearing is stenographically 

reported by a regular employee of the 

Department of the Treasury, a copy 

58 

thereof will be supplied to the respondent or its counsel at actual cost of duplication. Copies of exhibits introduced at 

the hearing or at the taking of depositions will be supplied to the parties upon 

the payment of a reasonable fee ( 31 

U.S.C. 483 (a) ). 

§ 51.67 Proposed findings and conclusions. 

Except in cases where a respondent 

has failed to answer the complaint or 

has failed to appear at the hearing, or 

has waived the hearing, the administrative law judge, prior to making his initial decision, shall afford the parties a 

reasonable opportunity to submit proposed findings and conclusions and supporting reasons therefor. 

§ 51.68 Initial decision of t'he administrative law judge. 

As soon as practicable after the concl us ion of a hearing and the receipt of 

any proposed findings and conclusions 

timely submitted by the parties, but in no 

event later than 30 days after the submission of proposed findings and conclusions if they are submitted, the administrative law judge shall make his 

initial decision in the case. The initial 

decision shall include a statement of the 

findings of fact and the conclusions 

therefor, as we II as the reasons or basis 

therefor, upon all the material issues 

of fact, law or discretion presented on 

the record, and shall provide for one of 

the following orders: 

(a) An order that the respondent pay 

over to the Secretary an amount equal 

to 110 percent of any amount determined 

to be improperly expended by the respondent in violation of § 51.31 relating to 

priority expenditures; or 

(b) An order that the respondent pay 

over to the Secretary an amount equal 

to the amount of entitlement funds determined to be expended in violation of the 

Act and the provisions of this part; or 

( c) An order that the Secretary withhold from subsequent entitlement payments to the respondent an amount equal 

to the amount of entitlement funds determined to be expended in violation of 

the Act and the provisions of this part; 

or 

( d) An order that the entitlement of a 

recipient government be reduced and 

the amount of such reduction to be with-
TITLE 31 § 51.73 

held from subsequent entitlement payments; or ( e) An order dismissing the proceedings. 

§ 51.69 Certification and transmittal of 

record and decision. 

After reaching his initial decision, the 

administrative law judge shall certify to 

the complete record before him and shall 

immediately forward the certified record, 

together with a certified copy of his initial 

decision, to the Secretary. The administrative law judge shall serve also a copy 

of the initial decision by certified mail to 

the chief executive officer of the respondent or to its attorney of record. 

§ 51.70 What constitutes record. 

The transcript of testimony, pleadings 

and exhibits, all papers and requests filed 

in the proceeding, together with all findings, decisions and orders, shall constitute the exclusive record in the matter. 

§ 51.71 Procedure on review of decision 

of administrative law judge. 

(a) Appeal to the Secretary. Within 30 

days from the date of the initial decision 

and order of the administrative law 

judge, the respondent may appeal to the 

Secretary and file his exceptions to the 

initial decision and his reasons therefor. 

The respondent shall transmit a copy of 

his appeal and reasons therefor to the 

Director of the Office of Revenue Sharing, who may, within 30 days from receipt 

of the respondent's appeal, file a reply 

brief in opposition to the appeal. A copy 

of the reply brief, if one is filed, shall be 

transmitted to the respondent or its 

counsel of record. Upon the filing of an 

appeal and a reply brief, if any, the Secretary shall make the final agency decision on the record of the administrative 

law judge submitted to him. 

(b) Appeal by the Director of the Office 

of Revenue Sharing. In the absence of an 

appeal by the respondent, the Director 

of the Office of Revenue Sharing may, on 

his own motion, within 45 days after the 

initial decision, serve on the respondent 

by certified mail a notice that he will 

appeal the decision to the Secretary, for 

review. Within 30 days from such notice, 

the Director of the Office of Revenue 

Sharing or his counsel will file with the 

Secretary his exceptions to the initial 

decision and his supporting reasons 

59 

therefor. A copy of the exceptions shall 

be transmitted to the respondent or its 

counsel of record, who, within 30 days 

after receipt thereof, may file a reply 

brief thereto with the Secretary and submit a copy to the Director of the Office 

of Revenue Sharing or his counsel. Upon 

the filing of a reply brief, if any, the Secretary will make the final agency decision 

on the record of the administrative law 

judge. 

(c) Absence of appeal. In the absence 

of either exceptions by the respondent 

or a notice of appeal by the Director of 

the Office of Revenue Sharing within the 

time set forth in paragraphs (a) and (b) 

of this section, or a review initiated by 

the Secretary on his own motion within 

the time allowed to the Director of the 

Office of Revenue Sharing, the initial decision of the administrative law judge 

shall constitute the final decision of the 

Department. 

§ 51.72 Decision of the Secretary. 

On appeal from or review of the initial 

decision of the administrative law judge, 

the Secretary will make the final agency 

decision. In making his decision the Secretary will review the record or such portions thereof as may be cited by the 

parties to permit limiting of the issues. 

The Secretary may affirm, modify, or 

revoke the findings and initial decision of 

the administrative law judge. A copy of 

the Secretary's decision shall be transmitted immediately to the chief executive 

officer of the respondent or its counsel of 

record. 

§ 51.73 Effect of order of repayment or 

withholding of funds. 

In case the final order against the respondent is for repayment of funds to 

the United States, such amount as determined by the order shall be repaid 

upon request by the Secretary. To the extent that the respondent fails to do so 

upon request of the Secretary, the Secretary shall withhold from subsequent entitlement payments to the respondent in 

amount equal to the amount not repaid. 

In case the final order against the respondent is for the withholding of an 

amount of subsequent entitlement payments, such amounts as ordered shall be 

withheld by the Director of the Office of 

Revenue Sharing after notice to the chief 

executive officer of the recipient govern-
§ 51.74 MONEY AND FINANCE: TREASURY 

ment that if it fails to take corrective 

action within 60 days after receipt of 

the notice, further entitle~ent payments 

will be withheld until the Secretary is 

satisfied that appropriate corrective action has been taken and there is full 

compliance with the Act and regulations 

of this part. In every case in which the 

respondent is a unit of local government, 

a copy of the final order and notice shall 

be submitted to the Governor of the State 

in which the respondent is located. 

§ 51.74 Publicity of proceedings. 

(a) In general. A proceeding conducted under this subpart shall be open 

to the public and to elements of the news 

media provided that, in the judgment of 

the administrative law judge, the presence of the media does not detract from 

the decorum and dignity of the proceeding. 

(b) Availability of record. The record 

established in any proceeding conducted 

under this subpart shall be made available to inspection by the public as provided for and in accordance with regulations of the Department of the Treasury pursuant to 31 CFR Part 1. 

( c) Decisions of the administrative law 

judge. The statement of findings and the 

initial decision of the administrative law 

60 

judge in any proceedings, whether or not 

on appeal or review, shall be indexed and 

maintained by the Director of the Office 

of Revenue Sharing and made available 

for inspection by the public at the public 

documents room of the Department. If 

practicable, the statement of findings 

and the decisions of the administrative 

law judge shall be published periodically 

by the Department and offered for sale 

through the Superintendent of Documents. 

§ 51.75 Judicial review. 

Actions taken under administrative 

proceedings pursuant to this subpart 

shall be subject to judicial review pursuant to section 143 of Subtitle C of the 

Act. If a respondent desires to appeal a 

decision of the administrative law judge 

which has become final, or a final order 

of the Secretary for review of appeal, to 

the U.S. Court of Appeals, as provided 

by law, the Secretary, upon prior notification of the filing of the petition for 

review, shall have prepared in triplicate, 

a complete transcript of the record of the 

proceeding, and shall certify to the correctness of the record. The original certificate together with the original record 

shall then be filed with the Court of 

Appeals which has jurisdiction. 
TITLE 41-PUBLIC CONTRACTS AND PROPERTY MANAGEMENT 

CHAPTER 14H-BUREAU OF INDIAN AFFAIRS, 

DEPARTMENT OF THE INTERIOR 

PART 14H-1-GENERAL 

Sec. 

!4H-l.000 Scope of part. 

Subpart 14H-1.0-Regulation System 

!4H-1.001 

!4H-I.002 

!4H-l.003 

J4H-l.004 

J4H-I.006 

J4H-l.006-J 

!4H-l.006-2 

J4H-I.007 

J4H-I.007-l 

J4H-l.007-2 

J4H-I.007-3 

J4H-I.008 . 

!4H-l.009 

!4H-I.009-2 

Scope of subpart. 

Purpose. 

Authority. 

Applicability. 

Issuance. 

Code arrangement. 

Publication. 

Arrangement. 

General plan. 

Numbering. 

Citation. 

Agency implementation. 

Deviation. 

Procedure. 

Subpart 14H-1.2~Definition of Terms 

!4H-I.205 

!4H-I.206 

Procuring activity. 

Head of the procuring activity. 

Subpart 14H-1.3-General Policies 

14H-l.302 Procurement sources. 

!4H-l.302-3 Contracts between the Government 

and Government employees or business concerns substantially owned or 

controlled by Government employees. 

Subpart 14H-1.4-Procurement 

Responsibility and Authority 

14H-l.402 Authority of contracting officers. 

14H-l.404 Selection, designation and termination 

of designation of contracting 

officers. 

14H-l.404-2 Designation. 

14H-l.404-3 Termination of designation. 

Sec. 

14H-l.404-4 Assignment of duties to contracting 

officers. 

14H-l.451 Delegation and redelegation of authority and designation of contracting officers. 

14H-l.451-2 Designation of contracting officer positions. 

14H-1.451-6 Limitation of contracting officer authority. 

AUTHORITY: The provisions of this Part J4H-l 

issued under sec. 205(c), 63 Stat. 390; 40 U.S.C. 

486(c). 

SouRcE: The provisions of this Part 14H-J appear at 34 F.R. 13659, Aug. 26, 1969, unless otherwise noted. 

61 

§ 14H-1.000 Scope of part. 

(a) This part establishes a system for 

the codification and publication of policies and procedures of the Bureau of 

Indian Affairs (Bureau) regulations 

which implement, supplement or deviate 

from the Federal Procurement Regulations (FPR) and Interior Procurement 

Regulations (IPR), when appropriate. 

(b) The Federal Procurement Regulations are published as Chapter I of this 

title. The Interior Procurement Regulations which implement and supplement 

the FPR are published as Chapter 14 of 

this title. The Bureau Procurement Regulations which implement and supplement the FPR and IPR are published as 

Chapter 14H of this title. It is the basic 

policy of the Bureau to apply the Federal Procurement Regulations and the 

Interior Procurement Regulations. Thus, 

as to most elements of the procuremeμt 

process, substantive guidelines will be 

found by reference to those regulations 

in the order mentioned. 

Subpart 14H-1 .0-Regulation 

System 

§ 14H-1.001 Scope of subpart. 

This subpart establishes the Bureau of 

Indian Affairs Procurement Regulations 

(BIAPR) and states their relationship 

to the Federal Procurement Regulations 

( FP A) and the Interior Procurement 

Regulations (IPR). 

§ 14H-1.002 Purpose. 

This subpart establishes for the Bureau uniform policies and procedures 

related to procurement of personal property, nonpersonal services, construction, 

and real property by lease. 

§ 14H-1.003 Authority. 

BIAPR are prescribed by the Commissioner of Indian Affairs (Commissioner) 
§ 14H-1.004 PUBLIC CONTRACTS AND PROPERTY MANAGEMENT 

under the Federal Property and Administrative Services Act of 1949, as 

amended, or other authority specifically 

cited. 

§ 14H-1.004 Applicability. 

BIAPR apply to all procurement activities of the Bureau to the extent indicated, unless otherwise provided by law. 

§ 14H-1.006 Issuance. 

§ 14H-1.006-1 Gode arrangement. 

BIAPR are issued in the Gode of Federal Regulations as Chapter 14H of Title 

41, Public Contracts and Property Management. BIAPR contain the alphabetical 

letter "H" which identifies the Bureau 

and which immediately follows the Gode 

(14) which identifies the Department as 

illustrated in IPR. 

§ 14H-1.006-2 Publication. 

BIAPR will be published in the FEDERAL REGISTER and in separate looseleaf 

form on salmon colored paper. 

§ 14H-1.007 Arrangement. 

§ 14H-1.007-1 General plan. 

The general plan, numbering system, 

and nomenclature used in FPR and IPR, 

which conform to the FEDERAL REGISTER 

standards, are adhered to in BIAPR. 

§ 14H-1.007-2 Numbering. 

For ease in identification, the numbering system and part, subpart, and section titles used in FPR, and in IPR are 

also used in BIAPR. 

§ 14H-1.007-3 Citation. 

Using this section as an example 

BIAPR should be cited as, "BIAPR 

14H-1.007-3." When referred to formally in official documents such as legal 

briefs, the section should be cited as "41 

GFR 14H-l.007-3." 

§ 14H-1.008 Agency implementation. 

(a) It is Bureau policy to utilize FPR 

and IPR to the fullest extent possible in 

the conduct of all procurement matters. 

The Bureau will conform to this policy 

by avoiding implementation, supplementation, or deviation from FPR and IPR 

unless compelling reasons exist for 

doing so. 

(b) FPR and IPR shall be applicable 

as issued unless implemented, supplemented, or devi_ated from in BIAPR. 

62 

( c) Matters which pertain to procurement but are primarily for internal 

guidance whether or not related to the 

material in FPR and IPR, will be issued 

as Bureau of Indian Affairs Procurement Instructions (BIAPI). To simplify 

usage of BIAPI in conjunction with 

FPR, IPR and BIAPR the same system 

and format used for those regulations 

will be followed. A yellow colored paper 

will be used for BIAPI. 

§ 14H-1.009 Deviation. 

§ 14H-1.009-2 Procedure. 

Deviations from FPR and IPR by the 

Bureau will be kept to a minimum and 

controlled as follows: 

( a) Requests for approval of deviations may be submitted by contracting 

officers to the Commissioner. The requests shall cite the specific part of 

FPR, or IPR, from which it is desired 

to deviate, shall set forth the nature of 

the deviations, and shall give the reasons for the action requested. Requests 

considered meritorious will be submitted 

for approval as provided for in IPR. No 

deviation shall be effective until approved. 

Subpart 14H-1 .2-Definition of Terms 

§ 14H-1.205 Procuring activity. 

"Procuring activity" means the Bureau of Indian Affairs in which authority to contract for the procurement of 

personal property, nonpersonal services, 

and construction is vested. 

§ 14H-1.206 Head of the procuring 

activity. 

"Head of the procuring activity" 

means the Commissioner. 

Subpart 14H-1.3-General Policies 

§ 14H-1.302 Procurement sources. 

§ 14H-1.302-3 Contracts between the 

Goverment and Government employees or business concerns substantially owned or controlled by 

Government employees. 

Contracting Officers shall refer all 

proposed contracts with Government 

employees or business concerns substantially owned or controlled by Government employees to the Commissioner. 
TITLE 41 § 14H-1.451-6 

Approval of the Assistant Secretary for 

Administration will be requested in 

those instances where the Commissioner 

determines it would be in the Government's interest to enter into such a 

contract. 

Subpart 14H-1 .4-Procurement 

Responsibility and Authority 

§ 14H-1.402 Authority of contracting 

officers. 

The authority under this section 

shall be exercised in conformity with 

§ 14H-1.451. 

§ 14H-1.404 Selection, designation, and 

termination of designation of contracting oifficers. 

The authority under this section 

shall be exercised in conformity with 

§ 14H-1.451. 

§ 14H-1.404-2 Designation. 

The authority under this section 

shall be exercised in conformity with 

§ 14H-1.451. 

§ 14H-1.404-3 Termination of designation. 

The requirements of this section 

shall be exercised in conformity with 

§ 14H-1.451. 

§ 14H-1.4O4-4 Assignment of duties to 

contracting officers. 

The requirements of this section 

shall be exercised in conformity with 

§ 14H-1.451. 

§ 14H-1.451 Delegation and redelegation of authority and designation of 

contracting officers. 

Except for such limitations as are 

prescribed elsewhere, the authority delegated to the Commissioner with respect 

to all matters relating to contracting and 

procurement of supplies, services, and 

construction, except the authority to 

63 

designate contracting officer positions, is 

hereby redelegated to the contracting 

officer positions designated in § 14H1.451-2. 

§ 14H-1.451-2 Designation of contracting 01fficer positions. 

(a) Each of the following organizational titles are designated as contracting officer positions: 

( 1) Headquarters Office Officials: 

(i) Commissioner. 

(ii) Deputy Commissioner. 

(iii) Director of Administrative Services. 

(iv) Chief, Division of Contracting 

Services. 

(v) Property and Supply Officer. 

(vi) Chief, Division of Plant Design 

and Construction, Albuquerque, N. Mex. 

( vii) Chief, Indian Technical Assistance Center, Denver, Colo. 

(viii) Property and Supply Officer, 

Field Support Services Office, Albuquerque, N. Mex. 

( 2) Area Office officials : 

(i) Area Director. 

(ii) Deputy Area Director. 

(iii) Assistant Area Director, Minneapolis and Sacramento Area Offices. 

(iv) Assistant Area Director for Administration. 

(v) Area Administrative Officer. 

(vi) Area Property and ,Supply Officer. 

(vii) Contract Engineering Adviser, 

Portland, Oreg. 

(viii) Administrative Officer and Special Representative, Seattle, Wash. 

[34 F.R. 13659, Aug. 26, 1969, as amended at 37 

F.R. 13531, July II, 1972] 

§ 14H-1.451-6 Limitation of contracting officer authority. 

Contract Engineering Advisor, Portland, Oreg., is limited to the approval 

of nonnegotiated construction contracts 

not exceeding $25,000. 

[35 F.R. 11398, July 16, 1970] 
TITLE 42-PUBLIC HEALTH 

CHAPTER I-PUBLIC HEALTH SERVICE 

PART 36-INDIAN HEALTH 

Subpart A-Scope and Definitions 

Sec. 

36.1 Purpose and effect. 

36.2 Meaning of terms. 

Subpart B-A vailability of Services to 

Individuals in Programs (Including 

Facilities Constructed or Supported 

Wit'h Tribal Funds) Operated for Indian Beneficiaries By the Public Health 

Service 

36.1 I Services available. 

36.12 Persons to whom services will be provided. 

36. I 3 Charges to Indian beneficiaries for services 

provided in Public Health Service facilities 

or by Public Health Service personnel. 

36.14 Nonbeneficiaries; emergency care and treatment; charges. 

Subpart C-Contract Services 

Sec. 

36.21 Availability of contract services. 

Subpart D-Contagious and Infectious 

Diseases TUBERCULOSIS 

36.30 Applicability. 

36.31 Commitment of Indians afflicted with tuber· 

culosis. 

36.32 Retention of custody; utilization of law enforcement authorities. 

36.33 Discharge of patients. 

36.34 Transfer of patients. 

AUTHORITY: The provisions of this Part 36 issued 

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. 

2001, unless otherwise noted. 

SOURCE: The provisions of this Part 36 appear at 

21 F.R. 9833, Dec. 12, 1936, unless otherwise noted. 

Subpart A-Scope and Definitions 

§ 36.1 Purpose and effect. 

(a) The regulations in this part establish the general principles to be followed 

in the discharge of this Department's 

responsibilities for continuation and improvement of the Indian health services. 

Officers and employees of the Department will be guided by these policies in 

exercising discretionary authority with 

respect to the matters covered. 

64 

(b) The Surgeon General of the Public 

Health Service is authorized to adopt, 

and from time to time revise or add, 

administrative instructions relating to 

methods or procedures appropriate to 

implementing these principles, or for 

their supplementation as to matters not 

covered, including instructions providing 

for the continuation or appropriate modification of practices and procedures 

previously observed in the provision of 

Indian health services in particular 

jurisdictions. 

§ 36.2 Meaning of terms. 

When used in this part, the term: 

(a) "Indian health program" includes 

the Alaska Native Health Services. 

(b) "Indian" includes Indians in the 

continental United States, and Indians, 

Aleuts and Eskimos in Alaska. 

(c) "Jurisdiction" shall have the same 

geographical meaning as in Bureau of 

Indian Affairs usage. 

(d) "Bureau of Indian Affairs" means 

the Bureau of Indian Affairs, Department of the Interior. 

Subpart B-Availability of Services to 

Individuals in Programs (Including 

Facilities Constructed or Supported 

With Tribal Funds) Operated for 

Indian Beneficiaries by the Public 

Health Service 

§ 36.11 Services available. 

Within the limits of available funds, 

facilities, and personnel, the Public 

Health Service will make available, within the area served by the local facility, 

hospital and medical and dental care, 

including outpatient services and services of mobile clinics and public health 

nurses, and preventive care including immunizations and health examinations of 

special groups, such as school children. 
TITLE 42 § 36.14 

§ 36.12 Persons to w'hom services, will 

be provided. 

(a) In general. (1) Services will be 

:made available, as medically indicated, 

to persons of Indian descent belonging 

to the Indian community served by the 

local facilities and program, and nonIndian wives of such persons. 

(2) Generally, an individual may be 

regarded as within the scope of the 

Indian health and medical service program if he is regarded as an Indian by 

the community in which he lives as evidenced by such factors as tribal membership, enrollment, residence on taxexempt land, ownership of restricted 

property, active participation in tribal 

affairs, or other relevant factors in 

keeping with general Bureau of Indian 

Affairs practices in the jurisdiction. 

(b) Doubtful cases. (1) In case of 

doubt as to whether an individual applying for care is within the scope of the 

program, the Medical Officer in Charge 

shall obtain from the appropriate Bureau of Indian Affairs officials in the 

jurisdiction information pertinent to his 

determination of the individual's continuing relationship to the Indian population group served by the local program. 

(2) If the applicant's condition is 

such that immediate care and treatment 

are necessary, services shall be provided 

pending identification as an Indian 

beneficiary. 

(c) Priorities when funds, facilities, 

or personnel are insufficient to provide 

the indicated volume of services. Priorities for care and treatment, as among 

individuals who are within the scope of 

the program, will be determined on the 

basis of relative medical need and access 

to other arrangements for obtaining the 

necessary care. 

§ 36.13 Charges to Indian beneficiaries 

for services provided in Public 

Health Service facilities or by Public 

Health Service personnel. 

(a) In general. In order to make the 

most effective use of funds and facilities 

available for needed health and medical 

services, individual Indians who are 

clearly able to pay the costs of hospital 

care (and of other major items of service specified in instructions of the Surgeon General) will be encouraged to do 

so, and services may be conditioned upon 

65 

payment in appropriate cases. No charge 

may be made for immunizations, health 

examination of school children or similar preventive services, or for the hospitalization of Indian patients for tuberculosis. 

(b) Amount of charges. Payment may 

be requested in accordance with a schedule of charges established for the jurisdiction by the Area Medical Officer, but 

such charges may in no case exceed the 

cost of providing the service, as determined by the Surgeon General or in 

accordance with instructions issued by 

him. 

(c) Circumstances under which payment may be requested; Authority of the 

Medical Officer in Charge. Whenever it 

is established to the satisfaction of the 

Medical Officer in Charge, from information available from the local Bureau 

of Indian Affairs officers or from other 

sources, that an Indian applying for 

care for himself or his family is able to 

meet the scheduled charge for the needed 

care without impairing his prospects for 

economic independence, he may be asked 

to pay the scheduled charge. Charges 

may be reduced in individual cases, or 

payment may be waived and needed 

services may nevertheless be provided if, 

in the judgment of the Medical Officer 

in Charge, the health objectives in the 

area served will be advanced thereby. 

[21 F.R. 9833, Dec. 12, 1956, as amended at 22 F.R. 

6412, Aug. 10, 1957] 

§ 36.14 Nonbeneficiaries; emergency 

care and treatment; charges. 

(a) In case of emergency, as an act of 

humanity, nonbeneficiaries of the ,Service may be provided temporary care and 

treatment in hospitals and facilities of 

the Service which are operated for Indian beneficiaries. 

(b) Persons referred to in paragraph 

(a) of this section who, as determined 

by the medical officer in charge, are able 

to defray the cost of their care and 

treatment shall be charged for such 

care and treatment at the following rates 

(which shall be deemed to constitute the 

entire charge in each instance) : In the 

case of hospitalization, at the current 

interdepartmental reimbursable per diem 

rate as established by the Bureau of the 

Budget; and in the case of outpatient 
§ 36.21 PUBLIC HEAL TH 

treatment, at rates established by the 

Surgeon General. 

( Interpret or apply sec. 322 ( d), 58 Stat. 696, sec. 

501, 65 Stat. 290; 42 U.S.C. 249(d), 31 U.S.C. 483a) 

[24 F.R. 10108, Dec. 15, 1959] 

Subpart C-Contract Services 

§ 36.21 Availability of contract services. 

Availability of contract services to 

individual Indian beneficiaries will be 

governed by the terms of the contract. 

Subpart D-Contagious and Infectious 

Diseases 

TUBERCULo;:;rn 

AUTHORITY: The provisions of this Subpart D 

also issued under sec. I, 38 Stat. 584; 25 U .S.C. 

198. 

SouRcE: The provisions of this Subpart D appear 

at 25 F.R. 10063, Oct. 21, 1960, unless otherwise 

noted. 

§ 36.30 Applicability. 

The regulations in this subpart relative to the commitment of Indians afflicted with tuberculosis apply only to Indian 

reservations where effective procedures 

for the commitment of persons afflicted 

with tuberculosis are not available under 

the laws of the State in which the reservation is located. 

§36.31 Commitment of Indians afflicted 

with tuberculosis. 

(a) Upon a determination by a tribal 

court or other Indian court of competent 

jurisdiction that an Indian within its 

jurisdiction has tuberculosis in a communicable form and th,at under applicable tribal law such Indian may be 

committed to a hospital or other place 

for medical treatment, the Area Medical 

Officer in Charge may, upon request of 

such court, certify that facilities and 

services of the Public Health Service are 

available to provide necessary medical 

treatment for the Indian if he determines in accordance with applicable instructions of the Division of Indian 

Health that the health of the afflicted 

Indian or that of other persons requires 

the isolation or quarantine of the Indian 

in a hospital or other place of treatment. 

(b) If, after such certification the 

court commits the afflicted Indian to the 

66 

custody of the Public Health Service, 

the Medical Officer in Charge may accept 

such commitment and transport and admit the Indian to any hospital or institution operated by the Public Health 

Service for the medical care and treatment of tuberculosis patients whether 

within or without the jurisdiction of the 

court. 

(c) An Indian admitted to a facility 

of the Public Health Service pursuant 

to this subpart shall be subject to the 

rules and regulations of the Public 

Health Service applicable to patients and 

to the facility. 

§ 36.32 Retention of custody; utilization of law enforcement authorities. 

(a) The Medical Officer in Charge 

having custody of a patient whose commitment has been accepted under this 

subpart is authorized to employ such 

means as may be necessary for the retention of custody of, and the provision 

of necessary treatment to, the afflicted 

Indian including the provision of attendants during periods of transportation, 

until such time as the patient is discharged. 

(b) When necessary to retain custody 

of the patient the Medical Officer in 

Charge is authorized to call upon the 

police force of the Bureau of Indian 

Affairs, of the tribe, or of the State, as 

may be appropriate. 

§ 36.33 Discharge of patients. 

When the Medical Officer in Charge 

of a medical facility to which an afflicted 

Indian has been admitted is satisfied 

that the disease is inactive and not in a 

communicable stage, he shall discharge 

the patient: Provided, That he may discharge the patient or release him on 

parole under such conditions as he deems 

appropriate if he is satisfied that such 

action would not endanger the health of 

the patient or the health of other 

persons. 

§ 36.34 Transfer of patients. 

(a) A patient admitted to a facility 

of the Service, pursuant to this subpart, 

may be transferred to any other facility 

of the ,Service within or without the 

jurisdiction of the committing court for 

necessary care and treatment. 

(b) A patient admitted to a facility 

of the Service under this subpart may 
TITLE 42 § 36.34 

be transferred to a hospital operated by 

a State or local government which is 

authorized to receive him within or without the jurisdiction of the committing 

court. 

67 

( c) The transfer of a patient authorized in this section shall be made only 

if such transfer is in the judgment of 

the Medical Officer in Charge in the best 

interest of the health of the patient. 
TITLE 43-PUBLIC LANDS: INTERIOR 

Subtitle A-Office of the Secretary of the Interior 

PART 1-PRACTICES BEFORE THE 

DEPARTMENT OF THE INTERIOR 

Sec. 

I.I Purpose. 

1.2 Definitions. 

l.3 Who may practice. 

AUTHORITY: The provisions of this Part I issued 

under sec. 5, 23 Stat. IOI; 43 U.S.C. 1464. 

SouRcE: The provisions of the Part I appear at 

29 F.R. 143, Jan. 7, 1964, unless otherwise noted. 

§ 1.1 Purpose. 

This part governs the participation of 

individuals in proceedings, both formal 

and informal, in which rights are asserted 

before, or privileges sought from, the 

Department of the Interior. 

§ 1.2 Definitions. 

As used in this part the term: 

(a) "Department" includes any bureau, office, or other unit of the Department of the Interior, whether in Washington, D.C., or in the field, and any 

officer or employee thereof; 

(b) "Solicitor" means the Solicitor of 

the Department of the Interior or his 

authorized representative; 

(c) "Practice" includes any action 

taken to support or oppose the assertion 

of a right before the Department or to 

support or oppose a request that the 

Department grant a privilege; and the 

term "practice" includes any such action 

whether it relates to the substance of, or 

to the procedural aspects of handling, a 

particular matter. The term "practice" 

does not include the preparation or filing 

of an application, the filing without comment of documents prepared by one other 

than the individual making the filing, 

obtaining from the Department information that is available to the public generally, or the making of inquiries respecting the status of a matter pending before 

the Department. Also, the term "practice" does not include the representation 

of an employee who is the subject of 

disciplinary, loyalty, or other personnel 

administrative proceedings. 

68 

§ 1.3 Who may practice. 

(a) Only those individuals who are 

eligible under the provisions of this section may practice before the Department, 

but this provision shall not be deemed 

to restrict the dealings of Indian tribes 

or members of Indian tribes with the 

Department. 

* * * * * * 

PART 2-RECORDS AND TESTIMONY 

Sec. 

2.1 Inspection. 

2.2 Determinations as to availability of records. 

2.3 Declassification of classified documents. 

2.4 Charges. 

2.5 Opinions in adjudication of cases; administrative manuals. 

2.6 Compulsory process. 

2.7 Testimony of employees. 

2.8 Definition. 

Appendix. 

AUTHORITY: The provisions of this Part 2 issued 

under 64 Stat. 402, 65 Stat. 290, 80 Stat. 383; 43 

U.S.C. 1460, 31 U.S.C. 483a, 5 U.S.C. 552. 

§ 2.1 Inspection. 

Records of the Department of the Interior which are available to the public 

may be inspected or copied by any person 

during the normal business hours at the 

office in which the records are located. 

Requests to inspect or to obtain copies of 

records shall be handled as promptly as 

possible with due regard for the dispatch 

of other public business. While there is 

no general requirement that requests to 

inspect must be in writing, applicants 

may be required to file written requests 

in instances in which such action will 

assist in the search for the records 

sought or in the orderly filling of such 

requests. A request to inspect or to obtain copies of a record must contain a 

reasonably specific description of the 

rt!Cbrds sought. 

[32 F.R. 9974, July 7, 1967] 

§ 2.2 Determinations as to availability 

of records. 

(a) Section 552 of Title 5, U.S. Code, 
TITLE 43 § 2.3 

as amended by Public Law 90-23 (the 

act codifying the "Public Information 

Act") requires that identifiable agency 

records be made available for inspection. 

Subsection (b) 1 of section 552 exempts 

several categories of records from the 

general requirement but does not require 

the withholding from inspection of all 

records which may fall within the categories exempted. Accordingly, no request 

made of a field office to inspect a record 

shall be denied unless the head of the 

office or such higher field authority as 

the head of the bureau may designate 

shall determine (1) that the record falls 

within one or more of the categories exempted and (2) either that disclosure is 

prohibited by statute or Executive order 

or that sound grounds exist which require the invocation of the exemption. A 

request to inspect a record located in the 

headquarters office of a bureau shall not 

be denied except on the basis of a similar 

determination made by the head of the 

bureau or his designee, and a request 

made to inspect a record located in a 

major organizational unit of the Office 

of the Secretary shall not be denied except on the basis of a similar determination by the head of that unit. Officers 

and employees of the Department shall 

be guided by the "Attorney General's 

Memorandum on the Public Information 

Section of the Administrative Procedure 

Act" of June 1967. 

1 Subsection (b) of section 552 provides that: 

(b) This section does not apply to matters that 

are-

(!) Specifically required by Executive order to be 

kept secret in the interest of the national defense or 

foreign policy; 

(2) Related solely to the internal personnel rules 

and practices of an agency; 

(3) Specifically exempted from disclosure by 

statute; 

( 4) Trade secrets and commercial or financial 

information obtained from a person and privileged 

or confidential; 

( 5) Interagency or intra-agency memorandums or 

letters which would ne>t be available by law to a 

party other than an agency in litigation with the 

agency; 

( 6) Personnel and medical files and similar files 

the disclosure of which would constitute a clearly 

·unwarranted invasion of personal privacy; 

(7) Investigatory files compiled for law enforcement purposes except to the extent available by law 

to a party other than an agency; 

(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf 

of, or for the use of an agency responsible for the 

regulation or supervision of financial institutions; or 

(9) Geological and geophysical information and 

data, including maps, concerning wells. 

69 

(b) An applicant may appeal from 

a determination that a record is not 

available for inspection to the Solicitor 

of the Department of the Interior, who 

may exercise all of the authority of the 

Secretary of the Interior in this regard. 

The Deputy Solicitor may decide such 

appeals and may exercise all of the authority of the Secretary in this regard. 

( c) All replies of officers or employees 

of the Department of the Interior to 

written requests denying a member of 

the public an opportunity to inspect or 

receive copies of records of the Department shall advise the applicant, in writing, of the reason for the denial and of 

the right of appeal to the Solicitor. A 

copy of all such replies shall be forwarded to the U.S. Department of the 

Interior, Office of the Solicitor, Washington, D.C. 20240. 

(32 F.R. 9974, July 7, 1967, as amended at 37 F.R. 

15865, Aug. 8, 1972] 

§ 2.3 Declassification of classified documents. 

(a) Request for classification review. 

(1) Requests for a classification review 

of a document of the Department of the 

Interior pursuant to section 5 ( c) of 

Executive Order 11652 (37 F.R. 5209, 

March 10, 1972) and section III B of the 

National Security Council Directive 

Governing Classification, Downgrading, 

Declassification and Safeguarding of National Security Information (37 F.R. 

10053, May 1972) shall be made in accordance with the procedures established 

by this section. 

(2) Any person desiring a classification review of a document of the Department of the Interior containing information classified as National Security 

Information by reason of the provisions 

of Executive Order 11652 ( or any predecessor executive order) and which is 

more than 10 years old, should address 

such request to the Chief, Division of 

Records and Protective Services, Office 

of Management Operations, U.S. Department of the Interior, Washington, D.C. 

20240. 

(3) Requests need not be made on 

any special form, but shall, as specified 

in the executive order, describe the document with sufficient particularity to 

enable identification of the document 

requested with expenditure of no more 

than a reasonable amount of effort. 
§ 2.4 PUBLIC LANDS: INTERIOR 

( 4) Charges for locating and reproducing copies of records will be made 

when deemed applicable in accordance 

with 31 U.S.C. 483a, which is implemented by § 2.4 and the requester will be 

notified. 

( b) Action of requests for classification review. (1) The Chief, Division of 

Records and Protective Services, shall, 

unless the request is for a document over 

:30 years old, assign the request to the 

bureau having custody of the requested 

records for action. In the case of requests for declassification of records in 

the custody of the Office of the Secretary 

and less than 30 years old, the request 

shall be processed by the Chief, Division 

of Records and Protective Services. Requests for declassification of documents 

over 30 years old shall be referred 

directly to the Archivist of the United 

States. The bureau which has been assigned the request, or the Chief, Division of Records and Protective Services, 

in the case of requests assigned to him, 

shall immediately acknowledge the request in writing. Every effort will be 

made to complete action on each request 

within thirty ( 30) days of its receipt. If 

action cannot be completed within thirty 

( 30) days, the requester shall be so 

advised. 

(2) If the requester does not receive 

a decision on his request within sixty 

( 60) days from the date of receipt of 

his request, or from the date of his most 

recent response to a request for more 

particulars, he may apply to the Department of the Interior Committee on Classifica'tion of Security Information, U.S. 

Department of the Interior, Washington, 

D.C. 20240, for a decision on his request. 

The Committee must render a decision 

within thirty (30) days. 

( c) Form of decision and appeal to 

Committee on Classification of Security 

Information. In the event that the bureau 

to which a request is assigned or the 

Chief, Division of Records and Protective 

Services, in the case of a request assigned to him, determines that the 

requested information must remain 

classified by reason of the provisions of 

Executive Order 11652, the requester 

shall be given prompt notification of 

that decision and, whenever possible, 

shall be provided with a brief statement 

as to why the information or material 

70 

cannot be declassified. He shall also be 

advised that if he desires he may appeal 

the determination to the Chairman, Department of the Interior Committee on 

Classification of Security Information, 

U.S. Department of the Interior, Washington, D.C. 20240. An appeal shall include a brief statement as to why the 

requester disagrees with the decision 

which he is appealing. The Department 

Committee on Classification of Security 

Information shall render its decision 

within thirty (30) days of receipt of an 

appeal. The Departmental Committee 

shall be authorized to over-rule previous 

determinations in whole or in part when, 

in its judgment, continued protection is 

no longer required. 

(d) Appeal to lnteragency Classification Review Committee. Whenever the 

Department of the Interior Committee on 

Classification of Security Information 

confirms a determination for continued 

classification, it shall so notify the requester and advise him that he is 

entitled to appeal the decision to the 

lnteragency Classification Review Committee established under section 8 (A) of 

Executive Order 11652. Such appeals 

shall be addressed to the lnteragency 

Classification Review Committee, the 

Executive Office Building, Washington, 

D.C. 20500. 

(e) Suggestions and complaints. Any 

person may also direct suggestions or 

complaints with respect to the administration of the other provisions of Executive Order 11652 and the NSC Directive 

by the Department of the Interior to the 

Department of the Interior Committee 

for Classification of Security Information U.S. Department of the Interior, 

Washington, D.C. 20240. 

[37 F.R. 26594, Dec. 14, 19721 

§ 2.4 Charges. 

(a) No charge shall be made for the 

inspection of any record available pursuant to the provisions of section 2.4. 

No charge shall be made in connection 

with requests to inspect identifiable 

records in those instances involving no 

search or only a nominal search for the 

records. In those instances in which a 

request to inspect a record requires more 

than a nominal search, a charge shall be 

made ( in accordance with the policy of 

Bureau of the Budget Circular A-25, 
TITLE 43 § 2.5 

"User Charges") which covers the cost 

of the service. 

(b) Except as otherwise provided in 

this section, a charge shall be made for 

a copy of a record. Such charge shall be 

at a rate that recovers the full cost of 

rendering the service in accordance with 

the policy of Bureau of the Budget Circular A-25, "User Charges." 

(c) A charge of 25 cents may be 

made for each certificate or verification 

attached to authenticated copies of records furnished to the public. 

( d) No charge shall be made for furnishing unauthenticated copies of any 

opinions, regulations, or instructions reproduced for gratuitous distribution. 

( e) No charge shall be made for the 

making or verifying of copies of records 

which are required for official use by the 

officers of any branch of the Government. 

(f) No charge shall be made for furnishing one copy of a personal document 

(e.g., a birth certificate) to a person 

who has been required to furnish it for 

retention by the Department. 

(g) A copy of the transcript of a hearing before a hearing board in an adverse 

action or grievance proceeding shall be 

furnished without charge to the employee 

for whom the hearing was held. 

(h) Money received from the collection 

of charges fixed under this section shall 

be deposited in the Treasury to the credit 

of the appropriation current and chargeable for the cost of furnishing the copies. 

(i) Copies of records may be provided 

free: 

(1) To press, radio, television, and 

newsreel representatives for dissemination to the general public. 

(2) To donors with respect to the 

original of their gift, individuals or associations having an official voluntary or 

cooperative relationship to an agency in 

rendering assistance toward its work, or 

national governments and international 

agencies when furnishing the service 

without charge is an appropriate courtesy. 

( 3) To agencies of State and local 

governments which are carrying on a 

function related to that of the Federal 

agency involved, when furnishing the 

service will help to accomplish an objective of the Federal agency. 

( 4) When furnishing the service free 

saves costs or yields income equal to the 

71 

direct costs of the agency providing the 

service. This category includes cases 

where the fee for the service would be 

included in a billing against the Government (for example, in cost-type contracts, or in the case of private physicians who are treating Government beneficiaries at Government expense). 

( 5) When furnishing the service free 

is in conformance with generally established business custom, such as furnishing personal reference data to prospective employers of former Government 

employees. 

( 6) To the extent of one copy, to those 

who require copies of records or information from the records in order to obtain 

financial benefits to which they may be 

entitled ( e.g., veterans or their dependents, employees with workmen's compensation claims, or persons insured by 

the Government). 

[32 F.R. 9974. July 7. 1967. Redcsignated a:t 37 F.R. 

26594, Dec. 14, 1972] 

§ 2.5 Opinions in adjudications of cases; 

administrative manuals. 

(a) (1) Copies of final decisions and 

orders issued on and after July 1, 1970, 

in the following categories of cases are 

available for inspection and copying in 

the Office of Hearings and Appeals, 

Ballston Building No. 3, 4015 Wilson 

Boulevard, Arlington, Va. 22203: 

( i) Contract appeals; 

(ii) Appeals from decisions rendered 

by departmental officials relating to the 

use and disposition of public lands and 

their resources and the use and disposition of mineral resources in certain acquired lands of the United States and 

in the submerged lands of the Outer 

Continental Shelf; 

(iii) Appeals from orders and decisions issued by departmental officials and 

administrative law judges in proceedings 

relating to mine health and safety; and 

(iv) Appeals from orders and decisions of administrative law judges in 

Indian probate matters other than those 

involving estates of Indians of the Five 

Civilized Tribes and Osage Indians. 

(2) Copies of final opinions and orders 

issued in the following categories of cases 

are available for inspection and copying 

in the Docket and Records Section, Office 

of the Solicitor, Interior Building Washington, D.C. 20240: 
§ 2.5 PUBLIC LANDS: INTERIOR 

( i) Tort claims decided in the headquarters office of the Office of the Solicitors, and appeals from decisions of 

Regional Solicitors or Field Solicitors on 

tort claims; 

(ii) Irrigation claims under Public 

Works Appropriation Acts (e.g., 79 Stat. 

1103) or 25 U.S.C. section 388 decided in 

the headquarters office of the Office of 

the Solicitor, and appeals from decisions 

of Regional Solicitors or irrigation 

claims; 

(iii) Appeals under § 2.2 respecting 

availability of records; 

(iv) Appeals from decisions of officials 

of the Bureau of Indian Affairs, and Indian enrollment appeals; and 

(v) Appeals from decisions of officers 

of the Bureau of Land Management and 

of the Geological Survey in proceedings 

relating to lands or interests in land, contract appeals, and appeals in Indian probate proceedings, issued prior to July 1, 

1970. 

(3) An Index-Digest is issued by the 

Department. All decisions, opinions and 

orders issued in the categories of cases 

described in subdivisions ( i), (ii), and 

(iii) of subparagraph ( 1) of this paragraph (that is, contract appeals, land 

appeals, and mine health and safety appeals), are covered in the Index-Digest; 

in addition, the Index-Digest covers the 

more important decisions, opinions and 

orders in the remaining categories of 

cases described in subdivision (iv) of 

subparagraph (1) of this paragraph and 

in subdivisions (i), (ii), (iii), and (iv) 

of subparagraph (2) of this paragraph, 

and the more important opinions of law 

issued by the Office of the Solicitor. The 

Index-Digest is available for use by the 

public in the Office of Hearings and 

Appeals, Ballston Building No. 3, 4015 

Wilson Boulevard, Arlington, Va. 22203, 

in the Docket and Records Section. Office 

of the Solicitor, Interior Building, Washington, D.C. 20240, and in the offices of 

the Regional Solicitors and Field Solicitors. Selected decisions, opinions and 

orders are published in a series entitled 

"Decisions of the United States Department of the Interior" ( cited as I.D.), 

and copies may be obtained by subscription from the Superintendent of Documents, U.S. Government Printing Office, 

Washington, D.C. 20402. 

( 4) Copies of final opinions and orders 

72 

issued by Regional Solicitors on tort 

claims and irrigation claims, and copies 

of final opinions and orders on appeals 

in Indian probate proceedings issued by 

Regional Solicitors prior to July 1, 1970, 

are available for inspection and copying 

in their respective offices. Copies of final 

opinions and orders issued by Field 

Solicitors on tort claims are available for 

inspection and copying in their respective offices. 

(b) ( 1) Copies of final decisions and 

orders issued prior to July 1, 1970, on 

appeals to the Director, Bureau of Land 

Management, and by hearing examiners 

of the Bureau of Land Management, in 

proceedings relating to lands and interests in land are available for inspection 

and copying in the Office of Hearings 

and Appeals, Ballston Building No. 3, 

4015 Wilson Boulevard, Arlington, Va. 

22203, and in the offices of the Departmental administrative law judges. 

(2) Copies of final decisions, opinions 

and orders issued on and after July 1, 

1970, by departmental administrative law 

judges in all proceedings before them are 

available for inspection and copying in 

their respective offices and in the Office 

of Hearings and Appeals, Ballston Building No. 3, 4015 Wilson Boulevard, Arlington, Va. 22203. 

(3) Copies of final decisions, opinions 

and orders issued by administrative law 

judges in Indian probate proceedings are 

available for inspection and copying in 

their respective offices. 

(c) Copies of final opinions and orders 

issued in cases pertaining to applications 

for subsidies for the construction of fishing vessels are available for inspection 

and copying in the Branch of Grants 

and Loans, Bureau of Commercial Fisheries, Washington, D.C. 

( d) Copies of final opinions and orders 

issued by the Oil Import Appeals Board 

are available for inspection and copying 

in the Office of Hearings and Appeals, 

Ballston Building No. 3, 4015 Wilson 

Boulevard, Arlington, VA 22203. 

(e) The Department Manual is available for inspection in the Departmental 

Library, Interior Building, Washington, 

D.C., and at each of the regional offices 

of bureaus of the Department. The administrative manuals of those bureaus 

which have issued such documents are 

available for inspection at the headquar-
TITLE 43 § 2.6 

ters offices and at the regional offices of 

the bureaus. 

[32 F.R. 9974, July 7, 1967, as amended at 35 F.R. 

!4697, Sept. 22, 1970; 37 F.R. 2677, Feb. 4, 1972. 

Redesignated at 37 F.R. 26594, Dec. 14, 1972) 

§ 2.6 Compulsory process. 

(a) If the production of any record 

of the Department is sought by compulsory process and if it is determined, in 

accordance with the provisions of § 2.2 

that the record should not be disclosed, 

the person making such determination 

shall immediately report the matter to 

the Solicitor. The person to whom the 

compulsory process is directed shall appear in answer to the process and respectfully decline to produce the record on the 

ground that the disclosure, pending the 

receipt of instructions from the Secretary of the Interior, is prohibited by the 

regulations in this part. 

(b) The Solicitor of the Department 

of the Interior and the Deputy Solicitor 

may exercise all of the authority of the 

Secretary of the Interior under this 

section. 

(32 F.R. 9974, July 7, 1967. Redesignated at 37 F.R. 

26594, Dec. 14, 1972] 

§ 2. 7 Testimony of employees. 

(a) An officer or employee of the Department shall not testify in any judicial 

or administrative proceeding concerning 

matters related to the business of the 

Government without the permission of 

the head of the bureau, or his designee, 

or of the Secretary of the Interior, or his 

designee. If the head of a bureau, or 

his designee, concludes that permission 

should be withheld, he shall report the 

matter immediately to the Solicitor for 

a determination, and the officer or employee shall appear in answer to process 

and respectfully decline to testify, pending the receipt of instructions from the 

Secretary, on the ground that testimony 

is prohibited by the regulations in this 

part. Pending instructions from the Secretary, or his designee, an officer or employee in the Office of the ,Secretary shall 

follow the same procedure. 

(b) Any person (including a public 

agency) wishing an officer or employee 

of the Department to testify, in a judicial or administrative proceeding concerning a matter related to the business 

of the Government may be required to 

submit a statement setting forth the 

73 

interest of the litigant and the information with respect to which the testimony 

of the officer or employee of the Department is desired, before permission to 

testify will be granted under this section. 

( c) The Solicitor of the Department 

of the Interior and the Deputy Solicitor 

may exercise all of the authority of the 

Secretary of the Interior under this 

section. 

(32 F.R. 9974, July 7, 1967. Redesignated at 37 F.R. 

26594, Dec. 14, 1972) 

§ 2.8 Definition. 

As used in the regulations in this part, 

the term "bureau" includes the other 

Departmental offices. 

APPENDIX 

OFFICE OF HEARINGS AND APPEALS-FIELD OFFICES 

Departmental Administrative Law Judges: 

(l) Sacramento, Calif., Federal Building. 

(2) Salt Lake City, Utah, Federal Building. Administrative Law Judges (Indian Probate): 

(I) Phoenix, Ariz., Arizona Title Annex Building. 

(2) Sacramento, Calif., Federal Building. 

( 3) Denver, Colo., Denver Federal Center. 

(4) Minneapolis, Minn., Buzza Building. 

(5) Billings, Mont., Federal Building and Courthou.Se. 

(6) Gallup, N. Mex., V.E.M. Building. 

(7) Tulsa, Okla., U.S. Post Office and Federal 

Office Building. 

(8) Portland, Oreg., Federal Building. 

OFFICE OF TflE SOLICITOR-FIELD OFFICES 

Anchorage Region 

Regional Solicitor; Anchorage, Alaska, Federal Building. 

Field Solicitor; Juneau, Alaska, U.S. Post Office and 

Courthouse. 

Denver Region 

Regional Solicitor; Denver, Colo., Denver Federal 

Center 

Field Solicitor; Aberdeen, S. Dak., Federal Building. 

Field Solicitor; Albuquerque, N. Mex., Federal 

ll uilding and Courthouse. 

Field Solicitor; Billings, Mont., Federal Building 

and Courthouse. 

Field Solicitor; Cheyenne, Wyo., Joseph C. O'Mahoney Federal Center. 

Field Solicitor; Twin Cities, Minn., Federal Building, Fort Snelling. 

Field Solicitor; Santa Fe, N. !\Iex., U.S. Courthouse. 

Los Angeles Region 

Regional Solicitor; Los Angeles, Calif., 7759 Federal 

Building. 

Field Solicitor; Phoenix, Ariz., Arizona Title Annex 

lluilding. 

Field Solicitor; Reno, Nev., 2004 Federal BuildingU.S. Courthouse. 

Philadelphia Region 

Regional Solicitor; Philadelphia, Pa., Second Bank 

Building, 

Portland Region 

Regional Solicitor; Portland, Oreg., Federal lluilding. 

Field Solicitor; Boise, Idaho, Federal Building-U.S. 

Courthouse. 

Field Solicitor; Ephrata, Wash., Reclamation Building. 
§ 4.1 PUBLIC LANDS: INTERIOR 

Sacramento Region 

Regional Solicitor; Sacramento, Calif., Federal Building. 

Field Solicitor; San Francisco, Calif., 450 Golden 

Gate Avenue. 

Attorney-Advisor; Palm Springs, Calif., 587 South 

Palm Canyon Drive. 

Salt Lake City Region 

Regional Solicitor; Salt Lake City, Utah, Federal 

Building. 

Tulsa Region 

Regional Solicitor; Tulsa, Okla., Federal Building, 

U.S. Post Office and Courthouse. 

Field Solicitor; Amarillo, Tex., I I 06 Herring Plaza. 

Field Solicitor; Anadarko, Okla., 121 Northwest 

Second Street. 

Trial Attorney; Durant, Okla., U.S. Post Office and 

Courthouse. 

Field Solicitor; Muskogee, Okla., Federal Building. 

Field Solicitor; Pawhuska, Okla, c/o Osage Indian 

Agency. 

Field Solicitor; Elberton, Ga., First National Bank 

Building. 

[35 F.R. 14697, Sept. 22, 1970. Redesignated at 37 

F.R. 26594, Dec. 14, 1972] 

* * * * * * 

PART 4 - DEPARTMENT HEARINGS 

AND APPEALS PROCEDURES 

Subpart A-General; Office of Hearings and Appeals 

§ 4.1 Scope of authority; applicable 

regulations. 

The Office of Hearings and Appeals, 

headed by a Director, is an authorized 

representative of the Secretary for the 

purpose of hearing, considering and determining, as fully and finally as might 

the Secretary, matters within the jurisdiction of the Department involving 

hearings, and appeals and other review 

functions of the Secretary. Principal 

components of the Office include (a) a 

Hearings Division comprised of hearing 

examiners who are authorized to conduct hearings in cases required by law 

to be conducted pursuant to 5 U.S.C. sec. 

554, hearings in Indian probate matters, 

and hearings in other cases arising under 

statutes and regulations of the Department, includng rule making hearings, 

and (b) Appeals Boards, shown below, 

with administrative jurisdiction and special procedural rules as indicated. General rules applicable to all types of proceedings are set forth in Subpart B of 

this part. Therefore, for information as 

to applicable rules, reference should be 

made to the special rules in the subpart 

relating to the particular type of proceeding, as indicated, and to the general 

74 

rules in Subpart B of this part. Wherever there is any conflict between one of 

the general rules in Subpart B of this 

part and a special rule in another subpart applicable to a particular type of 

proceeding, the special rule will govern. 

Reference should be made also to the 

governing laws, substantive regulations 

and policies of the Department relating 

to the proceeding. In addition, reference 

should be made to Part 1 of this subtitle 

which regulates practice before the Department of the Interior. 

* * * * * * 

(2) Board of Indian Appeals. The 

Board decides finally for the Department appeals to the head of the Department from orders and decisions of 

hearing examiners in Indian probate 

matters. Jurisdiction of the Board includes, but is not limited to, authority 

of the Secretary relating to Indian probate proceedings other than those involving estates of the Five Civilized 

Tribes and Osage Indians. ,Special regulations applicable to proceedings before 

the Board are contained in Subpart D 

of this part. 

* * * * * * 

Subpart B-General Rules Relating to 

Procedures and Practice 

§ 4.20 Purpose. 

In the interest of establishing and 

maintaining uniformity to the extent 

feasible, this subpart sets forth general 

rules applicable to all types of proceedings before the Hearing Division and the 

several Appeals Boards of the Office of 

Hearings and Appeals. 

§ 4.21 General provisions. 

(a) Effect of decision pending appeal. 

Except as otherwise provided by law or 

other pertinent regulation, a decision 

will not be effective during the time in 

which a person adversely affected may 

file a notice of appeal, and the timely 

filing of a notice of appeal will suspend 

the effect of the decision appealed from 

pending the decision on appeal. However, 

when the public interest requires, the 

Director or an Appeals Board may provide that a decision or any part of it shall 

be in full force and effect immediately. 

(b) Exhaustion of administrative remedies. No decision which at the time of 
TITLE 43 § 4.22 

,its rendition is subject to appeal to the 

Director or an Appeals Board shall be 

considered _fin~l. so as ~o be agency action 

,ubject to Judicial review under 5 U.S.C. 

f!ec. 704, unless !t.has been made e~ective 

pending a dec1s1on on appeal m the 

manner provided in paragraph (a) of 

this section. 

(c) Finality of decision. No further 

appeal will lie in the Department from a 

decision of the Director or an Appeals 

Board of th·e Office of Hearings and 

Appeals. Unless otherwise provided by 

regulation, reconsideration of -a decision 

may be granted only in extraordinary 

circumstances where, in the judgment of 

the Director or an Appeals Board, sufficient reason appears therefor. Requests 

for reconsideration -must be filed 

promptly, or within the time required by 

the regulations relating to the particular 

type of proceeding concerned, and must 

state with particularity the error claimed. 

The filing and pendency of a request for 

reconsideration shall not operate to stay 

the effectiveness of the decision involved 

unless so ordered by the Director or an 

Appeals Board. A_ request for reconsideration need not be filed to exhaust 

administrative remedies. 

§ 4.22 Documents. 

(a) Filing of documents. A document 

is filed in the Office where the filing is 

required only when the document is received in that office during the office 

hours when filing is permitted and the 

document is received by a person authorized to receive it. 

(b) Service generally. A copy of each 

document filed in a proceeding before the 

Office of Hearings and Appeals must be 

served by the filing party on the other 

party or parties in the case. In all cases 

where a party is represented by an attorney, such attorney will be recognized 

as fully controlling the case on behalf of 

his client, and service of any document 

relating to the proceeding shall be made 

upon such attorney in addition to any 

other service specifically required by law 

or by rule, order, or regulation of an 

Appeals Board. Where a party is represented by more than one attorney, service 

upon one of the attorneys shall be sufficient. 

(c) Retention of documents. All documents, book, records, papers, etc., re75 

ceived in evidence in a hearing or 

submitted for the record in any proceeding before the Office of Hearings and 

Appeals will be retained with the official 

record of the proceeding. However, the 

withdrawal of original documents may 

be permitted while the case is pending 

upon the submission of true copies in 

lieu thereof. When a decision has become 

final, an Appeals Board may, upon request and after notice to the other party, 

in its discretion permit the withdrawal 

of original exhibits or any part thereof, 

by the party entitled thereto. The substitution of true copies of exhibits or any 

part thereof may be required by the 

Board in its discretion as a condition of 

granting permission for such withdrawal. 

(d) Record address. Every person who 

files a document for the record in connection with any proceeding before the 

Office of Hearings and Appeals shall at 

the time of his initial filing in the matter 

state his address. Thereafter he must 

promptly inform the office in which the 

matter is pending of any change in address, giving the docket or other appropriate numbers of all matters in which 

he has made such a filing. The successors 

of such person shall likewise promptly 

inform such office of their interest in 

the matters and state their addresses. 

If a person fails to furnish a record address as required herein, he will not be 

entitled to notice in connection with the 

proceedings. 

(e) Computation of time for filing and 

service. Except as otherwise provided by 

law, in computing any period of time prescribed for filing and serving a document, 

the day upon which the decision or document to be appealed from or answered 

was served or the day of any other event 

after which the designated period of time 

begins to run is not to be included. The 

last day of the period so computed is to 

be included, unless it is a Saturday, Sunday, Federal legal holiday, or other nonbusiness day, in which event the period 

runs until the end of the next day which 

is not a Saturday, Sunday, Federal legal 

holiday, or other nonbusiness day. When 

the time prescribed or allowed is 7 days 

or less, intermediate Saturdays, Sundays, 

Federal legal holidays and other nonbusiness days shall be excluded in the 

computation. 

(f) Extensions of time. (1) The time 
§ 4.23 PUBLIC LANDS: INTERIOR 

for filing or serving any document may 

be extended by the Appeals Board or 

other officer before whom the proceeding 

is pending, except for the time for filing 

a notice of appeal and except where such 

extension is contrary to law or regulation. 

(2) A request for an extension of time 

must be filed within the time allowed 

for the filing or serving of the document 

and must be filed in the same office in 

which the document in connection with 

which the extension is requested must 

be filed. 

§ 4.23 Transcript of hearings. 

Hearings will be recorded verbatim and 

transcripts thereof shall be made when 

requested by interested parties, costs of 

transcripts to be borne by the requesting 

parties. Fees for transcripts prepared 

from recordings by Office of Hearings 

and Appeals employees will be at rates 

which cover the cost of manpower, machine use and materials, plus 25 percent, 

adjusted to the nearest 5 cents. If the 

reporting is done pursuant to a contract 

between the reporter and the Department of the Interior agency or office 

which is involved in the proceeding, or 

the Office of Hearings and Appeals, fees 

for transcripts will be at rates established by the contract. 

§ 4.24 Basis of decision. 

(a) Record. ( 1) The record of a hearing shall consist of the transcript of 

testimony or summary of testimony and 

exhibits together with all papers and 

requests filed in the hearing. 

(2) If a hearing has been held on an 

appeal pursuant to instructions of an 

Appeals Board, this record shall be the 

sole basis for decision insofar as the referred issues of fact are involved except 

to the extent that official notice may be 

taken of a fact as provided in paragraph 

(b) of this section. 

( 3) Where a hearing has been held in 

other proceedings, the record made shall 

be the sole basis for decision except to 

the extent that official notice may be 

taken of a fact as provided in paragraph 

(b) of this section. 

(4) In any case, no decision on appeal 

or after a hearing shall be based upon 

any record, statement, file or similar 

document which is not open to inspec76 

tion by the parties to the appeal or 

hearing. 

(b) 0 fficial notice. Official notice may 

be taken of the public records of the 

Department of the Interior and of any 

matter of which the courts may take 

judicial notice. 

§ 4.25 Oral argument. 

The Director or an Appeals Board may, 

in their discretion, grant an opportunity · 

for oral argument. 

§ 4.26 Subpoena power and witness provisions generally. 

(a) Compulsory attendance of witnesses. The administrative law judge, on 

his own motion, or on written application 

of a party, is authorized to issue subpoenas requiring the attendance of witnesses at hearings to be held before him 

or at the taking of depositions to be held 

before himself or other officers. Subpoenas will be issued on a form approved 

by the Director. A subpoena may be 

served by any person who is not a party 

and is not less than 18 years of age, and 

the original subpoena bearing a certificate of service shall be filed with the 

administrative law judge. A witness may 

be required to attend a deposition or 

hearing at a place not more than 100 

miles from the place of service. 

(b) Application for subpoena. Where 

the file has not yet been transmitted to 

the administrative law judge, the application for a subpoena may be filed in the 

office of the officer who made the decision 

appealed from, or in the office of the 

Bureau of Land Management in which 

the complaint was filed, in which cases 

such offices will forward the application 

to the examiner. 

(c) Fees payable to witnesses. (1) Witnesses subpoenaed by any party shall 

be paid the same fees and mileage as are 

paid for like service in the District 

Courts of the United States. The witness 

fees and mileage shall be paid by the 

party at whose instance the witness 

appears. 

(2) Any witness who att:mds any 

hearing or the taking of any deposition 

at the request of any party to the controversy without having been subpoenaed 

to do so shall be entitled to the same 

mileage and attendance fees, to be paid 

by such party, to which he would have 

been entitled if he had been first duly 
TITLE 43 § 4.200 

subpoenaed as a witness on behalf of 

such party. This paragraph does not 

apply to Government employees who are 

called as witnesses by the Government. 

§ 4.27 Standards of conduct. 

(a) Inquiries. All inquiries with respect to any matter pending before the 

Office of Hearings and Appeals shall be 

directed to the Director, the Chief Administrative Law Judge, or the Chairman of the appropriate Board. 

(b) Ex parte communications. There 

shall be no communication between any 

party and a member of the Office of 

Hearings and Appeals concerning the 

merits of a proceeding, or an appeal, 

unless such communication (if written) 

is also furnished to the other party, or 

(if oral) is made in the presence of the 

other party. The Board shall refuse to 

receive, except as part of the appeals 

record, any information having a substantial bearing upon an appeal from 

persons who do not represent a party in 

the appeal but have an interest in the 

decision to be rendered. 

(c) Disqualification. An administrative 

law judge or Board member shall withdraw from a case if he deems himself 

disqualified under the recognized canons 

of judicial ethics. If, prior to a decision 

of an administrative law judge or an 

Appeals Board, there is filed in good 

faith by a party an affidavit of personal 

bias or disqualification with Sllbstantiating facts, and the administrative law 

judge or Board member concerned does 

not withdraw, the Board or the Director, 

as appropriate, shall determine the matter of disqualification. 

§ 4.28 Interlocutory appeals. 

There shall be no interlocutory appeal 

from a ruling of an administrative law 

judge unless permission is first obtained 

from an Appeals Board and an administrative law judge has certified the interlocutory ruling or abused his discretion 

in refusing a request to so certify. Permission will not be granted except upon 

a showing that the ruling complained of 

involves a controlling question of law and 

that an immediate appeal therefrom may 

materially advance the final decision. An 

interlocutory appeal shall not operate to 

suspend the hearing unless otherwise 

ordered by the Board. 

77 

§ 4.29 Remands from courts. 

Whenever any matter is remanded 

from any court for further proceedings, 

and to the extent, the court's directive 

and time limitations will permit, the 

parties shall be allowed an opportunity 

to submit to the appropriate Appeals 

Board a report recommending procedures to be followed in order to comply 

with the court's order. The Board will 

review the reports and enter special orders governing the handling of matters 

remanded to it for further proceedings 

by any court. 

§ 4.30 Information required by forms. 

Whenever a regulation of the Office 

of Hearings and Appeals requires a form 

approved or prescribed by the Director, 

the Director may in that form require the 

submission of any information which he 

considers to be necessary for the effective 

administration of that regulation. 

* * * * * * 

Subpart D-Special Rules Applicable 

to Proceedings in Indian Probate, 

Including Hearings and Appeals 

AUTHORITY: The provisions of this Subpart D 

issued under secs, I, 2, 36 Stat. 855, as amended, 

856, as amended, sec. I, 38 Stat. 586, 42 Stat. 1185, 

as amended, secs. I, 2, 56 Stat. I 02 I, I 022; 25 

U.S.C. 372, 373, 374, 373a, 373b. 

[Cross reference: Sec Subpart A for the authority, 

jurisdiction and membership of the Board of Indian 

Appeals within the Office of Hearings and Appeals. 

For general rules applicable to proceedings before 

the Board of Indian Appeals as well as the other 

Appeals Boards of the Office of Hearings and Appeals, see Subpart Bl 

DETERMINATION OF HEIRS AND APPROVAL 

OF WILLS, EXCEPT AS TO MEMBERS OF 

THE FIVE CIVILIZED TRIBES AND OSAGE 

INDIANS. 

SCOPE OF REGULATIONS; DEFINITIONS; 

GENERAL AUTHORITY OF EXAMINERS 

§ 4.200 Scope of regulations. 

The regulations in this subpart govern 

the procedures in settlement of trust 

estates of deceased Indians who die possessed of trust property, except deceased 

Indians of the Five Civilized Tribes, deceased Osage Indians, and the members 

of any tribe organized under 25 U .S.C. 

sec. 476 (1964), to the extent that the 

constitution, bylaws, or charter of such 

tribe may be inconsistent with this 

subpart. 
§ 4.201 PUBLIC LANDS: INTERIOR 

§ 4.201 Definitions. 

As used in this subpart: 

(a) The term "Secretary" means the 

Secretary of the Interior or his authorized representative; 

(b) The term "Board" means the 

Board of Indian Appeals in the Office of 

Hearings and Appeals, Office of the 

Secretary, authorized by the Secretary 

to hear, consider, and determine finally 

for the Department appeals taken by 

aggrieved parties from actions by Examiners on petitions for rehearing or reopening, and allowance of attorney fees; 

(c) The term "Commissioner" means 

the Commissioner of Indian Affairs or 

his authorized representative; 

(d) The term "Superintendent" means 

the Superintendent or other officer having jurisdiction over an estate, including 

area field representatives or one holding 

equivalent authority; 

(e) The terms "agency" and "Indian 

agency" mean the Indian agency or any 

other designated office in the Bureau of 

Indian Affairs having jurisdiction over 

trust property; 

(f) "Hearing Examiner" (hereinafter 

called Examiner) means any employee 

of the Office of Hearings and Appeals 

upon whom authority has been conferred by the Secretary to conduct hearings in accordance with the regulations 

in this subpart; 

(g) The term "Solicitor" means the 

Solicitor of the Department of the Interior or his authorized representative; 

(h) The term "Department" means 

the Department of the Interior; 

(i) The term "parties in interest" 

means any presumptive or actual heir, 

any beneficiary under a will, and any 

party asserting a claim against a deceased Indian's estate; 

(j) The term "minor" means an individual who has not reached his majority 

as defined by the laws of the State where 

the deceased's property is situated; 

(k) The words "child" or "children" 

include adopted child or children; 

(1) The words "will" and "last will 

and testament" include codicils thereto; 

(m) The term "trust property" means 

real or personal property title to which 

is in the United States for the benefit 

of an Indian. In this subpart "restricted 

property" ( real or personal property 

78 

held by an Indian which he may not 

alienate without the consent of the Secretary or his authorized representative) 

is treated as if it were trust property, 

and conversely trust property is treated 

as restricted property. 

§ 4.202 General authority of Examiners. 

Examiners shall determine the heirs 

of Indians who die intestate possessed 

of trust property, except as otherwise· 

provided in §§ 4.205(b) and 4.271; approve or disapprove wills of deceased 

Indians disposing of trust property; and 

allow or disallow creditors' claims 

against estates of deceased Indians. 

§ 4.203 Determinations as to nonexistent persons and other irregularities 

of allotments. 

(a) Examiners shall hear and determine whether trust patents covering allotments of land were issued to nonexistent persons, and whether more than 

one trust patent covering allotments of 

land had been issued to the same person 

under different names and numbers or 

through other errors in identification. 

(b) If an Examiner determines under 

paragraph (a) of this section that a 

trust patent did issue to an existing person or that separate persons did receive 

the allotments under consideration and 

any one of them is deceased, without 

having had his estate probated, he shall 

proceed as provided in § 4.202. 

( c) If an Examiner determines under 

paragraph (a) of this section that a 

person did not exist or that there were 

more than one allotment issued to the 

same person, he shall issue a decision to 

that effect, giving notice thereof to parties in interest as provided in § 4.240 (b). 

§ 4.204 Presumption of death. 

(a) Examiners shall receive evidence 

on and determine the issue of whether 

persons, by reason of unexplained absence, are to be presumed dead. 

(b) If an Examiner determines that 

an Indian person possessed of· trust 

property is to be presumed dead, he shall 

proceed as provided in § 4.202. 

§ 4.205 Escheat. 

Examiners shall determine whether 

Indian holders of trust property have 

died intestate without heirs and-

( a) With respect to trust property 
TITLE 43 § 4.210 

other than on the public domain, shall 

order the escheat of such property in 

accordance with 25 U.S.C. sec. 373a 

(1964). 

(b) With respect to trust property on 

the public domain, shall submit to the 

Board of Indian Appeals the records 

thereon, together with their recommendations as to the disposition of said 

property under 25 U.S.C. 373b (1964). 

§ 4.206 Determinations of nationality or 

citizenship and status affecting 

character of land titles. 

In cases where the right and duty of 

the Government to hold property in trust 

depends thereon, Examiners shall determine the nationality or citizenship, or 

the Indian or non-Indian status, of heirs 

or devisees, or whether Indian heirs or 

devisees of United States citizenship are 

of a class as to whose property the Government's supervision and trusteeship 

have been terminated (a) in current 

probate proceedings or (b) in completed 

estates after reopening such estates under, but without regard to the 3-year 

limit set forth in § 4.242. 

§ 4.207 Compromise settlement. 

(a) If during the course of the probate of an estate it shall develop that 

an issue between contending parties is 

of such nature as to be substantial, and 

it further appears that such issue may 

be settled by agreement preferably in 

writing by the parties in interest to 

their advantage and to the advantage of 

the United States, such an agreement 

may be approved by the Examiner upon 

findings that: 

( 1) All parties to the compromise are 

fully advised as to all material facts; 

(2) All parties to the compromise are 

fully cognizant of the effect of the compromise upon their rights; and 

(3) It is in the best interest of the 

parties to settle rather than to continue 

litigation. 

(b) In considering the proposed settlement, the Examiner may take and 

receive . evidence as to the respective 

values of specific items of property. 

Superintendents and irrigation project 

engineers shall supply all necessary 

information concerning any liability or 

lien for payment of irrigation construction and of irrigation operation and 

maintenance charges. 

79 

(c) Upon an affirmative determination as to all three points specified, the 

Examiner shall issue such final order of 

distribution in the settlement of the 

estate as is necessary to approve the 

same and to accomplish the purpose and 

spirit of the settlement. Such order shall 

be construed as any other order of distribution establishing title in heirs and 

devisees and shall not be construed as 

a partition or sale transaction within the 

provisions of Part 121, Title 25, Code of 

Federal Regulations. If land titles are 

to be transferred, the necessary deeds 

shall be prepared and executed at the 

earliest possible date. Upon failure or 

refusal of any party in interest to execute and deliver any deed necessary to 

accomplish the settlement, the Examiner 

shall settle the issues and enter his order 

as if no agreement had been attempted. 

( d) Examiners are authorized to approve all deeds or conveyances necessary 

to accomplish a settlement under this 

section. 

COMMENCEMENT OF PROBATE PROCEEDINGS 

§ 4.210 Commencement of probate. 

(a) Within the first 7 days of each 

month, each Superintendent shall prepare and furnish to the appropriate Examiner a list of the names of all Indians 

who have died and whose names have 

not been previously reported. 

(b) Within 90 days of receipt of notice 

of death of an Indian who died owning 

trust property, the ,Superintendent having jurisdiction thereof shall commence 

the probate of the trust estate by filing 

with the appropriate Examiner all data 

shown in the records relative to the 

family of the deceased and his property. 

The data shall include but is not limited 

to: 

(1) A copy of the death certificate or 

its equivalent; 

(2) Data for heirship findings and 

family history, certified by the Superintendent, on a form approved by the 

Director, Office of Hearings and Appeals, 

such data to contain: 

(i) The facts and alleged facts of 

deceased's marriages, separations and 

divorces, with copies of necessary supporting documents; 

(ii) The names and last known addresses of probable heirs and other 
§ 4.211 PUBLIC LANDS: INTERIOR 

known parties in interest, including 

known creditors; 

(iii) Information on whether the relationship of the probable heirs to the 

deceased arose by marriage, blood, or 

adoption; 

(iv) The names, relationships to the 

deceased, and last known addresses of 

beneficiaries and attesting witnesses 

when a will or purported will is involved; and 

(v) If will beneficiaries are not probable heirs of the deceased, the names of 

the tribes in which they are members; 

( 3) A certified inventory of the trust 

real and personal property wherever situated, in which the deceased had any 

right, title or interest at the time of his 

death (including all moneys and credits 

in a trust status whether in the form of 

bonds, undistributed judgment funds, or 

any other form and the source of each 

fund in the account), showing both the 

total estimated value of the real property and the estimated value of the deceased's interest therein, and the amount 

and names and addresses of parties having an approved incumbrance against 

the estate; 

( 4) The original and copies of all 

wills in the Superintendent's custody, if 

any; the original and copies of codicils 

to and revocations of wills, if any; and 

any paper, instrument, or document that 

purports to be a will; 

(5) The Superintendent shall transmit to the Examiner all creditors' and 

other claims which have been filed and, 

thereafter, he shall transmit all additional claims immediately upon the filing 

thereof. 

[36 F.R. 7186, Apr. 15, 1971, as amended at 36 

F.R. 24813, Dec. 23, 1971] 

§4.211 Notice. 

(a) An Examiner may receive and 

hear proofs at a hearing to determine 

the heirs of a deceased Indian or probate his will only after he has caused 

notice of the time and place of the 

hearing to be posted at least 20 days in 

five or more conspicuous places in the 

vicinity of the designated place of hearing, and he may cause postings in such 

other places and reservations as he 

deems appropriate. A certificate showing the date and place of posting shall 

80 

be signed by the person or official who 

performs the act. 

(b) The Examiner shall serve or 

cause to be served a copy of the notice 

on each party in interest reported to the 

Examiner and on each attesting witness 

if a will is offered: 

(1) By personal service in sufficient 

time in advance of the date of the hearing to enable the person served to attend 

the hearing; or 

(2) By mail, addressed to the person 

at his last known address, in sufficient 

time in advance of the date of the hearing to enable the addressee served to 

attend the hearing. The Examiner shall 

cause a certificate, as to the date and 

manner of such mailing, to be made on 

the record copy of the notice. 

(c) All parties in interest, known and 

unknown, including creditors, shall be 

bound by the decision based on such 

hearing if they lived within the vicinity 

of any place of posting during the posting period, whether they had actual notice of the hearing or not. As to those 

not within the vicinity of the place of 

posting, a rebuttable presumption of 

actual notice shall arise upon the mailing of such notice at a reasonable time 

prior to the hearing, unless the said 

notice is returned by the postal service 

to the Examiner's office unclaimed by 

the addressee. 

§ 4.212 Contents of notice. 

(a) In the notice of hearing, the Examiner shall specify that at the stated 

time and place he will take testimony to 

determine the heirs of the deceased person (naming him) and, if a will is offered for probate, testimony as to the 

validity of the will describing it by date. 

The notice shall name all known presumptive heirs of the decedent, and, if 

a will is offered for probate, the beneficiaries under such will and the attesting witnesses to the will. The notice 

shall cite this subpart as the authority 

and jurisdiction for holding the hearing, 

and shall inform all persons having an 

interest in the estate of the decedent, 

including persons having claims or accounts against the estate, to be present 

at the hearing or their rights may be 

lost by default. 

(b) The notice shall state further that 

the hearing may be continued to an-
TITLE 43 § 4.221 

other time and place. A continuance 

may be announced either at the original 

hearing by the Examiner or by an appropriate notice posted at the announced 

place of hearing on or prior to the announced hearing date and hour. 

DEPOSITIONS, DISCOVERY, AND PREHEARING 

CONFERENCE 

§ 4.220 Production of documents for inspection and copying. 

(a) At any stage of the proceeding 

prior to the conclusion of the hearing, a 

party in interest may make a written 

demand, a copy to be filed with the Examiner, upon any other party to the 

proceeding or upon a custodian of records on Indians or their trust property, 

to produce for inspection and copying or 

photographing, any documents, papers, 

records; letters, photographs, or other 

tangible things not privileged, relevant 

to the issues which are in the other 

party's or custodian's possession, custody, or control. Upon failure of prompt 

compliance, the Examiner may issue an 

appropriate order upon a petition filed 

by the requesting party. At any time 

prior to closing the record, the Examiner 

upon his own motion, after notice to all 

parties, may issue an order to any 

party in interest or custodian of records 

for the production of material or information not privileged, and relevant to 

the issues. 

(b) Custodians of official records shall 

furnish and reproduce documents, or 

permit their reproduction, in accordance 

with the rules governing the custody 

and control thereof. 

§ 4.221 Depositions. 

(a) Stipulation. Depositions may be 

taken upon stipulation of the parties. 

Failing an agreement therefor, depositions may be ordered under paragraphs 

(b) and ( c) of this section. 

(b) Application for taking deposition. 

When a party in interest files a written 

application, the Examiner may at any 

time thereafter order the taking of the 

sworn testimony of any person by deposition upon oral examination for the 

purpose of discovery or for use as evidence at a hearing. The application shall 

be in writing and shall set forth: 

(1) The name and address of the proposed deponent; 

81 

(2) The name and address of that 

person, qualified under paragraph (d) 

of this section to take depositions, before 

whom the proposed examination is to be 

made; 

( 3) The proposed time and place of 

the examination, which shall be at least 

20 days after the date of the filing of 

the application; and 

(4) The reasons why such deposition 

should be taken. 

(c) Order for taking deposition. If 

after examination of the application the 

Examiner determines that the deposition 

should be taken, he shall order its taking. The order shall be served upon all 

parties in interest and shall state: 

( 1) The name of the deponent; 

(2) The time and place of the examination which shall not be less than 15 

days after the date of the order except 

as stipulated otherwise; and 

( 3) The name and address of the officer before whom the examination is to 

be made. The officer and the time and 

place need not be the same as those 

requested in the application. 

(d) Qualifications of officer. The deponent shall appear before the Examiner 

or before an officer authorized to administer oaths by the law of the United 

States or by the law of the place of the 

examination. 

(e) Procedure on examination. The 

deponent shall be examined under oath 

or affirmation and shall be subject to 

cross-examination. The testimony of the 

deponent shall be recorded by the officer 

or someone in his presence. An applicant 

who requests the taking of a person's 

deposition shall make his own arrangements for payment of any costs incurred. 

(f) Submission to witness; changes; 

signing. When the testimony is fully 

transcribed, the deposition shall be submitted to the deponent for examination 

and shall be read to or by him, unless 

such examination and reading are 

waived by the deponent or by all other 

parties in interest. Any changes in form 

or substance which the deponent desires 

to make shall be entered upon the deposition by the officer with a statement of 

the reasons given by the deponent for 

making them. The deposition shall then 

be signed by the deponent, unless the 

parties in interest by stipulation waive 
§ 4.222 PUBLIC LANDS: INTERIOR 

the signing, or the witness is ill or cannot be found or refuses to sign. If the 

deposition is not signed by the deponent, 

the officer shall sign it and state on the 

record the fact of the waiver, or of the 

illness or absence of the deposent or the 

fact of the refusal to sign together with 

the reason, if any, given therefor; the 

deposition may then be used as fully as 

though signed, unless the Examiner 

holds that the reason given for refusal 

to sign requires rejection of the deposition in whole or in part. 

(g) Certification by officer. The officer 

shall certify on the deposition that the 

deponent was duly sworn by him and 

that the deposition is a true record of 

the deponent's testimony. He shall then 

securely seal the deposition, together 

with two copies thereof, in an envelope 

and shall personally deliver or mail the 

same by certified or registered mail to 

the Examiner. 

(h) Use of depositions. A deposition 

ordered and taken in accord with the 

provisions of this section may be used in 

a hearing if the Examiner finds that the 

witness is absent and his presence cannot be readily obtained, that the evidence 

is otherwise admissible, and that circumstances exist that make it desirable in 

the interest of fairness to allow the deposition to be used. If a deposition has 

been taken, and the party in interest on 

whose application it was taken refuses 

to offer the deposition, or any part 

thereof, in evidence, any other party in 

interest or the Examiner may introduce 

the deposition or any portion thereof on 

which he wishes to rely. 

§ 4.222 Written interrogatories; admission of facts and documents. 

At any time prior to a hearing and in 

sufficient time to permit answers to be 

filed before the hearing, a party in 

interest may serve upon any other party 

in interest written interrogatories and 

requests for admission of facts and documents by filing such application and 

requests with the Examiner, who shall 

thereupon transmit a copy to the party 

in interest for whom they are intended. 

Such interrogatories and requests for 

admissions shall be drawn with the purpose of defining the issues in dispute 

between the parties and facilitating the 

82 

presentation of evidence at the hearing. 

Answers shall be served upon the Examiner within 15 days from the date of 

service of such interrogatories or within 

such other period of time as may be 

agreed upon by the parties or prescribed 

by the Examiner. A copy of the answers 

shall be transmitted by the Examiner to 

the party propounding the interrogatories. Within 10 days after service of 

written interrogatories are made upon 

him, a party in interest so served may 

serve cross-interrogatories for answer by 

the witness to be interrogated. 

§ 4.223 Objections to and limitations on 

production of documents, depositions, and interrogatories. 

The Examiner, upon motion timely 

made by any party in interest, proper 

notice, and good cause shown, may direct 

that proceedings under §§ 4.220, 4.221, 

and 4.222 shall be conducted only under, 

and in accordance with, such limitation 

as he deems necessary and appropriate 

as to documents, time, place, and scope. 

The Examiner may act on his own motion only if undue delay, dilatory tactics, 

and unreasonable demands are made so 

as to delay the orderly progress of the 

proceeding or cause unacceptable hardship upon a party or witness. 

§ 4.224 Failure to comply with orders. 

In the event of the failure of a party 

to comply with a request for the production of a document under § 4.220; or on 

the failure of a party to appear for examination under § 4.221 or on the failure 

of a party to respond to interrogatories 

or requests for admissions under § 4.222; 

or on the failure of a party to comply 

with an order of the Examiner issued 

under § 4.223 without, in any of such 

events, showing an excuse or explanation satisfactory to the Examiner for 

such failure, the Examiner may: 

(a) Decide the fact or issue relating 

to the material requested to be produced, 

or the subject matter of the probable 

testimony, in accordance with the claims 

of the other party in interest or in accordance with other evidence available 

to the Examiner; or 

(b) Make such other ruling as he 

determines just and proper. 
TITLE 43 § 4.233 

§ 4.225 Prehearing conference. 

The Examiner may, upon his own 

motion or upon the request of any party 

in interest, call upon the parties to 

appear for a conference to: 

(a) Simplify or clarify the issues; 

(b) Obtain stipulations, admissions, 

agreements on documents, understandings on matters already of record, or 

similar agreements which will avoid 

unnecessary proof; 

(c) Limit the number of expert or 

other witnesses in avoidance of excessively cumulative evidence;, 

( d) Effect possible agreement disposing of all or any of the issues in dispute; and 

( e) Resolve such other matters as 

may simplify and shorten the hearing. 

HEARINGS 

§ 4.230 Examiner; authority and duties. 

The authority of the Examiner in all 

hearings in estate proceedings includes, 

but is not limited to, authority: 

(a) To administer oaths and affirmations: 

(b) To issue subpoenas under the provisions of 25 U.S.C. 374 (1964) upon his 

own initiative or within his discretion 

upon the request of any party in intertest, to any person whose testimony he 

believes to be material to a hearing. 

Upon the failure or refusal of any person upon whom a subpoena shall have 

been served to appear at a hearing or 

to testify, the Examiner may file a petition in the appropriate U.S. District 

Court for the issuance of an order requiring the appearance and testimony 

of the witness: 

(c) To permit any party in interest 

to cross-examine any witness; 

(d) To appoint a guardian ad !item 

to represent any minor or incompetent 

party in interest at hearings; 

( e) To rule upon offers of proof and 

receive evidence; 

(f) To take and cause depositions to 

be taken and to determine their scope; 

and 

(g) To otherwise regulate the course 

of the hearing and the conduct of witnesses, parties in interest, and attorneys 

at law appearing therein. 

83 

§ 4.231 Hearings. 

(a) All testimony in Indian probate 

hearings shall be under oath and shall 

be taken in public except in those circumstances which in the opinion of the 

Examiner justify all but parties in interest to be excluded from the hearing. 

(b) The proceedings of hearings shall 

be recorded verbatim and transcribed 

and made a part of the record. 

(c) The record shall include a showing of the names of all parties in interest and of attorneys who attended such 

hearing. 

§ 4.232 Evidence; form and admissibility. 

(a) Parties in interest may offer at a 

hearing such relevant evidence as they 

deem appropriate under the generally 

accepted rules of evidence of the ,State 

in which the evidence is taken, subject 

to the Examiner's supervision as to the 

extent and manner of presentation of 

such evidence. 

(b) The Examiner may admit letters 

or copies thereof, affidavits, or other 

evidence not ordinarily admissible under 

the generally accepted rules of evidence, 

the weight to be attached to evidence 

presented in any particular form being 

within the discretion of the Examiner, 

taking into consideration all the circumstances of the particular case. 

(c) Stipulations of fact and stipulations of testimony that would be given 

by witnesses were such witnesses present, agreed upon by the parties in interest, may be used as evidence at the 

hearing. 

( d) The Examiner may in any case 

require evidence in addition to that 

offered by the parties in interest. 

§ 4.233 Proof of wills, codicils, and revocations. 

(a) Self-proved wills. A will executed 

as provided in § 4.260 may, at the time 

of its execution, be made self-proved, 

and testimony of the witnesses in the 

probate thereof may be made unnecessary by the affidavits of the testator 

and attesting witnesses, made before an 

officer authorized to administer oaths, 

such affidavits to be attached to such 

will and to be in form and contents substantially as follows: 
§ 4.234 PUBLIC LANDS: INTERIOR 

~:::t:f ~; ..... : : : : : : : : : : . : : : : ~~:: : : ~- ss. 

I, . . . . . . . . . . . . . . . . . . . . . . . ..... , being first 

duly •worn, on oath, depose and say: That I am an (enrolled or unenrolled) member of the 

................................ Tribe of Indians 

in the State of. .......... . 

that on the ........ day of........ . .. , 19 ... , 

I requested ........... . 

to prepare a will for me; that the attached will 

was prepared and I requested ................... . 

and. . . . . . . . . . . . . . . . . . to act as witnes.,es 

thereto; that I declared to said witnesses that said 

instrument was my last will and testament; that I 

signed said will in the presence of both witnesses 

and they signed the same as witnesses in my presence and in the presence of each other; that said 

will was read and explained to me ( or read by 

me), after being prepared and before I signed it 

and it clearly and accurately expresses my wishes; 

and that I willingly made and executed said will 

as my free and voluntary act and deed for the 

purposes therein expre~ed. 

Testator /Testatrix 

We, . . . . . . . . . . . and ... 

. . . , each being first duly sworn, 

on oath, depose and state: That on the. . day 

of .................. , 19. 

. . . . . a member of the. 

Tribe of Indians of the State of ... 

. . . . , published and declared the attached 

instrument to be his/her last will and testament, 

signed the same in the presence of both of us and 

requested both of us to sign the same as witnesses; 

that we, in compliance with his/her request, signed 

the same as witnesses in his/her presence and in 

the presence of each other; that said testator/ 

testatrix was not acting under duress, menace, 

fraud, or undue influence of any person, so far as 

we could ascertain, and in our opinion was men. 

tally capable of disposing of all his/her estate by 

will. 

Subscribed and sworn 

day of ... 

Witness 

Witness 

to before me this 

·• 19 ...• by ...... . 

. testator/testatrix, and by 

and 

..... ____ attesting witnesses. 

(Title) 

If uncontested, a self-proved will may 

be approved and distribution ordered 

thereunder with or without the testimony of any attesting witness. 

(b) Self-proved codicils and revocations. A codicil to, or a revocation of, a 

will may be made self-proved in the 

same manner as provided in paragraph 

(a) of this section with respect to a will. 

{c) Will contest. If the approval of a 

will, codicil thereto, or revocation thereof 

is contested, the attesting witnesses who 

are in the reasonable vicinity of the 

84 

place of hearing and who are of sound 

mind must be produced and examined. 

If none of the attesting witnesses resides 

in the reasonable vicinity of the place 

of hearing at the time appointed for 

proving the will, the Examiner may 

admit the testimony of other witnesses 

to prove the testamentary capacity of 

the testator and the execution of the 

will and, as evidence of the execution, 

the Examiner may admit proof of the 

handwriting of the testator and of the 

attesting witnesses, or of any of them. 

The provisions of § 4.232 are applicable 

with respect to remaining issues. 

§ 4.234 Witnesses, interpreters, and 

fees. 

Parties in interest who desire a witness to testify or an interpreter to serve 

at a hearing shall make their own financial and other arrangements therefor, 

and subpoenas will be issued where necessary and proper. The Examiner may 

call witnesses and interpreters and order 

payment out of the estate assets of per 

diem, mileage, and subsistence at a rate 

not to exceed that allowed to witnesses 

called in the U.S. District Courts. In 

hardship situations, the Examiner may 

order payments of per diem and mileage 

for indispensable witnesses and interpreters called for the parties. In the 

order for payment he shall specify 

whether such costs shall be allocated 

and charged against the interest of the 

party calling the witness or against the 

estate generally. Costs of administration so allowed shall have a priority for 

payment greater than that for any 

creditor claims allowed, except the probate fee. Upon receipt of such order, the 

Superintendent shall pay such sums immediately from the estate account, if 

such funds are insufficient, then out of 

the funds as they accrue to such account with the proviso that such cost 

shall be paid in full with a later allocation against the interest of a party, if 

such was ordered. 

§ 4.235 Supplemental hearings. 

After the matter has been submitted 

but prior to the time the Examiner has 

rendered his decision, the Examiner may 

upon his own motion or upon motion of 

any party in interest schedule a supplemental hearing if he deems it necessary. 
TITLE 43 § 4.241 

The notice shall set forth the purpose 

of the supplemental hearing and shall 

,be served upon all parties in interest in 

the manner provided in § 4.211. Where 

the need for such supplemental hearing 

becomes apparent during any hearing, 

the Examiner may announce the time 

and place for such supplemental hearing 

to all those present and no further notice need be given. In that event the 

records shall clearly show who was present at the time of the announcement. 

§ 4.236 Record. 

(a) After the completion of the hearing, the Examiner shall make up the 

official record containing: 

( 1) A copy of the posted public notice 

of hearing showing the posting certifications; 

(2) A copy of each notice served on 

interested parties with proof of mailing; 

( 3) The record of the evidence received at the hearing, including a transcript of testimony; 

( 4) Claims filed against the estate; 

(5) Will and codicils, if any; 

(6) Inventories and appraisements of 

the estate; 

( 7) Pleadings and briefs filed; 

(8) Special or interim orders; 

(9) Data for heirship finding and 

family history; 

(10) The decision and the Examiner's 

notice thereof; and 

(11) Any other material or documents deemed material by the Examiner. 

(b) The Examiner shall lodge the 

original record with the designated title 

plant in accordance with § 120.1 of Title 

25 of the Code of Federal Regulations; 

a duplicate copy shall be lodged with 

the Superintendent originating the probate. A partial record may also be furnished to the Superintendents of other 

affected agencies. 

DECISIONS 

§ 4.240 Decision of Examiner and notice 

t'hereof. 

(a) The Examiner shall decide the 

issues of fact and law involved in the 

proceedings and shall incorporate in his 

decision: 

(1) In all cases, the names, birth 

dates, relationships to the decedent, and 

85 

shares of heirs with citations to the law 

of descent and distribution in accordance with which the decision is made; 

or the fact that the decedent died leaving no legal heirs. · 

(2) In testate cases, ( i) approval or 

disapproval of the will with construction 

of its provisions, ( ii) the names and 

relationship to the testator of all beneficiaries and a description of the property which each is to receive; 

(3) Allowance or disallowance of 

claims against the estate; 

( 4) Whether heirs or devisees are nonIndian, exclusively alien Indians, or 

Indians whose property is not subject to 

Federal supervision. 

(5) A determination of any rights of 

dower, curtesy or homestead which may 

constitute a burden upon the interest of 

the heirs. 

(b) When the Examiner issues a decision, he shall issue a notice thereof to 

all parties who have or claim any interest in the estate and shall mail a copy 

of said notice, together with a copy of 

the decision to the Superintendent and 

to each party in interest simultaneously. 

The decision shall not become final and 

no distribution shall be made thereunder 

until the expiration of the 60 days allowed for the filing of a petition for 

rehearing by aggrieved parties as provided in § 4.241. 

(36 F.R. 7186, Apr. 15, 1971, as amended at 36 

F.R. 24813, Dec. 23, 1971] 

§ 4.241 Rehearing. 

(a) Any person aggrieved by the decision of the Examiner may, within 60 

days after the date on which notice of 

the decision is mailed to the interested 

parties, file with the Superintendent a 

written petition for rehearing. ,Such a 

petition must be under oath and must 

state specifically and concisely the 

grounds upon which it is based. If the 

petition is based upon newly-discovered 

evidence, it shall be accompanied by 

affidavits of witnesses stating fully what 

the new testimony is to be. It shall also 

state justifiable reasons for the failure 

to discover and present that evidence, 

tendered as new, at the hearings held 

prior to the issuance of the dicision. The 

Superintendent, upon receiving a petition for rehearing, shall promptly forward it to the Examiner. The Superin-
§ 4.242 PUBLIC LANDS: INTERIOR 

tendent shall not pay claims or 

distribute the estate while such petition 

is pending unless otherwise directed by 

the Examiner. 

(b) If proper grounds are not shown, 

or if the petition is not filed within the 

time prescribed in paragraph (a) of this 

section, the Examiner shall issue an 

order denying the petition and shall set 

forth therein his reasons therefor. He 

shall furnish copies of such order to 

the petitioner, the Superintendent, and 

the parties in interest. 

(c) If the petition appears to show 

merit, the Examiner shall cause copies 

of the petition and supporting papers to 

be served on those persons whose interest 

in the estate might be adversely affected 

by the granting of the petition. The 

Examiner shall allow all persons served 

a reasonable, specified time in which to 

submit answers or legal briefs in opposition to the petition. The Examiner 

shall then reconsider, with or without 

hearing as he may determine, the issues 

raised in the petition; he may adhere to 

the former decision, modify or vacate it, 

or make such further order as is warranted. 

(d) Upon entry of a final order the 

Examiner shall lodge the complete record relating to the petition with the 

title plant designated under § 4.236 (b), 

and furnish a duplicate record thereof 

to the Superintendent. 

( e) Successive petitions for rehearing 

are not permitted, and, except for the 

issuance of necessary orders nunc pro 

tune to correct clerical errors in the 

decision, the Examiner's jurisdiction 

shall have terminated upon the issunace 

of a decision finally disposing of a petition for rehearing. Nothing herein shall 

be construed as a bar to the remand of 

a case by the Board for further hearing 

or rehearing after appeal. 

(f) At the time the final decision is 

entered following the filing of a petition 

for rehearing, the Examiner shall direct 

a notice of such action with a copy of 

the decision to the Superintendent and 

to the parties in interest and shall mail 

the same by regular mail to the said 

parties at their addresses of record. 

(g) No distribution shall be made 

under such order for a period of 60 days 

following the mailing of a notice of 

86 

decision pending the filing of a notice 

of appeal by an aggrieved party as 

herein provided. 

[36 F.R. 7186, Apr. 15, 1971, as amended at 36 

F.R. 24813, Dec. 23, 1971] 

§ 4.242 Reopening. 

(a) Within a period of 3 years from 

the date of a final decision issued by an 

Examiner or by the Board but not thereafter except as provided in §§ 4.203 and. 

4.206, any person claiming an interest 

in the estate who had no actual notice 

of the original proeeedings and who was 

not on the reservation or otherwise in 

the vicinity at any time while the PU:blic 

notices of the hearing were posted may 

file a petition in writing for reopening 

of the case. Any such petition shall be 

addressed to the Examiner and filed at 

his headquarters. A copy of such petition shall be furnished also by the petitioner to the Superintendent. All grounds 

for the reopening must be set forth 

fully. If based on alleged errors of fact, 

all such allegations shall be ·under oath 

and supported by affidavits. 

(b) If the Examiner finds that proper 

grounds are not shown, he shall issue 

an order denying the petition and setting forth the reasons for such denial. 

Copies of the Examiner's decision shall 

be mailed to the petitioner, the Superintendent, and to those persons who share 

in the estate. 

( c) If the petition appears to show 

merit, the Examiner shall cause copies 

of the petition and all papers filed by 

the petitioner to be served on those persons whose interest in the estate might 

be adversely affected by the granting of 

the petition. Such persons may resist 

such petition by filing answers, crosspetitions, or briefs. Such filings shall be 

made within such reasonable time periods as the Examiner specifies. The 

Examiner shall then reconsider, with or 

without hearing as he may determine, 

prior actions taken in the case and •,may 

either adhere to, modify, or vacate the 

original decision. Copies of the Examiner's decision shall be mailed to the 

petitioner, to all persons who received 

copies of the petition, and to the ,Superintendent. 

( d) To prevent manifest error an 

Examiner may reopen a case within a 

period of 3 years from the date of the 
TITLE 43 § 4.251 

final decision, after due notice on his 

own motion, or on petition of an officer 

of the Bureau of Indian Affairs. Copies 

of the Examiner's decision shall be 

mailed to all parties in interest and to 

the Superintendent. 

(e) The Examiner may suspend distribution of the estate or the income 

therefrom during the pendency of reopening proceedings by order directed to 

the Superintendent. 

(f) The Examiner shall lodge the 

record made in disposing of a reopening 

petition with the title plant designated 

under § 4.236 (b) and shall furnish a 

duplicate record thereof to the Superintendent. 

(g) No distribution shall be made under a decision issued pursuant to paragraph (b), (c), or (d) of this section 

for a period of 60 days following the 

mailing of the copy of the decision as 

therein provided, pending the filing of 

a notice of appeal by an aggrieved party. 

(h) If a petition for reopening is filed 

more than 3 years after the entry of a 

final decision in a probate, and if it shall 

appear to the Examiner that there exists 

a possibility for correction of a manifest 

injustice, he shall forward the petition 

to the Board of Indian Appeals with a 

showing as to all intervening rights and 

a recommendation as to the action to be 

taken. The Board may, in its discretion, 

exercise the power reserved to the Secretary in § 1.2 of Title 25 of the Code 

of Federal Regulations, and waive or 

make an exception to the 3-year limitation contained in this section. If the 

Board shall determine that a reopening 

appears proper, then the petition may 

be remanded to the Examiner with instructions for further proceedings. 

[36 F.R. 7186, Apr. 15, 1971, as amended at 36 F.R. 

24813, Dec. 23, 1971] 

CLAIMS 

§ 4.250 Filing and proof of creditor 

claims; limitations. 

(a) All claims against the estate of a 

deceased Indian held by creditors chargeable with notice of the hearing under 

§ 4.211(c) shall be :filed with either the 

Superintendent or the Examiner prior 

to the conclusion of the first hearing, 

and if they are not so filed, they shall 

be forever barred. 

87 

(b) The claims of non-Indians shall 

be filed in triplicate, itemized in detail 

as to dates and amounts of charges for 

purchases or services and dates and 

amounts of payments on account. Such 

claims shall show the names and addresses of all parties in addition to the 

decedent from whom payment might be 

sought. Each claim shall be supplemented by an affidavit, in triplicate, of 

the claimant or someone in his behalf 

that the amount claimed is justly due 

from the decedent, that no payments 

have been made on the account which 

are not credited thereon as shown by 

the itemized statement, and that there 

are no offsets to the knowledge of the 

claimant. 

(c) Claims of individual Indians 

against the estate of a deceased Indian 

may be presented in the manner set 

forth in paragraph (b) of this section 

or by oral evidence at the hearing where 

the claimant shall be subject to examination under oath relative thereto. 

( d) Claims for care may not be allowed except upon clear and convincing 

evidence that the care was given on a 

promise of compensation and that compensation was expected. 

(e) A claim, whether that of an 

Indian or non-Indian, based on a written or oral contract, express or implied, 

where the claim for relief has existed 

for such a period as to be barred by the 

State laws at date of decedent's death, 

cannot be allowed. 

(f) Claims sounding in tort not reduced to judgment in a court of competent jurisdiction, and other unliquidated 

claims not properly within the jurisdiction of a probate forum, may be barred 

from consideration by an Examiner's 

interim order. 

(g) Claims of a State or any of its 

political subdivisions on account of social security or old-age assistance payments shall not be allowed. 

[36 F.R. 7186, Apr. 15, 1971, as amended at 36 

F.R. 24813, Dec. 23, 1971] 

§ 4.251 Priority of claims. 

After allowance of the costs of administration, including the probate fee, 

claims shall be allowed: 

(a) Priority in payment shall be allowed in the following order except as 
,i 4.260 PUBLIC LANDS: INTERIOR 

otherwise provided in paragraph (b) of 

this section: 

( 1) Claims for expenses for last illness not in excess of $500, and for funeral expenses not in excess of $500; 

(2) Claims of unsecured indebtedness 

to the United States or any of its 

agencies; 

(3) Claims of unsecured indebtedness 

to a Tribe or to any of its subsidiary 

organizations; 

( 4) Claims of general creditors, including that portion of expenses of last 

illness not previously authorized in excess of $500 and that portion of funeral 

charges not previously authorized in 

excess of $500. 

(b) The preference of the probate fee 

and of other claims may be deferred, in 

the discretion of the Examiner, in making adjustments or compromises beneficial to the estate. 

(c) No claims of general creditors 

shall be allowed if the value of the 

estate is $2,500 or less and the decedent 

is survived by a spouse or by one or 

more minor children. In no event shall 

claims be allowed in an aggregate 

amount which is in excess of the valuation of the estate; the general creditors' 

claims may be prorated or disallowed 

entirely, and the preferred claims may 

be prorated subject to the limitations 

contained in paragraph (d) of this section. 

(d) If the income of the estate is not 

sufficient to permit the payment of allowed claims of general creditors within 

3 years from the date of allowance; or 

to permit payment of the allowed claims 

of preferred creditors, except the United 

States, within 7 years from the date of 

allowance, then the unpaid balance of 

such claims shall not be enforceable 

against the estate or any of its assets. 

( e) In the event that it is determined 

that a part or portion -of the estate is 

to lose its trust character pursuant to 

findings made under § 4.206, then the 

Examiner may in his discretion prorate 

all claims and reduce the allowance 

thereof on a ratio comparable with that 

existing between the total value of the 

estate and the value of that portion 

which is to lose its trust character. 

§ 4.252 Property subject to claims. 

Claims are payable from income from 

88 

the lands remaining in trust. Further, 

except as prohibited by law, all trust 

moneys of the deceased on hand or accrued at time of death, including bonds, 

unpaid judgments, and accounts receivable, may be used for the payment of 

claims, whether the right, title, or interest that is taken by an heir, devisee, or 

legatee remains in or passes out of trust. 

WILLS 

§ 4.260 Making; review as to form; 

revocation. 

(a) An Indian of the age of 21 years 

or over and of testamentary capacity, 

who has any right, title, or interest in 

trust property, may dispose of such 

property by a will executed in writing 

and attested by two disinterested adult 

witnesses. 

(b) When an Indian executes a will 

and submits the same to the Superintendent of the Agency, the Superintendent shall forward it to the Office of the 

Solicitor for examination as to adequacy of form, and for submission by 

the Office of the Solicitor to the Superintendent of any appropriate comments. 

The will or codicil or any replacement 

or copy thereof may be retained by the 

Superintendent at the request of the 

testator or testatrix for safekeeping. A 

will shall be held in absolute confidence, 

and no person other than the testator 

shall admit its existence or divulge its 

contents prior to the death of the 

testator. 

(c) The testator may, at any time 

during his lifetime, revoke his will by 

a subsequent will or other writing executed with the same formalities as are 

required in the case of the execution of 

a will, or by physically destroying the 

will with the intention of revoking it. 

No will that is subject to the regulations 

of this subpart shall be deemed to be 

revoked by operation of the law of any 

State. 

[36 F.R. 7186, Apr. 15, 1971, as amended at 36 

F.R. 21284, Nov. 5, 1971; 36 F.R. 24813, Dec. 23, 

1971] 

§ 4.261 Anti-lapse provisions. 

When an Indian testator devises or 

bequeaths trust property to any of his 

lineal descendants, mother or father, 

brothers or sisters, either of the whole 

or half-blood or their issue, and the de-
TITLE 43 § 4.273 

visee or legatee dies before the testator 

leaving lineal descendants, such descendants shall take the right, title, or 

interest so given by the will per stirpes. 

Relationship by adoption shall be equivalent to relationship by blood. 

§ 4.262 Felonious taking of testator's 

life. 

No person who has been finally convicted of feloniously causing the death 

or taking the life of, or procuring another person to take the life of, the 

testator, shall take directly or indirectly 

any devise or legacy under deceased's 

will. All right, title, and interest existing in such a situation shall vest and be 

determined as if the person convicted 

never existed, notwithstanding § 4.261. 

CUSTODY AND DISTRIBUTION OF ESTATES 

§ 4.270 Custody and control of trust 

estates. 

The Superintendent may assume custody or control of all trust personal 

property of a deceased Indian and he 

may take such action, including sale 

thereof, as in his judgment is necessary 

for the benefit of the estate, the heirs, 

legatees, and devisees, pending entry of 

the decision provided for in § 4.240, 

§ 4.241, or § 4.296 or decisions in the 

settlement of the estate as provided for 

in § 4.271. All expenses, including expenses of roundup, branding, care, and 

feeding of livestock, shall be a proper 

charge against the estate and may be 

paid by the Superintendent from those 

funds of the deceased that are under 

his control, or from the proceeds of a 

sale of the property or a part thereof. 

§ 4.271 Summary distribution. 

When an Indian dies intestate leaving 

only trust personal property or cash of 

a value of less than $1,000, the Superintendent shall assemble the apparent heirs 

and hold an informal hearing to determine the proper distribution thereof. A 

memorandum covering the hearing shall 

be retained in the agency files showing 

the date of death of the decedent, the 

date of hearing, the persons notified and 

attending, the amount on hand, and the 

disposition thereof. In the disposition of 

such funds, the Examiner or Superintendent shall dispose of creditors' claims 

89 

as provided in § 4.251. The ,Superintendent shall credit the balance, if any, to 

the legal heirs. 

[36 F.R. 24814, Dec. 23, 1971] 

§ 4.272 Omitted property. 

(a) When, subsequent to the issuance 

of a decision under § 4.240 or § 4.296, it 

is found that trust property or interest 

therein belonging to a decedent has not 

been included in the inventory, the inventory can be modified either administratively by the Commissioner of the 

Bureau of Indian Affairs or by a modification order prepared by him for the 

Examiner's approval and signature to 

include such omitted property for distribution pursuant to the original decision. 

Copies of such modifications shall be 

furnished to the Superintendent and to 

all those persons who share in the 

estate. 

(b) When the property to be included 

takes a different line of descent from 

that shown in the original decision, the 

Commissioner of the Bureau of Indian 

Affairs shall notify the Examiner who 

shall proceed to hold hearings if necessary and shall issue a decision under 

§ 4.240. The record of any such proceeding shall be lodged with the title plant 

designated under § 4.236 (b). 

§ 4.273 Improperly included property. 

(a) When subsequent to a decision 

under § 4.240 or § 4.296, it is found that 

property has been improperly included 

in the inventory of an estate, the inventory shall be modified to eliminate such 

property. A petition for modification 

may be filed by the Superintendent of 

the Agency where the property is located, or by any party in interest. 

(b) The Examiner shall review the 

record of the title upon which the modification is to be based, and enter an appropriate decision. If the decision is entered without a hearing, the Examiner 

shall give notice of his action to all 

parties whose rights are adversely affected allowing them 60 days in which 

to show cause why the decision should 

not then become final. 

(c) Where appropriate the Examiner 

may conduct a hearing at any stage of 

the modification proceeding. Any such 

hearing shall be scheduled and conducted 

in accordance with the rules of this 
§ 4.274 PUBLIC LANDS: INTERIOR 

subpart. The Examiner shall enter a 

final decision based on his findings, modifying or refusing to modify the property inventory and his decision shall 

become final at the end of 60 days from 

the date it is mailed unless a notice of 

appeal is filed by an aggrieved party 

within such period. Notice of entry of 

the decision shall be given in accordance 

with § 4.240(b). 

(d) A party aggrieved by the Examiner's decision may appeal to the Board 

pursuant to the procedures in §§ 4.291-

4.297. 

( e) The record of all proceedings shall 

be lodged with the title plant designated 

under § 4.236 (b). 

[36 F.R. 24814, Dec. 23, 1971] 

§ 4.274 Distribution of estates. 

(a) Unless the Superintendent shall 

have received a petition for rehearing 

filed pursuant to the requirements of 

§ 4.241 (a) or a copy of a notice of appeal filed pursuant to the requirements 

of § 4.291 (b), he shall pay allowed 

claims, distribute the estate, and take 

all other necessary action directed by 

the Examiner's final order. 

(b) The Superintendent may not pay 

claims nor make distribution of an 

estate during the pendency of proceedings under § 4.241 or § 4.242 unless the 

Examiner orders otherwise in writing. 

The Board may, at any time, authorize 

the Examiner to issue interim orders 

for payment of claims or for partial 

distribution during the pendency of proceedings on appeal. 

[36 F.R. 7186, Apr. 15, 1971, as amended at 36 

F.R. 24814, Dec. 23, 1971] 

MISCELLANEOUS 

§ 4.280 Probatt: fees. 

Upon a determination of the heirs to 

any trust or restricted Indian property 

of the value of $250 or more or to any 

allotment, or after approval of any will 

disposing of such trust or restricted 

property, the following fees shall be 

paid (a) by the heirs, or (b) by the 

beneficiaries under the will, or ( c) from 

the estate of the decedent, or ( d) from 

the proceeds of the sale of the allotment, 

or ( e) from any trust funds belonging 

to the estate of the decedent: 

90 

On estates appraised at: 

$250 and not exceeding $1,000 . . . . . . . . . . . . . . $20 

Over $1,000 and less than $2,000 . . . . . . . . . . . . 25 

$2,000 and not exceeding $3,000 . . . . . . . . . . . . 30 

Over $3,000 and not exceeding $5,000. . . . . . . . 50 

Over $5,000 and not exceeding $7,500. . . . . . . . 65 

Over $7,500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 

' 45 Stat. 992; 25 U.S.C. sec. 377 (1964). 

§ 4.281 Claims for attorney fees. 

(a) Attorneys representing Indians in 

proceedings under these regulations may 

be allowed fees therefor by the Examiner. At the Examiner's discretion such 

fees may be chargeable against the interests of the party thus represented, or 

where appropriate, they may be taxed 

as a cost of administration. Petitions 

for allowance of fees shall be filed prior 

to the close of the last hearing and shall 

be supported by such proof as is required by the Examiner. In determining 

attorney fees, consideration shall be 

given to the fact that the property of 

the decedent is restricted or held in 

trust and that it is the duty of the 

Department to protect the rights of all 

parties in interest. 

(b) Nothing herein shall prevent an 

attorney from petitioning for additional 

fees to be considered at the disposition 

of a petition for rehearing and again 

after an appeal on the merits. An order 

allowing an attorney's fees is subject to 

a petition for rehearing and to an 

appeal. 

§ 4.282 Guardians for incompetents. 

Minors and other legal incompetents 

who are parties in interest shall be represented at all hearings by legally appointed guardians, or by guardians ad 

litem appointed by the Examiner. 

APPEAL TO THE BOARD OF INDIAN APPEALS 

§ 4.290 Who may appeal. 

Any party in interest aggrieved by 

the action taken by an Examiner on a 

petition for rehearing or on a petition 

for reopening shall have a right of 

appeal to the Board of Indian Appeals. 

The scope of the review on appeal shall 

be limited to those issues which were 

before the Examiner when he ruled 

upon the petition for rehearing or reopening. 

§ 4.291 Appeals; how taken. 

(a) Notice of appeal. The appellant 

shall file a written notice of appeal signed 
TITLE 43 § 4.295 

by him or by his attorney or other qualified representative, in the office of the 

Examiner who issued the decision being 

appealed, within 60 days after the date 

of mailing of the notice of the decision 

being appealed. A full statement of the 

errors of fact and law upon which the appeal is based shall be included in either 

the notice of appeal or in any brief 

which is filed pursuant to § 4.295 (a). 

Failure to specify the basis relied upon 

will subject the appeal to dismissal. 

(b) Service of copies of notice of appeal. The appellant shall hand deliver, 

or forward by certified mail, to the 

Examiner, the original and one copy of 

the notice of appeal, and he shall forward one copy by regular mail to the 

Board. At the time of filing the original 

notice, he shall forward copies of the 

notice of appeal by regular mail or 

otherwise to all Superintendents named 

on the Examiner's notice of decision, to 

all parties who share in the estate under 

the decision being appealed, and to all 

other parties who have appeared of record. The notice of appeal shall have 

attached thereto a certificate if filed by 

an attorney of record, or an affidavit if 

filed by a nonattorney, setting forth the 

names of parties served and the last 

known address of each to whom the 

notice was mailed. 

(c) Action by Examiner. The Examiner receiving the notice of appeal shall 

forthwith advise the Board if the notice 

was not timely filed, and he shall file the 

original as a part of the record. He shall 

instruct the Superintendent to forthwith 

return the duplicate record :filed under 

§§4.236(b) and 4.241(d), or under 

§ 4.242 (f), to the title plant designated 

under § 4.236 (b) where the same shall 

be compared with and made identical to 

the original within 5 days. Thereafter, 

the duplicate shall be made available for 

inspection of the parties either at the 

title plant or at the office of the Superintendent as they may request. 

[36 F.R. 7186, Apr. 15, 1971, as amended at 36 

F.R. 24814, Dec. 23, 1971] 

§ 4.292 Appeal file. 

The appeal :file shall include the full 

record unless, by stipulation :filed with 

the notice, the parties shall specify only 

a part thereof. 

§ 4.293 Notice of transmittal of appeal 

file. 

The original appeal :file shall be immediately forwarded to the Board by certified mail with a return card requested, 

with a letter of transmittal, a copy of 

which shall be addressed and mailed to 

the appellant or his attorney. The said 

copy shall constitute a notice of the 

transmittal of the said :file. Thereafter, 

the :file may be examined at the title 

plant or in the office of the Superintendent; any objection or request to supplement the :file shall be :filed with the 

Board within 15 days of the date of the 

transmittal letter. Upon failure to file 

such objection or a request to have the 

file supplemented, it will be conclusively 

presumed that the same is acceptable to 

the appellant. The appellee shall have 

an additional 15 days in which to :file his 

objection to the :file or to request that it 

be supplemented. On his failure to :file 

such an objection or request, it will be 

conclusively presumed that the same is 

satisfactory to the appellee. 

91 

§ 4.294 Docketing. 

Following receipt by the Board of the 

appeal file, it shall be promptly, and in 

any event within 10 days, docketed and 

all of the following parties advised of 

its docketing: The appellant, the Examiner whose decision is being appealed, 

and all interested parties as shown by 

the record on appeal. Said notice shall 

further advise the appellant and all 

other parties of the time limitations 

within which. briefs may be :filed as set 

forth herein. 

§ 4.295 Pleadings. 

(a) The appellant may :file a brief or 

other written statement of his contentions and supporting authorities, all 

hereinafter called brief, within 30 days 

of the mailing of the notice of docketing. He shall serve a copy of said brief 

upon all other interested parties or their 

counsel and a certificate or an affidavit 

to that effect shall be :filed with said 

brief. Opposing parties or their counsel 

shall have 30 days from the date of 

filing of appellant's brief with the Board 

in which to file any answer briefs, copies 

of which shall also be served upon the 

appellant or his counsel and all other 

parties in interest not joining in said 
§ 4.296 PUBLIC LANDS: INTERIOR 

answer brief, and a certificate or an 

affidavit to that effect shall be filed concurrently with the Board. 

(b) Appellant shall have 15 days from 

the date of filing of answer briefs in 

which to reply to any new issues raised, 

but he shall not raise any new issues 

therein. A certificate or an affidavit 

showing service of said briefs upon all 

opposing parties or their counsel shall 

be filed concurrently therewith. Except 

by special permission of the Board, no 

other briefs will be allowed on appeal. 

§ 4.296 Decisions. 

Decisions of the Board will be made 

in writing. ,Sufficient copies thereof will 

be forwarded to the Examiner for immediate simultaneous distribution to all 

parties concerned, the Superintendent, 

the Commissioner, the title plant designated under § 4.236(b), and to such 

other persons as the Board in its discretion deems appropriate. Decisions of the 

Board, which are final upon issuance, 

shall not be executed prior to the expiration of 60 days following the date 

of issuance of the decision. Immediately 

upon expiration of such period, the Examiner shall issue any implementing or 

supplemental order which may be necessary in accordance with the Board's 

decision and shall notify the same offices 

and parties who received the decision of 

the Board and the title plant designated 

under § 4.236 ( b) . [36 F.R. 24814, Dec. 23, 1971 l 

§ 4.297 Disposition of the record. 

The record filed with the Board under 

§ 4.292 and all documents added during 

the appeal proceedings, including the 

Board's decision, shall be returned by 

the Board to the title plant designated 

under § 4.236 (b). Upon receipt of the 

record, the duplicate thereof required by 

§ 4.291 (c) shall be conformed to the 

original and returned to the Superintendent. 

[36 F.R. 24814, Dec. 23, 1971 l 

* * * * * * 

PART 17-NONDISCRIMINATION IN 

FEDERALLY-ASSISTED PROGRAMS 

OF THE DEPARTMENT OF THE INTERIOR-EFFECTUATION OF TITLE 

VI OF THE CIVIL RIGHTS ACT OF 

1964 

* * * * * * 

§ 17.3 Discrimination prohibited. 

* * * * * * 

(d) Programs for Indians, natives of 

certain territories, and Alaska natives. 

An individual shall not be deemed subjected to discrimination by reason of his 

exclusion from the benefits of a program 

which in accordance with Federal law, 

is limited to Indians, natives of certain 

territories, or Alaska natives, if the indi-· 

vidual is not a member of the class. to 

which the program is addressed. Such 

programs include those authorized by 

statutes listed in Appendix B of this 

part. 

* * * * * * 

PART 20-EMPLOYEE RESPONSIBILITIES AND CONDUCT 

* * * * * * 

§ 20.735-20 Specific types of conduct. 

* * * * * * 

(g) Supplies for, and purchases from, 

Indians. No Federal employee may have 

an interest in a contract with the Government or with the Indians for the 

purchase, transportation, or delivery of 

goods or supplies for the Indians (18 

U.S.C. 437). While Federal employees 

may, under regulations of the Secretary 

of the Interior, purchase products, services, or commodities from Indians, such 

purchases may not be made for the purposes of resale (25 U.S.C. 87a). Regulations on purchases are found in 25 CFR 

251.5. 

92 

* * * * * * 

(s) Indian employees and tribal representatives. An Indian who is employed 

in a regularly established position in the 

Bureau of Indian Affairs within the 

jurisdiction of which his tribal body is a 

part may not serve as a representative 

of his tribe, band, or pueblo. Neither 

may an Indian who is serving in such a 

representative capacity be employed in a 

regularly established position in the 

Bureau of Indian Affairs within the 

jurisdiction of which his tribal body is 

a part. 

(1) These restrictions do not apply to 

Indians who are employed on an intermittent or irregular basis where such 

employment does not require decisions 

or actions which might be influenced by 

their official connection with the tribe, 
TITLE 43 § 417.5 

band, or pueblo. Nor shall these restrictions prevent an Indian serving as a 

representative from being employed on 

such a basis. 

(2) The Commissioner of Indian Affairs may make exceptions to the restrictions contained in this paragraph 

when circumstances justify. 

(3) The term "representative" as used 

in this paragraph means the occupant 

of an elective or other position in the 

official governing body of the tribe, band, 

or pueblo, or any position established by 

such governing body which carries with 

it the right to vote in the proceedings of 

that body. 

* * * * * * 

Subtitle B-Regulations Relating 

to Public Lands 

CHAPTER 1-BUREAU OF 

RECLAMATION 

* * * * * * 

PART 417-PROCEDURAL METHODS 

FOR IMPLEMENTING COLORADO 

RIVER WATER CONSERVATION 

MEASURES WITH LOWER BASIN 

CONTRACTORS AND OTHERS 

§ 417.1 Scope of part. 

The procedures established in this 

part shall apply to every public or private organization (herein termed "Contractor") in Arizona, California, or 

Nevada which, pursuant to the Boulder 

Canyon Project Act or to provisions of 

other Reclamation Laws, has a valid 

contract for the delivery of Colorado 

River water, and to Federal establishments other than Indian Reservations 

enumerated in Article II (D) of the 

March 9, 1964, Decree of the Supreme 

Court of the United States in the case 

of "Arizona v. California et al.", 376 

U.S. 340 (for purposes of this part each 

such Federal establishment is considered as a "Contractor"), except that 

(a) neither this part nor the term "Contractor" as used herein shall apply to 

any person or entity which has a contract for the delivery or use of Colorado 

River water made pursuant to the Warren Act of February 21, 1911 (36 ,Stat. 

925) or the Miscellaneous Purposes Act 

of February 25, 1920 ( 41 Stat. 451), 

(b) Contractors and permittees for 

small quantities of water, as determined 

93 

by the Regional Director, Bureau of 

Reclamation, Boulder City, Nev. (herein 

termed "Regional Director"), and Contractors for municipal and industrial 

water may be excluded from the application of these procedures at the discretion of the Regional Director, and 

(c) procedural methods for implementing Colorado River water conservation 

measures on Indian Reservations will 

be in accordance with § 417.5 hereof. 

* * * * * * 

§ 417.5 Duties of the Commissioner of 

Indian Affairs with respect to Indian 

Reservations. 

(a) The Commissioner of Indian Affairs (herein termed "Commissioner") 

will engage in consultations with various tribes and other water users on the 

Indian Reservations listed in Article 

II ( D) of said Supreme Court Decree, 

similar to those engaged in by the Regional Director with regard to Contractors as provided in § 417 .2 hereof. After 

consideration of all comments and suggestions advanced by said tribes and 

other water users on said Indian Reservations concerning water conservation 

measures and operating practices in the 

diversion, delivery, distribution and use 

of Colorado River water, the Commissioner shall, within the limits prescribed in said decree, make a determination as to the estimated amount of 

water to be diverted for use on each 

Indian Reservation covered by the above 

decree. Said determination shall be made 

prior to the beginning of each calendar 

year. That determination shall be based 

upon, but not necessarily limited to, 

such factors as: The area to be irrigated, climatic conditions, location, land 

classifications, the kinds of crops raised, 

cropping practices, the type of irrigation system in use, the condition of 

water carriage and distribution facilities, record of water orders, and rejections of ordered water, general operating practices, the operating efficiencies 

and methods of irrigation of the tribes 

and water users on each reservation, 

the amount and rate of return flows to 

the river, municipal water requirements, 

and other uses on the reservation. The 

Commissioner of Indian Affairs shall 

deliver to the Regional Director written 

notice of the amount of water to be 
§ 418.1 PUBLIC LANDS: INTERIOR 

diverted for use upon each Indian Reservation for each year 60 days prior to 

the beginning of each calendar year and 

the basis for said determination. The 

determination of the Commissioner shall 

be final and conclusive unless within 30 

days of the date of receipt of such notice the Regional Director submits his 

written comments and objections to the 

Commissioner of Indian Affairs and requests further consultation. If after such 

further consultation, timely taken, the 

Commissioner does not modify his determination and so advises the Regional 

Director in writing or if modifications 

are made by the Commissioner but the 

Regional Director still does not agree 

therewith, the Regional Director may, 

within 30 days after receipt of the 

Commissioner's response, appeal to the 

Secretary of the Interior for a decision 

on the matter. During the pendency of 

such appeal and until disposition thereof 

by the Secretary, water deliveries will 

be made to the extent legally and physically available according to the Commissioner's determination or according 

to the Commissioner's determination for 

the preceding calendar year, whichever 

is less. 

PART 418-NEWLANDS RECLAMATION PROJECT, NEVADA; TRUCKEE 

RIVER STORAGE PROJECT, NEVADA; AND WASHOE RECLAMATION PROJECT, NEVADA-CALIFORNIA (TRUCKEE AND CARSON 

RIVER BASINS, CALIFORNIA-NEVADA); PYRAMID LAKE INDIAN 

RESERVATION, NEVADA; STILLWATER AREA, NEVADA 

§ 418.1 Statement of considerations 

leading to the proposed adoption of 

general operating criteria and principles relating to the captioned 

stream systems. 

* * * * * * 

(b) Under the Constitution and various acts of Congress, the United States 

is trustee for the Indians and in that 

status it is obligated to protect and preserve the rights and interests of the 

Pyramid Lake Tribe of Indians in the 

Truckee River and in Pyramid Lake. 

This trust responsibility is vested in the 

Secretary of the Interior. It is in the 

94 

national interest that the fishery resource 

of Pyramid Lake be restored, that agricultural use be developed, and that the 

water inflow to the Lake be such as to 

allow realization of the great potential 

thereof, including recreation. The regulations in this part will initiate Departmental controls, lacking in the past, to 

limit diversions by TCID from the 

Truckee River within decreed rights, 

and thereby make additional water available for delivery to Pyramid Lake. 

* * * * * * 

§ 418.3 Procedures for operation, management and control of the Truckee 

and Carson Rivers in regard t-0 exercise of water rig'hts of the United 

States. 

In order to make the most efficient use 

of the available water: 

(a) On or before October 1, 1967, the 

Regional Director of the Bu_reau of Reclamation as chairman, the Area Director 

of the Bureau of Indian Affairs, the 

Regional Director of the Bureau of Sport 

Fisheries and Wildlife, the Regional Director of the Federal Water Pollution 

Control Administration, the Regional Director of the Bureau of Outdoor Recreation, and the designee of the Geological 

Survey shall recommend operating criteria and procedures consistent with the 

guidelines set forth herein for the approval of the Secretary for the coordinated operation and control of the 

Truckee and Carson Rivers in regard to 

the exercise of water rights of the United 

States, so as to ( 1) comply with all of 

the terms and provisions of the Truckee 

River Decree and the Carson River Decree; and ( 2) maximize the use of the 

flows of the Carson River in satisfaction 

of Truckee-Carson Irrigation District's 

water entitlement and minimize the diversion of flows of the Truckee River for 

District use in order to make available 

to Pyramid Lake as much water as possible. Any change in subsequent years of 

the adopted operating criteria and procedures shall be formulated and approved in the same manner as set forth 

above. 

(b) The departmental representatives 

designated in paragraph (a) of this section shall select a committee of water 

contractors and users and other directly 

affected interests, including the Pyramid 
TITLE 43 § 1855.2 

Lake Tribe and those using water for 

fishing, hunting and recreation in both 

river basins. The departmental representatives shall consult with this advisory committee in the formulation of 

the operating criteria and procedures. 

* * * * * * 

§ 418.5 Water rights. 

The regulations in this part prescribe 

water uses within existing rights. The 

regulations in this part do not, in any 

way, change, amend, modify, abandon, 

diminish, or extend existing rights. 

* * * * * * 

CHAPTER II-BUREAU OF LAND MANAGEMENT 

PART 1850-HEARINGS 

PROCEDURES 

Subpart 1850 - Hearings Procedures; 

General Sec. 

1850.1 Cross reference. 

Subpart 1855-Hearings Upon Possessory 

Claims to Lands and Waters Used and 

Occupied by Natives of Alaska 

1855.1 Petitions of native groups. 

I 855.2 Hearing and notice. 

I 855.3 Powers of presiding officer. 

1855.4 Appearances. 

1855.5 Evidence. 

I 855.5-1 Rules of evidence. 

1855.5-2 Opinion evidence. 

I 855 .5-3 Stipulations. 

1855.5-4 Depositions. 

I 855.5-5 Objections. 

1855.6 Oral arguments and briefs. 

1855.7 Filing the record of the hearing. 

1855.8 Determination by the Secretary of the 

Interior. 

1855.8-1 Report of findings and conclusions by 

1855.8-2 

1855.9 

1855.9-1 

1855.9-2 

presiding officer. 

Rehearing. 

Publication and revision. 

Public notice of regulations. 

Revision of subpart. 

Subpart 1850 - Hearing Procedures: 

General 

§ 1850.1 Cross reference. 

For special procedural rules applicable 

to hearings in public lands cases, including hearings under the Federal Range 

Code for Grazing Districts and hearings 

in both Government and private contest 

proceedings, within the jurisdiction of 

the Boar\J of Land Appeals, Office of 

Hearings and Appeals, see Subpart E of 

Part 4 of this title. Subpart A of Part 4 

and ali if the general rules in Subpart B 

of Part 4 of this title not inconsistent 

with the special rules in Subpart E of 

Part 4 of this title are also applicable 

to such hearings, contest, and protest 

procedures. 

(R.S. 2478, as amended; 43 U.S.C. 1201) [36 F.R. 

15119, Aug. 13, 1971] 

95 

* * * * * * 

Subpart 1855-Hearings Upon Possessory Claims to Lands and 

Waters Used and Occupied by Natives of Alaska 

AUTHORITY: The provisions of this Subpart 1855 

issued under R.S. 2478, 34 Stat. 197; 43 U.S.C. 

1201, 48 u.s.c. 357. 

SOURCE: The provisions of this Subpart 1855 appear at 35 F.R. 9531, June 13, 1970, unless otherwise noted. 

§ 1855.1 Petitions of native groups. 

Petitions of native groups of Alaska 

concerning possessory claims to lands 

and waters based upon any of the foregoing statutes or upon use or occupancy 

maintained from aboriginal times to the 

present day, but not evidenced by formal 

patent, deed or Executive order, shall be 

filed with the Secretary of the Interior 

on or before December 31, 1952. Nb petition :filed thereafter will be considered 

by the Department. A copy of any such 

petition shall be forthwith transmitted 

to the Commissioner of Indian Affairs 

and the Director of the Bureau of Land 

Management for preliminary investigations and reports, and such reports shall 

be made a part of the record at the 

hearing. 

§ 1855.2 Hearing and notice. 

The Secretary of the Interior or such 

other presiding officer as may be designated by the Secretary of the Interior 

shall hold public hearings upon the 

possessory claims of native groups of 

Alaska. The Secretary will give notice 

of the hearings by publication of the 

time, place, and subject matter of the 

hearing in the FEDERAL REGISTER. The 

Secretary will also cause a copy of the 

said notice to be mailed to the last known 

address of all parties who are shown by 

the preliminary investigations to have 

interests in the area concerned which 

may be adversely affected by the claims 

asserted. The hearing may be continued 
§ 1855.3 PUBLIC LANDS: INTERIOR 

from time to time and adjourned to a 

later date or a different place without 

notice other than the announcement 

thereof by the presiding officer at the 

hearing. 

§ 1855.3 Powers of presiding officer. 

(a) The hearing shall be conducted in 

an informal but an orderly manner in 

accordance with the rules of practice 

hereinafter set forth. Matters of procedure not covered by this section shall be 

determined by the presiding officer. He 

shall have power to: ( 1) Administer 

oaths; (2) rule upon motions and requests ; ( 3) examine witnesses and receive evidence; ( 4) admit or exclude 

evidence and rule upon objections; (5) 

hear oral arguments and receive memoranda on facts and law in his discretion; 

( 6) do all acts and take all measures 

necessary for the maintenance of order 

at the hearing and the official conduct of 

the proceeding. 

(b) At any stage of the hearing, the 

presiding officer may call for further 

evidence upon any matter. In the event 

that the hearing shall be reopened for 

the purpose of receiving further evidence, due and reasonable notice of the 

time and place for the taking of evidence 

shall be published in the FEDERAL REGISTER and sent to all parties who appeared 

at the hearing. 

( c) The presiding officer may take 

official notice of any generally recognized 

fact, any established technical or scientific fact, or any official public records. 

§ 1855.4 Appearances. 

Any interested person including any 

agency of the Department or other governmental agency shall be given an opportunity to appear either in person or 

through authorized counsel or other representation and to be heard with respect 

to matters relevant and material to the 

proceeding. Each such person or representative shall be required to inform the 

presiding officer of his name and address, 

the names, addresses and occupations of 

persons, if any, whom he represents and 

the position he takes with respect to the 

issues of the hearing. Where a person 

appears through counsel or representation, such counsel or representative shall 

before proceeding to testify, or otherwise 

to participate in the hearing, state for 

96 

the record his authority to act as such 

counsel or representative. 

§ 1855.5 Evidence. 

(a) The evidence of the witnesses 

shall be given under oath. Witnesses may 

be questioned by the presiding officer or 

by any person who has entered an appearance for the purpose of assisting the 

presiding officer in ascertaining the material facts with respect to the subject 

matter of the hearing. 

(b) The evidence, including affidavits, 

records, documents and exhibits received 

at the hearing, shall be reported and a 

transcript thereof shall be made. In the 

discretion of the presiding officer, written evidence may be received without 

being read into the record. Every party 

shall be afforded adequate opportunity 

to cross-examine, rebut or offer contravening evidence. Evidence shall be received with respect to the matters specified in the notice of the hearing in such 

order as the presiding officer shall announce. 

§ 1855.5-1 Rules of evidence. 

All evidence having reasonable probative value shall be admitted, regardless 

of common law or statutory rules of 

evidence, but immaterial, irrelevant or 

unduly repetitious evidence shall be 

excluded. 

§ 1855.5-2 Opinion evidence. 

In the discretion of the presiding officer, opinion evidence by properly qualified witnesses may be admitted. 

§ 1855.5-3 Stipulations. 

In the discretion of the presiding offiier, stipulations of facts signed by the 

parties or their representatives may be 

introduced. 

§ 1855.5-4 Depositions. 

The presiding officer may order evidence to be taken by deposition at any 

stage of the proceeding before any person designated by him and having the 

power to administer oaths or affirmations. Unless notice be waived no deposition shall be taken except after reasonable notice to the parties. Any person 

desiring to take a deposition of a witness shall make application in writing 

setting out the reasons why such deposition should be taken and stating the 
TITLE 43 § 2091.2-1 

time when, the place where, and the 

name and address of the person before 

whom it is desired the deposition should 

be taken, the name and address of the 

witness and the subject matter concerning which the witness is expected to 

testify. If good reason be shown, the 

presiding officer will make and serve 

upon the parties or their attorneys an 

order naming the witness whose deposition is to be taken and specifying the 

time when, the place where, and the 

person before whom the witness is to 

testify. These may or may not be the 

same as those named in the application. 

The deponent shall be subject to crossexamination by all the parties appearing. In lieu of oral cross-examination 

parties may transmit written crossinterrogations to the deponent. The testimony of the witness shall be reduced 

to writing by the officer before whom 

the deposition is taken, or under his 

direction, after which the deposition shall 

be subscribed by the witness and certified in the usual form by the officer. 

Such deposition, unless otherwise ordered by the presiding officer for good 

cause shown, shall be filed in the record 

in the proceeding and a copy thereof 

supplied to the party upon whose application said deposition was taken or his 

attorney. 

§ 1855.5'...5 Objections. 

It shall not be necessary to make formal exceptions to adverse rulings of the 

presiding officer upon objections. 

§ 1855.6 Oral arguments and briefs. 

(a) Oral arguments may be permitted 

in the discretion of the presiding officer. 

Such arguments shall be made a part of 

the transcript, if the presiding officer so 

orders. 

(b) Briefs and proposed findings of 

fact and conclusions of law may not be 

filed after 30 days from the close of the 

hearing unless otherwise ordered by the 

presiding officer. 

§ 1855. 7 Filing the record of the hearing. 

As soon as practicable after the close 

of the hearing the complete record shall 

be filed with the presiding officer. It 

shall consist of the transcript of the 

testimony and include exhibits and any 

97 

written arguments that may have been 

filed. This record shall be the sole official record. No free copies of the record 

will be available in any proceeding under 

this section. 

§ 1855.8 Determination by the Secretary of the Interior. 

§ 1855.8-1 Report of findings and conclusions by presiding officer. 

Within a reasonable time of the filing 

of the record of the hearing, the presiding officer shall file with the Secretary 

of the Interior a report upon the possessory claims of the petitioner which shall 

contain findings of fact and conclusions 

of law with respect to such claims. 

Unless final authority has been delegated by the Secretary to the presiding 

officer, the Secretary of the Interior will 

approve, disapprove or modify the findings and conclusions of the presiding 

officer. The determinations finally made 

shall be published in the FEDERAL REGISTER and a copy thereof shall be mailed 

to each party who appeared at the hear-

·ing or who received actual written notice of the hearing. 

§ 1855.8-2 Rehearing. 

Upon good cause shown within 30 

days of the publication of the presiding 

officer's report, the Secretary in his discretion may order a rehearing. 

§ 1855.9 Publication and revision. 

§ 1855.9-1 Public notice of regulations. 

Public notice of the issuance of the 

foregoing rules of practice for hearings 

shall be given by publishing the same in 

the FEDERAL REGISTER. 

§ 1855.9-2 Revision of subpart. 

This subpart may be revised by the 

Secretary of the Interior at any time 

without prior notice and such revision 

shall be published in the FEDERAL 

REGISTER. 

* * * * * * 

PART 2090-SPECIAL LAWS AND 

RULES 

Subpart 2091-Segregation of Lands 

* * * * * * 

§ 2091.2-1 Indian allotment. 

Where an allotment application is 

approved by the authorized officer, it 
§ 2091.5 PUBLIC LANDS: INTERIOR 

operates as a segregation of the land, 

and subsequent applications for the 

same land will be rejected. 

§ 2091.5 Lands occupied by Indians. 

Authorized officers will ascertain by 

any means in their power whether any 

public lands in their districts are occupied by Indians and the location of their 

improvements, and will suspend all applications made by others than the Indian 

occupants, upon lands in the possession 

of Indians who have made improvements 

of any value whatever thereon. 

* * * * * • 

§ 2091.6-3 Occupied lands. 

Lands occupied by Indians, Aleuts, and 

Eskimos in good faith are not subject 

to entry or appropriation by others. 

* * * * • • 

(c) The act of May 31, 1938 (52 Stat. 

593; 48 U.S.C. 353a), authorizes the 

Secretary of the Interior in his discretion to withdraw, subject to any valid 

existing rights, and permanently reserve, small tracts of not to exceed 640 

acres each of the public domain in 

Alaska, for schools, hospitals, and such 

other purposes as may be necessary in 

administering the affairs of the Indians, 

Eskimos, and Aleuts of Alaska. 

(R.S. 2478, 34 Stat. 197; 43 U.S.C. 1201, 48 U.S.C. 

357) 

• • • • • • 

PART 2510-HOMESTEADS 

• • • • • • 

Subpart 2511-Original Homesteads 

• • * * • • 

§ 2511.3-2 Showing required of appli-

§ 2091.9-5 Application for native allot- cant. 

ment. 

The filing of an acceptable application 

for allotment will segregate the lands to 

the extent that conflicting applications 

for such lands will be rejected, except 

when accompanied by a showing that 

the applicant for allotment has permanently abandoned occupancy of the land. 

* * * * * * 

PART 2320-WITHDRAWALS FOR 

OTHER INTERIOR AGENCIES 

* * * * • * 

Subpart 2325-Bureau of Indian 

Affairs 

SOURCE: The provisions of this Subpart 2325 

appear at 35 F.R. 9556, June 13, 1970, unless otherwise noted. 

§ 2325.1 Designation of Indian reservations in Alaska. 

(a) The inherent power conferred 

upon the Secretary of the Interior by 

section 441, Revised Statutes ( 5 U.S.C. 

485), to supervise the public business 

relating to the Indians includes the supervision over reservations in the State 

of Alaska created in the interest of the 

natives and the authority to lease lands 

therein for their benefit. Opinion of the 

solicitor, May 18, 1923 (49 L.D. 592). 

(b) The act of May 1, 1936 (49 Stat. 

1250; 48 U.S.C., Sup. 358a, 362) extends 

certain provisions of the act of June 18, 

1934 (48 Stat. 984; 25 U.S.C. 461-479), 

known as the Wheeler-Howard Act, to 

Alaska, and provides for the designation 

of Indian reservations in the State. 

98 

• • * • • • 

(b) Indian applicants. (1) Certificate 

required under act of July 4, 1884. (i) 

The authorizing officer will require an 

Indian homestead applicant under the 

act of July 4, 1884 (23 Stat. 96; 43 

U.S.C. 190), to submit a certificate from 

the Commissioner of Indian Affairs that 

he is entitled, as an Indian, to make 

such an entry. 

(ii) When such an application is presented without this certificate the authorizing officer will suspend the same 

and notify the applicant that 90 days 

are allowed within which to submit such 

certificate as to the right to allotment, 

and that upon failure to submit the 

same within the time allowed the application will be rejected. 

(iii) Where an Indian has filed an 

allotment application and the application has been rejected for the reason 

that the applicant is not entitled as an 

Indian to an allotment, such action will 

not prejudice the right of such applicant 

to file a homestead application, provided 

that a certificate from the Commissioner 

of Indian Affairs, showing that the applicant is entitled to the benefits of the 

said act of July 4, 1884, is presented. 

(2) Where Indian makes entry as 

citizen. If an Indian makes application 

under the general homestead act, the 

authorizing officer will allow such an 

Indian, if otherwise qualified, to make 

entry under that act, without further 

questioning and without requiring any 
TITLE 43 § 2515.8-3 

certificate from the Commissioner of 

Indian Affairs. 

(3) Charges, patents. The act of July 

4, 1884 (23 Stat. 6; 43 U.S.C. 190) expressly states that no fees or commissions shall be charged on account of 

Indian homestead entries, and a patent 

different in character from the nonIndian homestead patent is issued on 

entries made under said act or the act 

of March 3, 1875 (18 Stat. 420; 43 U.S.C. 

189). 

Subpart 2515-Reclamation 

Homesteads 

§ 2515.8 Fl!athe,ad Irrigation District, 

Mont. 

§ 2515.8-1 Aut:hority._ 

The Flathead irrigation project was 

constructed within the Flathead Indian 

Reservation under the provisions of the 

act of April 23, 1904 (33 Stat. 302), as 

amended by section 15 of the act of May 

29, 1908 (35 Stat. 448), and supplemented by the act of May 10, 1926 ( 44 

Stat. 464), and other ~cts. Only those 

lands designated as farm units on farmunit plats approved by the Secretary of 

the Interior or under his specific authority and those lands irrigable from the 

project embraced in Indian allotments 

are within the Flathead irrigation project. The designation of any tract or 

tracts of land as a farm unit or farm 

units includes those lands in the Flathead project, and the cancellation of any 

farm unit or farm units eliminates the 

lands formerly designated as such farm 

unit or farm units from the project. 

(Sec. 15, 35 Stat. 450) 

§ 2515.8-2 Requirements and limitations on entries. 

(a) Payment of appraised Indian price 

of land. An entrymen for land within 

the Flathead project, in addition to complying with the ordinary provisions of 

the homestead laws applicable to his 

entry, must pay the appraised Indian 

price of the land. One-third of the appraised value of the land must be paid 

when entry is made and two-fifteenths 

of the appraised value, annually thereafter for 5 years beginning 1 year after 

the date of filing, without interest. 

(b) Acreage limitations. No person 

can enter more than one farm unit, re99 

gardless of its acreage, nor can he enter 

a part of a farm unit, nor parts of two 

or more farm units, nor a farm unit and 

adjacent lands not designated as a farm 

unit, and no person can enter a farm 

unit who is not entitled to enter 160 

acres under the homestead laws. 

(c) Payment of costs. Persons who 

enter farm units must pay that part of 

the cost of building, operating and maintaining the irrigation works which is 

assessed against their tracts, in addition to the Indian price or appraised 

value of the lands. The building, operation, and maintenance charges against 

any particular unit or allotment will be 

based on the number of acres in it which 

can be irrigated and not on the entire 

area of the unit, as there will be no 

building, operation, or maintenance 

charges against any land in any unit 

which can not be irrigated. The entire 

Indian price must be paid for each acre 

in the units, regardless of the area of 

them which can be irrigated. 

(Sec. 15, 35 Stat. 450) 

§ 2515.8-3 Assignment. 

(a) Right to assign. Under the provisions of the act of June 23, 1910 (36 

Stat. 592; 43 U.S.C. 441) persons who 

have made or may make homestead entries subject to the provisions of the 

Reclamation Act of June 17, 1902 (32 

Stat. 388), may assign their entries in 

their entirety, or in part, at any time 

from and after filing with the Bureau of 

Land Management of satisfactory proof 

of the residence, improvements, and cultivation required by the ordinary provisions of the homestead law. The act of 

July 17, 1914 (38 Stat. 510; 43 U.S.C. 

593), extends the provisions of the act 

of June 23, 1910, supra, of the Flathead 

project. Assignment of part of an entry 

within the Flathead project may be 

made only after the subdivision of the 

farm units. 

(b) Assignment of part of farm unit. 

Where it is desired to assign a part of a 

farm unit, an application for the amendment, and subdivision, of such unit 

should be filed with the project engineer. 

The assignment, with accompanying 

showing by the assignor and assignee, 

must also be filed with the project engineer for his consideration. 

(c) Filing of instruments of assign-
§ 2515.8-4 PUBLIC LANDS: INTERIOR 

ment. No assignment of a farm unit or 

any part thereof shall be accepted by 

the Bureau of Land Management, or 

recognized as valid for any purpose, 

until after the filing in the proper office 

of the showings and certificates required 

by paragraph ( d) of this section. 

(d) Showing required. Assignments 

under this act are expressly made subject to the limitations, charges, terms, 

and conditions of the act of April 23, 

1904 (33 Stat. 302), as amended by section 15 of the act of May 29, 1908 (35 

Stat. 448), and acts supplementary 

thereto or amendatory thereof, including 

the act of May 10, 1926 (44 Stat. 464), 

and inasmuch as the law limits the right 

of entry to one farm unit, and forbids 

the holding of more than one farm unit 

prior to payment of all building and betterment charges, each assignor must 

present a showing to the effect that the 

assignment is an absolute sale, divesting 

him of all interest in the premises assigned and each assignee must present 

a showing that he does not ow1,1 or hold, 

and is not claiming, any other farm unit 

or entry under the act of April 23, 1904 

(33 Stat. 302), and the acts supplementary thereto or amendatory thereof, upon 

which all installments of building and 

betterment charges have not been paid 

in full, and has no existing water-right 

applications covering an area of land 

which, added to that taken by assignment, will exceed 160 acres, or the maximum limit of area fixed by the Secretary 

of the Interior, and a further showing 

in the form of a certificate of the project engineer, that water-right application therefor is not yet receivable; or 

that the assignee has filed in the project 

office for acceptance a water-right application in due form for the land embraced 

in the assignment. A married woman 

whose husband is claiming any farm 

unit or entry upon which all installments 

of building and betterment charges have 

not been paid will not be allowed to take 

an assignment under the act of June 23, 

1910 ( 36 Stat. 592; 43 U .S.C. 441), unless such assignment is purchased with 

her own money and for her own use and 

benefit. 

(e) Procedure governing assignments. 

Assignments made and filed in accordance with the regulations in paragraph 

(a) to (d) of this section should be 

noted on the proper office record and, if 

approved the assignee in each case will, 

at the proper time, make payment of the 

water-right charges and submit proof of 

reclamation as would the original entry. 

man, and, after proof of full compliance 

with the law, may receive a patent for 

the land. 

(Sec. 15, ,5 Stat. 450) 

§ 2515.8-4 Surveys; plats. 

(a) Cost of survey. If a survey shall 

be found necessary to determine the 

boundaries of the subdivision of any such 

farm unit, or the division of the irrigable 

area, a deposit equal to the estimated 

cost of such survey must be made with 

the special disbursing agent of the project on the project by or on behalf of the 

parties concerned. Any excess over the 

actual cost will be returned to the depositor or depositors after completion of 

the survey, and they will also be required 

to make good any deficiency in their 

deposit. 

(b) Amendatory farm-unit plats. When 

the plats describing the amended farm 

units are approved by the project engineer, he will forward two copies of the 

amendatory plat together with the assignment and accompanying showings to 

the proper office, where the amendatory 

plat will be treated as an official amendment of the farm-unit plat. A copy of 

the amendatory plat will also be forwarded promptly by the project engineer 

to the Area Director, Bureau of Indian 

Affairs, Billings, Montana, for formal 

approval. 

(Sec. 15, ,5 Stat. 450) 

§ 2515.8-5 Mortgages. 

(a) Notice of interest by mortgagees. 

Mortgagees of lands embraced in homestead entries within the Flathead project may file in the proper office for the 

district in which the land is located a 

notice of such mortgage interest, and 

shall thereupon become entitled to receive and be given the same notice of 

any contest or other proceedings thereafter had affecting the entry as is required to be given the entryman in connection with such proceedings, and a like 

notice of mortgage interest may be filed 

with the project engineer in case of any 

lands, whether or not water-right application has been filed, including homestead entries, and lands in private own100 
TITLE 43 § 2515.8-7 

ership; and thereupon the mortgagee 

shall receive copies of all notices of 

default in payment of the water-right 

charges levied by the Secretary of the 

Interior against such lands, apd shall 

be permitted to make payment of the 

amount so in default within 60 days 

from the date of such notice. Any payment so made shall be credited on the 

charges levied by the Secretary of the 

Interior against such lands. 

(b) Notation of mortgage interest; 

effect of notation. Every such notice of 

mortgage interest, filed as provided in 

the preceding section, must be forthwith 

noted upon the records of the project 

engineer, and of the proper office, and 

be promptly reported to the Area Director, Bureau of Indian Affairs. Relinquishment of a homestead entry, or part 

thereof, within the project, upon which 

final proof has been submitted, where 

the records show the land to have been 

mortgaged, will not be accepted or noted, 

unless the mortgagee joins therein; nor 

will an assignment of such entry, or part 

thereof under the act of July 17, 1914 

(38 Stat. 510; 43 U.S.C. 593), extending 

to the Flathead project the provisions 

of the act of June 23, 1910 ( 36 Stat. 

592; 43 U.S.C. 441), be recognized or 

permitted unless the assignment specifically refers to such mortgage and is 

made and accepted subject thereto. 

(c) Rights of mortgagee purchaser at 

foreclosure sale. If such mortgagee buys 

in the land at foreclosure sale, no steps 

will be taken to cancel the water-right 

application, on account of failure of the 

applicant to maintain residence upon or 

in the neighborhood of the land, until 1 

year after the end of the statutory 

period of redemption, if there be such 

statutory period; if not, until 1 year 

after the foreclosure sale; nor on account of the holdings by the same mortgagee of lands in excess of 160 acres or 

of the limit per single ownership of private lands as fixed by the Secretary of 

the Interior for which a water right 

may be purchased until 2 years after 

such foreclosure purchase, provided that 

all charges in connection with the waterright application that may be due at the 

time of foreclosure sale and all such 

charges that may become due during the 

period when the land is held under the 

terms hereof shall be promptly paid by 

or on behalf of the mortgagee; and also 

that within such period of 1 year an 

acceptable water-right application for 

such land be filed by a qualified person, 

who, upon submitting satisfactory evidence of transfer of title, shall receive 

a credit equal to all payments theretofore made on account of the water-right 

charges for said land. To secure the 

benefits of this order the mortgagee purchasing land at foreclosure sale hereunder must give notice thereof to the 

authorizing officer of the proper office 

and to the engineer in charge of the 

project within 60 days thereafter. 

(Sec. 15, 35 Stat. 450) 

§ 2515.8-6 Wid-ows, heirs, or devises of 

entry men. 

(a) Completion of entries by widows, 

heirs, or devisees. The widows, heirs, or 

devisees of persons who make entries 

within the Flathead project will not be 

required both to reside upon and cultivate the lands covered by the entry of 

the persons from whom they inherit, but 

they must reclaim at least one-half of 

the total irrigable area of the entry for 

agricultural purposes, as required by the 

law, and make payment of all unpaid 

charges when due. 

(b) Rights of minor heirs. Upon the 

death of a homesteader having an entry 

within the project, leaving no widow 

and only minor heirs, his right may, 

under section 2292, Revised Statutes ( 43 

U.S.C. 171), be sold for the benefit of 

such heirs. ( See heirs of Frederick C. 

DeLong, 36 L.D. 332.) The purchaser 

and his assignees take subject to the 

payment of the water-right charges 

authorized by law and the regulations 

thereunder and must reclaim one-half 

the irrigable area, as required by said 

law, but are not required otherwise to 

comply with the homestead law. 

(Sec. 15, 35 Stat. 450) 

§ 2515.8-7 Proof. 

(a) Commutation permitted. These 

entries are subject to the commutation 

provisions of the homestead law. The 

irrigable areas are announced on farmunit plats, and public notice, stating the 

amount of the charges and other details 

concerning payment, is issued by the 

Secretary of the Interior. 

(b) Requirements of reclamation proof. 

Entrymen, in making proof of compli101 
§ 2515.8-8 PUBLIC LANDS: INTERIOR 

ance with the law as to reclamation of 

one-half of the irrigable area and payment of charges due, must submit a 

showing duly corroborated by two witnesses, in duplicate, to the project engineer showing those facts. Thereupon it 

shall be the duty of the project engineer 

to verify the statement as to payment 

and also make such examination of the 

land as will enable him to determine 

whether reclamation as required by law 

and the regulations has been made. 

Should he find that reclamation has been 

accomplished he will so certify, but if 

he finds that reclamation has not been 

accomplished as required he will forward 

the proofs to the authorizing officer of 

the proper office in which the land is 

situated, with his report or findings 

thereon. 

(c) What constitutes reclamation and 

cultivation. To comply with the provisions of the law requiring the reclamation of one-half the irrigable area of an 

entry within the Flathead project, the 

land must have been cleared of brush, 

trees, and other encumbrances provided 

with sufficient laterals for its effective 

irrigation, graded and otherwise put in 

proper condition for irrigation and crop 

growth, planted, watered, and cultivated, 

and during at least 2 years next preceding the date of approval by the project 

engineer of proof of reclamation, except 

as prevented by hailstorm or flooding, a 

satisfactory crop must be grown thereupon. A satisfactory crop during any 

year shall be any one of the following: 

(a) A crop of annuals producing a yield 

of at least one-half of the average yield 

on similar land under similar conditions 

on the project for the year in which it is 

grown; (b) a substantial stand of alfalfa, clover, or of other perennial grass 

substantially equal in value to alfalfa 

or clover, or, (c) a season's growth of 

orchard trees, or vines, of which 75 percent shall be in a thrifty condition. 

(d) Indian charges, testimony fees, 

and final commissions. Upon the submission of proof on entries within the Flathead project, authorizing officers will 

accept only the payments of Indian 

charges and the testimony fees for "reducing testimony to writing and examining and approving testimony," and 

will not accept final commissions payable 

on such entries until proof is received 

of compliance with the requirements of 

the law as to reclamation and payment 

of the charges which have become due. 

(e) Credit for military or naval service. Soldiers and sailors and other persons entitled to claim credit for military 

or naval service, as provided in Subpart 

2096 of this chapter, will be allowed to 

claim such credit in connection with 

entries within the Flathead project, but 

will not be entitled to receive final certificate or patent until the requirements 

as to reclamation and payment of the 

water-right charges have been met. 

(Sec. 15, 35 Stat. 450) 

§ 2515.8-8 Frnal certificates. 

(a) Action on proofs; when final certificate may issue. If such proof showing reclamation and payment of charges 

is filed, and the proof of compliance 

with the ordinary provisions of the 

homestead law as to residence, improvements, and cultivation is found, on examination by the authorizing officer, to 

be sufficient, he will issue final certificate 

on the entry as provided in subparagraph 

( d) ( 1) of this section. 

(b) Procedure where proof is not acceptable. If any proof offered under this 

law be irregular or insufficient the authorizing officer will reject it and allow 

the entryman the usual right of appeal. 

(c) Acceptance of proof of residence, 

cultivation, and improvement. Entrymen 

who have resided on, cultivated, and improved their lands for the time required 

by the homestead law, and have submitted proof which has been found satisfactory thereunder by the Bureau of 

Land Management, but who are unable 

to furnish proof of reclamation because 

water has not been furnished, will be 

excused from further residence on their 

lands and will be given a notice reciting 

that further residence is not required, 

but that final certificate and patent will 

not issue until proof of reclamation by 

one-half of the irrigable area of' the 

entry and payment of all charges due 

under public notices and orders issued 

in pursuance of the law. 

(d) Liens-(1) Endorsed on final certificate. (i) Upon receipt of proof of 

reclamation and payment of water-right 

charges as provided in the act of August 

9, 1912 (37 Stat. 265), extended to the 

Flathead project by the act of July 17, 

102 
TITLE 43 § 2530.0-3 

1914 ( 38 Stat. 510), if proof of compliance with the homestead law has been 

previously submitted, and has been accepted, or if such proof is submitted at 

the time of the receipt of proof of reclamation and payment of charges, and is 

found to be sufficient as to residence, 

improvement, and cultivation, the authorizing officer will issue final certificate 

on the entry. The final certificate so 

issued must be endorsed by the authorizing officer across the face of each certificate when issued as follows: "Subject 

to lien, under act of August 9, 1912 (37 

Stat. 265), as extended to the Flathead 

project by the act of July 17, 1914 (38 

Stat. 510) ." 

(ii) A proviso to the act of May 10, 

1926 ( 44 Stat. 465) provides: That all 

construction, operation, and maintenance 

costs, except such construction costs on 

the Camas Division held and treated as 

a deferred obligation herein provided 

for, on this project shall be, and are 

hereby, made a first lien against all 

lands within the project, which lien upon 

any particular farm unit shall be released by the Secretary of the Interior 

after the total amount charged against 

such unit shall have been paid, and a 

recital of such lien shall be made in any 

instrument issued prior to such release 

by the said Secretary. The contracts 

executed by such district or districts 

shall recognize and acknowledge the 

existence of such lien. 

(2) Release of lien. The Area Director, Bureau of Indian Affairs, will, upon 

the full payment of all buildings and 

betterment charges by any water user, 

issue certificate of the full payment of 

such charges releasing the lien therefor 

reserved in the patent under the act of 

August 9, 1912. 

(Sec. 15, 35 Stat. 450) 

§ 2515.8-9 Cancellation of entries. 

All homestead entrymen within the 

Flathead project must, in addition to 

paying the appraised value of the land 

and water-right charges, reclaim at least 

one-half of the total irrigable area in 

their entries for agricultural purposes. 

Failure to make any two payments of 

the appraised price when due or to reclaim the land as above indicated, or any 

failure to comply with the requirements 

of the homestead law and the acts authorizing the construction of the Flathead project as to residence, cultivation, 

improvement, and payments, will render 

the entry subject to cancellation, and 

the money paid subject to forfeiture, 

whether water-right application has 

been made or not. Failure to make any 

two payments of the installments of 

water-right charges when due will render such entries subject to cancellation; 

and upon receipt of a statement from 

the Area Director, Bureau of Indian 

Affairs, that two of such payments remain due and unpaid, after proper service of notice upon the entryman and 

upon the mortgagee, if any such there 

be of record, the date and manner of 

service being stated, the entry will, without further notice, be cancelled. 

(Sec. 15, 35 Stat. 450) 

* * * * * * 

PART 2530-INDIAN ALLOTMENTS 

Subpart 2530-Indian Allotments: 

General 

Sec. 

2530.0-3 Authority. 

2530.0-7 Cross reference. 

2530.0-8 Land subject to allotment 

Subpart 2531-Applications Generally 

2531.J Qualifications of applicants. 

2531.2 Petition and applications. 

2531.3 Effect of application. 

Subpart 2532-Allotments 

2532.1 Certificate of allotment. 

2532.2 Trust patent. 

Subpart 2533-Allotments Within 

National Forests 

2533.0-3 

2533.0-8 

2533.1 

2533.2 

Authority. 

Land subject to allotments. 

Application. 

Approval. 

Subpart 2530-lndian Allotments: 

General 

AUTHORITY: The provisions of this Subpart 2530 

issued under R.S. 2478, 34 Stat. 197; 43 U.S.C. 

1201, 48 u.s.c. 357. 

SouRcE: The provisions of this Subpart 2530 appear at 35 F.R. 9589, June 13, 1970, unless otherwise noted. 

§ 2530.0-3 Authority. 

(a) General Allotment Act of February 8, 1887. Section 4 of the General 

Allotment Act of February 8, 1887 (24 

Stat. 389; 25 U.S.C. 334), as amended 

by the act of February 28, 1891 (26 Stat. 

794), and section 17 of the act of June 

25, 1910 (36 Stat. 859; 25 U.S.C. 336), 

103 
§ 2530.0-7 PUBLIC LANDS: INTERIOR 

provides that where any Indian entitled 

to allotment under existing laws shall 

make settlement upon any surveyed or 

unsurveyed lands of the United States 

not otherwise appropriated, he or she 

shall be entitled, upon application to the 

proper office for the district in which 

the lands are located, to have the same 

allotted to him or her and to his or her 

children in manner as provided by law 

for allotments to Indians residing upon 

reservations, and that such allotments 

to Indians on the public domain shall 

not exceed 40 acres of irrigable land, or 

80 acres of nonirrigable agricultural 

land or 160 acres of nonirrigable grazing 

land to any one Indian. 

(b) Act of March 1, 1933. The act of 

March 1, 1933 (47 Stat. 1418; 43 U.S.C. 

190a) provides that no further allotments of lands to Indians on the public 

domain shall be made in San Juan 

County, Utah. 

(c) Executive Orders 6910 and 6964, 

Taylor Grazing Act of June 28, 1934. 

Public land withdrawn by Executive Orders 6910 and 6964 of November 26, 

1934, and February 5, 1935, respectively, 

and land within grazing districts established under section 1 of the Taylor 

Grazing Act of June 28, 1934 (43 U.S.C. 

315), is not subject to settlement under 

Section 4 of the General Allotment Act 

of February 8, 1887, as amended, until 

such settlement has been authorized by 

classification. See Parts 2410, 2420, and 

2430 of this chapter. 

[35 FR 9589, June 13, 1970, as amended at 37 

FR 23184, Oct. 31, 1972] 

§ 2530.0-7 Cross reference 

For native allotments in Alaska see 

Subpart 2561 of this chapter. 

§ 2530.0-8 Land subject to allotment. 

(a) General. (1) The law provides 

that allotments may include not to exceed 40 acres of irrigable land, 80 acres 

of nonirrigable agricultural land, or 160 

acres of nonirrigable grazing land. 

(2) Irrigable lands are those susceptible of successful irrigation at a reasonable cost from any known source of 

water supply; nonirrigable agricultural 

lands are those upon which agricultural 

crops can be profitably raised without 

irrigation; grazing lands are those 

which can not be profitably devoted to 

any agricultural use other than grazing. 

( 3) An allotment may be allowed for 

coal and oil and gas lands, with reservation of the mineral contents to the 

United States. 

Subpart 2531-Applications, 

Generally 

SouRcE: The provisions of this Subpart 2531 appear at 35 F.R.9590, June 13, 1970, unless otherwise noted. 

§ 2531.1 Qualifications of applicants. 

(a) General. An applicant for allotment under the fourth section of the act 

of February 8, 1887, as amended, is required to show that he is a recognized 

member of an Indian tribe or is entitled 

to be so recognized. ,Such qualifications 

may be shown by the laws and usages 

of the tribe. The mere fact, however, that 

an Indian is a descendant of one whose 

name was at one time borne upon the 

rolls and who was recognized as a member of ·the tribe does not of itself make 

such Indian a member of the tribe. The 

possession of Indian blood, not accompanied by tribal affiliation or relationship, does not entitle a person to an 

allotment on the public domain. Tribal 

membership, even though once existing 

and recognized, may be abandoned in 

respect to the benefits of the fourth 

section. 

(b) Certificate that applicant is Indian and eligible for allotment. Any person desiring to file application for an 

allotment of land on the public domain 

under this act must first obtain from 

the Commissioner of Indian Affairs a 

certificate showing that he or she is an 

Indian and eligible for such allotment, 

which certificate must be attached to the 

allotment application. Application for 

the certificate must be made on the 

proper form, and must contain information as to the applicant's identity, such 

as thumb print, age, sex, height, approximate weight, married or single, 

name of the Indian tribe in which membership is claimed, etc., sufficient to 

establish his or her identity with that of 

the applicant for allotment. Each certificate must bear a serial number, record thereof to be kept in the Indian 

Office. The required forms may be obtained as stated in § 2531.2 (b). 

104 
TITLE 43 § 2531.1 

(c) Heirs of Indian settlers and applicant. ( 1) Allotments are allowable 

only to living persons or those in being 

at the date of application. Where an 

Indian dies after settlement and filing 

of application, but prior to approval, the 

allotment will upon final approval be 

confirmed to the heirs of the deceased 

allottee. 

(2) In disposing of pending applications in which the death of the applicant has been reported, the heirs of an 

applicant who was otherwise qualified at 

the date of application should be notified that they will be allowed 90 days 

from receipt of notice within which to 

submit proof that the applicant personally settled on the land applied for during his or her lifetime, and while the 

land was open to settlement, and upon 

failure to submit such proof within the 

time allowed the application will be 

finally rejected. 

(3) When it is sufficiently shown that 

an applicant was at the time of death 

occupying in good faith the land settled 

on, patent will be issued to his or her 

heirs without further use or occupancy 

on the part of such heirs being shown. 

( d) Minor children. An Indian settler 

on public lands under the fourth section 

of the act of February 8, 1887, as 

amended, is also eligible upon application for allotments made thereunder to 

his minor children, stepchildren, or other 

children to whom he stands in loco parentis, provided the natural children are 

in being at the date of the parent's application, or the other relationship referred to exist at such date. The law 

only permits one eligible himself under 

the fourth section to take allotments 

thereunder on behalf of his minor children or of those to whom he stands in 

loco parentis. Orphan children ( those 

who have lost both parents) are not 

eligible for allotments on the public 

domain unless they come within the 

last-mentioned class. No actual settlement is required in case of allotments 

to minor children under the fourth section, but the actual settlement of the 

parent or of a person standing in loco 

parentis on his own public-land allotment 

will be regarded as the settlement of 

the minor children. 

( e) Indian wives. ( 1) Where an Indian woman is married to non-Indian not 

eligible for an allotment under the fourth 

section of the act of February 8, 1887, 

as amended, and not a settler or entryman under the general homestead law, 

her right, and that of the minor children born of such marriage, to allotments on the public domain will be 

determined without reference to the 

quantum of Indian blood possessed by 

such woman and her children but solely 

with reference as to whether they are 

recognized members of an Indian tribe 

or are entitled to such membership. 

(2) An Indian woman married to an 

Indian man who has himself received 

an allotment on the public domain or is 

entitled to one, or has earned the equitable right to patent on any form of 

homestead or small holding claim, is not 

thereby deprived of the right to file an 

application for herself, provided she is 

otherwise eligible, and also for her 

minor children where her husband is for 

any reason disqualified. 

(3) An Indian woman who is separated from her husband who has not 

received an allotment under the fourth 

section will be regarded as the head of 

a family and may file applications for 

herself and for the minor children under 

her care. 

( 4) In every case where an Indian 

woman files applications for her minor 

children it must appear that she has 

not only applied for herself under the 

fourth section but has used the land in 

her own application in some beneficial 

manner. 

(f) Citizenship. (1) Under section 6 

of the act of February 8, 1887 (24 Stat. 

390; 25 U.S.C. 349), every Indian born 

within the territorial limits of the United 

States, to whom allotments were made 

under that act, and every Indian who 

voluntarily takes up his residence separate and apart from any tribe of 

Indians and adopts the habits of civilized life is declared to be a citizen of 

the United States. 

(2) The act of May 8, 1906 (34 Stat. 

182; 8 U.S.C. 3), changed the time 

when an Indian became a citizen by 

virtue of the allotment made to him to 

the time when patent in fee should be 

issued on such an allotment. 

(3) The act of June 2, 1924 (43 Stat. 

W5 
§ 2531.2 PUBLIC LANDS: INTERIOR 

253; 8 U .S.C. 3), conferred citizenship 

on all noncitizen Indians born within the 

Territorial limits of the United States, 

but expressly reserved to them all rights 

to tribal or other property. These rights 

include that of allotment on the public 

land, if qualified. 

[35 FR 9589, June 13, 1970, as amended at 37 

FR 23185, Oct. 31, 1972] 

§ 2531.2 Petition and applications. 

(a) Any person desiring to receive an 

Indian allotment ( other than those 

seeking allotments in national forests, 

for which see subpart 2533 of this part) 

must file with the authorized officer, an 

application, together with a petition on 

forms approved by the Director, properly executed, together with a certificate 

from the authorized officer of the Bureau of Indian Affairs that the person 

is Indian and eligible for allotment, as 

specified in paragraph 2531.l(b). However, if the lands described in the application have been already classified and 

opened for disposition under the provisions of this part, no petition is required. 

The documents must be filed in accordance 

with the provisions of § 1821.2 of this 

chapter. 

The petition and the statement attached to the application for certificate 

must be signed by the applicant. 

(b) Blank forms for petitions and applications may be had from any office of 

the Bureau of Indian Affairs, or from 

land offices of the Bureau of Land Management. 

§ 2531.3 Effect of application. 

(a) Where an allotment application 

under the fourth section of the Act of 

February 8, 1887, as amended, 25 U.S.C. 

334, is not accompanied by the requisite 

certification from the Bureau of Indian 

Affairs showing the applicant to be eligible for an allotment, and the applicant 

is given time to furnish such certificate, 

the application does not segregate the 

land, and other applications therefor 

may be received and held to await final 

action on the allotment application. 

(b) Where an allotment application 

is approved by the authorized officer, it 

operates as a segregation of the land, 

and subsequent application for the same 

land will be rejected. 

[37 FR 23185, Oct. 31, 1972] 

Subpart 2532-Allotments 

SouRcE: The provisions of this Subpart 2532 appear at 35 F.R. 9590, June 13, 1970, unless otherwise noted. 

§ 2532.1 Certificate of allotment. 

(a) When the authorizing officer approves an application for allotment, he 

will issue to the applicant a "certificate 

of allotment", on a prescribed form 

showing the name in full of the applicant, post office address, name of the 

tribe in which membership is claimed, 

serial number of the certificate issued by 

the Commissioner of Indian Affairs, and 

a description of the land allotted. 

(b) Where the application under investigation is that of a single person 

over 21 years of age, or of the head of 

a family, report will also be made as 

to the character of the applicant's settlement and improvements. A similar report 

will be made on applications filed in 

behalf of minor children as to the character of the settlement and improvements made by the parent, or the person 

standing in loco parentis, on his or her 

own allotment under the fourth section. 

§ 2532.2 Trust patent. 

(a) To enable an Indian allottee to 

demonstrate his good faith and intention, the issuance of trust patent will be 

suspended for a period of 2 years from 

date of settlement; but in those cases 

where that period has already elapsed at 

the time of adjudicating the allotment 

application, and when the evidence 

either by the record or upon further 

investigation in the field, shows the 

allottee's good faith and intention in 

the matter of his settlement, trust patents will issue in regular course. Trust 

patents in the suspended class, when 

issued, will run from the date of suspension. 

(b) In the matter of fourth-section 

applications filed prior to the regulalations in this part, where, by the record 

or upon further investigation in the 

field, it appears that such settlement 

has not been made as is contemplated 

by the regulations, such applications 

will not be immediately rejected, but 

the applicant will be informed that 2 

years will be allowed within which to 

perfect his settlement and to furnish 

proof thereof, whereupon his applica106 
TITLE 43 § 2561.0-5 

tion will be adjudicated as in other 

cases. 

Subpart 2533-Allotments Within 

National Forests 

SouRcE: The provision, of this Subpart 2533 appear at 35 F.R. 9591, June 13, 1970, unless otherwise noted. 

§ 2533.0-3 Authority. 

By the terms of section 31 of the act 

of June 25, 1910 (36 Stat. 863; 25 U.S.C. 

337), al!otml:mts under the fourth section of the act of February 8, 1887, as 

amended, may be made within national 

forests. 

§ 2533.0-8 Land subject to allotment. 

An allotment under this section may 

be made for lands cont:J.ining coal and 

oil and gas with reservation of the 

mineral contents to the United States, 

but not for lands valuable for metalliferous minerals. The rules governing the 

conduct of fourth-section applications 

under the act of February 8, 1887, as 

amended, apply equally to applications 

under said section 31. 

§ 2533.l Application. 

An Indian who desires to apply for an 

allotment within a national forest under 

this act must submit the application to 

the supervisor of the particular forest 

affected, by whom it will be forwarded 

with appropriate report, through the 

district forester and Chief, Forest Service, to the Secretary of Agriculture, in 

order that he may determine whether 

the land applied for is more valuable 

for agriculture or grazing than for the 

timber found thereon. 

§ 2533.2 Approval. 

(a) Should the Secretary of Agriculture decide that the land applied for, or 

any part of it, is chiefly valuable for 

the timber found thereon, he will transmit the application to the Secretary of 

the Interior and inform him of his decision in the matter. The Secretary of the 

Interior will cause the applicant to be 

informed of the action of the Secretary 

of Agriculture. 

(b) In case the land is found to be 

chiefly valuable for agriculture or grazing, the Secretary of Agriculture will 

note that fact on the application and 

forward it to the Commissioner of 

Indian Affairs. 

( c) The application must be filed with 

the authorizing officer of the proper 

office for the district in which the land 

applied for is located. He will then forward the case to the Bureau of Indian 

Affairs for consideration. If the Commissioner of Indian Affairs approves the 

application, he will transmit it to the 

Bureau of Land Management for issuance of a trust patent. 

* * * * * * 

PART 2560-ALASKA OCCUPANCY 

AND USE 

* * * * * * 

Subpart 2561-Native Allotments 

SouRcE: The provisions of this Subpart 2561 appear at 35 F.R. 9597, June 13, 1970, unless otherwise noted. 

§ 2561.0-2 Objectives. 

It is the program of the Secretary of 

the Interior to enable individual natives 

of Alaska to acquire title to the lands 

they use and occupy and to protect the 

lands from the encroachment of others. 

§ 2561.0-3 Authority. 

The act of May 17, 1906 (34 Stat. 197), 

as amended August 2, 1956 (70 Stat. 

954; 48 U.S.C 357, 357a, 357b), authorizes the Secretary of the Interior to 

allot not to exceed 160 acres of vacant, 

unappropriated, and unreserved nonmineral land in Alaska or, subject to the 

provisions of the act of March 8, 1922 

( 42 Stat. 415; 48 U .S.C. 376-377), of 

vacant, unappropriated, and unreserved 

public land in Alaska that may be valuable for coal, oil, or gas deposits, or, 

under certain conditions, of national 

forest lands in Alaska, to any Indian, 

Aleut or Eskimo of full or mixed blood 

who resides in and is a native of Alaska, 

and who is the head of a family, or is 

twenty-one years of age. 

§ 2561.0-5 Definitions. 

As used in the regulations in this 

section. 

(a) The term "substantially continuous use and occupancy" contemplates 

the customary seasonality of use and 

occupancy by the applicant of any land 

used by him for his livelihood and wellbeing and that of his family. Such use 

and occupancy must be substantial ac107 
§ 2561.0-8 PUBLIC LANDS: INTERIOR 

tual possession and use of the land, at 

least potentially exclusive of others, and 

not merely intermittent ~se. 

(b) "Allotment" is an allocation to a 

Native of land of which he has made 

substantially continuous use and occupancy for a period of five years and 

which shall be deemed the "homestead" 

of the allottee and his heirs in perpetuity, and shall be inalienable and nontaxable except as otherwise provided by 

the Congress. 

(c) "Allotment Act" means the Act of 

May 17, 1906 (34 Stat. 197), as amended 

(48 U.S.C. 357, 357a, 357b). 

§ 2561.0-8 Lands subject to allotment. 

(a) A Native may be granted a single 

allotment of not to exceed 160 acres of 

land. All the lands in an allotment need 

not be contiguous but each separate tract 

of the allotment should be in reasonably 

compact form. 

(b) In areas where the rectangular 

survey pattern is appropriate, an allotment may be in terms of 40-acre legal 

subdivisions and survey lots on the basis 

that substantially continuous use and 

occupancy of a significant portion of 

such smallest legal subdivision shall 

noI'Illally entitle the applicant to the full 

subdivision, absent conflicting claims. 

(c) Allotments may be made in national forests if founded on occupancy 

of the land prior to the establishment 

of the particular forest or if an authorized officer of the Department of Agriculture certifies that the land in the application for allotment is chiefly valuable 

for agricultural or grazing purposes. 

( d) Lands in applications for allotment and allotments that may be valuable for coal, oil, or gas deposits are 

subject to the regulations of § 2093.4 of 

this chapter. 

§ 2561.1 Applications. 

(a) Applications for allotment properly and completely executed on a form 

approved by tho Director, Bureau of 

Land Management, must be filed in the 

proper office which has jurisdiction over 

the lands. 

(b) Any application for allotment of 

lands which extend more than 160 rods 

along the shore of any navigable waters 

shall be considered a request for waiver 

of the 160-rod limitation (see Part 2094 

of this chapter). 

( c) If surveyed, the land must be described in the application according ·to 

legal subdivisions and must conform to 

the plat or survey when possible. If 

unsurveyed, it must be described as accurately as possible by metes and bounds 

and tied to natural objects. On unsurveyed lands, the application should be 

accompanied by a map or approved protracted survey diagram showing approximately the lands included in the application. 

(d) An application for allotment shall 

be rejected unless the authorized officer 

of the Bureau of Indian Affairs certifies 

that the applicant is a native qualified 

to make application under the Allotment 

Act, that the applicant has occupied and 

posted the lands as stated in the application, and that the claim of the applicant does not infringe on other native 

claims or area of native community use. 

(e) The filing of an acceptable application for allotment will segregate the 

lands. Thereafter subsequent conflicting 

applications for such lands shall be rejected, except when accompanied by a 

showing that the applicant for allotment 

has permanently abandoned use and occupancy of the land. 

(f) By the filing of an application 

for allotment the applicant acquires no 

rights except as provided in paragraph 

( e) of this section. If the applicant does 

not submit the required proof within six 

years of the filing of his application 

in the proper office, his application for 

allotment will terminate without affecting the rights he gained by virtue of his 

occupancy of the land or his right to 

make another application. 

§ 2561.2 Proof of use and occupancy. 

(a) An allotment will not be made 

until the lands are surveyed by the 

Bureau of Land Management, and until 

the applicant or the authorized officer of 

the Bureau of Indian Affairs has made 

satisfactory proof of substantially continuous use and occupancy of the land 

for a period of five years by the applicant. Such proof shall be made on a 

form approved by the Director, Bureau 

of Land Management, and filed in the 

proper land office. If made by the applicant, it must be signed by him, but if 

108 
TITLE 43 § 2564.4 

he is unable to write his name, his mark 

or thumb print shall be impressed on the 

statement and witnessed by two persons. 

This proof may be submitted with the 

application for allotment if the applicant has then used and occupied the 

land for five years, or may be made at 

any time within six years after the 

filing of the application when the requirements have been met. 

§ 2561.3 Effect of allotment. 

(a) Land allotted under the Act is the 

property of the allottee and his heirs in 

perpetuity, and is inalienable and nontaxable. However, a native of Alaska 

who received an allotment under the 

Act, or his heirs, may with the approval 

of the Secretary of the Interior or his 

authorized representative, convey the 

complete title to the allotted land by 

deed. The allotment shall thereafter be 

free of any restrictions against alienation and taxation unless the purchaser is 

a native of Alaska who the Secretary 

determines is unable to manage the land 

without the protection of the United 

States and the conveyance provides for 

a continuance of such restrictions. 

(b) Application by an allottee or his 

heirs for approval to convey title to land 

allotted under the Allotment Act shall 

be filed with the appropriate officer of 

the Bureau of Indian Affairs. 

Subpart 2564-Native Townsites 

SouRcE: The provisions of this Subpart 2564 appear at 35 f.R. 9601, June 13, 1970, unless otherwise noted. 

§ 2564.0-3 Authority. 

The act of May 25, 1926, ( 44 Stat. 

629; 48 U.S.C. 355a-355d) provides for 

the townsite survey and disposition of 

public lands set apart or reserved for 

the benefit of Indian or Eskimo occupants in trustee townsites in Alaska and 

for the survey and disposal of the lands 

occupied as native towns or villages. The 

act of February 26, 1948 ( 62 Stat. 35; 

48 U.S.C. 355e), provides for the issuance of an unrestricted deed to any 

competent native for a tract of land 

claimed and occupied by him within any 

such trustee townsite. 

§ 2564.0-4 Responsibility. 

(a) Administration of Indian possessions in truste~ towns. As to Indian possessions in trustee town-sites in Alaska 

established under authority of section 

11 of the act of .March 3, 1891 (26 Stat. 

1009; 48 U.S.C. 355), and for which the 

town-site trustee has closed his accounts 

and been discharged as trustee, and as 

to such possessions in other trustee 

town-sites in Alaska, such person as 

may be designated by the Secretary of 

the Interior will perform all necessary 

acts and administer the necessary trusts 

in connection with the act of May 25, 

1926. 

(b) Administration of native towns. 

The trustee for any and all native towns 

in Alaska which may be established and 

surveyed under authority of section 3 of 

said act of May 25, 1926 ( 44 Stat. 630; 

48 U.S.C. 355c), will take such action 

as may be necessary to accomplish the 

objects sought to be accomplished by 

that section. 

§ 2564.1 Application for restricted deed. 

A native Indian or Eskimo of Alaska 

who occupies and claims a tract of land 

in a trustee town-site and who desires 

to obtain a restricted deed for such tract 

should file application therefor on a 

form approved by the Director, with the 

town-site trustee. 

§ 2564.2 No payment, publication or 

proof required on entry for native 

towns. 

In connection with the entry of lands 

as a native town or viJlage under section 3 of the said act of May 25, 1926, 

no payment need be made as purchase 

money or as fees, and the publication 

and proof which are ordinarily required 

in connection with trustee town-sites will 

not be required. 

§ 2564.3 Native towns occupied partly 

by white occupants. 

Native towns which are occupied 

partly by white lot occupants wiJl be 

surveyed and disposed of under the provisions of both the act of March 3, 1891 

( 26 Stat. 1095, 1099), and the act of 

May 25, 1926 ( 44 Stat. 629). 

§ 2564.4 Provisions to be inserted in restricted deeds. 

The town site trustee wiJl note a 

proper reference to the act of May 25, 

1926, on each deed which is issued under 

109 
§ 2564.5 PUBLIC LANDS: INTERIOR 

authority of that act and each such deed 

shall provide that the title conveyed is 

inalienable except upon approval of the 

Secretary of the Interior or his authorized representative, and that the issuance of the restricted deed does not subject the tract to taxation, to levy and 

sale in satisfaction of the debts, contracts or liabilities of the transferee, or 

to any claims of adverse occupancy or 

law of prescription; also, if the established streets and alleys of the town site 

have been extended upon and across the 

tract, that there is reserved to the town 

site the area covered by such streets and 

alleys as extended. The deed shall further provide that the approval by the 

Secretary of the Interior or his authorized representative of a sale by the 

Indian or Eskimo transferee shall vest 

in the purchaser a complete and unrestricted title from the date of such 

approval. 

§ 2564.5 Sale of land for whic'h restricted deed was issued. 

When a native possessing a restricted 

deed for land in a trustee town site 

issued under authority of the act of 

May 25, 1926 ( 44 Stat. 629; 48 U .S.C. 

355a-355d), desires to sell the land, he 

should execute a deed on a form approved by the Director, prepared for the 

approval of the Secretary of the Interior, or his authorized representative, 

and send it to the town-site trustee in 

Alaska. The town-site trustee will forward the deed to the Area Director of 

the Bureau of Indian Affairs who will 

determine whether it should be approved. 

Where the deed is approved it shall be 

returned by the Area Director, Bureau 

of Indian Affairs, through the town-site 

trustee to the vendor. In the event the 

Area Director determines that the deed 

shall not be approved, he shall so inform 

the native possessing the restricted deed, 

who shall have a rjght of appeal from 

such finding or decision to the Commissioner of Indian Affairs within sixty 

days from the date of notification of 

such finding or decision. The appeal 

shall be filed with the Area Director. 

Should the Commissioner uphold the 

decision of the Area Director, he shall 

notify the applicant of such action, informing him of his right of appeal to 

the .Secretary of the Interior. 

§ 2564.6 Application for unrestricted 

deed. 

Any Alaska native who claims and 

occupies a tract of land in a trustee 

town site is the owner of land under a 

restricted deed issued under the act of 

May 25, 1926 ( 44 Stat. 629; 48 U .S.C. 

355a-355e) may file an application for 

an unrestricted deed pursuant to the act 

of February 26, 1948 ( 62 Stat. 36; 48 

U.S.C. 355e), with the town-site trustee. 

The application must be in writing and 

must contain a description of the land 

claimed and information regarding the 

competency of the applicant. It must 

also contain evidence substantiating the 

claim and occupancy of the applicant, 

except when the applicant has been 

issued a restricted deed for the land. A 

duplicate copy of the application must 

be submitted by the applicant to the 

Area Director of the Bureau of Indian 

Affairs. 

§ 2564. 7 Determination of competency 

or noncompetency; issuance of unrestricted deed. 

(a) Upon a determination by the Bureau of Indian Affairs that the applicant 

is competent to manage his own affairs, 

and in the absence of any conflict or 

other valid objection, the town-site trustee will issue an unrestricted deed to 

the applicant. Thereafter all restrictions 

as to sale, encumbrance, or taxation of 

the land applied for shall be removed, 

but the said land shall not be liable to 

the satisfaction of any debt, except obligations owed to the Federal Government, 

contracted prior to the issuance of such 

deed. Any adverse action under this section by the town-site trustee shall be 

subject to a right of appeal to the 

Director, Bureau of Land Management, 

and to the Secretary of the Interior, 

in accordance with Part 1840 of this 

chapter. 

(b) In the event the Area Director 

determines that the applicant is not 

competent to manage his own affairs, he 

shall so inform the applicant, and such 

applicant shall have a right of appeal 

from such finding or decision to the 

Commissioner of Indian Affairs, within 

60 days from the date of notification of 

such finding or decision. The appeal shall 

be filed with the Area Director. Should 

the Commissioner uphold the decision of 

110 
TITLE 43 § 2650.0-2 

the Area Director, he shall notify the applicant of such action, informing him of 

his right of appeal to the Secretary of 

the Interior. 

(c) Except as provided in this section, 

the town-site trustee shall not issue other 

than restricted deeds to Indian or other 

Alaska natives. 

( 44 Stat. 630; 48 U .S.C. 355d. Interpret or apply 

44 Stat. 629, 630, 62 Stat. 35; 48 U.S.C. 355a, 355b, 

355c, 355e) 

* * * * * * 

Subpart 2567-Alaska: Homestead 

Settlement 

* * * * * * 

§ 2567.0-7 Cross references. 

For Indian and Eskimo allotments, 

Subpart 2561, for school indemnity selections Subpart 2627; for shore space, 

Subpart 2094; for soldier's additional 

rights, Subpart 2616; for trade and 

manufacturing sites, Subpart 2562. 

* * * * * * 

PART 2650-ALASKA NATIVE 

SELECTIONS 

Subpart 2650-Alaska Native Selections 

-Generally 

Sec. 

2650.0---1 

2650.0---2 

2650.0---3 

2650.0---5 

2650.0-7 

2650.0-8 

2650.1 

2650.2 

2650.3 

2650.3-1 

2650.3-2 

2650.4 

2650.4-1 

2650.4-2 

2650.4-3 

2650.4-4 

2650.4-5 

2650.4-6 

2650.4-7 

2650.5 

2650.5-1 

2650.5-2 

2650.5-3 

2650.5-4 

2650.5-5 

2650.5-6 

2650.6 

2650.7 

2650.!! 

Purpose. 

Objectives. 

Authority. 

Definitions. 

References. 

Waiver. 

Provisions for interim administration. 

Application procedures for land selections. 

Lawful entries, lawful settlements, and 

mining claims. 

Lawful entries and lawful settlements. 

Mining claims. 

Conveyance reservations. 

Existing rights and contracts. 

Succession of interest. 

Administration. 

Revenues [Reserved]. 

National forest lands. 

National wildlife refuge system lands. 

Public easements. 

Survey requirements. 

General. 

Rule of approximation. 

Regional surveys. 

Village surveys. 

Cemetery sites and historical places. 

'Adjustment to plat of survey. 

Selection limitations. 

Publication. 

Appeals. 

Subpart 2651-Village Selections 

2651.0-3 Authority. 

2651.i Entitlement. 

2651.2 Eligibility requirements. 

2651.3 Selection period. 

2651.4 Selection limitations. 

2651.5 

2651.6 

Conveyance reservations. 

Airport and air navigation facilities. 

Subpart 2652-Regional Selections 

2652.0---3 Authority. 

2652. I Entitlement. 

2652.2 Selection period. 

2652.3 Selection limitations. 

2652.4 Conveyance reservations. 

Subpart 2653-Miscellaneous Selections 

2653.0-3 Authority. 

2653.0-5 Definitions. 

2653.1 Conveyance limitations. 

2653.2 Application procedures. 

2653.3 Lands available for selection. 

2653.4 Termination of selection period. 

2653.5 Cemetery sites and historical places. 

2653.6 Native group selections. 

2653.7 Sitka-Kenai-Juneau-Kodiak selections. 

2653.8 Primary place of residence. 

2653.8-1 Acreage to be conveyed. 

2653.8-2 Primary place of residence criteria. 

2653.9 Conveyance reservations. 

Subpart 2654-Native Reserves 

2654.0---3 Authority. 

2654.0-5 Definitions. 

2654.1 Exercise of option. 

2654.2 Application procedures. 

2654.3 Conveyances. 

AUTHORITY: Sec. 25 of the Alaska Native Claims 

Settlement Act of December 18, 1971; Administrative Procedure Act (5 U.S.C. 551 et seq.) unless 

otherwise noted. 

SOURCE: 38 FR 14218, May 30, 1973, unless otherwise noted. 

Subpart 2650-Alaska Native 

Selections-Generally 

§ 2650.0-1 Purpose. 

The purpose of the regulations in this 

part is to provide procedures for orderly 

and timely implementation of those provisions of the Alaska Native Claims 

Settlement Act of December 18, 1971 

( 43 U.S.C. 1601) which pertain to selections of lands and interests in lands in 

satisfaction of the land selections conferred by said act upon Alaska Natives 

and Alaska Native corporations. 

§ 2650.0-2 Objectives. 

The program of the Secretary is to 

implement such provisions in keeping 

with the congressional declaration of 

policy that the settlement of the Natives' 

aboriginal land claims be fair and just 

and that it be accomplished rapidly, 

with certainty, in conformity with the 

real economic and social needs of Natives, without litigation and with maximum participation by Natives in decisions affecting their rights and property. 

111 
§ 2650.0-5 PUBLIC LANDS: INTERIOR 

§ 2650.0-3 Authority. 

Section 25 of the Alaska Native Claims 

Settlement Act of December 18, 1971, 

authorizes the Secretary of the Interior 

to issue and publish in the FEDERAL REGISTER, pursuant to the Administrative 

Procedure Act ( 5 U.S.C. 551, et seq.), 

such regulations as may be necessary to 

carry out the purposes of the act. 

§ 2650.0-5 Definitions. 

(a) "Act" means the Alaska Native 

Claims .Settlement Act of December 18, 

1971 (43 U.S.C. 1601) and any amendments thereto. 

(b) "Secretary" means the Secretary 

of the Interior or his authorized delegate. 

(c) "Native" means a Native as defined in section 3 (b) of the act. 

( d) "Native village" means any tribe, 

band, clan, group, village, community, 

or association in Alaska, as defined in 

section 3 ( c) of the act. 

(e) "Village corporation" means a 

profit or nonprofit Alaska Native village 

corporation which is eligible under 

§ 2651.2 of this chapter to select land 

and receive benefits under the act, and is 

organized under the laws of the State of 

Alaska in accordance with the provisions 

of section 8 of the act. 

(f) "Regional corporation" means an 

Alaska Native regional corporation organized under the laws of the State of 

Alaska in accordance with the provisions of section 7 of the act. 

(g) "Public lands" means all Federal 

lands and interests in lands located in 

Alaska (including the beds of all nonnavigable bodies of water) , except: 

(1) The smallest practicable tract, as 

determined by the Secretary, enclosing 

land actually used, but not necessarily 

having improvements thereon, in connection with the administration of a 

Federal installation; and, 

(2) Land selections of the State of 

Alaska which have been patented or 

tentatively approved under section 6 (g) 

of the Alaska Statehood Act, as amended (72 Stat. 341; 77 Stat. 223; 48 U.,S.C. 

ch. 2), or identified for selection by the 

State prior to January 17, 1969, except 

as provided in § 2651.4 (a) ( 1) of this 

chapter. 

(h) "Interim conveyance" as used in 

these regulations means the conveyance 

granting to the recipient legal title to 

unsurveyed lands, and containing all th~ 

reservations for easements, rights-ofway, or other interests in land, provided 

by the act or imposed on the land by 

applicable law, subject only to confirmation of the boundary descriptions after 

approval of the survey of the conveyed 

land. 

(i) "Patent" as used in t.hese regulations means the original conveyance 

granting legal title to the recipient to 

surveyed lands, and containing all the 

reservations for easements, rights-ofway, or other interests in land, provided 

by the act or imposed on the land by 

applicable law; or the document issued 

after approval of the survey by the 

Bureau of Land Management, to confirm 

the boundary description of the unsurveyed lands. 

(j) "Conveyance" as used in these 

regulations means the transfer of title 

pursuant to the provisions of the act 

whether by interim conveyance or patent, 

whichever occurs first. 

(k) "National Wildlife Refuge System" means all lands, waters, and interests therein administered on December 

18, 1971, by the Secretary as wildlife 

refuges, areas for the protection and 

conservation of fish and wildlife that 

are threatened with extinction, wildlife 

ranges, game ranges, wildlife management areas, or waterfowl production 

areas, as provided in the act of October 

15, 1966, 80 Stat. 927, as amended by 

the act of July 18, 1968, 82 Stat. 359 

(16 u.s.c. 668dd). 

(I) "Protraction diagram" means the 

approved diagram of the Bureau of 

Land Management mathematical plan 

for extending the public land surveys 

and does not constitute an official Bureau 

of Land Management survey, and, in the 

absence of an approved diagram of the 

Bureau of Land Management, includes 

the State of Alaska protraction diagrams 

which have been authenticated by the 

Bureau of Land Management. 

(m) "Date of filing" shall be the date 

of postmark, except when there is no 

postmark, in which case it shall be the 

date of receipt in the proper office. 

§ 2650.0-7 References. 

(a) Native enrollment procedures are 

contained in 25 CFR 43h. 

112 
TITLE 43 § 2650.2 

(b) Withdrawal procedures are contained in part 2300 of this chapter. 

( c) Application procedures are contained in subpart 1821 of this chapter. 

(d) Appeals procedures are contained 

in 43 CFR part 4. 

(e) Mineral patent application procedures are contained in part 3860 of this 

chapter. 

§ 2650.0-8 Waiver. 

The Secretary may, in his discretion, 

waive any nonstatutory requirement of 

these regulations. When the rights of 

third parties will not be impaired, and 

when rapid, certain settlement of the 

claims of Natives will be assisted, minor 

procedural and technical errors should 

be waived. 

§ 2650.1 Provisions for interim administration. 

(a) (1) Prior to any conveyance under 

the act, all public lands withdrawn pursuant to sections 11, 14, and 16, or covered by section 19 of the act, shall be 

administered under applicable laws and 

regulations by the >Secretary of the Interior, or by the Secretary of Agriculture 

in the case of national forest lands, as 

provided by section 22 ( i) of the act. The 

authority of the Secretary of the Interior and of the Secretary of Agriculture 

to make contracts and to issue leases, 

permits, rights-of-way, or easements is 

not impaired by the withdrawals. 

(2) (i) Prior to the Secretary's making contracts or issuing leases, permits, 

rights-of-way, or easements, the views 

of the concerned regions or villages shall 

be obtained and considered, except as 

provided in subdivision (ii) of this 

subparagraph. 

(ii) Prior to making contracts, or 

issuing leases, permits, rights-of-way, or 

easements on lands subject to election 

pursuant to section 19 (b) of the act, 

the Secretary shall obtain the consent of 

the representatives of the Natives living 

on those lands. 

(b) As provided in section 17(d) (3) of 

the act, any lands withdrawn pursuant 

to section. 17(d) shall be subject to administration by the Secretary under applicable laws and regulations and his 

authority to make contracts, and to issue 

leases, permits, rights-of-way, or easements shall not be impaired by the 

withdrawal. To the extent that any such 

land is also subject to the provisions of 

paragraph ( a) of this section, the provisions of that subsection shall govern. 

(c) As provided in section 21(e) of 

the act, so long as there are no substantial revenues from real property interests conveyed pursuant to this act and 

the lands are not subject to State and 

local real property taxes, such lands 

shall continue to receive forest fire protection services from the United States 

at no cost. The Secretary will promulgate criteria, after consultation with the 

concerned Native corporations and the 

State of Alaska, for determining when 

substantial revenues are accruing as to 

lands for which forest fire protection 

services are furnished by the Department of the Interior and no discontinuance of such service will be ordered by 

the Secretary unless he finds, after notice and opportunity for submission of 

views, that such discontinuance is in 

conformity with the criteria. 

§ 2650.2 Application procedures for 

land selections. 

(a) Applications for land selections 

must be filed on forms approved by the 

Director, Bureau of Land Management. 

Applications must be filed in accordance 

with subpart 1821 of this chapter. 

(b) Each regional corporation shall 

submit with its initial application under 

this section a copy of the resolution authorizing the individual filing the application to do so. 

(c) Each village corporation under 

subpart 2651 of this chapter must submit 

with its initial application under this 

section a certificate of incorporation, evidence of approval of its articles of 

incorporation by the regional corporation 

for that region, and a copy of the authorization of the individual filing the application to do so. 

( d) ( 1) Regional and village corporations authorized by the act subsequently 

filing additional or amendatory applications need only refer to the serial number of the initial filing. 

(2) Any change of the officer authorized to act for any corporation in the 

matter of land selections should be 

promptly submitted to the appropriate 

office of the Bureau of Land Management. 

113 
§ 2650.3 PUBLIC LANDS: INTERIOR 

( e) ( 1) If the lands applied for are 

surveyed, the legal description of the 

lands in accordance with the official plats 

of survey shall be used. 

(2) If the lands applied for are unsurveyed, they shall be described by protraction diagrams. 

(3) If the lands applied for are not 

surveyed and are not covered by protraction diagrams, they must be described by metes and bounds commencing 

at a readily identifiable topographic feature, such as a mountain peak, mouth 

of a stream, etc., or a monumented point 

of known position, such as a triangulation station, and the description must 

be accompanied by a topographic map 

delineating the boundary of the area 

applied for. 

( 4) Where 1 :63,360 U.S.G.S. quadrangle maps with the protraction diagram plotted thereon have been published, 

these maps shall be used to portray and 

describe the lands applied for. Where 

1 :63,360 U.S.G.S. quadrangle maps with 

the protraction diagram plotted thereon 

have not been published, then the 

1:250,000 U.S.G.S. quadrangle maps with 

the protraction diagrams plotted thereon 

shall be used. 

( 5) If the written description shown 

on the application and the map portrayal accompanying the application do 

not agree the delineation shown on the 

map shall be controlling. 

(f) The selected areas may be adjusted by the Secretary with the consent of 

the applicant and amendment of the 

application by the applicant, provided 

that the adjustment will not create an 

excess over the selection entitlement. 

§ 2650.3 Lawful entries, lawful settlements, and mining claims. 

§ 2650.3-1 Lawful entries and lawful 

settlements. 

(a) Pursuant to sections 14(g) and 

22 (b) of the act, all conveyances issued 

under the act shall exclude any lawful 

entries or entries which have been perfected under, or are being maintained 

in compliance with, laws leading to the 

acquisition of title, but shall include 

land subject to valid existing rights of 

a temporary or limited nature such as 

those created by leases (including leases 

issued under section 6 (g) of the Alaska 

Statehood Act), contracts, permits, 

rights-of-way, or easements. 

(b) The right of use and occupancy 

of persons who initiated lawful settlement or entry of land, prior to August 

31, 1971, is protected: Provided, That: 

(1) Occupancy has been or is being 

maintained in accordance with the appropriate public land law, and 

(2) Settlement or entry was not in 

violation of Public Land Order No. 4582, 

as amended. Any person who entered or 

settled upon land in violation of that 

public land order has gained no rights. 

(c) In the event land excluded from 

conveyance under paragraph (a) of this 

section reverts to the United States, the 

grantee or his successor in interest shall 

be afforded an opportunity to acquire 

such land by exchange pursuant to section 22 (f) of the act. 

§ 2650.3-2 Mining claims. 

(a) Possessory rights.-Pursuant to 

section 22 ( c) of the act, on any lands 

to be conveyed to village or regional 

corporations, any person who prior to 

August 31, 1971, initiated a valid mining 

claim or location, including millsites, 

under the general mining laws and recorded notice thereof with the appropriate State or local office, shall not be 

challenged by the United ,States as to 

his possessory rights, if all requirements 

of the general mining laws are met. 

However, the validity of any mining 

claim may be challenged by the United 

States or by the grantee or his successor 

in interest at any time. 

(b) Patent requirements met.-An acceptable mineral patent application must 

be filed with the appropriate Bureau of 

Land Management office not later than 

December 18, 1976, on lands conveyed to 

village or regional corporations. 

(1) Upon a showing that a mineral 

survey cannot be completed by December 18, 1976, the filing of an application 

for a mineral survey, which states on its 

face that it was filed for the purpose of 

proceeding to patent, will constitute an 

acceptable mineral patent application, 

provided all applicable requirements 

under the general mining laws have 

been met. 

(2) The failure of an applicant to 

prosecute diligently his application for 

mineral patent to completion will result 

114 
TITLE 43 § 2650.4-6 

in the loss of benefits afforded by section 22 ( c) of the act. 

(3) The appropriate office of the Bureau of Land Management shall give 

notice of the filing of an application 

under this section to the village or regional corporation which has selection 

rights in the land covered by the application. 

(c) Patent requirements not met.-

Any mineral patent application filed 

after December 18, 1976, on land conveyed tp any village or regional corporation pursuant to this act, will be rejected 

for lack of departmental jurisdiction. 

After that date, patent applications may 

continue to be filed on land not conveyed 

to village or regional corporations until 

such land is conveyed. 

§ 2650.4 Conveyance reservations. 

§ 2650.4-1 Existing rights and contracts. 

Any conveyance issued for surface and 

subsurface rights under this act will be 

subject to any lease, contract, permit, 

right-of-way, or easement and the rights 

of the lessee, contractee, permittee, or 

grantee to the complete enjoyment of 

all rights, privileges, and benefits thereby granted him. 

§ 2650.4-2 Succession of interest. 

Upon issuance of any conveyance under this authority, the grantee thereunder shall succeed and become entitled 

to any and all interests of the State of 

Alaska or of the United States as lessor, 

contractor, permitter, or grantor, in any 

such lease, contrast, permit, right-ofway, or easement covering the estate 

conveyed, subject to the provisions of 

section 14(g) of the act. 

§ 2650.4-3 Administration. 

Leases, contracts, permits, rights-ofway, or easements granted prior to the 

issuance of any conveyance under this 

authority shall continue to be administered by the State of Alaska or by the 

United States after the conveyance has 

been issued, unless the responsible 

agency waives administration. Where the 

responsible agency is an agency of the 

Department of the Interior, administration shall be waived when the conveyance covers all the land embraced within 

a lease, contract, permit, right-of-way, 

or easement, unless there is a finding by 

the Secretary that the interest of the 

United States requires continuation of 

the administration by the United States. 

In the latter event, the Secretary shall 

not renegotiate or modify any lease, 

contract, right-of-way or easement, or 

waive any right or benefit belonging to 

the grantee until he has notified the 

grantee and allowed him an opportunity 

to present his views. 

§ 2650.4-4 Revenues [Reserved] 

§ 2650.4-5 National forest lands. 

Every conveyance which includes la-nds 

within the boundaries of a national 

forest shall, as to such lands, contain 

reservations that: 

(a) Until December 18, 1976, the sale 

of any timber from the land is subject 

to the same restrictions relating to the 

export of timber from the United States 

as are applicable to national forest lands 

in Alaska under rules and regulations of 

the ,Secretary of Agriculture; and, 

(b) Until December 18, 1983, the land 

shall be managed under the principles 

of sustained yield and under management practices for protection and enhancement of environmental quality no 

less stringent than such management 

practices on adjacent national forest 

lands. 

§ 2650.4-6 National wildlife refuge system lands. 

(a) Every conveyance which includes 

lands within the national wildlife refuge 

system shall, as to such lands, provide 

that the United States has the right of 

first refusal so long as such lands remain 

within the system. The right of first 

refusal shall be for a period of 120 days 

from the date of notice to the United 

States that the owner of the land has 

received a bona fide offer of purchase. 

The United States shall exercise such 

right of first refusal by written notice to 

the village corporation within such 120-

day period. The United States shall not 

be deemed to have exercised its right of 

first refusal if the village corporation 

does not consummate the sale in accordance with the notice to the United States. 

(b) Every conveyance which covers 

lands lying within the boundaries of a 

national wildlife refuge in existence on 

115 
§ 2650.4-7 PUBLIC LANDS: INTERIOR 

December 18, 1971, shall provide that 

the lands shall remain subject to the 

laws and regulations governing use and 

development of such refuge so long as 

such lands remain in the refuge. Regulations governing use and development of 

refuge lands conveyed pursuant to section 14 shall permit such uses that will 

not materially impair the values for 

which the refuge was established. 

§ 2650.4-7 Public easements. 

(a) Prior to reserving any public 

easements under section 17 (b) of the 

act, the concerned village and regional 

corporations shall be afforded notice and 

opportunity for submission of views. If 

the Secretary determines that a public 

easement should be reserved in any conveyance, the reasons for that determination will be provided in writing, upon 

request of the grantee. 

(b) ( 1) A public easement shall be 

reserved only if it is specific as to use 

and corridor location and size and both 

use and corridor location and size shall 

be reasonably related to an anticipated 

public use or a planned or existing governmental function. 

(2) No public easement shall be reserved in such manner as to: 

(i) Deprive the grantee or its successor in interest of reasonable access to 

bodies of water or highways in or bordering upon the land embraced in the 

conveyance without his consent. 

(ii) Constitute a so-called scenic easement. 

(c) A reserved public easement shall 

be subject to the following conditions: 

(1) The Secretary shall terminate a 

public easement if it is not used for its 

purpose by the date specified in the conveyance, but in any event not later than 

December 18, 2001, or if he finds that 

conditions are such that its retention is 

no longer needed for public use or governmental function. 

(2) The grantee or its successor in 

interest shall be entitled to just compensation for the loss of value of any improvements existing on the date of the 

reservation of the easement which are 

impaired or required to be removed by 

the exercise of the easement. 

(3) The easement shall be no more 

extensive in size than is reasonably required for the purpose for which reserved. Upon the definite location of an 

easement or easements for which a corridor was reserved, the reservation to 

the extent not used for the easement or 

easements shall be of no further force 

or effect. 

( 4) A corridor location shall be no 

more extensive in width or length than 

is reasonably necessary to locate any 

easement to be reserved, taking into 

consideration climate, topography, terrain, and available data. 

( d) The State and the Federal-State 

Land Use Planning Commission shall be 

afforded 90 days after notice by the 

,Secretary to make recommendations 

with respect to the inclusion of public 

easements in any conveyance. 

§ 2650·.5 Survey requirements. 

§ 2650.5-1 General. 

(a) Selected areas are to be surveyed 

as provided in section 13 of the act. Any 

survey or description used as a basis for 

conveyance must be adequate to identify 

the lands to be conveyed. 

(b) Surveys shall take into account 

the navigability or nonnavigability of 

bodies of water. The beds of all bodies 

of water determined by the Secretary 

to be navigable shall be excluded from 

the gross area of the surveys and 

shall not be charged to total acreage 

entitlements under the act. Prior to making his determination as to the navigability of a body of water, the Secretary 

shall afford the affected regional corporation the opportunity to review the 

data submitted by the State of Alaska 

on the question of navigability and to 

submit its views on the question of 

navigability. Upon request of a regional 

corporation or the State of Alaska, the 

Secretary shall provide in writing the 

basis upon which his final determination 

of navigability is made. The beds of all 

bodies of water not determined to be 

navigable shall be included in the surveys as public lands, shall be included 

in the gross area of the surveys, and 

shall be charged to total acreage entitlements under the act. The beds of all 

nonnavigable bodies of water comprising 

one half or more of a section shall be 

excluded from the gross area of the 

surveys and shall not be charged to total 

acreage entitlement under the act, unless 

the section containing the body of water 

116 
TITLE 43 § 2650.6 

is expressly selected or unless all the 

riparian land surrounding the body of 

water is selected. No ground survey or 

monumentation will be required to be 

done by the Bureau of Land Management of bodies of water. 

§ 2650.5-2 Rule of approximation. 

To assure full entitlement, the rule 

of approximation may be applied with 

respect to the acreage limitations applicable to conveyances and surveys under 

this authority, i.e., any excess must be 

less than the deficiency would be if the 

smallest legal subdivision were eliminated (see 62 I.D. 417, 421). 

§ 2650.5-3 Regional surveys. 

Lands to be conveyed to a regional 

corporation, when selected in contiguous 

units, shall be together for the purpose 

of survey and surveyed as one tract, 

with monuments being established on the 

exterior boundary at angle points and 

at intervals of approximately 2 miles 

on straight lines. If requested by the 

grantee, the Secretary may survey, insofar as practicable, the individual selections that comprise the total tract. 

§ 2650.5-,1 Village surveys. 

( a) Only the exterior boundaries of 

contiguous entitlements for each village 

corporation will be surveyed. Where land 

within the outer perimeter of a selection 

is not selected, the boundaries along the 

area excluded shall be deemed exterior 

boundaries. The survey will be made 

after the total acreage entitlement of 

the village has been selected. 

(b) Surveys will be made within the 

village corporation selections to delineate 

those tracts required by law to be conveyed by the village corporations pursuant to section 14 ( c) of the act. 

(c) (1) The boundaries of the tracts 

described in paragraph (b) of this section shall be posted on the ground and 

shown on a map which has been approved in writing by the affected village 

corporation and submitted to the Bureau 

of Land Management. Conflicts arising 

among potential transferees identified 

in section 14 ( c) of the act, or between 

the village corporation and such transferees, will be resolved prior to submission of the map. Occupied lots to be 

surveyed will be those which were occupied as of December 18, 1971. 

f2) Lands shown by the records of 

the Bureau of Land Management as not 

having been conveyed to the village corporation will be excluded by adjustments 

on the map by the Bureau of Land Management. No surveys shall begin prior to 

final written approval of the map by the 

village corporation and the Bureau of 

Land Management. After such written 

approval, the map will constitute a plan 

of survey. Surveys will then be made in 

accordance with the plan of survey. No 

further changes will be made to accommodate additional section 14 ( c) transferees, and no additional survey work 

desired by the village corporation or 

municipality within the area covered by 

the plan of survey or immediately adjacent thereto will be performed by the 

Secretary. 

§ 2650.5-5 Cemetery sites and historical 

places. 

Only those cemetery sites and historical places to be conveyed under section 

14(h) (1) of the act shall be surveyed. 

§ 2650.5-6 Adjustment to plat of survey. 

All conveyances issued for lands not 

covered by officially approved surveys of 

the Bureau of Land Management shall 

note that upon the filing of an official 

plat of survey, the boundary of the selected area, described in terms of protraction diagrams or by metes and 

bounds, shall be redescribed in accordance with the plats of survey. However, 

no change will be made in the land 

selected. 

§ 2650.6 Selection limitations. 

(a) Notwithstanding any other provisions of the act, no village or regional 

corporation may select lands which are 

within 2 miles from the boundary of any 

home rule or first-class city ( excluding 

boroughs) as the boundaries existed and 

the cities were classified on December 18, 

1971, or which are within 6 miles from 

the boundary of Ketchikan, except that 

a village corporation organized by Natives of a community which is itself a 

first class or home-rule city is not prohibited from making selections within 

2 miles from the boundary of that first 

class or home-rule city, unless such selections fall within 2 miles from the 

boundary of another first class or home117 
§ 2650.7 PUBLIC LANDS: INTERIOR 

rule city which is not itself a Native 

village or within G miles from the boundary of Ketchikan. 

(b) Determination as to which cities 

were classified as home rule or first class 

as of December 18, 1971, and their 

boundaries as of that date will be made 

in accordance with the laws of the State 

of Alaska. 

(c) If any village corporation whose 

land withdrawals encompass Dutch 

Harbor is found eligible under this act, 

it may select lands pursuant to subpart 

2651 of this chapter and receive a conveyance under the terms of section 14 (a) 

of the act. 

§ 2650. 7 Publication. 

In order to determine whether there 

are any adverse claimants to the land, 

the applicant should publish notice of 

his application. If the applicant decides 

to avail himself of the privilege of publishing a notice to all adverse claimants 

and request it, the authorized officer 

will prepare a notice for publication. The 

publication will be in accordance with 

the following procedure: 

(a) The applicant will have the notice 

published allowing all persons claiming 

the land adversely to file in the appropriate land office their objections to the 

issuance of any conveyance. The notice 

shall be published once a week for 4 

consecutive weeks in a newspaper of 

general circulation. 

(b) The applicant shall file a statement of the publisher, accompanied by 

a copy of the published notice, showing 

that publication has been had for 4 consecutive weeks. The applicant must pay 

the cost of publication. 

(c) Any adverse claimant must serve 

on the applicant a copy of his objections 

and furnish evidence of service thereof 

to the appropriate land office. 

§ 2650.8 Appeals. 

(a) Any decision adversely affecting 

any land selection shall become final, 

unless appealed to the Secretary by a 

notice filed in the office issuing the 

decision. 

(b) Appeals to the Secretary shall be 

to the ad hoc Board as established in 

§2651.2(a) (5) of this chapter. Appeals 

shall be filed and governed by the applicable regulations in part 4, subpart G 

of this title. All hearings held in connection with such appeals shall be conducted in the State of Alaska. The decision of the ad hoc Board shall be 

submitted to the Secretary for his personal approval. 

Subpart 2651-Village Selections 

§ 2651.0-3 Authority. 

Sections 12 and 16 (b) of the act provide for the selection of lands by eligible village corporations. 

§ 2651.1 Entitlement. 

(a) Village corporations eligible for 

land benefits under the act shall be 

entitled to a conveyance to the surface 

estate in accordance with sections 14 (a) 

and 16(b) of the act. 

(b) In addition to the land benefits 

in paragraph (a) of this section, each 

eligible village corporation shall be entitled to select and receive a conveyance 

to the surface estate for such acreage 

as is reallocated to the village corporation in accordance with section 12 (b) of 

the act. 

§ 2651.2 Eligibility requirements. 

(a) Pursuant to sections ll(b) and 

16 (a) of the act, the Director, Juneau 

Area Office, Bureau of Indian Affairs, 

shall review and make a determination, 

not later than December 19, 1973, as to 

which villages are eligible for benefits 

under the act. 

( 1) Review of listed native villages. 

The Director, Juneau Area Office, Bureau of Indian Affairs, shall make a 

determination of the eligibility of villages listed in section 11 (b) ( 1) and 

16 (a) of the act. He shall investigate 

and examine available records and evidence that may have a bearing on the 

character of the village and its eligibility pursuant to paragraph (b) of this 

section. . 

(2) Findings of fact and notice of 

proposed decision.-After completion of 

the investigation and examination of 

records and evidence with respect to the 

eligibility of a village listed in sections 

ll(b) (1) and 16(a) of the act for land 

benefits, the Director, Juneau Area 

Office, Bureau of Indian Affairs, shall 

publish in the FEDERAL REGISTER and in 

one or more newspapers of general cir118 
TITLE 43 § 2651.2 

culation in Alaska his proposed decision 

with respect to such eligibility and shall 

mail a copy of the proposed decision to 

the affected village, all villages located 

in the region in which the affected village 

is located, all regional corporations within the State of Alaska and the State of 

Alaska. His proposed decision is subject 

to protest by any interested party within 

30 days of the publication of the proposed decision in the FEDERAL REGISTER. 

If no valid protest is received within the 

30-day period, such proposed decision 

shall become final and shall be published in the FEDERAL REGISTER. If the 

final decision is in favor of a listed 

village, the Director, Juneau Area Office, 

Bureau of Indian Affairs, shall issue a 

certificate as to the eligibility of the 

village in question for land benefits under the act, and certify the record and the 

decision to the Secretary. Copies of the 

final decisions and certificates of village 

eligibility shall be mailed to the affected 

village, all villages located in the region 

in which the affected village is located, 

all regional corporations within the State 

of Alaska, and the state of Alaska. 

(3) Protest.-Within 30 days from the 

date of publication of the proposed decision in the FEDERAL REGISTER, any interested party may protest a proposed decision as to the eligibility of a village. No 

protest shall be considered which is not 

accompanied by supporting evidence. 

The protest shall be mailed to the Director, Juneau Area Office, Bureau of 

Indian Affairs. 

(4) Action on protest.-Upon receipt 

of a protest, the Director, Juneau Area 

Office, Bureau of Indian Affairs, shall 

examine and evaluate the protest and 

supporting evidence required herein, together with his record of findings of fact 

and proposed decision, and shall render 

a decision on the eligibility of the Native 

village that is the subject of the protest. 

Such decision shall be rendered within 

30 days from the receipt of the protest 

and supporting evidence by the Director, 

Juneau Area Office, Bureau of Indian 

Affairs. The decision of the Director, 

Juneau Area Office, Bureau of Indian 

Affairs, shall be published in the FEDERAL 

REGISTER and in one or more newspapers 

of general circulation in the State of 

Alaska and a copy of the decision and 

findings of fact upon which the decision 

is based shall be mailed to the affected 

village, all villages located in the region 

in which the affected village is located, 

all regional corporations within the 

State of Alaska, the State of Alaska, 

and any other party of record. Such 

decision shall become final unless appealed to the Secretary by a notice filed 

with the ad hoc board as established in 

paragraph (a) (5) of this section, within 

30 days of its publication in the FEDERAL 

REGISTER. 

(5) Action on appeals.-Appeals to 

the Secretary shall be to the ad hoc 

Board which he has personally appointed. At least one member of the ad 

hoc Board shall be familiar with Native 

village life. Among those otherwise qualified to serve on the ad hoc Board, preference will be given to those familiar 

with Native village life. Appeals shall be 

filed and governed by the applicable regulations in part 4, subpart G, of this 

title, except that the appellant shall have 

not more than 15 days from the date of 

filing of his notice of appeal within 

which to file an appeal brief, and the 

opposing parties shall have not more 

than 15 days from the date of receipt of 

the appellant's brief within which to file 

an answering brief. No more than 15 

days shall be allowed for the filing of 

additional briefs in connection with such 

appeals. All hearings held in connection 

with such appeals shall be conducted in 

the State of Alaska. The decision of the 

ad hoc Board shall be submitted to the 

Secreta1·y for his personal approval. 

(6) Applications by unlisted villages 

for determination of eligibility.-The 

head or any authorized subordinate officer of a Native village not listed in section 11 (b) of the act may file on behalf 

of the unlisted village an application for 

a determination of its eligibility for land 

benefits under the act. Such application 

shall be filed in duplicate with the Director, Juneau Area Office, Bureau of 

Indian Affairs, prior to September 1, 

1973. If the application does not constitute prima facie evidence of compliance 

with the requirements of paragraph (b) 

of this section, he shall return the application to the party filing the same with 

a statement of reasons for return of the 

application, but such filing, even if returned, shall constitute timely filing of 

the application. The Director, Juneau 

119 
§ 2651.2 PUBLIC LANDS: INTERIOR 

Area Office, Bureau of Indian Affairs, 

shall immediately forward an application which appears to meet the criteria 

for eligibility to the appropriate office of 

the Bureau of Land Management for 

filing. Each application must identify the 

township or townships in which the 

Native village is located. 

(7) Segregation of land.-The receipt 

of the selection application for filing by 

the Bureau of Land Management shall 

operate to segregate the lands in the 

vicinity of the village as provided in sections 11 (a) (1) and (2) of the act. 

(8) Action on application for eligibility.-Upon receipt of an application 

which appears to meet the criteria for 

eligibility, the Director, Juneau Area 

Office, Bureau of Indian Affairs, shall 

have a notice of the filing of the application published in the FEDERAL REGISTER 

and in one or more newspapers of general circulation in Alaska and shall 

promptly review the statements contained in the application. He shall 

investigate and examine available records and evidence that may have a bearing on the character of the village and 

its eligibility pursuant to this subpart 

2651, and thereafter make findings of 

fact as to the character of the village. 

No later than December 19, 1973, the 

Director, Juneau Area Office, Bureau of 

Indian Affairs, shall make a determination as to the eligibility of the village as 

a Native village for land benefits under 

the act and shall issue a decision. He 

shall publish his decision in the FEDERAL 

REGISTER and in one or more newspapers 

of general circulation in Alaska and shall 

mail a copy of the decision to the representative or representatives of the village, all villages in the region in which 

the village is located, all regional corporations, and the State of Alaska. 

(9) Protest to eligibility determination.-Any interested party may protest 

a decision of the Director, Juneau Area 

Office, Bureau of Indian Affairs, regarding the eligibility of a Native village for 

land benefits under the provisions of 

sections 11 (b) (3) (A) and (B) of the 

act by filing a notice of protest with the 

Director, Juneau Area Office, Bureau of 

Indian Affairs, within 30 days from the 

date of publication of the decision in 

the FEDERAL REGISTER. A copy of the protest must be mailed to the representative or representatives of the village, all 

villages in the region in which the village 

is located, all regional corporations 

within Alaska, the State of Alaska, and 

any other parties of record. If no protest is received within the 30-day period, 

the decision shall become final and the 

Director, Juneau Area Office, Bureau of 

Indian Affairs, shall certify the record 

and the decision to the Secretary. No 

protest shall be considered which is not 

accompanied by supporting evidence. 

Anyone protesting a decision concerning the eligibility or ineligibility of an 

unlisted Native village shall have the 

burden of proof in establishing that the 

decision is incorrect. Anyone appealing 

a decision concerning the eligibility or 

ineligibility of an unlisted Native village 

shall have the burden of proof in establishing that the decision is incorrect. 

(10) Action on protest, appeal.-Upon 

receipt of a protest, the Director, Juneau 

Area Office, Bureau of Indian Affairs, 

shall follow the procedure outlined in 

paragraph (a) ( 4) of this section. If an 

appeal is taken from a decision on eligibility, the prov1s10ns of paragraph 

(a) (5) of this section shall apply. 

(b) Except as provided in subparagraph ( 4) of this paragraph, villages 

must meet each of the following criteria 

to be eligible for benefits under sections 

14 (a) and (b) of the act: 

(1) There must be 25 or more Native 

residents of the village on April 1, 1970, 

as shown by the census or other evidence 

satisfactory to the Secretary. A Native 

properly enrolled to the village shall be 

deemed a resident of the village. 

(2) The village shall have had on 

April 1, 1970, an identifiable physical 

location evidenced by occupancy consistent with the Natives' own cultural 

patterns and life style and at least 13 

persons who enrolled thereto must have 

used the village during 1970 as a place 

where they actually lived for a period 

of time: Provided, That no village which 

is known as a traditional village shall be 

disqualified if it meets the other criteria 

specified in this subsection by reason of 

having been temporarily unoccupied in 

1970 because of an act of God or government authority occurring within the 

preceding 10 years. 

(3) The village must not be modern 

and urban in character. A village will be 

120 
TITLE 43 § 2651.4 

considered to be of modern and urban 

character if the Secretary determines 

that it possessed all the following attributes as of April 1, 1970: 

(i) Population over 600. 

(ii) A centralized water system and 

sewage system that serves a majority of 

the residents. 

(iii) Five or more business establishments which provide goods or services 

such as transient accommodations or 

eating establishments, specialty retail 

stores, plumbing and electrical services, 

etc. 

(iv) Organized police and fire protection. 

(v) ResidenLmedical and dental services, other than those provided by Indian 

Health Service. 

(vi) Improved streets and sidewalks 

maintained on a year-round basis. 

( 4) In the case of unlisted villages, a 

majority of the residents must be Native, 

but in the case of villages listed in sections 11 and 16 of the act, a majority of 

the residents must be Native only if the 

determination is made that the village 

is modern and urban pursuant to subparagraph (3) of this paragraph. 

§ 2651.3 Selection period. 

Each eligible village corporation must 

file its selection application(s) not later 

than December 18, 1974, under sections 

12(a) or 16(b) of the act; and not later 

than December 18, 1975, under section 

12 (b) of the act. 

§ 2651.4 Selection limitations. 

(a) Each eligible village corporation 

may select the maximum surface acreage 

entitlement under sections 12 (a) and (b) 

and section 16 (b) of the act. Village 

corporations selecting lands under sections 12 (a) and (b) may not select more 

than: 

(1) 69,120 acres from land that, prior 

to January 17, 1969, has been selected by, 

or tentatively approved to, but not yet 

patented to the State under the Alaska 

Statehood Act; and 

(2) 69,120 acres of land from the National Wildlife Refuge System; and 

( 3) 69,120 acres of land from the National Forest System. 

(b) To the extent necessary to obtain 

its entitlement, each eligible village 

corporation shall select all available 

121 

lands within the township or townships within which all or part of the 

village is located, and shall complete its 

selection from among all other available lands. Selections shall be contiguous 

and, taking into account the situation 

and potential uses of the lands involved, 

the total area selected shall be reasonably compact, except where separated 

by lands which are unavailable for selection or a section in which a body of 

water comprises more than one-half of 

the total acreage of a section. The total 

area selected will not be considered to 

be reasonably compact if (1) it excludes 

other lands available for selection within 

its exterior boundaries; or (2) lands 

which are similar in character to the 

village site or lands ordinarily used by 

the village inhabitants are disregarded 

in the selection process; or (3) an isolated tract of public land of less than 

1,280 acres remains after selection. 

(c) The lands selected under sections 

12 (a) or (b) shall be in whole sections 

where they are available, or shall include 

all available lands in less than whole 

sections, and, wherever feasible, shall be 

in units of not less than 1,280 acres. 

Lands selected under section 16 (b) of 

the act shall conform to paragraph (b) 

of this section and shall conform as 

nearly as practicable to the U.S. land 

survey system. 

(d) Village corporation selections 

within sections 11 (a) (1) and (a) (3) 

areas shall be given priority over 

regional corporation selections for the 

same lands. 

(e) Village or regional corporations 

are not required to select lands within 

an unpatented mining claim or millsite. 

Unpatented mining claims and millsites 

shall be deemed to be selected, unless 

they are excluded from the selection by 

metes and bounds or other suitable description and there is attached to the 

selection application a copy of the notice 

of location and any amendments thereto. 

If the village or regional corporation 

selection omits lands within an unpatented mining claim or millsite, this 

will not be construed as violating the 

requirements for compactness and contiguity. If, during the selection period, 

the excepted mining claims or millsites 

are declared invalid, or under the State 
§ 2651.5 PUBLIC LANDS: INTERIOR 

of Alaska mmmg laws are determined 

to be abandoned, the selection will no 

longer be considered as compact and 

contiguous. The corporation shall be 

required to amend its selection, upon 

notice from the authorized officer of the 

Bureau of Land Management, to include 

the lands formerly included in the mining claim or millsite. If the corporation 

fails to amend its selection to include 

such lands, the selection may be rejected. 

(f) Eligible village corporations may 

file applications in excess of their total 

entitlement. To insure that a village 

acquires its selection in the order of 

its priorities, it should identify its 

choices numerically in the order it wishes 

them granted. Such selections must be 

filed not later than December 18, 197 4, 

as to sections 12(a) or 16(b) selections 

and December 18, 1975, as to section 

12 (b) selections. 

(g) Whenever the Secretary determines that a dispute exists between villages over land selection rights, he shall 

accept, but not act on, selection applications from any party to the dispute until 

the dispute has been resolved in accordance with section 12 ( e) of the act. 

§ 2651.5 Conveyance reservations. 

In addition to the conveyance reservations in § 2650.4 of this chapter, conveyances issued to village corporations shall 

provide for the transfer of the surface 

estates specified in section 14(c) of the 

act, and shall be subject to valid existing 

rights under section 14 (g) of the act. 

§ 2651.6 Airport and air navigation 

facilities. 

(a) Every airport and air navigation 

facility owned and operated by the 

United States which the Secretary determines is actually used in connection 

with the administration of a Federal 

program will be deemed a "Federal installation" under the provisions of section 3 ( e) of the act, and the Secretary 

will determine the smallest practicable 

tract which shall enclose such Fede1il 

installations. Such Federal installations 

are not public lands as defined in the act 

and are therefore not "lands available 

for selection" under the provisions of 

these regulations. 

(b) The surface of all other lands of 

existing airport sites, airway beacons, or 

other navigation aids, together with 

such additional acreage or easements as 

are necessary to provide related services 

and to insure safe approaches to airport 

runways, shall be conveyed by the village 

corporation to the State of Alaska, and 

the Secretary will include in the conveyance to any village corporation any and 

all covenants which he deems necessary 

to insure the fulfillment of this 

obligation. 

Subpart 2652-Regional Selections 

§ 2652.0-3 Authority. 

Sections 12 (a) (1) and (c) (3) provide 

for selections by regional corporations; 

and sections 14 (e), (f), (h), (1), (2), 

(3), (5), and (8), provide for the conveyance to regional corporations of the 

selected surface and subsurface estates, 

as appropriate. 

§ 2652.1 Entitlement. 

(a) Eligible regional corporations may 

select the maximum acreage granted pursuant to section 12 ( c) of the act. They 

will be notified by the Secretary of their 

entitlement as expeditiously as possible. 

(b) Where subsurface rights are not 

available to the eligible regional corporations in lands whose surface has been 

conveyed under section 14 of the act, the 

regional corporations may select an equal 

subsurface acreage from lands withdrawn under sections 11 (a) (1) and (3) 

of the act, within the region, if possible. 

(c) As appropriate, the regional corporations will receive title to the subsurface estate of lands, the surface estate 

of which is conveyed pursuant to section 

14 of the act. 

( d) If a 13th regional corporation is 

organized under section 7 ( c) of the act, 

it will not be entitled to any grant of 

lands. 

§ 2652.2 Selection period. 

All regional corporations must file 

their selection applications not later than 

December 18, 1975, for lands other than 

those allocated under section 14 (h) (8) 

of the act. 

§ 2652.3 Selection limitations. 

(a) To the extent necessary to obtain 

its entitlement, each regional corporation must select all available lands with122 
TITLE 43 § 2653.0-5 

drawn pursuant to sections ll(a) (1) (B) 

and (C) of the act, before selecting lands 

withdrawn pursuant to section 11 (a) (3) 

of the act, except that regional corporations selecting lands withdrawn pursuant to sections ll(a) (1) (B) and (C) 

may select only even-numbered townships in even-numbered ranges and only 

odd-numbered townships in odd-numbered ranges. 

(b) Village corporation selections 

within ·section 11 (a) (1) and section 11 

(a) (3) areas shall be given priority over 

regional corporation selections for the 

same lands. 

(c) Whenever a regional selection is 

made in any township, the regional corporation shall select all available lands 

in that township: Provided, That such 

selection would not exceed the entitlement of that regional corporation. 

( d) Subsurface selections made by a 

regional corporation pursuant to section 

12(a) of the act shall be contiguous and 

the total area selected shall be reasonably compact, except as separated by 

subsurface interests that are not the 

property of the United States including 

subsurface interests under bodies of 

water, and the selection shall be in whole 

sections where they are available, or shall 

include all available subsurface interests 

in less than whole sections and, wherever 

feasible, shall be in units of not less than 

1,280 acres. The total area selected shall 

not be considered to be reasonably compact if (1) it excludes other subsurface 

interests available for selection within 

its exterior boundaries; or (2) an isolated tract of subsurface interests owned 

by the United States of less than 1,280 

acres remains after selection. 

( e) Regional corporations are not required to select lands within unpatented 

mining claims or millsites, as provided 

in§ 2651.4(e) of this chapter. 

(f) Regional corporations may file 

applications in excess of their total 

entitlement. To insure that a regional 

corporation acquires its selections in the 

order of its priorities, it should identify 

its choices numerically in the order it 

wishes them granted. 

§ 2652.4 Conveyance reservations. 

In addition to the conveyance reservations in § 2650.4 of this chapter, conveyances issued to regional corporations for 

the subsurface estate of lands whose surface has been conveyed to village corporations shall provide that the right to 

explore, develop, or remove minerals 

from the subsurface estate in the lands 

within the boundaries of any Native village shall be subject to the consent of 

the village corporation. 

Subpart 2653-Miscellan eous 

Selections 

§ 2653.0-3 Authority. 

Section 14 (h) of the act requires the 

Secretary to withdraw and to convey 2 

million acres of unreserved and unappropriated public lands located outside the 

areas withdrawn by sections 11 and 16 

of the act. The Secretary will convey the 

land in part as follows: 

(a) Title to existing cemetery sites and 

historical places to the regional corporations for the regions in which the lands 

are located; 

(b) Title to the surface estate to any 

Native group that qualifies pursuant to 

this subpart 2653; 

(c) Title to the surface estate of lands 

to the Natives residing in each of the 

ci_ties of Sitka, ~enai, Juneau, and Kodiak, who have mcorporated; and, 

( d) Title to the surface estate of land 

to a Native as a primary place of 

residence. 

§ 2653.0-5 Definitions. 

(a) "Cemetery site" means a burial 

ground consisting of the gravesites of 

one or more Natives. 

(b) "Historical place" means a distinguishable tract of land or area upon 

which occurred a significant Native historical event, which is importantly associated with Native historical or cultural 

events or persons, or which was subject 

to sustained historical Native activity 

but sustained Native historical activit; 

shall not include hunting, fishing, berrypicking, wood gathering, or reindeer 

husbandry. 

(c) "Native group" means any tribe, 

band, clan, village, community or village 

association of Natives composed of less 

than 25, but more than 3 Natives, who 

comprise a majority of the residents of 

a locality and who have incorporated 

under the laws of the State of Alaska. 

123 
§ 2653.1 PUBLIC LANDS: INTERIOR 

( d) "Primary 'place of residence" 

means a place comprising a primary 

place of residence of an applicant on 

August 31, 1971, at which he regularly 

resides on a permanent or seasonal basis 

for a substantial period of time. 

§ 2653.1 Conveyance limitations. 

(a) Under section 14(h) of the act, a 

total of 2 million acres may be selected 

for cemetery sites and historical places, 

Native groups, corporations formed by 

the Native residents of Sitka, Kenai, Juneau, and Kodiak, for primary places of 

residence, and for Native allotments approved as provided in section 18 of the 

act. Selections must be made within 4 

years from December 18, 1971. Of this 

total amount: ( 1) 500,000 acres will be 

set aside to be used by the Secretary to 

satisfy applications filed pursuant to sections 14(h) (1), (2), and (5) of the act. 

The 500,000 acres will be allocated by: 

(i) Dividing 200,000 acres among the 

regions, based on population; and, (ii) 

dividing 300,000 acres equally among the 

regions; (2) 92,160 acres will be set aside 

for possible allocation by the Secretary 

to corporations formed by the Natives 

residing in Sitka, Kenai, Juneau, and 

Kodiak; ( 3) 400,000 acres will be set 

aside to be used by the Secretary to satisfy Native allotment applications approved prior to December 18, 1975, under 

the act of May 17, 1906 (34 Stat. 197), 

the act of February 8, 1887 (24 Stat. 

389), as amended and supplemented, and 

the act of June 25, 1910 (36 Stat. 863). 

Any Native allotment applications pending before the Bureau of Indian Affairs 

or the Bureau of Land Management on 

December 18, 1971, will be considered as 

"pending before the Department". Those 

allotment applications which have been 

determined to meet the requirements of 

the acts cited herein and for which survey has been requested before December 18, 1975, shall be considered 

"approved" under section 14(h) (6) of 

the act, and shall be charged against the 

acreage. 

(b) After subtracting the number of 

acres used in accordance with allocations in paragraphs (a) (1), (2), and (3) 

of this section, from 2 million acres, the 

remainder will, after December 18, 1975, 

be reallocated by the Secretary among 

the regional corporations in accordance 

with the provisions of section 14(h) (8) 

of the act. 

(c) No Native allotment applications 

pending before the Secretary on December 18, 1971, will be rejected solely for 

the reason that the acreage set aside by 

paragraph (a) (3) of this section has 

been exhausted. 

§ 2653.2 Application procedures. 

(a) All applications must be filed in 

accordance with the procedures in 

§ 2650.2(a) of this chapter. 

(b) Applications by corporations of 

Native groups under section 14 (h) (2) 

and by a Native for a primary place of 

residence under section 14(h) (5) of the 

act must be accompanied by written concurrence of the affected regional corporation. In the case of Native groups, such 

concurrence must also indicate how 

much land per member of the Native 

group, not to exceed 320 acres per member, the regional corporation recommends that the Secretary convey. Any 

application not accompanied by the necessary concurrence and recommendation 

of the affected region will be rejected. 

(c) Native groups, and Natives residing in Sitka, Kenai, Juneau, and Kodiak, 

as provided in sections 14 (h) (2) and 

(3), respectively, must comply with the 

applicable terms of §§2650.2(a), (c), 

(d), (e), and (f) of this chapter. 

( d) The filing of an application under 

the regulations of this section will constitute a request for withdrawal of the 

lands, and will segregate the lands from 

all other forms of appropriation under 

the public land law, including the mining and mineral leasing laws, and from 

selection under the Alaska Statehood 

Act, as amended, subject to valid existing rights, but will not segregate the 

lands from selections under section 12 

or 16 of the act. The segregative effect 

of such an application will terminate if 

the application is rejected. 

§ 2653.3 Lands available for selection. 

(a) Selections may be made for existing cemetery sites or historical places, 

Native groups, corporations formed by 

the Natives residing in Sitka, Kenai, 

Juneau, and Kodiak, and for primary 

places of residence, from any lands 

which the Secretary may withdraw for 

those purposes out of the National Wild124 
TITLE 43 § 2653.7 

life Refuge System lands or the national 

forest lands which are outside of areas 

withdrawn by sections 11 and 16, as provided by section 14(h) (7) of the act. 

(b) After December 18, 1975, selection 

of the lands allocated pursuant to 

§ 2653.1 (b), shall be made from any 

lands previously withdrawn under sections 11 or 16 of the act which are not 

otherwise appropriated. If the public 

lands withdrawn within the region pursuant to sections 11 or 16 of the act, and 

not otherwise appropriated, are insufficient for the selection of the full entitlement of the regional corporations pursuant to § 2653.1 (b), then three times 

the amount of the entitlement which 

cannot be satisfied from lands previously 

withdrawn pursuant to sections 11 or 16 

of the act will be withdrawn pursuant to 

section 14(h) of the act. 

(c) A withdrawal made pursuant to 

section 17 (d) (1) or (2) of the act shall 

not preclude a withdrawal pursuant to 

section 14(h) of the act. 

§ 2653.4 Termination of selection period. 

Applications for selections under this 

subpart will be rejected after all allocated lands, as provided in § 2653.1, have 

been exhausted, or if the application is 

received after the following dates, whichever occurs first: 

(a) As to primary place of residenceDecember 18, 1973. 

(b) As to all recipients described in 

sections 14(h), (1), (2), and (3) of the 

act-December 18, 1975. 

( c) As to all recipients under section 

14(h) (8) of the act and § 2653.l(b)-

December 18, 1977. 

§ 2653.5 Cemetery sites and historical 

places. 

(a) The appropriate regional corporation may apply to the Secretary for the 

conveyance of existing cemetery sites _Qr 

historical places pursuant to section 

14(h) of the act. The Secretary may give 

favorable consideration to these applications: Provided, That the Secretary 

determines that the criteria in these regulations are met: And provided further, 

That the regional corporation agrees to 

accept a covenant in the conveyance that 

these cemetery sites or historical places 

will be maintained and preserved solely 

as cemetery sites or historical places by 

the regional corporation, in accordance 

with the provisions. for conveyance reservations in § 2653.9. 

(b) The survey of selected sites shall 

include only the area actually used and 

a reasonable buffer zone, not over 66 feet 

wide around abandoned cemeteries; not 

over 330 feet wide around an area identified as an historical place; and an area 

to provide reasonable future expansion 

around active cemeteries. 

§ 2653.6 Native group selections. 

(a) Native groups in existence on 

December 18, 1971, who incorporate in 

accordance with the laws of the State of 

Alaska may file applications to select 

the surface estate of not more than 7,680 

acres. (b) Native group selections must meet 

the criteria of compactness and contiguity specified in § 2651.4 (b) and (d) 

of this chapter. 

( c) Native group selections shall not 

exceed the amount recommended by the 

regional corporation or 320 acres for each 

Native member of a group, or 7,680 acres 

for each Native group, whichever is less. 

Application must be for land in the area 

surrounding the locality in which the 

Native members of a group reside and 

are enrolled. Non-Native members of a 

group are not eligible for any benefit 

hereunder. 

§ 2653.7 Sitka-Kenai-Juneau-Kodiak selections. 

(a) The corporations representing the 

Natives residing in Sitka, Kenai, Juneau, 

and Kodiak, who incorporate under the 

laws of the State of Alaska, may each 

select the surface estate of up to 23,040 

acres of lands of smiliar character 

located in reasonable proximity to those 

municipalities. 

(b) The corporations representing the 

Natives residing in Sitka, Kenai, Juneau, 

and Kodiak, shall nominate not less than 

92,160 acres of lands within 50 miles of 

each of the four named cities which are 

similar in character to the lands in which 

each of the cities is located. After review 

and public hearings, the Secretary shall 

withdraw up to 46,080 acres near each 

of the cities from the lands nominated. 

Each corporation representing the Native 

residents of the four named cities may 

125 
§ 2653.8 PUBLIC LANDS: INTERIOR 

select not more than one-half the area 

withdrawn for selection by that corporation. The Secretary shall convey the area 

selected. 

§ 2653.8 Primary place of residence. 

(a) An application under this subpart 

may be made by a Native who occupied 

land as a primary place of residence on 

August 31, 1971. 

(b) Applications for a primary place 

of residence must be filed not later than 

December 18, 1973. 

§ 2653.8-1 Acreage to be conveyed. 

A Native may secure title to the surface estate of only a single tract not to 

exceed 160 acres under the provisions of 

this subpart, and shall be limited to the 

acreage actually occupied and used. An 

application for title under this subpart 

shall be accompanied by a certification 

by the applicant that he will not receive 

title to any other tract of land pursuant 

to sections 14 (c) (2), (h) (2), or 18 of 

the act. 

§ 2653.8-2 Primary place of residence 

criteria. 

(a) Period'8 of occupancy.-Casual or 

occasional use will not be considered as 

occupancy sufficient to make the tract 

applied for a primary place of residence. 

(b) Improvements constructed on the 

land.-(1) Must have a dwelling. 

(2) May include associated structures 

such as food cellars, drying racks, caches, 

etc. 

· (c) Evidence of occupancy. - Must 

have evidence of permanent or seasonal 

occupancy for substantial periods of 

time. 

§ 2653.9 Conveyance reservations·. 

(a) Conveyances issued pursuant to 

this subpart are subject to the conveyance reservations described in § 2650.4 

of this chapter. 

(b) In addition to the reservations provided in paragraph (a) of this section, 

conveyances for cemetery sites or historical places will contain a covenant 

running with the land providing that (1) 

the regional corporation grantee shall 

not authorize mining or mineral activities of any type, any commercial activities, or any other use which is incompatible with or is in derogation of the values 

of the area as a cemetery site or historical place; and (2) that the United 

States reserves the right to seek enforcement of the covenant in an action in 

equity. The covenant placed in a conveyance pursuant to this subsection may be 

released by the Secretary, in his discretion, upon application of the regional 

corporation grantee showing that extraordinary circumstances, of a nature to 

warrant the release, have arisen subsequent to the conveyance. 

(c) Conveyances for cemetery sites and 

historical places shall also contain the 

covenant required by § 2650.4-6 of this 

chapter. 

Subpart 2654-Natives Reserves 

§ 2654.0-3 Aut'hority. 

Section 19(b) of the act authorizes any 

village corporation(s) located within a 

reserve defined in the act to acquire title 

to the surface and subsurface estates in 

any reserve set aside for the use and 

benefit of its stockholders or members 

prior to December 18, 1971. Such acquisition precludes any other benefits under 

the act. 

§ 2654.0-5 Definitions. 

"Reserve landF-" means any lands reserved prior to the date of enactment of 

the act which are subject to being taken 

in lieu of other benefits under the act 

pursuant to section 19 (b) of the act. 

§ 2654.1 Exercise of option. 

(a) Any village corporation which has 

not, by December 18, 1973, elected to 

acquire title to the reserve lands will 

be deemed to have elected to receive for 

itself and its members the other benefits 

under the Act. 

(b) The election of a village to acquire 

title to the reserve lands shall be exercised in the manner provided by its 

articles of incorporation. However•,when 

two or more villages are located on the 

same reserve there must be a special 

election to acquire title to the reserve 

lands. A majority vote of all the stockholders or members of all corporations 

located on the reserve is required to 

acquire title to the reserve lands. For the 

purpose of this paragraph the stockholders or members shall be determined 

126 
TITLE 43 § 2781.1-1 

on the basis of the roll of village residents proposed to be promulgated under 

25 CFR 43h.7. The regional corporation 

or village corporations or any member 

or stockholder of the village corporations 

involved may request that the election 

be observed by the Bureau of Indian 

Affairs. 

( c) The results of any election by a 

village corporation or corporations to 

acquire title to the reserve lands shall 

be certified by such village corporation 

or corporations as being in conformity 

with the articles of incorporation and 

bylaws of the village corporation or 

corporations. 

§ 2654.2 Application procedures. 

(a) If the corporation or corporations 

elect to take title to the reserve lands, 

submission to the Secretary of the certificate of election will constitute an application to acquire title to those lands. 

(b) If the village corporation or corporations do not elect to take the reserve 

lands, they shall apply for their land 

selections pursuant to subpart 2651 of 

this chapter. 

§ 2654.3 Conveyances. 

(a) Conveyances under this subpart 

are subject to the provisions of section 

14(g) of the act, as provided by § 2650.4 

of this chapter. 

(b) Conveyances under this subpart 

to two or more village corporations will 

be made to them as tenants-in-common, 

having undivided interests proportionate 

to the number of their respective members or stockholders determined on the 

basis of the final roll promulgated by the 

Secretary pursuant to section 5 of the 

act. 

PART 2780-SPECIAL AREAS 

Subpart 2781-Choctaw-Chickasaw 

AUTHORITY: The provisions of this Subpart 2781 

issued under 'sec. 1, 69 Stat. 445; 43 U.S.C. 1102. 

SouRcE: The provisions of this Subpart 2781 appear at 35 F.R. 9626, June 13, 1970, unless otherwise noted. 

§ 2781.~3 Authority. 

(a) The act of August 3, 1955 (69 

Stat. 445), authorizes the Secretary of 

the Interior to provide for the management and di(lposition of any interest of 

the United States in those lands which 

were reconveyed to the United States by 

deeds of conveyance executed on November 29, 1950 by the principal chief of the 

Choctaw Nation and the Governor of the 

Chickasaw Nation or which have been or 

may be reconveyed to the United States 

by any further or supplemental conveyances made under the authority of the 

Interior Department Appropriation Act 

of June 28, 1944 (58 Stat. 463, 483), the 

joint resolution of June 24, 1948 (62 

Stat. 596), and the First Deficiency 

Appropriation Act of May 24, 1949 (63 

Stat. 76, 84). Such reconveyed lands are 

referred to in this Part as "ChoctawChickasaw lands" and the act of August 

3, 1955 is referred to as "the act". 

(b) The act of June 28, 1944 (58 Stat. 

463, 483), declared the Choctaw-Chickasaw lands to be part of the public domain 

subject to the applicable public land 

mining and mineral leasing laws. 

§ 2781.1 Disposal of surface fee. 

Subject to the reservation of all rights 

of the United States to minerals in the 

lands and to the payment of the proportionate cost of any survey which may 

be necessary to describe properly any 

lands to be disposed of under the act, 

Choctaw-Chickasaw lands are subject to 

disposal as follows: 

(a) Private sale of tracts to any 

person having a legal or equitable 

interest therein under the regulations of 

§ 2781.1-1. 

(b) Private sales to occupants under 

the regulations of § 2781.1-2. 

(c) Public sale of tracts and private 

sale of tracts unsold after offer at 

public auction, under the regulations of 

§ 2781.1-2. 

( d) Private sale of tracts under the 

provisions of the act of June 4, 1954 (68 

Stat. 173; 42 U.S.C. 869) and the regulations thereunder (Part 2740 of this 

chapter). 

§ 2,781.1-1 Sales to persons. claiming a 

legal or equitable interest. 

(a) Subparagraph 2(a)(2) of the act 

authorizes the Secretary of the Interior 

to relinquish any tract of ChoctawChickasaw lands to any person having a 

legal or equitable interest therein. 

(b) To qualify under subparagraph 

2 (a) (2) of the act, a claim of legal or 

127 
§ 2781.1-2 PUBLIC LANDS: INTERIOR 

equitable interest must rest on uncertainty as to the title to the tract applied 

for, resulting from such things as inadequate surveys, judgments, decrees, or 

orders of condemnation in court proceedings in which the United States did not 

consent to be a party to the suit, or 

otherwise. No such claim will be recognized if it is based solely on a lease or 

permit from the Bureau of Land Management or its predecessors in interest 

to the lands. 

(c) Any individual, group, or corporafion which believes it has a legal or 

equitable interest in one or more tracts 

of Choctaw-Chickasaw lands may make 

an application therefore by filing, in duplicate, an application captioned "Claim 

of legal or equitable interest in ChoctawChickasaw lands" with the Authorizing 

officer of the proper office at Santa Fe, 

New Mexico. No particular form of 

application is required but it must be 

typewritten or in legible handwriting 

and signed by the applicant. Every 

application must be accompanied by a 

filing fee of $10 which will be nonreturnable. The application must contain 

a description of the land claimed sufficiently complete to identify the location, 

boundary, and area of the land and, if 

possible, the approximate description or 

location of the land by section, township, 

and range. It must contain the full name 

and full post-office address of the claimant. It must also contain a full statement showing the basis for the claim of 

legal or equitable interest in the lands. 

The applicant may be called upon to 

submit documentary or other evidence 

in support of his claim. Valuable documents submitted by the applicant will 

be returned to him. 

(d) The applicant will be required to 

publish once a week for four consecutive 

weeks, at his expense, in a designated 

newspaper and in a designated form, a 

notice allowing all persons claiming the 

land adversely to file with the proper 

office at Santa Fe, New Mexico, their 

objections to the issuance of a relinquishment under the application. A 

protestant must serve on the applicant 

a copy of the objections and furnish 

evidence of such service. The applicant 

must file a statement of the publisher, 

accompanied by a copy of the notice 

published, showing that publication had 

been had for the required time. 

(e) The land applied for will be 

appraised on the basis of its fair market 

value at the time of appraisal. However, in determination of the price payable by the applicant, value resulting 

from improvements by the applicant or 

his predecessors in interest will be deducted from the appraised price, and 

consideration will be given to the equities 

of the applicant. In no case will the land 

be sold for less than a total of $10. 

(f) Applicants will be required to 

make payment of the sale price of the 

land and for the cost of survey, if any, 

within the time stated in the request for 

payment. 

§ 2781.1-2 Sales to occupants. 

(a) Subparagraph 2(b) of the act 

authorizes the Secretary of the Interior, 

in selling any tract of Choctaw-Chickasaw lands, to grant a preference right of 

purchase to any occupant of the tract 

who has, or whose predecessors in interest have, lawfully and continuously 

occupied the tract for home, business, or 

school purposes since April 30, 1949, 

or earlier. 

(b) Before offering any tract at public 

sale, the authorizing officer at Santa Fe, 

New Mexico, will give any such occupant 

an opportunity to purchase the tract at 

its fair market value as appraised by the 

authorized officer of the Bureau of Land 

Management. In the event the occupant 

elects to purchase the tract, he will be 

required to comply with the requirements of paragraphs 2781.1-1 (d) and 

(f). In the event the occupant elects not 

to purchase the tract, the land office 

manager will give the occupant an appropriate period within which the occupant, 

in the occupant's discretion, may remove 

improvements on the tract constructed 

by him or his predecessors in interest or 

elect to receive compensation for such 

improvements from the successful purchaser of the tract in an amount equal 

to the appraised value of the improvements as determined by the authorized 

officer of the Bureau of Land Management. 

§ 2781.1-3 Public and subsequent private sales. 

(a) Subparagraph 2(a) (1) of the act 

128 
TITLE 43 § 2781.2 

authorizes the Secretary of· the Interior 

to sell tracts of Choctaw-Chickasaw 

lands at public sale to the highest responsible bidder, or at private sale. 

(b) Upon request of any interested 

party or upon his own motion, the 

authorizing officer of the proper office at 

Santa Fe, New Mexico, may subject to 

the regulations in this part, expose to 

sale at public auction tracts of ChoctawChickasaw lands at not less than their 

fair market value as appraised by the 

authorized office of the Bureau of Land 

Management. 

(c) The authorizing officer will cause a 

notice of sale to be published and posted 

consistent with the requirements of Subpart 2710 of this chapter. The successful 

purchaser of a tract will be required to 

reimburse the Government for the cost 

of publication of such notices, or if more 

than one successful purchaser is involved, the several purchasers will be 

required to pay their proportionate share 

of such costs determined on an acreage 

basis. 

(d) The land will be offered for sale at 

public auction, at not less than its 

appraised value, at the time and place 

fixed in the public notice. Bids may be 

made by the principal or his agent, 

either personally at the sale or by mail. 

Bids sent by mail will be considered only 

if received at the place and prior to the 

hour fixed in the notice of the sale. 

Sealed bids must be accompanied by 

certified checks, post office money orders, 

bank drafts, or cashiers' checks for the 

amounts of the bids and must be enclosed 

in sealed envelopes which must be 

marked as prescribed in the notice of 

sale. In the event that two or more bids 

sent by mail are identical in amount, 

they will be considered in the award of 

the lands in the order of their receipt as 

shown by the hour and date noted on the 

envelope. 

( e) At the close of bidding, owners in 

fee simple of lands contiguous to the 

offered tract, providing that they or their 

agents are present at the sale, will be 

granted a preference right of purchase 

by offering at the sale to meet the highest bid for such tract. In the event two 

or more preference claimants offer to 

meet the highest bid and in the absence 

of an agreement among them as to the 

award of the lands, the award will be 

determined through drawing. 

(f) An awardee of a tract at public 

sale will be granted a reasonable time 

in which to pay the purchase price of 

the lands, the cost of publication, the 

cost of survey, if any, and the value of 

the improvements of the former occupant of the lands,. if any, and if he is 

a preference claimant, to submit proof 

of his ownership in fee simple of lands 

adjoining the offered tract. Such proof 

must consist of (1) a certificate of the 

local recorder of deeds or an authorized 

abstracter, or (2) an abstract of title 

or a certificate of title prepared and 

certified by a title company or by an 

abstracting company, showing that the 

claimant owns adjoining land in fee 

simple at the date of the sale. After a 

case has been closed, the data filed pursuant to this section may be returned. 

In the event that the awardee does not 

submit within the time specified the 

·amounts requested or the proof of ownership, the lands will be awarded under 

the same conditions to the drawee next 

in order, if any, or to the next highest 

bidder, if any. 

(g) Lands remaining unsold after offer 

at public sale, for a period of one year 

after date of sale, will be available, at 

the discretion of the authorized officer 

of the Bureau of Land Management and 

at not less than the price at which they 

were appraised for the public sale, for 

purchase by the first qualified applicant 

who tenders to the Authorizing officer, 

Santa Fe Office, an amount equal to the 

price specified by the authorizing officer, 

the cost of publication, and if any, the 

cost of survey and the value of the 

improvements of the former occupant. 

(h) Until a cash certificate has been 

issued, the authorized officer may at any 

time determine that the lands should not 

be sold, and no bidder or applicant for 

private sale shall have any contractual 

or other rights as against the United 

States, and no action taken will create 

any contractual right or obligation of 

the United States. 

§ 2781.2 Leases and permits for nonmineral resources. 

(a) Unless otherwise provided for by 

the regulations in this part, the Choctaw129 
§ 2781.3 PUBLIC LANDS: INTERIOR 

Chickasaw lands will not be subject to 

lease or permit for the development and 

use of nonmineral resources except (1) 

where disposal of fee title to the tract, 

in the discretion of the authorized officer 

of the Bureau of Land Management, is 

not in the public interest, (2) where the 

public interest will be served by the 

issuance of a lease or permit having a 

term of not to exceed one year, or (3) 

where the public interest will be served 

by the issuance of a lease under the 

regulations of Subpart 2232. 

(b) Leases and permits issued under 

paragraph (a) (2) of this section, will 

be renewable in the discretion of the 

authorized officer of the Bureau of Land 

Management for periods not exceeding 

one year for each renewal. 

(c) The authorized officer of the Bureau of Land Management, in his discretion, may specify the terms and conditions of leases and permits issued under 

paragraphs (a) (1) and (2) of this section consistent with the policies and 

procedures of the Department of the 

Interior. 

(d) Except for applications to lease 

under the regulations of part 2740, 

no particular form of application is 

required. The applicant, however, must 

describe the lands desired and the purpose for which he desires them. Every 

application must be accompanied by a 

filing fee of $10 which will not be 

returnable. 

§ 2781.3 Deeds; disposition of minerals. 

(a) All deeds for lands disposed of 

under the act of August 3, 1955 (69 Stat. 

445), will contain a reservation to the 

United States of all its rights to mineral 

deposits in the lands, together with the 

right to prospect for, mine, and remove 

them. Any minerals subject to the public 

land leasing laws so reserved to the 

United States may be disposed of to any 

qualified person under applicable laws 

and regulations, subject to such conditions as the authorized officer of the 

Bureau of Land Management deems 

necessary for the protection of the surface and other nonmineral values of the 

lands. Until rules and regulations are 

issued, reserved minerals other than 

those subject to the public land leasing 

laws are not subject to disposition or, 

except by an authorized Federal agency, 

to prospecting. 

(b) All minerals in the ChoctawChickasaw lands, subject to the exception 

and qualifications in paragraph (a) of 

this section, are subject to the applicable 

public land mining and mineral leasing 

laws and the regulations thereunder 

(see Groups 3100 and 3800 of this 

chapter). 

(c) Deeds for Choctaw-Chickasaw 

lands disposed of under the regulations 

in this part will contain any provision 

the authorized officer of the Bureau of 

Land Management deems necessary in 

order to protect the rights of the holders 

of existing interests in the lands, or to 

permit access to any of the lands in 

which the Federal Government retains 

an interest. 

§ 2781.4 Disposal of materials. 

Materials on the Choctaw-Chickasaw 

lands, other than minerals subject to disposal under the public land mining and 

mineral leasing laws, are subject to disposal under the regulations of Parts 

3600 and 5510 of this chapter. 

§ 2781.5 Rights-of-way. 

Easements and permits for rights-ofway over the Choctaw-Chickasaw lands 

may be secured under the regulations of 

Group 2800. 

§ 2781.6 Contributions and donations 

of money, s.ervices, and property. 

(a) Section 6 of the act authorizes the 

Secretary of the Interior to accept contributions or donations of money, services, 

and property to further the provisions of 

the act. 

(b) Contributions and donations may 

be offered to the Authorizing officer of 

the proper office at Santa Fe, New 

Mexico. 

(c) Amounts of money contributed in 

excess of their appropriate share of 

expenses as determined by the authorized 

officer of the Bureau of Land Management, will be refunded to contributors, 

purchaser, the usual cash certificates 

and receipts will be issued by the Bureau 

of Land Management, and should no 

objection appear patent will issue in due 

course of business. 

130 
TITLE 43 § 3825.1 

PART 2800-RIGHTS-OF-WAY, 

PRINCIPLES AND PROCEDURES 

Subpart 2802-Procedures 

SouRcE: The provisions of this Subpart 2802 appear at 35 F.R. 9635, June 13, 1970, unless otherwise noted. 

§ 2802.1-6 Indian lands. 

The Bureau of Indian Affairs has 

jurisdiction over applications for rightsof-way over and upon Indian lands. All 

applications for use and occupancy of 

Indian lands for right-of-way purposes 

should, therefore, be filed with the Superintendent of the Indian Agency or other 

superintendent in charge of the reservation on which the lands involved are situated, in accordance ·with the regulations contained in 25 CFR Part 161. 

PART 3820-AREAS SUBJECT TO 

SPECIAL MINING LAWS 

Subpart 3825-Papago Indian 

Reservation, Arizona 

SOURCE: The provisions of this Subpart 3825 appear at 35 F.R. 9747, June 13, 1970, unless otherwise noted. 

§ 3825.0~3 Authority. 

(a) The act of June 18, 1934 ( 48 Stat. 

984; 25 U.S.C. 461-479), as amended by 

the act of August 28, 1937 (50 Stat. 862; 

25 U.S.C. 463), revokes departmental 

order of October 28, 1932, which temporarily withdrew from all forms of mineral entry or claim the lands within the 

Papago Indian Reservation and restores, 

as of June 18, 1934, such lands to exploration, location and purchase under the 

existing mining laws of the United 

States. 

(b) The regulations in this part apply 

to entries made prior to May 27, 1955. 

By virtue of the act of May 27, 1955 

(69 Stat. 67; 25 U.S.C. 463) mineral 

entries may no longer be made within the 

Papago Indian Reservation. 

§ 3825.1 Mining locations in Papago 

Indian Reservation in Arizona. 

(a) The procedure in the location of 

mining claims, performance of annual 

labor and the prosecution of patent proceedings therefor shall be the same as 

provided by the United States mining 

131 

laws and regulations thereunder, with 

the additional requirements prescribed in 

this section. 

(b) In addition to complying with the 

existing laws and regulations governing 

the recording of mining locations with 

the proper local recording officer, the 

locator of a mining claim within the 

Papago Indian Reservation shall furnish 

to the superintendent or other officer in 

charge of the reservation, within 90 days 

of such location, a copy of the location 

notice, together with a sum amounting 

to 5 cents for each acre and 5 cents for 

each fractional part of an acre embraced 

in the location for deposit with the 

Treasury of the United States to the 

credit of the Papago Tribe as yearly 

rental. Failure to make the required 

annual rental payment in advance each 

year until an application for patent has 

been filed for the claim shall be deemed 

sufficient grounds for invalidating the 

claim. The payment of annual rental 

must be made to the superintendent or 

other officer in charge of the reservation 

each year on or prior to the anniversary 

date of the mining location. 

(c) Where a mining claim is located 

within the reservation, the locator shall 

pay to the superintendent or other officer 

in charge of the reservation damages 

for the loss of any improvements on the 

land in such a sum as may be determined 

by the Secretary of the Interior to be a 

fair and reasonable value of such improvements, for the credit of the owner 

thereof. The value of such improvements 

may be fixed by the Commissioner, Bureau of Indian Affairs, with the approval 

of the Secretary of the Interior, and 

payment in accordance with such determination shall be made within 1 year 

from date thereof. 

(d) At the time of filing with the manager an application for mineral patent 

for lands within the Papago Indian Reservation the applicant shall furnish, in 

addition to the showing required under 

the general mining laws, a statement 

from the superintendent or other officer 

in charge of the reservation, that he has 

deposited with the proper official in 

charge of the reservation for deposit in 

the Treasury of the United States to the 

credit of the Papago Tribe a sum equal 

to $1 for each acre and $1 for each frac-
§ 3825.1 PUBLIC LANDS: INTERIOR 

tional part of an acre embraced in the 

application for patent in lieu of annual 

rental, together with a statement from 

the superintendent or other officer in 

charge of the reservation that the annual 

rentals have been paid each year and 

that damages for loss of improvements, 

if any, have been paid. 

(e) The act provides that in case patent is not acquired the sum deposited 

in lieu of annual rentals shall be refunded. Where patent is not acquired, 

such sums due as annual rentals but not 

paid during the period of patent application shall be deducted from the sum 

deposited in lieu of annual rental. Applications for refund shall be filed in the 

office of the manager and should follow 

the general procedure in applications for 

repayment. 

(f) Water reservoirs, charcos, water 

holes, springs, wells, or any other form 

of water development by the United 

States or the Papago Indians shall not be 

used for mining purposes under the 

132 

terms of the said act of August 28, 1937, 

except under permit from the Secretary 

of the Interior approved by the Papago 

Indian Council. 

(g) A mining location may not be 

located on any portion of a 10 acre legal 

subdivision containing water reservoirs, 

charcos, water holes, springs, wells -or 

any other form of water development by 

the United States or the Papago Indians 

except under a permit from the Secretary of the Interior approved by the 

Papago Indian Council which permit 

shall contain such stipulations, restrictions, and limitations regarding the use 

of the land for mining purposes as may 

be deemed necessary and proper to permit the free use of the water thereon by 

the United States or the Papago Indians. 

(h) The term "locator" wherever used 

in this section shall include and mean 

his successors, assigns, grantees, heirs, 

and all others claiming under or through 

him. 
TITLE 45-PUBLIC WELFARE 

CHAPTER I-OFFICE OF EDUCATION 

PART 186 - INDIAN 

AND SECONDARY 

SISTANCE ACT 

ELEMENTARY 

SCHOOL ASSubpart A-Scope; Definitions 

Sec. 

I 86. I Scope. 

186.2 Definitions. 

I 8G.:l-l 86. IO [Reserved] 

Subpart B-Applications; Use of Federal 

Funds 

I 86.11 Applications. 

186.12 Contents of applications. 

I 86.13 Approval of applications. 

186.14 Public hearings. 

186.15 Parent committee nominations. 

186.16 Selection of parent committee. 

186.17 Procedures for community involvement. 

I 86. I 8 Needs assessment. 

186.19 Use of Federal funds. 

Subpart C-Arnount of Grants; 

Payments; Reallocations 

186.21 Formula for determination of amount of 

grants for local educational agencies. 

! Hfi.2'.Z Assi'itancc to nonlocal educational agencies. 

I 86.23 Limitation with regard to eligibility of local 

cd ucational agencies for State aid. 

I 86.24 Limitation with regard to combined fiscal 

effort. 

I 86.25 Adjustments where necessitated by appropriations. 

I 86.27-186.30 [Reserved] 

Subpart D-General Provisions 

Sec. 

186.31 Retention of records. 

186.32 Audits. 

I 86.33 Limitations on costs. 

I 86.34 Final accounting. 

AunIORITY.-Title IV of Public Law 92-318, 86 

Stat. 334 (20 U.S.C. 24laa-24lff), unless otherwise 

noted. 

SouRcE: 38 FR 18018, July 6, 1973, unless otherwise noted. 

Subpart A-Scope and Definitions 

§ 186.1 Scope. 

The regulations in this part govern the 

provision of financial assistance under 

the Indian Elementary and Secondary 

School Assistance Act, title III of Public 

Law 81-874, as added by part A of title 

133 

IV of Public Law 92-318 (the Indian 

Education Act). 

§ 186.2 Definitions._ 

As used in this part: 

"The Act" means title III of Public 

Law 81-874, the Indian Elementary and 

Secondary School Assistance Act, as 

added by Public Law 92-318, part A, 

section 411 (a). 

(20 U.S.C. 24laa.) 

"Child" means any child who is within 

the age limits for which the applicable 

State provides free public education. 

(20 u.s.c. 244 (2).) 

"Combined fiscal effort" means the 

expenditures per pupil by a local educational agency and the State with respect 

to the provision of free public education 

by that local educational agency other 

than expenditures from funds derived 

from Federal sources, such as funds under titles I, II, and III of the Elementary 

and Secondary Education Act, title III of 

the National Defense Education Act, title 

I of Public Law 81-874, and the Economic Opportunity Act. 

(20 U.S.C. 24lee(b).) 

"Commissioner" means the U.S. Commissioner of Education. 

(20 U.S.C. 24Iaa.) 

"Current expenditures" means expenditures for free public education, including 

expenditures for administration, instruction, attendance, and health services, 

pupil transportation services, operation 

and maintenance of plant, fixed charges, 

and net expenditures to cover deficits for 

food services and student body activities, 

but not including expenditures for community services, capital outlay, and debt 

service, or any expenditures made from 

funds granted under title II of Public 

Law 81-874, or title II or III of the 

Elementary and Secondary Education 

Act of 1965. 

(20 u.s.c. 244(5).) 

"Elementary or secondary school" 

means a day or residential school which 
§ 186.3 PUBLIC WELFARE 

provides elementary education or secondary education, as determined under 

State law, except that it does not include 

any education provided beyond grade 12. 

(20 U.S.C. 241aa.) 

"Equipment" includes machinery and 

includes all other items of tangible personal property necessary for the functioning of a particular facility as a facility for the provision of educational and 

related services, including items such as 

instructional equipment and necessary 

furniture, printed, published, and audiovisual instructional materials, and books, 

periodicals, documents, and other related 

materials. Equipment does not include 

"supplies." 

(20 U.S.C. 24lcc(2).) 

"Free public education" means education which is provided at public expense, 

under public supervision and direction, 

and without tuition charge, and which 

is provided as elementary or secondary 

school education in an applicable State. 

Free public education may, if in accordance with State law, include education 

below grade 1 meeting the above criteria. 

(20 u.s.c. 244 (4).) 

"Indian" means any individual, living 

on or off a reservation, who: (a) Is a 

member of a tribe, band, or other organized group of Indians, including 

those tribes, bands, or groups terminated 

since 1940 and those recognized now or 

in the future by the State in which they 

reside, or who is a descendant, in the 

first or second degree, of any such member; or ( b) is considered by the Secretary of the Interior to be an Indian for 

any purpose; or ( c) is an Eskimo or 

Aleut or other Alaska Native. 

(20 u.s.c. l22lb.) 

"Local educational agency" means a 

board of education or other legally constituted local school authority having 

administrative control and direction of 

free public education in a reservation, 

county, township, independent, or other 

school district located within a State. 

Such term includes any State agency 

which directly operates and maintains 

facilities for providing free public 

education. 

(20 U.S.C. 24laa; 20 U.S.C. 244(6)(A), S. Rept. 

:-lo. 92-384, 92d Cong., !st Sess. 18 (1971).) 

"Minor remodeling" means minor alterations, in a previously completed 

building, which are needed to make effective use of equipment or personnel in 

space used or to be used for programs or 

projects meeting the assessed needs of 

Indian children. The term may include 

the extension of utility lines, such as for 

water and electricity, for points beyond 

the confines of the space in which the 

minor remodeling is undertaken but 

within the confines of such previously 

completed building, to the extent needed 

to make effective use of the equipment. 

The term does not include structural 

alterations to buildings, building construction, maintenance, or repair. 

(20 U.S.C. 24Icc(2).) 

"Nonlocal educational agency" means 

the governing body of a nonprofit institution or organization of an Indian tribe 

which operates for Indian children an 

elementary or secondary school or school 

system, located on or near a reservation, 

and which is not a local educational 

agency as defined herein. 

(20 U.S.C. 24Ibb(b).) 

"State aid" with respect to free public 

education means any contribution, no 

repayment for which is expected, made 

by a State to or on behalf of a local educational agency within the State for the 

support of free public elementary and 

secondary education. 

(20 U.S.C. 24lee(b) (!).) 

"State educational agency" means the 

officer or agency primarily responsible 

for the State supervision of public elementary and secondary schools. 

(20 u.s.c. 244(7).) 

§§ 186.3-186.10 [Reserved] 

Subpart B-Applications; Use of 

Federal Funds 

§ 186.11 Applications. 

A grant under the act to a local educational agency may be made o!).ly upon 

application to the Commissioner, 'on such 

forms as may be prescribed by him, when 

such application meets the requirements 

of this subpart. 

(20 U.S.C. 24Idd(a).) 

§ 186.12 Contents of applications. 

An application, in accordance with 

section 305 (a) of the act, shall: 

(a) Provide that the activities and 

services for which assistance is sought 

134 
TITLE 45 § 186.14 

will be administered by or under the 

supervision of the applicant; 

(20 U.S.C. 24ldd(a)(I).) 

(b) Set forth an elementary or secondary school program specially designed 

to meet the special educational needs of 

Indian students and provide for such 

methods of administration (both fiscal 

and educational) as are necessary for the 

proper and efficient operation of the 

program; 

(20 U.S.C. 24ldd(a)(2).) . 

(c) Provide that effective procedu:es, 

including provisions for appropriate 

objective measurement of educational 

achievement, will be adopted for evaluating at least annually the effective_ness 

of the applicant's programs and proJects 

in meeting the special educational needs 

of Indian students; 

(20 U.S.C. 24ldd(a)(4).) 

( d) Set forth policies and procedures 

which assure that Federal funds made 

available under the act for any fiscal 

year will be so used to supplement and, 

to the extent practical, increase the level 

of funds that would, in the absence of 

such Federal funds, be made available 

by the applicant for the education of 

Indian children and in no case supplant 

such funds; and 

(20 U.S.C. 24ldd(a)(5).) 

( e) Provide for such fiscal control an_d 

fund accounting procedures by the applicant as are necessary to assure proper 

disbursement of, and accounting for, 

Federal funds paid to the applica_!lt 

under the act, and for such reports as 

the Commissioner may require to carry 

out his functions under the act. 

(20 U.S.C. 24ldd(a)(6) and (a) (7); 20 U.S.C. 1232c.) 

(f) In the case of an application for 

payments for planning, provide satisfactory assurance that: 

(1) The planning was or will be directly related to programs or projects to 

be carried out under this part and has 

resulted, or is reasonably likely to result, 

in a program or project which will be 

carried out under this part; and 

(2) The planning funds are needed 

bec'ause of the innovative nature of the 

program or project or because the local 

edui:ational agency lacks the resources 

necessary to plan adequately for programs and projects to be carried· out 

under the act. 

(20 U.S.C. 24ldd(a)(3).) 

§ 186.13 Approval of applications. 

(a) In general. An application may 

be approved only if it is consistent with 

the applicable provisions of the act and 

this part and meets the requirements set 

forth in § 186.12 and in this section. 

(b) Utilization of talents; increase of 

educational opportunities. An application shall provide satisfactory assurance 

that the program or project for which 

the application is made: 

(1) Will utilize the best available talents and resources (including persons 

from the Indian community), and 

(2) Will substantially increase educational opportunities of Indian children 

in the area to be served by the applicant. 

The talents and resources utilized to substantially increase educational opportunities of Indian children may include any 

individuals or organizations which have 

a particular and uncommon skill, ability, 

or delivery system, based on knowledge, 

assets, or existing capacities, to increa~e 

educational opportunities of Indian children. Educational opportunities may include, but shall not be limited to, instructional and supportive activities, services 

or experiences designed to meet the 

assessed needs of Indian children to be 

served in the application. 

(20 U.S.C. 24Idd (b) (2) (A).) 

(c) Consultation and hearings. An 

application shall provide satisfactory 

assurance that the program or project 

for which application is made has been 

developed: 

(1) In open consultation with parents 

of Indian children, teachers, and, where 

such program or project will serve secondary school students, Indian secondary 

school students, including not less than 

one public hearing at which such p~rsons 

have been given a full opportumty to 

understand the program for which assistance is sought and to offer recommendations thereon; and 

(2) With the participation and approval of a committee selected in accordance 

with §§ 186.15 and 186.16. Such assurance shall include at the minimum a 

description of the steps taken by the 

applicant to meet the requirements of 

this paragraph. 

(20 U.S.C. 24ldd(b) (2) (B).) 

§ 186.14 Public hearings. 

The public hearing required by § 186.13 

135 
§ 186.15 PUBLIC WELFARE 

(c) (1) shall provide an opportunity for 

discussion of, among other appropriate 

subjects: 

(1) The adequacy of current programs 

to meet the special educational needs of 

Indian children enrolled in the local educational agency; and 

(2) The manner in which the program 

or project for which application is made 

will be coordinated with other programs 

to meet the special educational needs of 

such children. 

(20 U.S.C. 24ldd(b)(2)(B)(i).) 

§ 186.15 Parent committee nominations. 

The committee formed for the purposes of § 186.13(c) (2) shall be nominated and selected by procedures appropriate to the Indian community to be 

served, such as sanction by the tribal 

governor where necessary. This committee shall be known as the "parent committee." 

(a) Identification of individuals for 

consideration for membership on the 

committee shall not be determined by 

the applicant alone, but, to the extent 

practicable, shall be determined by consultation with such groups as parents of 

Indian children to be served, Indian 

tribes, tribal councils, institutions, and 

organizations which are part of the 

affected Indian community. 

(b) The recommendation of such individuals by such groups shall be designed 

to result in the identification of persons 

representative of the interests of the 

Indian children to be served by the grant 

for which application is made. 

(c) Representative factors in the nomination and selection of members of the 

parent committee shall include, but not 

be limited to, the following: 

( a) Geographical location; 

(b) Previous or current membership in 

a parent advisory committee; 

( c) Experience with target schools; 

(d) Prior school or community activity; 

( e) Willingness to participate actively 

and make recommendations concerning 

the special educational needs of the Indian children to be served; and 

(f) Representation of reservation and 

off-reservation Indian children where 

necessary. 

(20 U.S.C. 24Jdd(b)(2)(B).) 

136 

§ 186.16 Selection of parent committee. 

(a) The parent committee shall be 

selected by parents of the Indian children 

to be served, teachers and, where the 

program or project will serve secondary 

school students, Indian secondary school 

students. 

(b) Selection of the parent committee 

shall not limit the continuing participation of the Indian community in the 

operation and evaluation of the program 

pursuant to § 186.17. 

(c) The applicant will arrange the 

mechanism for selection procedures after 

consultation with the groups listed in 

§186.15(a), and shall provide prior notice and dissemination of information to 

the community concerning the selection 

procedures. 

(d) Membership of a parent committee 

shall be in proportion to the total number 

of Indian children to be served, with a 

maximum membership of 40 persons. The 

committee shall include only parents of 

the Indian children to be served, teachers, and where the program or project 

will serve secondary school students. 

Indian secondary school students, with 

parents constituting at least half of the 

members. Each member shall be designated by name and address in the 

application. 

(20 U.S.C. 24ldd(b)(2)(B)(ii).) 

§ 186.17 Procedures for community involvement. 

An application shall set forth policies 

and procedures assuring that the program will be operated and evaluated in 

consultation with, and the involvement 

of, parents of the Indian children and 

representatives of the area to be served, 

including the committee established 

under § 186.16. Such policies and procedures shall at a minimum include the 

provision by the local educational agency 

of the following: 

(a) A repository available to the community of documentation concerning 

parent committee functions such as records of meetings, minutes of meetings, 

committee selection procedures, and a 

roster of committee membership; 

(b) Dissemination and interpretations 

of bilingual proceedings and materials 

where necessary; 

(c) An established role for the committee to be played in needs assessments, 
TITLE 45 § 186.21 

and priority determinations for meeting 

such identified needs; 

(d) Access by the committee to budget 

and financial reports and analyses to 

determine that grant funds are being 

used to supplement the level of funds 

available to the community for the education of Indian children; 

(e) Planned activities to assure review 

of application implementation, ongoing 

review of program or project activities 

or services, and continuing analysis for 

evaluation and dissemination activities 

and other related programs and projects; 

(f) Formal mechanism for written 

approval, by a majority of the committee 

voting in open session, of the application 

and of projects and activities to be 

implemented by the applicant which 

affect the community to be served. 

(20 U.S.C. 24ldd(b)(2)(B) and (c).) 

§ 186.18 Needs assessment. 

In designing a program which meets 

the special educational needs of the 

Indian children to be served, the local 

educational agency ( after consultation 

with the parent committee and the Indian 

community) must consider the inclusion of activities which build upon and 

support the heritage, traditions, and lifestyle of the community being served. 

The determination of those needs shall 

include consideration of such instructional or supportive services, activities, 

and experiences as the following: 

( a) Instructional services, activities 

and experiences. (1) Arts (music, 

graphics, etc.); 

(2) Language arts, including speech 

therapy, reading and language instruction such as bilingual or English as a 

second language programs; 

(3) Vocational and industrial arts; 

( 4) Mathematics and natural science; 

(5) Social sciences and humanities; 

(6) Physical education; and 

(7) Cultural enrichment. 

(b) Supportive activities, services or 

experiences. (1) Academic guidance, 

counseling and testing; 

(2) Use of dormitory and recreation 

facilities; 

(3) Food and clothing; 

( 4) Medical and dental care; 

( 5) Psychological or psychiatric testing and care; 

(6) Social work services; 

(7) Pupil transportation; 

(8) Special services for 

and 

physically 

handicapped and mentally retarded 

children. 

(20 U.S.C. 24lcc.) 

§ 186.19 Use of Federal funds. 

(a) Grants under the Act may be used 

for 

(1) The planning and development of 

programs specifically designed to meet 

the special educational needs of Indian 

children, including pilot projects designed to test the effectiveness of plans 

so developed; and 

(2) The establishment, maintenance, 

and operation of programs specifically 

designed to meet the special educational 

needs of Indian children. 

(b) Grants under the Act also may be 

used for the acquisition of necessary 

equipment, and for the minor remodeling of classroom or other space used for 

such programs currently meeting the 

special educational needs of Indian 

children. 

(20 U.S.C. 24lbb(a)(2)(B).) 

Subpart C-Amount of Grant; 

Payments; Reallocations 

§ 186.21 Formula for determination of 

amount of grants for local educational agencies. 

(a) For the purpose of computing the 

amount to which a local educational 

agency is entitled under the Act for any 

fiscal year ending prior to July 1, 1975, 

the Commissioner shall determine, on 

the basis of the most satisfactory data 

available, the number of Indian children 

who were enrolled in the schools of such 

agency and for whom such agency provided free public education, during such 

fiscal year. 

(20 U.S.C. 24lbb(a)(!).) 

(b) The amount of the grant to which 

a local educational agency is entitled 

under the Act for any fiscal year shall 

be an amount equal to 

(1) The average per pupil expenditure 

for such agency, as determined in accordance with paragraph ( c) of this section, multiplied by 

(2) The sum of the number of Indian 

children determined under paragraph 

(a) of this section. 

(20 U.S.C. 24lbb(a)(2)(A).) 

137 
§ 186.22 PUBLIC WELFARE 

(c) The average per pupil expenditure 

for a local educational agency shall be 

the aggregate current expenditures during the second fiscal year preceding the 

fiscal year for which the computation is 

made, for all of the local educational 

agencies in the State in which such 

agency is located, plus any direct current 

expenditures by such State for the operation of such agencies (without regard to 

the sources of funds from which either 

of such expenditures are made), divided 

by the aggregate number of children who 

were in average daily membership in 

elementary and secondary schools for 

whom such agencies provided free public 

education during the second preceding 

fiscal year. 

(20 U.S.C. 24lbb(a)(2)(C).) 

(d) Per pupil expenditure data for the 

purposes of this part shall be determined 

by the Commissioner on the basis of the 

best data available to him. Such data for 

the purposes of average per pupil expenditure determinations shall be in accordance with the provisions of section 

303(a) (2) (C) of the act and of this 

subpart. 

(20 U.S.C. 24lbb(a)(2)(C).) 

(e) A grant shall not be made to a 

local educational agency under the act 

unless the number of Indian children 

enrolled in the schools of that agency 

is at least 10 or constitutes at least 50 

percent of that agency's total enrollment. This requirement shall not apply 

to local educational agencies serving 

Indian children in Alaska, California, 

and Oklahoma, or located on, or in proximity to, an Indian reservation. (For 

a local educational agency to be in proximity to an Indian reservation, the 

Indian child's attendance area must be 

within reasonable pupil transportation 

distance of the reservation lands, which 

determination shall be based on criteria 

including length of schoolday, route 

traveltime, and population density factors.) 

(20 U.S.C. 24lbb(a)(2)(B).) 

§ 186.22 Assistance to nonlocal educational agencies. 

(a) The Commissioner may, in accordance with section 303 (b) of the act, 

provide financial assistance to schools on 

or near reservations which are: (1) Nonlocal educational agencies or (2) local 

educational agencies (i) which have not 

been local educational agencies for more 

than 3 years and (ii) which enroll a substantial proportion of Indian children. 

(b) Assistance may be made available 

under this section to meet the costs of 

programs and projects which meet the 

purposes of this part, including costs incurred in connection with the establishment of such agencies. Applications for 

assistance under this section shall meet 

the appropriate requirements of subpart 

B of this part. 

(20 U.S.C. 24lbb(b); S. Rept. 92-346, 92d Cong., 

1st Sess. 1971, p. 99.) 

§ 186.23 Limitation with regard to eligibility of local educational agencies 

for State aid. 

No payment will be made under this 

part for any fiscal year to any local educational agency in a State which has 

taken into consideration payments under 

this part in determining the eligibility 

of such local educational agency in that 

State for State aid, or the amount of 

that aid, with respect to free public education of children during that year or the 

preceding fiscal year. 

(20 U.S.C. 24lee(b)(l).) 

§ 186.24 Limitation with regard to combined fiscal effort. 

(a) No payments under the act to any 

local educational agency in any State for 

any fiscal year may be made by the 

Commissioner unless the State educational agency of the respective State 

finds that the combined fiscal effort of 

that local educational agency and the 

State with respect to the provision of 

free public education by that agency for 

the preceding fiscal year was not less 

than such combined fiscal effort for that 

purpose for the second preceding fiscal 

year. 

(b) Expenditures by a State with respect to a local educational agency, 

rather than by such a local educational 

agency itself, shall be deemed to have 

been maintained at the same level in the 

preceding fiscal year as in the second 

preceding fiscal year, unless the basis for 

making such expenditures has been altered or unless such expenditures are 

assumed by such a local educational 

agency. In such an event, the actual 

expenditures of that nature shall be taken 

into account in both years in determining combined fiscal effort. 

138 
TITLE 45 § 186.31 

(c) A combined fiscal effort in the preceding fiscal year shall not be deemed to 

be a reduction from that in the second 

preceding fiscal year unless the per pupil 

expenditure in the preceding fiscal year 

is less than that in the second preceding 

fiscal year by more than 5 percent. Any 

such reduction in fiscal effort by a local 

educational agency for any fiscal year by 

more than 5 percent will disqualify a 

local educational agency unless such 

ageticy demonstrates to the satisfaction 

of the State educational agency that such 

a reduction was the result of an unusual 

event, such as an unanticipated increase 

in school enrollment, that was beyond 

the control of the local educational 

agency, and that the fiscal effort of such 

agency does not otherwise indicate a 

diminished fiscal effort. 

(20 U.S.C. 241ee(b) (2).) 

§ 186.25 Adjustment where necessitated by appropriations. 

(a) Ratable reductions. As prescribed 

by section 307 (a) of the act, if the sums 

appropriated for a fiscal year for making payments under this part are not 

sufficient to pay in full the total amounts 

which all local educational agencies are 

eligible to receive under this part for 

such fiscal year (as determined in accordance with § 186.21), the Commissioner 

will ratably reduce the maximum amounts 

which all such agencies are eligible to 

receive under this part for such year. 

(20 U.S.C. 241ff(a).) 

(b) Reallocation of funds. (1) In any 

fiscal year in which the maximum 

amounts for which local educational 

agencies are eligible under this part have 

been ratably reduced in accordance with 

paragraph (a) of this section (and in 

which additional funds have not been 

made available to pay in full such maximum amounts), the Commissioner shall 

fix a date or dates by appropriate notice 

for the reporting, by each local educational agency which is eligible for a 

grant under this part determined in 

accordance with § 186.21, of the amount 

of funds available to such agency under 

this part which it estimates it would 

expend under an approved application. 

If such agency is applying for a grant 

under this part, its estimate shall set 

forth a detailed projection of the amount 

it deems necessary for carrying out its 

proposed project relative to the amount 

available to it under this part. The Commissioner shall, in fixing such date or 

dates, notify local educational agencies 

which are eligible for assistance under 

this part that the failure to file an application pursuant to subpart B of this 

part, by such date or dates, will result in 

the reallocation of the ratably reduced 

maximum amounts which such agencies 

are eligible to receive under this part to 

other eligible local educational agencies 

pursuant to this section. 

(2) Following the submission of such 

reports, the Commissioner will determine 

those local educational agencies which 

will need additional funds to carry out 

approved applications under this part. 

Such additional funds may be allocated 

to such agencies by the Commissioner (i) 

from amounts which he determines in 

accordance with subparagraph (1) of 

this paragraph, will not be used by local 

educational agencies during their period 

of availability and (ii) from amounts 

which he determines would have been 

available to local educational agencies 

that did not submit approvable applications and will not be used by su_ch 

agencies. 

(3) No amount may be reallocated to 

a local educational agency under subparagraph (2) of this paragraph, if such 

amount, when added to the amount 

available to such agency in accordance 

with paragraph (a) of this section, exceeds the maximum grant for which such 

agency is eligible in accordance with 

§ 186.21. 

(20 u.s.c. 2411£.) 

§§ 186.27-186.30 [Reserved] 

Subpart D-General Provisions 

§ 186.31 Retention of records. 

(a) Records. Each recipient shall keep 

intact and accessible records relating to 

the receipt and expenditure of Federal 

funds (and to the expenditure of the 

recipient's contribution to the cost of the 

project, if any, in accordance with section 434 (a) of the General Education 

Provisions Act), including all accounting 

records and related original and supporting documents that substantiate 

direct and indirect costs charged to the 

award. 

139 
§ 186.33 PUBLIC WELFARE 

(b) Period of retention. (1) Except 

as provided in paragtaphs (b) (2) and 

( d) of this section the records specified 

in paragraph (a) of this section shall be 

retained (a) for 3 years after the date of 

the submission of the final expenditure 

report, or (b) for grants and contracts 

which are renewed annually, for 3 years 

after the· date of the submission of the 

annual expenditure report. 

(2) Records for nonexpendable personal property which was acquired with 

Federal funds shall be retained for 3 

years after its final disposition. 

( c) Microfilm copies. Recipients may 

substitute microfilm copies in lieu of 

original records in meeting the requirements of this section. 

(d) Audit questions. The records involved in any claim or expenditure which 

has been questioned by Federal audit 

shall be further retained until resolution 

of any such audit questions. 

(e) Audit and examination. The Secretary and the Comptroller General of 

the United States, or any of their duly 

authorized representatives, shall have 

access for the purpose of audit and 

examination to all such records and to 

any other pertinent books, documents, 

papers, and records of the recipient. 

(0MB Circular No. A-73; 0MB Circular No. 

A-102, attachment C; 20 U.S.C. 1232c(a).) 

§ 186.32 Audits. 

(a) All expenditures by recipients shall 

be audited by the recipient or at the 

recipient's direction to determine, at a 

minimum, the fiscal integrity of financial 

transactions and reports, and the compliance with laws and regulations. 

(b) The recipient shall schedule such 

audits with reasonable frequency, usually 

annually, but not less frequently than 

once every 2 years, considering the nature, site, and complexity of the activity. 

(c) Copies of audit reports shall be 

made available to the Commissioner to 

assure that proper use has been made 

of the funds expended. The results of 

such audits will be used to review the 

recipient's records and shall be made 

available to Federal auditors. Federal 

auditors shall be given access to such 

records or other documents as may be 

necessary to review the results of such 

audits. 

(20 U.S.C. 1232c(b)(2); 0MB Circular No. A-102, 

attachment G,2, attachment C,1.) 

§ 186.33 Limitations on costs. 

The amount of the award shall be set 

forth in the grant award document. The 

total cost to the Federal Government 

will not exceed the amount set forth in 

the grant award document or any modification thereof approved by the Commissioner which meets the requirements 

of applicable statutes and regulations. 

The Federal Goverment shall not. be 

obligated to reimburse the recipient for 

costs incurred in excess of such amount 

unless and until the Commissioner has 

notified the recipient in writing that 

such amount has been increased and has 

specified such increased amount in a 

revised grant award document. Such revised amount shall thereupon constitute 

the revised total cost of the performance 

of the grant. 

(20 U.S.C. 241aa.) 

§ 186.34 Final accounting. 

(a) In addition to such other accounting as the Commissioner may require the 

recipient shall render, with respect to 

the project, a full account of funds 

expended, obligated, and remaining. 

(b) A report of such accounting shall 

be submitted to the Commissioner within 

90 days of the expiration or termination 

of the grant or contract, and the recipient shall remit within 30 days of the 

receipt of a written request therefor any 

amounts found by the Commissioner to 

be due. Such period may be extended at 

the di!;icretion of the Commissioner upon 

the written request of the recipient. 

(20 U.S.C. 1232c(b)(3); 31 U.S.C. 628.) 

PART 187-FINANCIAL ASSISTANCE 

FOR THE IMPROVEMENT OF EDUCATIONAL FACILITIES FOR INDIAN 

CHILDREN 

Subpart A-Scope; Definitions 

Sec. 

187 .! Scope. 

I 87 .2 Definitions. 

Subpart B-Applications for Financial 

Assistance 

187.5 

187.6 

187.7 

187.8 

187.9 

187.10 

187.11 

Eligibility. for, and nature 

assistance. 

Applications. 

Community participation. 

Coordination of resources. 

Training of personnel. 

Indian preference. 

Evaluation. 

of, available 

140 
TITLE 45 § 187.2 

Subpart C-Criteria for Assistance 

I 87 .21 Criteria for consideration of applications. 

187.22 Additional criteria for projects for improving educational opportunities . 

187.23 Additional criteria for educational enrichment and exemplary programs. 

187.24 Additional criteria for training programs or 

projects. 

187.25 Additional criteria for projects for dissemination and evaluation. 

Subpart D-General Provisions 

I 87 .3 I Retention of records. 

187.32 Audits. 

187.33 Limitations on cost. 

187.34 Final accounting. 

AuTJIORITY.~Scc. 810, Public Law 89-10, as 

amended, 86 Stat. 339 (20 U .S.C. 887c), unless 

otherwise noted. 

SouRcE: 38 FR 19826, July 24, 1973, unless otherwise noted. 

Subpart A-Scope; Definitions 

§ 187.1 Scope. 

This part governs the provision of 

assistance to State and local educational 

agencies; Indian tribes, organizations, 

and institutions; federally supported elementary and secondary schools for Indian children; and institutions of higher 

education for carrying out special programs and projects to improve educational opportunities for Indian children 

under section 810 of the Elementary and 

Secondary Education Act of 1965 (as 

added by § 421 of the Indian Education 

Act, title IV of Public Law 92-318). 

(20 U .s.c. 887c.) 

§ 187.2 Definitions. 

As used in this part: 

"Act" means section 810 of title VIII 

of the Elementary and Secondary Education Act of 1965. 

(20 u.s.c. 887c.) 

"Elementary school" means a day or 

residential school which provides elementary education including early childhood education, as determined under 

State law. 

(20 U.S.C. 887c; 20 U.S.C. 881(c).) 

"Equipment" includes machinery, utilities, and built-in equipment and any 

necessary enclosures or structures to 

house them, and includes all other items 

necessary for the functioning of a particular facility as a facility for the provision of educational services for Indian 

children, including items such as instructional equipment and necessary furniture, printed, publi_shed and audiovisual 

instructional materials, and books, periodicals, documents, and other related 

materials. 

(20 u.s.c. 881 (d).) 

"Exemplary," as applied to an educational program, project, service, or activity, includes a program, project, service 

or activity designed to be so educationally effective or outstanding that it could 

be identified as a promising solution to a 

basic Indian educational problem. 

(20 U.S.C. 887c(c).) 

"Federally supported elementary and 

secondary school for Indian children" 

means an elementary or secondary school 

for Indian children operated or supported by the Department of the Interior. 

(20 U .S.C. 887c(b).) 

"Guidance and counseling" refers to 

(a) services to Indian pupils to assist 

them in assessing and understanding 

their particular abilities, educational 

needs, and career and vocational interests, and (b) assistance in personal and 

social development, including the development of a positive self-concept for 

Indian children and their parents. 

(20 U.S.C. 887(c)(l)(D).) 

"Handicapped children" means mentally retarded, hard of hearing, deaf, 

speech impaired, visually handicapped, 

seriously emotionally disturbed, crippled, 

or other health impaired children, who 

by reason thereof require special educational and related services. 

(20 U.S.C. 887c(c) (I) (E).) 

"Indian" means any individual, living 

on or off a reservation, who (a) is a 

member of a tribe, band or other organized group of Indians, including those 

tribes, bands, or groups terminated since 

1940 and those recognized now or in the 

future by the State in which they reside, 

or who is a descendant, in the first or 

second degree, of any such member, or 

(b) is considered by the Secretary of the 

Interior to be an Indian for any purpose, 

or (c) is an Eskimo or Aleut or other 

Alaska Native. 

(20 u.s.c. 1221h.) 

"Secondary school" means a day or 

residential school which provides secondary education, as determined under 

State law, except that such term does 

not include any education provided beyond grade 12. 

(20 u.s.c. 881 (h).) 

141 
§ 187.5 PUBLIC WELFARE 

Subpart B-Applications for Financial 

Assistance 

§ 187.5 Eligibility for, and nature of, 

available assistance. 

(a) Demonstration projects for improving educational opportunities. State 

and local educational agencies, federally 

supported elementary and secondary 

schools for Indian children, and Indian 

tribes, organizations and institutions 

may apply for grants to support planning, pilot and demonstration projects 

which are designed to plan for, and test 

and demonstrate the effectiveness of, 

programs (including early childhood programs) for improving educational opportunities for Indian children. 

(20 U.S.C. 887c(a)(l) and (b).) 

(b) Educational enrichment and exemplary programs. State and local educational agencies, and tribal and other 

Indian community organizations may 

apply for grants to assist them (1) to 

provide educational services not available to Indian children in sufficient 

quantity or quality (such as programs 

described in section 810(c) (1) of the 

Act) ; or (2) to establish and operate 

exemplary and innovative educational 

programs and centers which involve 

new educational approaches, methods, 

and techniques designed to enrich programs of elementary and secondary education for Indian children and which will 

serve as models for regular elementary 

and secondary school programs in which 

Indian children are educated. 

(20 U.S.C. 887c(a)(2) and (c).) 

(c) Training. Institutions of higher 

education ( as defined in section 801 ( e) 

of the Elementary and Secondary Education Act) and State and local educational 

agencies in combination with institutions 

of higher education, may apply for 

grants to assist them in carrying out 

programs or projects (1) to prepare persons to serve Indian children as teachers, 

teacher aides, social workers, or ancillary 

educational personnel, and (2) to improve the qualifications of such persons 

who are serving Indian children in such 

capacities. 

(20 U.S.C. 887c(a) (3) and (d), and 881 (e).) 

(d) Dissemination and evaluation. 

Public agencies and institutions, and Indian tribes, institutions and organizations may a'I)ly for assistance (by grant 

or contract) for carrying out programs 

or projects to encourage the dissemination of information and materials relating to, and the evaluation of the effectiveness of, educational programs which 

may offer educational opportunities to 

Indian children. 

(20 U.S.C. 887c (a)(4) and (e).) 

§ 187.6 Applications. 

Any eligible group, tribe, organization, 

or school or school system may submit an 

application for assistance under this part 

which shall set forth (a) the problem 

to be addressed, (b) the overall objectives of the proposed program or project, 

(c) the m:i,nner in which the proposed 

program or project carries out the purpose, as set forth in § 187.5, to which it 

relates, ( d) the type and size of the 

proposed staff (including the staff training proposed), (c) the amount of the 

grant being requested, and such other 

information as the Commissioner may 

require. The description of the proposed 

program or project in the application 

shall also include a specific discussion of 

the manner in which the program or project relates to the applicable criteria 

set forth in subpart C. The application 

shall also describe methods of administration which will provide proper and 

efficient administration of the program 

or project for which assistance is 

requested. 

(20 U.S.C. 887c(f).) 

§ 187.7 Community participation. 

Applications under§ 187.5 (a) and (b) 

must describe the manner in which 

parents of the Indian children to be 

served and tribal communities: (a) Were 

consulted and involved in the planning 

and development of the project; and (b) 

will be actively participating in the 

further planning, development, operation, and evaluation of the project. 

(20 U.S.C. 887c(f).) 

§ 187.8 Coordination of resources. 

Applications for assistance under 

§ 187 .5 (b) ( educational enrichment and 

exemplary programs) must contain an 

assurance that the program or project 

to be assisted will be coordinated with 

programs or projects carried out with 

other resources which may be available 

to the applicant in order that funds 

under this part and those other resources 

will be used for a comprehensive program for the improvement of educational 

142 
TITLE 45 § 187.22 

opportunities of Indian children. 

(20 U.S.C. 887c(f) (2).) 

§ 187.9 Training of personnel. 

Applications under § 187.5 (b) (relating to educational enrichment and exemplary programs) must provide a description of the methods to be used for the 

training of personnel who will be participating in the project. Before he may 

approve an aplication under § 187.5(b), 

the Commissioner must be satisfied that 

such methods are adequate for the purpose of carrying out the project. 

(20 U.S.C. 887c(f)(3).) 

§ 187.10 Indian preference. 

(a) In approving applications under 

this part, the Commissioner will give 

priority to applications submitted by 

Indian educational agencies, organizations, and institutions. 

(b) In approving applications under 

§ 187.5 ( c), the Commissioner will give 

preference to those projects which involve the training of Indians. In carrying out an approved project the applicant shall give preference to the training of Indians. 

(20 U.S.C. 887c(f).) 

§ 187.11 Evaluation. 

An application under this part must 

contain an assurance to the Commissioner that (a) the applicant will arrange 

for an independent and objective evaluation of the effectiveness of the project 

in achieving its purposes and the purposes of the act, and (b) the applicant 

will cooperate with any evaluation conducted or arranged by the Commissioner. 

(20 U.S.C. 887c(f) (4).) 

Subpart C-Criteria for Assistance 

§ 187.21 Criteria for consideration of 

applications. 

In considering whether to approve applications and in determining the amount 

of the award under approved applications, the Commissioner will take into 

account the following general criteria: 

(a) The number of Indian children 

involved in the program or project and 

number of children that would be affected 

by a successful outcome of the program 

or project; 

(b) The degree to which the program 

or project to be assisted addresses the 

particular educational needs of Indian 

children; 

(c) The relative isolation (geographic 

or social) of the Indian community 

which will be served by the program or project; 

(d) The degree to which the activities 

supported under this part will be coordinated with other activities to meet the 

special educational needs of Indian children (including program supported under 

part A of the Indian Education Act, the 

Elementary and Secondary Education 

Act, and the Vocational Education Act) ; 

( e) The adequacy of the qualifications 

and experience of the personnel designated to carry out the proposed project; 

(f) The adequacy of facilities and 

other resources; 

(g) The reasonableness of the estimated cost in relation to the anticipated 

results; 

(h) The expected potential for utilizing the results of the proposed project 

in other projects or programs for similar educational purposes; 

(i) The sufficiency of the size, scope, 

quality, and duration of the program or 

project so as to secure productive results; 

and 

(j) The soundness of the proposed plan 

of operation, including consideration of 

the extent to which: 

(1) The objectives of the proposed 

project are sharply defined, clearly 

stated, capable of being attained by the 

proposed procedures, and capable of being measured or evaluated; 

(2) Provision is made for adequate 

evaluation of the effectiveness of the 

project and for determining the extent 

to which the objectives are accomplished; 

(3) Where appropriate, provision is 

made for inservice training connected 

with project services; and 

( 4) Provision is made for disseminating the results of the project and for 

making materials and techniques resulting therefrom available to the general 

public and those concerned with education of Indian children. 

(20 U.S.C. 887c.) 

§ 187.22 Additional criteria for projects 

for improving educational opportunities. 

(a) In considering whether to approve 

applications submitted under § 187.5 (a), 

143 
§ 187.23 PUBLIC WELFARE 

and in determining the amount of the 

awards under those applications, the 

Commissioner will take into account the 

following criteria (in addition to the criteria set forth in § 187.21): 

(1) The degree to which the project 

addresses a demonstrated and substantial educational need of Indian children 

which is not being adequately met by 

projects supported with resources under 

other Federal, State, or local programs; 

(2) The degree to which the successful 

carrying out of the project will measurably contribute to improving the educational opportunities of Indian children 

throughout the Nation; 

(3) The numbers of Indian children 

who are estimated to require educational 

or other related services or programs of 

the kind which will be demonstrated or 

improved by the proposed project; 

( 4) In the case of projects which address themselves primarily to academic 

needs, the degree to which the level of 

academic achievement of Indian children is likely to be improved by the 

carrying out or replication of the results 

of the proposed project; 

(5) The degree of innovation of the 

proposed project; and 

(6) The degree to which the project 

can be replicated for the purpose of providing educational services or programs 

for Indian children. 

(b) In considering applications under 

this section priority will be given to projects which will provide models for coordinating the operation, at the local level, 

of federally assisted programs or projects designed to assist in meeting the 

educational needs of Indian children. 

(20 U.S.C. 887c(b).) 

§ 187.23 Additional criteria for educational enrichment and exemplary 

programs. 

(a) In considering whether to approve 

applications submitted under § 187.5(b) 

and in determining the amount of the 

awards under those applications, the 

Commissioner will take into account the 

following criteria (in addition to the criteria set forth in § 187.21); 

(1) The degree to which the application demonstrates that the services to 

be stimulated by the project are not 

available in sufficient quantity or quality 

to the Indian children to be served; 

144 

(2) The significance, in terms of long 

term improvement of the educational 

opportunities of Indian children, of the 

provision of the educational service, or 

the widespread application of the exemplary program, for which assistance is 

requested; 

(3) In the case of an exemplary educational program, the degree to which 

the application demonstrates that the 

educational approach, method, or technique involved in the program has not 

previously been tested or applied in the 

education of Indian children; 

(4) The extent to which the program 

or project involves Indian parents in the 

educational process and demonstrates 

new methods for involving those parents 

generally in activities to meet the educational needs of Indian children. 

(b) In considering applications under 

§ 187.5(b), priority will be given to (1) 

programs which are directed at meeting 

the needs of Indian children who are 

handicapped; (2) programs designed to 

assist and encourage Indian children to 

enter, remain in, or reenter elementary 

or secondary school; and (3) programs 

designed to assist Indian children to prepare to enter postsecondary or career 

education programs. 

(20 U.S.C. 887c(c).) 

§ 187.24 Additional criteria for training 

programs or projects. 

(a) In addition to the criteria set forth 

in § 187.21, the Commissioner will apply 

the following criteria in evaluating applications submitted under § 187 .5 ( c) : 

(1) The need with regard to Indian 

education for the type of educational or 

other personnel for which the training 

is provided; 

(2) The likelihood that the training to 

be assisted will be applied to meet the 

educational needs of Indian children; 

(3) The degree to which the training 

will involve educational approaches 

which take into account the culture and 

heritage of Indian children; and 

(4) The degree to which the training 

program focuses on approaches, methods, and techniques which are pertinent 

to the education of Indian children. 

(b) (1) Assistance under § 187.5(c) is 

available for the establishment of fellowship programs leading to an advanced 

degree; for institutes and for seminars, 
TITLE 45 § 187.33 

symposia, workshops, and conferences 

which are part of a continuing program. 

(2) In providing assistance under 

§ 187.5(c), projects including inservice 

training for qualified persons already 

serving in the education of Indian children and projects involving short-term 

training (6 months or less) will be given 

special consideration. 

(20 U.S.C. BB7c(a) (3); 887c(d).) 

§ 187.25 Additional criteria for projects 

for dissemination and evaluation. 

In the evaluation of applications for 

assistance under§ 187.5(d), priority will 

be given to projects involving the dissemination of information and materials 

relating to, and the evaluation of the 

effectiveness of, academic programs and 

educational services which affect academic achievement in basic educational 

areas (such as reading, language arts, 

mathematics, and sciences). 

(20 U.S.C. BB7c(e).) 

Subpart D-General Provisions 

§ 187.31 Retention of records. 

(a) Records. Each recipient shall keep 

intact and accessible records relating to 

the receipt and expenditure of Federal 

funds (and to the expenditure of the 

recipient's contribution to the cost of the 

project, if any, in accordance with section 434 (a) of the General Education 

Provisions Act), including all accounting 

records and related original and supporting documents that substantiate direct 

and indirect costs charged to the award. 

(b) Period of retention. (1) Except 

as provided in paragraphs (b) (2) and 

(d) of this section the records specified 

in paragraph (a) of this section shall be 

retained (i) for 3 years after the date of 

the submission of the final expenditure 

report, or (ii) for grants and contracts 

which are renewed annually, for 3 years 

after the date of the submission of the 

annual expenditure report. 

(2) Records for nonexpendable personal property which was acquired with 

Federal funds shall be retained for 3 

years after its final disposition. 

(c) Microfilm copies. Recipients may 

substitute microfilm copies in lieu of 

original records in meeting the requirements of this section. 

(d) Audit questions. The records involved in any claim or expenditure which 

has been questioned by Federal audit 

shall be further retained until resolution 

of any such audit questions. 

(e) Audit and examination. The Secretary and the Comptroller General of 

the United States, or any of their duly 

authorized representatives, shall have 

access for the purpose of audit and 

examination to all such records and to 

any other pertinent books, documents, 

papers, and records of the recipient. 

(0MB Circular No. A-73; 0MB Circular No. 

A-102, attachment C; 20 U.S.C. 1232c(a).) 

§ 187.32 Audits. 

(a) All expenditures by recipients 

shall be audited by the recipient or at the 

recipient's direction to determine, at a 

minimum, the fiscal integrity of financial 

transactions and reports, and the compliance with laws and regulations. 

(b) The recipient shall schedule such 

audits with reasonable frequency, usually 

annually, but not less frequently than 

once every 2 years, considering the nature, site, and complexity of the activity. 

(c) Copies of audit reports shall be 

made available to the Commissioner to 

assure that proper use has been made of 

the funds expended. The results of such 

audits will be used to review the recipient's records and shall be made available 

to Federal auditors. Federal auditors 

shall be given access to such records or 

other documents as may be necessary to 

review the results of such audits. 

(20 U.S.C. 1232c(b)(2); 0MB Circular No. A-102, 

attachment G, 2, attachment C, I.) 

§ 187.33 Limitations on costs. 

The amount of the award shall be set 

forth in the grant award document. The 

total cost to the Federal Government will 

not exceed the amount set forth in the 

grant award document or contract or 

any modification thereof approved by the 

Commissioner which meets the requirements of applicable statutes and regulations. The Federal Government shall not 

be obligated to reimburse the recipient 

for costs incurred in excess of such 

amount unless and until the Commissioner has notified the recipient in writing that such amount has been increased 

and has specified such increased amount 

in a revised grant award document. Such 

revised amount shall thereupon consti145 
§ 187.34 PUBLIC WELFARE 

tute the revised total cost of the performance of the grant. 

(20 u.s.c. 887c.) 

§ 187.34 Final accounting. 

(a) In addition to such other accounting as the Commissioner may require the 

recipient shall render, with respect to the 

project, a full account of funds expended, 

obligated, and remaining. 

(b) A report of such accounting shall 

be submitted to the Commissioner within 

90 days of the expiration or termination 

of the grant or contract, and the recipient shall remit within 30 days of the 

receipt of a written request therefor any 

amounts found by the Commissioner to 

be due. Such period may be extended at 

the discretion of the Commissioner upon 

the written request of the recipient. 

(20 U.S.C. 1232c(b)(3); 31 U.S.C. 623.) 

PART 188-FINANCIAL ASSISTANCE 

FOR THE IMPROVEMENT OF EDUCATIONAL OPPORTUNITIES FOR 

ADULT INDIANS 

Subpart A-Scope; Definitions 

Sec. 

!BB.I Scope. 

I 88.2 Definitions. 

Subpart B--Applications for Financial 

Assistance 

188.5 Eligibility for, and nature of, available 

assistance. 

188.6 Applications. 

188.7 Community participation. 

I 88.8 Indian preference. 

188.9 Evaluation. 

Subpart C-Criteria for Assistance 

188.15 General criteria for consideration of applications. 

188.16 Additional criteria for survey and evaluation projects. 

Subpart D-General Provisions 

188.21 Retention of records. 

188.22 Audits. 

I 88.23 Limitations on costs. 

188.24 Final accounting. 

AUTHORITY.-Sec. 314. Public Law 89-750, as 

amended, 86 Stat. 342 (20 U.S.C. 121 la), unless 

otherwise noted. 

SOURCE: 38 FR 19829, July 24, 1973, unless otherwise noted. 

Subpart A-Scope; Definitions 

§ 188.1 Scope. 

(a) This part governs the provision of 

assistance to State and local educational 

agencies, to Indian tribes, institutions, 

and organizations, and to public agencies and institutions to support planning, 

pilot, and demonstration projects which 

are designed to plan for, and test and 

demonstrate the effectiveness of, programs for improving educational opportunities for adult Indians under section 

314 of the Adult Ed1·cation Act (as 

added by section 431 of the Indian Education Act, title IV of Public Law 92-

318). 

(b) Assistance provided under this 

part is subject to applicable provisions 

contained in section 303 of the Adult 

Education Act (20 U.S.C. 1202) and 

regulations thereunder. 

(20 U .S.C. 12lla.) 

§ 188.2 Definitions. 

"Act" means section 314 of the Adult 

Education Act (20 U.S.C. 1201). 

(20 U.S.C. 12lla.) 

"Adult" means any individual who has 

attained the age of 16. 

(20 U.S.C. I202(a).) 

"Adult education" means services or 

instruction below the college level, for 

adults who (1) do not have a certificate 

of graduation from a school providing 

secondary education and who have not 

achieved an equivalent level of education, and (2) are not currently required 

to be enrolled in schools. 

(20 u.s.c. 1202 (b).) 

"Indian" means any individual, living 

on or off a reservation, who (1) is a 

member of a tribe, band, or other 

organized group of Indians, including 

those tribes, bands, or groups terminated 

since 1940 and those recognized now or 

in the future by the State in which they 

reside, or who is a descendant, in the 

first or second degree, of any such member, or (2) is considered by the Secretary of the Interior to be an Indian for 

any purpose, or (3) is an Eskimo or 

Aleut or other Alaska Native. 

(20 u.s.c. li12lh.) 

Subpart B-Applications for Financial 

Assistance 

§ 188.5 Eligibility for, and nature of, 

available assistance. 

(a) Planning, pilot, and demonstration projects. State educational agencies (as defined in 20 U.S.C. 1202 (g) ) 

and local educational agencies (as 

146 
TITLE 45 § 188.8 

defined in 20 U .S.C. 1202 ( e) ) , and Indian tribes, institutions, and organizations may apply for grants to support 

planning, pilot, and demonstration projects which are designed to plan for, and 

test and demonstrate the effectiveness 

of, programs for providing adult education for Indians. Such projects may be 

designed (1) to test and demonstrate 

the effectiveness of programs to improve 

employment and educational opportunities; (2) to assist in the establishment 

and operation of programs designed to 

stimulate the provision of (i) basic literacy opportunities to all nonliterate Indian adults, and (ii) high school equivalency opportunities in the shortest period 

of time feasible; (3). to support a major 

research and development program to 

develop more innovative and effective 

techniques for achieving the literacy and 

high school equivalency goals; ( 4) to 

provide for basic surveys (and evaluations of such surveys) to define accurately the extent of the problems of 

illiteracy and lack of high school completion on Indian reservations; and ( 5) to 

encourage the· dissemination of information and materials relating to, and the 

evaluation of the effectiveness of, education programs which may offer educational opportunities to Indian adults. 

(20 U.S.C. 12Ila(a).) 

(b) Dissemination and evaluation projects. The Commissioner may also make 

grants to, and contracts with, public 

agencies and institutions, and Indian 

tribes, institutions, and organizations for 

(1) the dissemination of information 

concerning educational programs, services, and resources available to Indian 

adults, including evaluations thereof; 

and (2) the evaluation of the effectiveness of federally assisted programs (in 

which Indian adults may participate) in 

achieving their purposes with respect to 

such adults. 

(20 U.S.C. 121 la(b).) 

( c) Special considerations applicable 

to assistance for fiscal year 1973. For 

fiscal year 1973 it is expected that only 

a very limited number of grants will be 

made under the program and that the 

Commissioner will be unable to make 

grants in all the categories set forth in 

paragraphs (a) and (b) of this section. 

(The fiscal year 1973 appropriation for 

the program is $500,000.) Under these 

circumstances the Commissioner will give 

special consideration to (1) projects to 

provide a basic survey (and evaluation 

thereof) designed to define the extent of 

the problems of adult illiteracy and lack 

of high school completion on Indian 

reservations, and (2) demonstration 

projects to develop model programs for 

the achievement of basic literacy or high 

school equivalency which meet the special 

needs of Indian adults. 

(20 U.S.C. 121 la.) 

§ 188.6 Applications. 

Any party eligible for assistance under 

this part may submit an application 

therefor on such forms as may be prescribed by the Commissioner. Such application shall set forth (a) the problem 

to be addressed; (b) the overall objectives of the proposed project; (c) the 

activities to be carried out; ( d) the manner in which the proposed project carries 

out the purpose, as set for in § 188.5, 

to which it relates; (e) the type and size 

of the staff envisioned; (f) the amount 

of the assistance being requested; and 

(g) such other information as the Commissioner may require. The description 

of the proposed project in such application shall also include a specific discussion of the manner)n which such project 

relates to the applicable criteria set forth 

in subpart C of this part. The application shall also provide for such methods 

of administration as are necessary for 

the proper and efficient administration of 

the project for which assistance is 

requested. 

(20 U.S.C. 12Ila(c).) 

§ 188.7 Community participation. 

Applications submitted under § 188.5 

(a) must describe the manner in which 

individuals to be served and tribal communities (a) participated in the planning and development of the project, and 

(b) will be actively participating in the 

further planning, development, operation, and evaluation of the project. (See 

section 314(c) of the act.) 

(20 U.S.C. I21Ia(c).) 

§ 188.8 Indian preference. 

In approving applications under 

§ 188.5 (a) the Commissioner will give 

priority to applications submitted by Indian educational agencies, organizations, 

and institutions. 

(20 U.S.C. 12Ila (c).) 

147 
§ 188.9 PUBLIC WELFARE 

§ 188.9 Evaluation. 

An application under this part must 

contain an assurance to the Commissioner that (a) the applicant will arrange 

for an independent and objective evaluation of the effectiveness of the project 

in achieving its purposes and the purposes of the act, and (b) the applicant 

will cooperate with any evaluation conducted or arranged by the Commissioner. 

(20 U.S.C. 12lla(c)(2).) 

Subpart C-Criteria for Assistance 

§ 188.15 General criteria for consideration of applications. 

In considering whether to approve 

applications, and in determining the 

amount of the award under approved 

applications, the Commissioner will take 

into account the following general 

criteria: 

(a) The degree to which the program 

or project to be assisted will involve the 

use of innovative methods, systems, materials, or programs which may be of 

special value in developing effective programs for improving employment and 

educational opportunities for adult 

Indians; 

(b) The extent to which activities 

supported under this part will be coordinated with other programs to improve 

educational and employment opportunities of adult Indians (including programs supported under the Adult Education Act and the Vocational Education 

Act); 

(c) The adequacy of the qualifications 

and experience of the personnel designated to carry out the proposed projects; 

(d) The adequacy of facilities and 

other resources; 

(e) The reasonableness of the estimated cost in relation to the anticipated 

results; and 

(f) The soundness of the proposed 

plan of operation, including consideration of the extent to which: 

(1) The objectives of the proposed 

project are sharply defined, clearly 

stated, capable of being attained by the 

proposed procedures, and capable of being measured or evaluated; 

(2) Provision is made for adequate 

evaluation of the effectiveness of the 

project and for determining the extent 

148 

to which the objectives are accomplished; 

(3) Where appropriate, prov1s10n is 

made for satisfactory inservice training 

connected with project services; and 

(4) Provision is made for disseminating the results of the project and for 

making materials and techniques resulting therefrom available to the general 

public and specifically to all those concerned with education of Indian adults. 

(20 U.S.C. 12lla.) 

§ 188.16 Additional criteria for survey 

and evaluation projects. 

In the evaluation of applications submitted under § 188.5(a) (4) to provide 

basic surveys and evaluations thereof to 

define the extent of the problems of illiteracy and lack of completion of high 

school on Indian reservations, the Commissioner will take into account the following criteria (in addition to those contained in § 188.15) : 

(a) The adequacy of the survey instrument and data collection system to be 

used; 

(b) The adequacy of the methods proposed for processing, analyzing, and 

evaluating the data to be obtained, and 

for making available the results thereof; 

and 

( c) The adequacy of the plan for administration of the survey, including: 

(1) The personnel to be used; (2) the 

comprehensiveness of the survey sample; 

(3) the number of Indian adults to be 

surveyed; (4) the practicability of the 

time schedule to be followed relative to 

the proposed survey procedures; and (5) 

the provision for verification by the project director of the validity of the survey. 

(20 U.S.C. 12lla(a)(4).) 

Subpart D-General Provisions 

§ 188.21 Retention of records. 

(a) Records. Each recipient shall keep 

intact and accessible records relating to 

the receipt and expenditure of Federal 

funds (and to the expenditure of the 

recipient's contribution to the cost of the 

project, if any, in accordance with section 434(a) of the General Education 

Provisions Act), including all accounting 

records and related original and supporting documents that substantiate direct 

and indirect costs charged to the award. 
TITLE 45 § 188.24 

(b) Period of retention. (1) Except 

as provided in paragraphs (b) (2) _and 

(d) of this section the records specified 

in paragraph (a) of this section shall be 

retained (i) for 3 years after the da~e 

of the submission of the final expenditure report, or (ii) for grants and contracts which are renewed annually, for 

3 years after the date of the submission 

of the annual expenditure report. 

(2) Records for nonexpendl;ble p~rsonal property which was acqmred with 

Federal funds shall be retained for 3 

years after its final disposition. 

(c) Microfilm copies. ~eci~ient~ may 

substitute microfilm copies m !Ieu of 

original records in meeting the requiremen ts of this section. 

(d) Audit questions. The records involved in any claim or expenditure which 

has been questioned by Federal audit 

shall be further retained until resolution 

of any such audit questions. 

(e) Audit and examination. The Secretary and the Comptroller General of 

the United States, or any of their duly 

authorized representatives, shall have 

access for the purpose of audit and examination to all such records and to any 

other pertinent books, documents, papers, 

and records of the recipient. 

(O~Ill Circular No. A-73; 0MB Circular No. 

A-102, attachment C; 20 U.S.C. 1232c(a).) 

§ 188.22 Audits. 

fa) All expenditures by recipients 

shall be audited by the recipient or at 

the recipient's direction to, determine, at 

a minimum, the fiscal integrity of financial transactions and reports, and the 

compliance with laws and regulations. 

(b) The recipient shall schedule such 

audits with reasonable frequency, usually annually, but not less frequently 

than once every 2 years, considering the 

nature, site, and complexity of the 

activity. 

(c) Copies of audit reports shall be 

made available to the Commissioner to 

149 

assure that proper use has been made of 

the funds expended. The results of such 

audits will be used to review the recipient's records and -shall be made available 

to Federal auditors. Federal auditors 

shall be given access to such records or 

other documents as may be necessary to 

review the results of such audits. 

(20 U.S.C. l232c(b)(2); 0MB Circular No. A-102. 

attachment G, 2, attachment C, l.) 

§ 188.23 Limitations on c-osts. 

The amount of the award shall be set 

forth in the grant award document or 

contract. The total cost to the Federal 

Government will not exceed the amount 

set forth in the grant award document 

or contract or any modification thereof 

approved by the Commissioner which 

meets the requirements of applicable 

statutes and regulations. The Federal 

Government shall not be obligated to reimburse the recipient for costs incurred 

in excess of such amount unless and until 

the Commissioner has notified the recipient in writing that such amount has been 

increased and has specified such increased amount in a revised grant award 

document or contract. Such revised 

amount shall thereupon constitute the 

revised total cost of the performance of 

the grant. 

(20 U.S.C. 12lla.) 

§ 188.24 Final accounting. 

(a) In addition to such other accounting as the Commissioner may require the 

recipient shall render, with respect to 

the project, a full account of funds expended, obligated, and remaining. 

(b) A report of such accounting shall 

be submitted to the Commissioner within 

90 days of the expiration or termination 

of the grant or contract, and the recipient shall remit within 30 days of the 

receipt of a written request therefor any 

amounts found by the Commissioner to 

be due. Such period may be extended at 

the discretion of the Commissioner upon 

the written request of the recipient. 

(20 U.S.C. 1232c(b)(3); 31 U.S.C. 628.) 
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 

EAGLES AND GOLDEN EAGLES Sec. 

11.1 Eagles protected. 

* * * I 1.5 Possession and use for religious purposes. 

11.6 Applications for permits. 

11.i Permit requirements. 

* * * l 1.9 Jurisdiction and address of regional or area 

offices. 

At1THORITY: The provisions of this Part 11 issued 

under sec. 2, 54 Stat. 251, as amended; 16 U.S.C. 

668a. 

SoVRCE: The provisions of this Part 11 ippcar at 

31 F.R. 16011, Dec. IS, 1966, unless otherwise noted. 

§ 11.1 Eagles protected. 

The taking, possession, or transportation of the bald eage (Haliaeetus leucocephalus), commonly known as the 

American eagle, or the golden eagle 

( Aquila chrysaetos) , or their parts, nests, 

or eggs is prohibited, except as permitted in this part. No bald eagle or 

golden eagle, or their parts, nests, or 

eggs may be purchased, sold, traded, 

or bartered, or offered for sale, trade, or 

barter in the United States or in any 

place subject to its jurisdiction. 

* * * * * * 

§ 11.5 Possession and use for religious 

purposes. 

Whenever the Secretary determines 

that the taking and possession of bald or 

golden eagles for the religious purposes 

of Indian tribes is compatible with the 

preservation of such birds, he may issue 

permits for such taking and possession 

to those individual Indians who are authentic, bona fide practitioners of such 

religion. Any birds or their parts taken 

or possessed under permits issued pursuant to this section are not transferable, 

except such birds or their parts may be 

handed down from generation to generation or from one Indian to another in 

accordance with tribal or religious 

customs. 

§ 11.6 Applications for permits. 

(a) Applications for permits must be 

addressed to the Regional Director at 

the Regional Office of the Bureau of 

Sport Fisheries and Wildlife having administrative supervision over Bureau 

functions in the State in which permit 

activities are proposed. (See § 11.9 of 

this part for addresses.) 

* * * * * * 

( d) Applications for permits to take 

and possess bald eagles or golden eagles 

for the religious purposes of Indian 

tribes must be submitted by individual 

Indians. Such applications must state 

the name and address of the applicant, 

his age, the name of his tribe, the species 

and number of eagles proposed to be 

taken, and the State and area where 

taking is to be done. Further, the applicant must name the religious ceremony 

for which such eagles or their parts will 

be used and must enclose a statement 

from a duly authorized official of the 

religious group in question verifying that 

the applicant is authorized to participate 

in such ceremonies. 

§ 11.7 Permit requirements. 

(a) Any permit issued pursuant tc 

this part will specify the date of issue 

and expiration, the number of bale 

eagles or golden eagles or their nest, 

or eggs that may be taken, the persor. 

or persons who may take such eagles 01 

their nests or eggs, the places where, thE 

time when, the means or methods b) 

which they may be taken, and the disposition or utilization to be made o1 

such birds, nests, or eggs. 

150 
TITLE 50 § 11.9 

(b) Permits issued under this part 

are not transferable. In addition to 

other penalties prescribed for violation 

of regulations in this part, permits may 

be revoked at any time by the Regional 

Director for violation of any requirements of the permit or the provisions 

of this part. If revoked, they must be 

surrendered on demand. Within thirty 

(30) days after the expiration date, the 

holder must complete and mail to the 

Regional Director a report of his activities on a form provided for this purpose. 

( c) Nothing in this part or in any 

permit issued thereunder authorizes the 

taking, possession, or transportation of 

bald eagles or golden eagles, or their 

parts, nests, or eggs in any State contrary to the laws and regulations of that 

State: Provided, Such laws and regulations are for the purpose of giving further protection to such eagles and are 

not inconsistent with the provisions of 

any Federal law for the protection of 

such birds. Further, no permit issued 

under this part authorizes the taking, 

possession, or transportation of bald 

eagles or golden eagles or their parts, 

nests, or eggs unless the holder also 

possesses whatever permit may be required for such activities by the State 

concerned. 

* * * * * * 

§ 11.9 Jurisdiction and address of regional or area offices. 

The geographic jurisdiction and addresses of the Bureau of Sport Fisheries 

and Wildlife regional or area offices are 

as follows: 

(a) Alaska Area Office ( comprising 

the State of Alaska), 6917 ,Seward Highway, Anchorage, Alaska 99502. 

(b) Pacific Region (Region 1-comprising the States of California, Hawaii, 

Idaho, Montana, Nevada, Oregon, and 

Washington) Post Office Box 3737, Portland, Oreg. 97208. 

(c) Southwest Region (Region 2-

comprising the States of Arizona, Colorado, Kansas, New Mexico, Oklahoma, 

Tfxas, Utah, and Wyoming) Post Office 

Box 1306, Albuquerque, N. Mex. 87103. 

(d) North Central Region (Region 3-

comprising the States of Illinois, Indiana, 

Iowa, Michigan, Minnesota, Missouri, 

Nebraska, North Dakota, Ohio, ·South 

Dakota, and Wisconsin) Federal Build151 

ing, Fort Snelling, Twin Cities, Minn. 

55111. 

(e) Southeast Region (Region 4-

comprising: (1) The States of Alabama, 

Arkansas, Florida, Georgia, Kentucky, 

Louisiana, Maryland, Mississippi, North 

Carolina, South Carolina, Tennessee, and 

Virginia; and (2) The District of Columbia, Puerto Rico, and the Virgin Islands), 

Peachtree-Seventh Building, Atlanta, 

Ga. 30323. 

(f) Northeast Region (Region 5-

comprising the States of Connecticut, 

Delaware, Maine, Massachusetts, New 

Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and 

West Virginia) U.S. Post Office and 

Courthouse, Boston, Mass. 02109. 

[35 F.R. 11633, July 21, 1970; 35 F.R. 12658, Aug. 

8, 1970] 

* * * * * * 

PART 18-MARINE MAMMALS 

Subpart A-Introduction Sec. 

18. I Purpose of regulations. 

18.2 Scope of regulations. 

I 8.3 Definitions. 

18.4 State lalvs and regulations. 

Subpart B-Prohibitions 

18.11 Prohibited taking. 

I 8.12 Prohibited importation. 

18.13 Prohibited uses, possession, transportation, 

and sales. 

Subpart C-General Exceptions, 18.21 Actions permitted by international treaty, 

convention, or agreement. 

I 8.22 Taking by State or local government officials. 

18.23 Native exceptions. 

18.24 Taking incidental to commercial fishing operations. 

18.25 Exempted marine mammals or marine mammal products. 

Subpart D-Special Exceptions 

18.3 I Scientific research permits [Reserved]. 

18.32 Public display permits [Reserved]. 

18.33 Undue economic hardship. 

Subpart E-Depleted Species or Stocks 

[Reserved] 

Subpart F-Procedures for 

Civil Violations 

18.51 Assessment and hearings, 

18.52 Holding, return, and disposal of seized 

property. 

18.53 Forfeiture of seized property. 

AUTHORITY: Marine Mammal Protection Act of 

1972, 86 Stat. 1027, 16 USC 1361 note, Public Law 

92-522. 

SOURCE: 37 F.R. 28173, Dec. 21, 1972, unless 

otherwise noted. 
§ 18.1 WILDLIFE AND FISHERIES 

Subpart A-Introduction 

§ 18.1 Purpose of regulations. 

The regulations contained in this part 

implement the Marine Mammal Protection Act of 1972, 86 Stat. 1027,--U.S.C. 

--, Public Law 92-522, which among 

other things, restricts the taking, possession, transportation, selling, offering for 

sale, and importing of marine mammals. 

§ 18.2 Scope of regulations. 

This Part 18 applies solely to marine 

mammals and marine mammal products 

as defined in § 18.3. For regulations under 

the Act with respect to other marine 

mammals and marine mammal products, 

see 50 CFR Part 216. 

§ 18.3 Definitions. 

In addition to definitions contained in 

the Act and unless the context otherwise 

requires, in this Part 18: 

"Act" means the Marine Mammal Protection Act of 1972, 86 Stat. 1027, Public 

Law 92-522. 

"Alaskan Native" means a person defined in the Alaska Native Claims Settlement Act [43 U.S.C. section 1603 (b) (85 

Stat. 588)] as a citizen of the United 

States who is of one-fourth degree or 

more Alaska Indian (including Tsimshian Indians enrolled or not enrolled 

in the Metlaktla Indian Community), 

Eskimo, or Aleut blood, or combination 

thereof. The term includes any Native, as 

so defined, either or both of whose adoptive parents are not Natives. It also 

includes, in the absence of proof of a 

minimum blood quantum, any citizen of 

the United States who is regarded as an 

Alaska Native by the Native village or 

town of which he claims to be a member 

and whose father or mother is ( or, if 

deceased, was) regarded as Native by 

any Native village or Native town. Any 

such citizen enrolled by the .Secretary 

pursuant to section 5 of the Alaska 

Native Claims Settlement Act shall be 

conclusively presumed to be an Alaskan 

Native for purposes of this part. 

"Authentic native articles of handicrafts and clothing" means items which 

(a) were commonly produced on or before December 21, 1972, and (b) are 

composed wholly or in some significant 

respect of natural materials, and ( c) 

which are produced, decorated, or fashioned in the exercise of traditional native 

152 

handicrafts without the use of pantographs, multiple carvers, or similar mass 

copying devices, or other improved 

methods of production utilizing modern 

implements, such as sewing machines. 

Traditional native handicrafts include, 

but are not limited to, weaving, carving, 

stitching, sewing, lacing, beading, drawing, and painting. 

"Endangered species" means a species 

or subspecies of marine mammal listed 

pursuant to the Endangered Species 

Conservation Act of 1969 ( See Part 17 of 

this subchapter). 

"Marine mammal" means a specimen 

of the following species or subspecies of 

mammal, whether alive or dead, and any 

part thereof, including but not limited 

to, any raw, dressed, or dyed fur or skin: 

Scientific name 

Ursus maritimus 

Enhydra lutris lutris 

Enhydra lutris nereis 

Odobenus rosmarus 

rosmarus 

Odobenus rosmarus 

diver gens 

Dugong dugong .. 

Trichechus manatus 

Trichechus inunguis 

Trichechus senegalensis 

Common name 

Polar bear. 

Northern sea otter. 

Southern sea otter. 

Atlantic walrus. 

Pacific walrus. 

Dugong. 

West African manatee. 

West Indian manatee. 

Amazonian manatee. 

NOTE: Common names given may be at variance 

with local usage, they are not required to be provided by the Act, and they have no legal significance. 

"Native village or town" means any 

tribe, band, clan, group, village, community, or association in Alaska which 

the Alaska Native Claims Settlement Act 

or the Secretary finds eligible for land 

conveyances under subsection 14 (a) of 

that Act. 

"Pregnant" means pregnant near term. 

"Subsistence" means the use by Alaskan Natives of marine mammals taken 

by Alaskan Natives for food, clothing, 

shelter, heating, transportation, and 

other uses necessary to maintain life of 

the taker or for those who depend upon 

the taker to provide them with such 

subsistence. 

"Take" means to harass, hunt, capture, 

or kill, or attempt to harass, hunt, capture, or kill any marine mammal, including, without limitation, any of the 

following: The restraint or detention of 

a marine mammal, no matter how temporary; tagging a marine mammal; or 

the operation of an aircraft or vessel, or 

the doing of any other acts which results 
TITLE 50 § 20.1 

in the disturbing or molesting of a marine 

mammal. 

"Wasteful manner" means any taking 

or method of taking which is likely to 

result in the killing or injuring of marine 

mammals beyond those needed for subsistence purposes or for the making of 

authentic native articles of handicrafts 

and clothing or which results in the waste 

of a substantial portion of the marine 

mammal and includes without limitation 

the employment of a method of taking 

which is not likely to assure the capture 

or killing of a marine mammal, or which 

is not immediately followed by a reasonable effort to retrieve the marine 

mammal. 

* * * * * * 

Subpart C-General Exceptions 

§ 18.21 Actions permitted by international treaty, convention, or agreement. 

The Act and these regulations shall 

not apply to the extent that they are 

inconsistent with the provisions of any 

international treaty, convention or agreement, or any statute implementing the 

same, relating to the taking or importation of marine mammals or marine mammal products, which was existent and in 

force prior to December 21, 1972, and to 

which the United States was a party. 

* * * * * * 

§ 18.23 Native exceptions. 

(a) Taking. Notwithstanding the prohibitions of Subpart B of this Part 18, 

but subject to the restrictions contained 

in this section, any Indian, Aleut, or 

Eskimo who resides on the coast of the 

North Pacific Ocean or the Arctic Ocean 

may take any marine mammal without 

a permit, if such taking is: 

(1) By Alaskan Natives who reside in 

Alaska and such taking is for subsistence, or 

(2) For purposes of creating and selling authentic native articles of handicraft and clothing, and 

(3) In each case, not accomplished in 

a wasteful manner. 

(b) Restrictions. (1) No marine mammal taken pursuant to this section may 

be sold or otherwise transferred to any 

person other than an Indian, Aleut, or 

Eskimo, or delivered, carried, transported, or shipped in interstate or for153 

eign commerce by any person, unless: 

(i) It has first been transformed into 

an authentic native article or handicraft or clothing, or 

(ii) It is an edible portion and sold in 

Alaskan native villages and towns. 

( 2) No person who is not an Indian, 

Aleut, or Eskimo may purchase or otherwise acquire, or possess any marine 

mammal taken pursuant to this section 

except as permitted in this subsection. 

( 3) No person shall use any aircraft 

to take any marine mammal in violation 

of 16 U.S.C. 742j-1, 85 Stat. 480, Public 

Law 92-159. 

(c) Notwithstanding the preceding 

provisions of this section, whenever, under the Act, the .Secretary determines 

any species or stock of marine mammals 

to be depleted, he may prescribe regulations pursuant to section 103 of the Act 

upon the taking of such marine mammals by any Indian, Aleut, or Eskimo 

and, during the existence of such regulations, all takings of such marine mammals by such persons shall conform to 

such regulations. 

Sec. 

20.1 

* * * * * * 

PART 20-MIGRATORY BIRD 

HUNTING 

Subpart A-Introduction 

Scope of regulations. 

* * * * * * 

Subpart L-Administrative and 

Miscellaneous Provisions 

20.132 Subsistence use in Alaska. 

* * * * * * 

AuTHORITv.-:Migratory Bird Treaty Act, section 

3, 40 Stat. 755. 

SouRcE: Rcdcsignatcd from Part 10 and revised at 

38 F.R. 22021, Aug. 15, 1973, unless otherwise 

noted. 

Subpart A-Introduction 

§20.1 Scope of regulations. 

(a) In general.-The regulations contained in this part relate only to the 

hunting of migratory game birds, and 

crows. 

(b) Procedural and substantive requirements.-Migratory game birds may 

be taken, possessed, transported, shipped, 

exported, or imported only in accordance 

with the restrictions, conditions, and requirements contained in this part. Crows 

may be taken, possessed, transported, 

exported, or imported only in accordance 
§ 20.132 WILDLIFE AND FISHERIES 

with subpart H of this part and the restrictions, conditions, and requirements 

prescribed in § 20.133. 

* * * * * * 

Subpart L-Administrative and 

Miscellaneous Provisions 

* * * * * * 

§ 20.132 Subsistence use in Alaska. 

(a) In Alaska, Eskimos and Indians 

may take, possess, and transport, in any 

manner and at any time, auks, auklets, 

guillemots, murres, and puffins and their 

eggs for food and their skins for clothing, but the birds and eggs so taken shall 

not be sold or offered for sale. 

(b) In Alaska, any person may, for 

subsistence purposes, take, possess, and 

transport, in any manner and at any 

time, snowy owls and cormorants and 

their eggs for food and their skins for 

clothing, but the birds and eggs so taken 

shall not be sold or offered for sale. 

CHAPTER II-NATIONAL MARINE FISHERIES SERVICE 

SUBCHAPTER C-MARINE MAMMALS 

PART 216-REGULATIONS GOVERNING THE TAKING AND IMPORTING 

OF MARINE MAMMALS 

Subpart A-General Sec. 

216.J Purpose and objectives. 

21-0.2 Definitions. 

216.3 Other laws and regulations. 

Subpart B-Moratorium and Prohibitions 

216.4 Moratorium. 

216.5 Prohibitions. 

Subpart C-Exceptions 

216.6 Scope and purpose. 

216.7 Exceptions not requiring prior Secretarial 

action-actions permitted by international 

treaty, convention and related statutes. 

216.8 Same-takings and related acts by state or 

local government officials or employees. 

216.9 Same-takings and related acts by certain 

natives. 

* * * * * * AuTHORITY: Title I of the Marine Mammal Protection Act of 1972, 86 Stat. !027, Public Law No. 

92-522. This part applies solely to marine mammals and marine mamal products which are, or 

consist of, members of the Order Cetacea and mem~ 

hers, other than walruses, of the Order Pinnipedia, 

which are morphologically adapted to the marine 

environment. For regulations under the aforesaid 

Act with respect to other marine mammals and 

marine mammal products, see 50 CFR Part 18. 

SOURCE: 37 F.R. 28177, Dec. 21, 1972, unless 

otherwise noted. 

Subpart A-General 

§ 216.1 Purpose and objectives. 

The following regulations implement 

the Marine Mammal Protection Act of 

1972, 86 Stat. 1027, Public Law No. 92-

522, which, among other things, restricts 

the taking, possession, transportation, 

selling, offering for sale, and importing 

of marine mammals and marine mammal products. 

§ 216.2 Definitions. 

Except as otherwise set forth in this 

section, the definitions in the Act shall 

apply for purposes of this part. 

(a) "Act" shall mean the Marine 

Mammal Protection Act of 1972, Public 

Law 92-522, 86 Stat. 1027. 

(b) "Authentic native articles of 

handicrafts and clothing" means items 

composed wholly or in some significant 

respect of natural materials, and which 

are produced, decorated, or fashioned in 

the exercise of traditional native handicrafts without the use of pantographs, 

multiple carvers, or similar mass copying 

devices, or other improved methods of 

production utilizing modern implements, 

such as sewing machines. Traditional 

native handicrafts include, but are not 

limited to, weaving, carving, stitching, 

sewing, lacing, beading, drawing, and 

painting. The formation of traditional 

native groups, such as cooperatives, is 

permitted so long as no large scale mass 

production industry results. 

(c) "Commercial fishing operation" 

shall mean the lawful harvesting of fish 

from the marine environment for profit 

as part of an on-going business enterprise. Such term shall not include sport 

fishing activities whether or not carried 

out by charter boat or otherwise, and 

whether or not the fish so caught are 

subsequently sold. 

(d) "Endangered species" shall mean 

a species or subspecies of marine mammal listed as threatened with extinction 

pursuant to the Endangered Species 

Conservation Act of 1969. 

(e) "Incident catch" shall mean the 

taking of a marine mammal (1) because 

it is directly interfering with commercial 

fishing operations, or (2) as a conse154 
TITLE 50 § 216.6 

quence of the steps used to secure the 

fish in connection with commercial fishing operations: Provided, however, That 

the taking of a marine mammal which 

otherwise meets the requirements of this 

definition shall not be considered an incidental catch of that mammal if it is 

used subsequently to assist in commercial fishing operations. 

(f) "Indian, Aleut, or Eskimo" shall 

mean a citizen of the United States who 

is one-fourth degree or more American 

or Alaskan Indian (including Tsimshian 

Indians enrolled or not enrolled in the 

Metlaktla· Indian Community), Eskimo, 

or Aleut blood, or combination thereof. 

The term includes any such person either 

or both of whose adoptive parents do not 

fall within such definition. It also includes, in the absence of proof of a minimum bloo-d quantum, any citizen of the 

United States residing in the State of 

Alaska who is regarded as being an Indian, Aleut or Eskimo by the native village or town in Alaska of which he claims 

to be a member and whose father or 

mother is (or, if deceased, was) regarded 

as being an Indian, Aleut, or Eskimo by 

any native village or native town in 

such State. Any citizen enrolled by the 

Secretary of the Interior pursuant to section 5 of the Alaska Native Claims ,Settlement Act shall be conclusively presumed to be an Indian, Aleut, or Eskimo 

for purposes of this part. 

(g) "Marine environment" shall include estuarine and brackish waters. 

(h) "Marine mammal" shall mean 

those members of the order Cetacea and 

those members, other than walruses, of 

the order Pinnipedia, which are morphologically adapted to the marine environment, and includes any part of any such 

marine mammal, including its raw, 

dressed, or dyed fur or skin. 

(i) "Native" shall mean any Indian 

Aleut, or Eskimo as defined in paragraph 

(f) of this section, and "Alaskan native" 

shall mean any such person who is a 

resident of the State of Alaska. 

( j) "Native village or town" shall 

mean any tribe, band, clan, group, village, community, or association of Alaskan natives in Alaska which the Alaska 

Native Claims Settlement Act or the Secretary of the Interior finds eligible for 

land conveyances under subsection 14 (a) 

of that Act. 

155 

(k) "Pregnant" as to any marine 

mammal, shall mean near term. A marine mammal shall be presumed to be 

pregnant and near term, unless proven 

otherwise, if, at the time with respect to 

which such condition is sought to be 

established, such mammal would customarily have been pregnant and near term 

by reason of the season of the year, the 

location of the animal in the migratory 

pattern, or other relevant circumstances. 

(1) "Products from fish" shall include 

the primary processed products of fish, 

such as fish meal, fish protein derivatives, or processed fish oil. 

(m) "Secretary" shall mean the Secretary of Commerce or his authorized 

representative. 

(n) "Subsistence purposes" shall mean, 

with respect to any marine mammal, the 

direct consumption by Alaskan natives of 

all usable portions of such mammal for 

food, clothing, shelter, heating, transportation, and the other necessities of life. 

( o) "Take" shall mean to harass, hunt, 

capture, or kill, or attempt to harass, 

hunt, capture, or kill any marine mammal, including, without limitation, any 

of the following: The restraint or detention of a marine mammal, no matter how 

temporary; tagging a marine mammal; 

or the operation of an aircraft or vessel, 

or the doing of any other acts, which 

results in the harassment of a marine 

mammal. 

( p) "Wasteful manner" shall mean 

the employment of a method of taking 

which is not likely to assure the capture 

or killing of a marine mammal, or which 

is not immediately followed by a reasonable effort to retrieve the marine mammal, or which is likely to result in the 

killing or injuring of marine mammals 

beyond those needed for subsistence purposes or for the making of authentic 

native articles of handicrafts and clothing. 

[37 FR 28178, Dec. 21, 1972, as amended at 38 

FR 7987, Mar. 27, 1973] 

* * * * * * 

Subpart C-Exceptions 

§ 216.6 Scope and purpose. 

Notwithstanding the moratorium and 

prohibitions set forth in Subpart B of 

this part and the Act, marine mammals 

may be taken, marine mammals and 

marine mammal products may be im-
§ 216.7 WILDLIFE AND FISHERIES 

ported into the United States, places subject to the jurisdiction of the United 

States may be used for such taking and 

importation, and it shall be lawful to 

possess, transport, sell, or offer for sale 

any marine mammal, or transport, sell, 

or offer for sale any marine mammal 

product, as and to the extent provided in 

the regulations in this subpart and the 

applicable provisions of the Act. 

§ 216. 7 Exceptions not requiring prior 

Secretarial action-actions permitted 

by international treaty, convention, 

and related statutes. 

The Act and the regulations in this 

part shall not apply to the extent that 

they are inconsistent with the provisions 

of any international treaty, convention or 

agreement, or any statute implementing 

the same, relating to the taking, or importation, of marine mammals or marine 

mammal products, which was existing 

and in force prior to December 21, 1972, 

and to which the United States was a 

party. Specifically, the regulations in 

Subpart B of this part and the provisions 

of the Act shall not apply to activities 

carried out pursuant to the Interim Convention on the Conservation of North 

Pacific Fur Seals signed at Washington 

on February 9, 1957, and the Fur Seal 

Act of 1966, 16 U.S.C. 1151-1187, as, in 

each case, from time to time amended. 

* * * * * * 

§ 216.9 Same-taking and related acts 

by certain natives. 

(a) Any marine mammal may be taken 

by any Indian, Aleut, or Eskimo who resides on the coast of the North Pacific 

Ocean or the Arctic Ocean in the States 

of Alaska, Washington, Oregon, or California, and no permit shall be required, 

if the taking is : 

(1) By Alaskan Natives for subsistence purposes of Alaskan Natives, or 

(2) For purposes of creating and selling authentic native articles of handicraft and clothing, and 

(3) In each case, not accomplished in 

a wasteful manner. 

In addition, any such Indian, Aleut, or 

Eskimo, and direct and indirect transfer~es of such native may, incidental to 

such taking and disposition, possess and 

transport such marine mammal or a marine mammal product made therefrom, 

and use any port, harbor, or other place 

under the jurisdiction of the United 

States. No marine mammal taken pursuant t6 subparagraph (2) of this paragraph may be sold except when transformed into authentic native articles of 

handicraft and clothing, provided that 

edible portions of such marine mammal 

may be sold in Alaskan Native villages 

and towns or for native consumption so 

long as, in each case, no interstate commerce is involved. 

(b) Notwithstanding the preceding 

provisions of this section, whenever, under the Act, the Secretary determines 

any species or stock of marine mammals 

to be depleted, he may prescribe regulations pursuant to section 103 of the 

Act upon the taking of such marine mammals by any Indian, Aleut, or Eskimo 

and, during the existence of such regulations, all takings of such marine mammals by such persons shall conform to 

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 ___________________ _ 

Contagious diseases afflicting Indians _______________________ _ 

Contracts, Bureau of Indian Affairs ________________________ _ 

Eagles, bald and golden -----------------------------------

157 

93 

66 

61 

150 
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 
INTERIOR, DEPARTMENT OF THE 

Employee responsibility and conduct 

Excepted personnel schedule 

Nondiscrimation in federally-assisted programs 

Practice and procedure 

Jl;DICIAL ADMINISTRATION 

Justice, Department of 

Land Management, Bureau of 

Land and Natural Resources Division, Department of Justice 

Loans to Indians, Farmers Home Administration 

Marine mammals 

Migratory birds 

MINERAL RESOURCES 

Appeals procedure 

Operating regulations 

Oil and gas 

Other minerals 

Papago Reservation 

MONEY AND FINANCE: TREASURY 

;{ational forest allotments 

Nationality 

Natives, See Alaska 

Nevada-California reclamation project 

Newlands reclamation project 

Oil and gas operating regulations 

Papago Indian Reservation, mining claims 

Practice and procedure, Department of the Interior 

Preference in hiring 

Probate 

Procurement, Bureau of Indian Affairs 

PUBLIC CONTRACTS AND PROPERTY MANAGEMENT 

PUBLIC HEALTH 

PUBLIC LANDS 

Alaska, See Alaska 

Allotments 

Hearings and appeals 

Homesteads 

Practice and procedure 

Reclamation homesteads 

159 

Page 

92 

1 

92 

68 

8 

8 

95 

8 

4 

151,154 

153 

37 

10 

27 

131 

38 

107 

6 

94 

94 

10 

131 

68 

1 

77 

61 

61 

64 

_97, 103 

74,95 

98 

68,95 

99 
Rights-of-way ----------------------------------------

Segregation of lands ----------------------------------

Special areas-----------------------------------------

Withdrawals ------------------------------------------

PUBLIC WELFARE --------------------------------------

Pyramid Lake, water rights -------------------------------- Reclamation, Bureau of ___________________________________ _ 

Reclamation homesteads, Flathead irrigation district _________ _ 

REVENUE SHARING ------------------------------------ Entitlement, computation _____________________________ _ 

Restrictions on use ___________________________________ _ 

Tribes and villages as units of local government __________ _ 

Rights-of-way ---------------------------------------------

Royalties -------------------------------------------------

Segregation of lands --------------------------------------

Stillwater area, water rights ------------------------------- Treasury, Department of the ______________________________ _ 

Truckee River storage project _____________________________ _ 

Tuberculosis ---------------------------------------------- Washoe reclamation project _______________________________ _ 

WILDLIFE AND FISHERIES 

Page 

131 

97 

127 

98 

133 

94 

93 

99 

38 

42 

48 

39 

131 

19,35 

97 

94 

38 

94 

66 

94 

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