Regulation on Major Pre-Felling Operations under Forest Resources Licenses (FDA Regulation 105-07)

61 Forestry Development Authority Regulation No. 105-07 Regulation on Major Pre-Felling Operations under Forest Resources Licenses WHEREAS, the National Forestry Reform Law of 2006 establishes a transparent framework for the use, management, and protection of forest resources that balances the commercial, community, and conservation priorities of the Republic; and WHEREAS, community social agreements, environmental assessments, and management plans are critical to the successful implementation of Forest Resources Licenses; and WHEREAS, it is essential that community social agreements and environmental assessments (and, in the case of Forest Management Contracts, management plans) be developed and in place before trees are felled under a Forest Resources License; and WHEREAS, the National Forestry Reform Law of 2006 authorizes the Forestry Development Authority to issue regulations and other rules necessary to implement the law (Section 19.1(a)), specifically including regulations that govern the preparation of plans and environmental assessments (Section 19.1(k)); regulations that serve to institutionalize the participation of communities in forest management through the requirement of a social agreement (Section 5.1(f)(iii)); and regulations that empower communities (Section 10.1); NOW, THEREFORE, the Forestry Development Authority does hereby rule and regulate as follows: PART ONE: DEFINITIONS AND PURPOSE Section 1. Definitions In this Regulation, the following terms have the meaning indicated, unless the context otherwise requires: (a) Affected Community: a community comprising less than a statutory district (including chiefdoms, clans, townships, towns, villages, and all human settlements) whose interests are likely to be affected by Operations carried out under a Forest Resources License. “Interests” for purposes of this definition may be of an economic, environmental, health, livelihood, aesthetic, cultural, spiritual, or religious nature. (b) Authority: Forestry Development Authority. (c) Felling Effective Date: The date on which the Authority certifies that the Holder has completed all Pre-Felling Operations. (d) FMC: Forest Management Contract, a long-term Forest Resources License issued by the Government under Section 5.3 of the National Forestry Reform Law of 2006, allowing a person to manage a tract of Forest Land and harvest or use Forest Products. 62 (e) Forest Resources License: any legal instrument under which the Authority allows a person, subject to specified conditions, to extract Forest Resources or make other productive and sustainable use of Forest Land. FMCs and TSCs are types of Forest Resources Licenses. (f) Holder: a person who holds a valid Forest Resources License under which commercial logging activities are authorized. (g) Major Pre-Felling Operations: preparation of an environmental impact assessment and execution of a social agreement (and, for FMCs, preparation of a forest management plan). (h) Managing Director: Managing Director of the Forestry Development Authority. (i) TSC: Timber Sale Contract, a license from the Government under Section 5.4 of the National Forestry Reform Law of 2006, allowing a Person to harvest timber from a specified tract of Forest Land. Other terms used in this Regulation have the meaning established in the National Forestry Reform Law of 2006, as amended. Section 2. Purpose This Regulation describes certain social, environmental, and forest management planning obligations that a Holder of a Forest Resources License must satisfy prior to felling trees. Sections 3 to 20. Reserved PART TWO: REQUIREMENT OF CERTIFICATION BY AUTHORITY; PROCEDURE Section 21. Prohibition No person shall fell a tree under any Forest Resources License until the Authority certifies that the Holder has completed all Major Pre-Felling Operations. Section 22. Additional Pre-Felling Requirements Specific to Holders of FMCs In addition to satisfying all other Pre-Felling Operations required of Holders of Forest Resources Licenses, the FMC Holder shall prepare a forest management plan, as required by Part Five of this Regulation. Section 23. One Public Meeting May Help to Satisfy Multiple Requirements Where appropriate, the Holder may rely on a single public meeting to help satisfy multiple requirements of this Regulation. 63 Section 24. Certification by Authority (a) To obtain certification by the Authority of all Major Pre-Felling Operations, the Holder shall submit to the Authority a request for certification, together with complete copies of all of the following: (1) Executed social agreement. A complete copy of one or more executed social agreements, bearing the verifiable signatures of members of Community Forestry Development Committees that represent all Affected Communities with respect to the area to be logged under the Forest Resources License. (2) Environmental impact assessment and approval by EPA. (A) A complete copy of the environmental impact study for the Forest Resources License, performed by the Holder under Section 14 of the Environmental Protection and Management Law, as amended, and approved by the Environmental Protection Agency; and (B) The environmental impact assessment approval issued to the Holder by the Environmental Protection Agency. (3) Approved forest management plan. For FMCs, a complete copy of the forest management plan for the area subject to the FMC, approved by the Authority. (b) The Holder may submit the documents required under Subsection (a) of this Section to the Authority separately, or in a single package; however, the Authority shall not consider a request for certification from the Holder prior to receipt of all required documents. (c) When the Authority has certified that the Holder has performed all Major Pre-Felling Operations, the Authority shall issue to the Holder a written certification, the date of which becomes the Holder’s Felling Effective Date. Sections 25 to 30. Reserved PART THREE: SOCIAL AGREEMENT Section 31. Duty to Negotiate Social Agreement; Duration (a) The Holder shall negotiate one or more social agreements for the benefit of all Affected Communities with respect to the area to be logged under the Forest Resources License. (b) A social agreement negotiated and executed under this Regulation has a duration of five years (for FMCs) or three years (for TSCs). (1) The Holder shall ensure that at all times, for the duration of the Forest Resources License, a social agreement for the benefit of all Affected Communities is in force with respect to the area to be logged. 64 (2) The Holder may not fell trees unless a social agreement for the benefit of all Affected Communities is in force with respect to the area to be logged. Section 32. Affected Communities; Representation by Community Forestry Development Committees (a) The Holder shall give notice of its intent to conduct negotiations with representatives of Affected Communities by: (1) Publication of a notice in a newspaper of general circulation in the area, if one exists; publication of a notice in a newspaper of general circulation in Monrovia; and announcement on national radio stations and community radio stations with coverage in the area; and (2) Sending written notice to Persons on any forest management stakeholder list maintained under Authority Regulation No. 101-07, concerning public participation. (b) The Holder shall identify as an Affected Community each community— (1) Maintained on the list of Affected Communities identified by the Authority during the concession allocation process or the local validation process for the Forest Resources License; and (2) Any other community— (A) Located within the geographic area that will be logged under the Forest Resources License; (B) Located adjacent to the geographic area that will be logged under the Forest Resources License; (C) Whose members use Natural Resources located in the geographic area that will be logged under the Forest Resources License; (D) Determined to be affected through the local validation process established by Part Six of Authority Regulation No. 102-07, concerning forest land use planning, with respect to the area that will be logged under the Forest Resources License; or (E) That, for any other reason, is likely to be affected by the Operations of the Holder. (c) The Holder shall maintain a list of Affected Communities for its Forest Resources License. (d) Any individual who believes that the Holder should have identified the individual’s community may ask the Authority to review the decision of the Holder not to include the community. 65 (1) Following receipt of a request under this Subsection, the Authority shall determine whether the community satisfies the definition of an Affected Community set forth in Section 1(a) of this Regulation. (2) The Authority shall issue any determination made under this Subsection in writing and notify the Holder and the requesting individual of its determination. (e) For purposes of this Regulation, the Holder may negotiate and enter into social agreements for the benefit of Affected Communities only with a Community Forestry Development Committee that satisfies the requirements of Part Six of this Regulation, or with an interim representative selected under Subsection (f)(2) of this Regulation. (f) If the Holder determines that one or more Affected Communities is not represented by a Community Forestry Development Committee, the Holder shall report this determination to the Authority, which shall use its best efforts to ensure that all Affected Communities are brought under the representation of existing or new Community Forestry Development Committees. (1) The Authority may take steps to facilitate the prompt establishment of a new Community Forestry Development Committee to represent an unrepresented Affected Community. (2) The Authority may, in coordination with civil society organizations, facilitate a process of participatory selection of an interim representative for an unrepresented Affected Community, until that Affected Community can be represented by a Community Forestry Development Committee. (g) The Holder shall maintain a list of Community Forestry Development Committees representing Affected Communities for its Forest Resources License. (h) The Holder shall negotiate one or more social agreements with Community Forestry Development Committees representing the Affected Communities for the Holder’s Forest Resources License. (i) Community Forestry Development Committees may seek the assistance of experts, legal counsel, civil society organizations, or any other person to help them effectively represent Affected Communities in negotiating or administering a social agreement with the Holder. Section 33. Contents of Social Agreement (a) A social agreement negotiated between a Holder and one or more Community Forestry Development Committees must contain all of the following elements: (1) A code of conduct that governs: (A) The rights (including access rights) and responsibilities of members of the Affected Communities; and (B) The rights and responsibilities of the Holder and the Holder’s employees, contractors, and other associates. 66 The Authority shall make model codes of conduct freely available on the Internet and shall, upon request, provide paper or electronic copies of model codes of conduct to Holders, Community Forestry Development Committees, and Affected Communities. (2) A description of the financial benefit that the Affected Communities will receive from the Holder, subject to the minimum requirement established by Section 34 of this Regulation. (3) A requirement that the Holder pay the amount of the negotiated financial benefit on a quarterly basis into an interest-bearing escrow account that the Holder shall maintain in trust on behalf of all Affected Communities. (4) A requirement that the Holder release funds from the escrow account for the benefit of an Affected Community only upon written request by a Community Forestry Development Committee, and only if— (A) The request satisfies the requirements of Part Six of this Regulation; and (B) The Authority consents to the request. (5) A practical mechanism for resolving disputes that may arise between the Holder and members of Affected Communities. (b) Subject to the requirements and limitations of this Section, the Holder and Community Forestry Development Committees may agree to terms that are tailored to the local context. Section 34. Minimum Financial Benefit under Social Agreements The total annual financial benefit provided by the Holder for the benefit of all Affected Communities with respect to logging under the Forest Resources License, under one or more social agreements, must equal or exceed US $1 per cubic meter of Logs harvested annually under the Forest Resources License, based on verifiable information recorded in the chain of custody system. Section 35. Public Meetings with Affected Communities and Execution of Social Agreement (a) In negotiating a social agreement with Community Forestry Development Committees, the Holder shall afford each Community Forestry Development Committee and the Affected Communities that it represents the opportunity to participate in at least one public meeting, facilitated and attended by the Authority, to ask questions about and express views on community rights and benefits under the Forest Resources License. (1) At each public meeting, the Holder shall— (A) Describe to participants the Forest Resources License and its likely effects on the community; (B) Respond to participant questions about the Forest Resources License; and 67 (C) Allow each participant an opportunity to comment—orally, in writing, or both—on the Forest Resources License. (2) The Holder shall conduct each public meeting in English and any local vernacular necessary to ensure community understanding. (3) The Holder shall open each public meeting to all members of the public, including, but not limited to, community members, industry representatives, government officials, members of civil society organizations, and the media. (4) The Holder shall use best efforts to involve women, youth, and other historically excluded groups in each public meeting. (5) The Holder shall select the location for each public meeting so as to ensure maximum participation by Affected Communities. Factors that the Holder may consider include— (A) Proximity to Forest Lands and communities likely to be most directly affected by the Forest Resources License; (B) Ease of access by community members; and (C) Whether the venue is sufficiently large to accommodate all participants who are likely to attend. (6) The Holder shall advertise the purpose, date, time, and location of each public meeting at least 15 days in advance. (7) The Holder shall advertise each public meeting as follows: (A) By notifying local government officials and community leaders, including District Commissioners, Corps of Officers, Township Commissioners, City Mayors, Paramount Chiefs, Clan Chiefs, Landlords, General Town Chiefs, Town Chiefs, Quarter Chiefs, all members of Community Forestry Development Committees, and village heads; (B) By running radio advertisements in the area of the public meeting; (C) By posting signs in English and any necessary local vernacular at the nearest Authority regional office; and (D) By any other method that the Holder may devise to ensure maximum participation by Affected Communities, tailored to the specific locality and community needs. (b) The Holder shall ensure that the social agreement is signed in duplicate originals, with the Holder retaining one original version and the Community Forestry Development Committee representative retaining the other original. 68 Section 36. Oversight and Attestation by the Authority (a) The Holder shall submit its executed social agreement to the Authority for attestation. (b) Upon receipt of an executed social agreement, the Authority shall review it for completeness, accuracy, and conformity with the requirements of the National Forestry Reform Law of 2006, this Regulation, the Forest Management Guidelines, the Code of Forest Harvesting Practices, and the terms of the Holder’s Forest Resources License. (c) If the Authority requires additional information to determine whether the executed social agreement is complete, accurate, and in conformity with law, or whether the agreement represents the will of the Affected Communities, the Authority may request further information from the Holder, from Community Forestry Development Committees, or from any other source. (d) If the Authority determines that the social agreement is incomplete, inaccurate, or otherwise not in conformity with law, the Authority shall reject the agreement and provide to the Holder and the Community Forestry Development Committee a written explanation of the reason for its decision. (1) The Authority shall decline to attest to a social agreement on reasonable suspicion of inadequate public consultation, including either of the following: (A) Negotiations between the Holder and Community Forestry Development Committees omitted the interests of one or more Affected Communities. (B) The signature made on behalf of a Community Forestry Development Committee was not knowingly and voluntarily given. (2) The Holder may seek to remedy any insufficiencies in the social agreement identified by the Authority and, after further negotiations with the Community Forestry Development Committees and execution of a new agreement, submit a revised social agreement to the Authority for review. (e) If the Authority determines that the social agreement is complete, accurate, and in conformity with law, the Authority shall attest to the agreement. (f) The Authority shall promptly conduct any review required by Subsection (b) of this Section and shall not withhold attestation to a social agreement that substantially satisfies the requirements of this Part. Section 37. Dispute Resolution (a) In the event that the Holder and a Community Forestry Development Committee cannot in good faith agree to the terms of a social agreement under this Part, the Authority shall use best efforts to resolve outstanding differences between the Holder and the Community Forestry Development Committee. 69 (b) If the Holder and the Community Forestry Development Committee cannot, with the assistance of the Authority, resolve their differences, either may request non-binding, third party mediation, the expense of which shall be borne by the Holder. (c) If the Holder or the Community Forestry Development Committee is dissatisfied with the results of the mediation, either may request binding arbitration, the expense of which shall be borne by the Holder. (d) Either the Holder or the Community Forestry Development Committee may appeal the result of the binding arbitration to a court of competent jurisdiction in the Republic. Sections 38 to 40. Reserved PART FOUR: ENVIRONMENTAL IMPACT ASSESSMENT Section 41. Duties of the Holder (a) The Holder shall comply with the requirements of the 2003 Environment Protection and Management Law, as amended, including the requirements of— (1) Completing an environmental impact statement under Section 14 of that Law; and (2) Obtaining an environmental impact assessment license from the Environmental Protection Agency. (b) Because Forest Lands covered by Forest Resources Licenses must have previously been deemed suitable for Commercial Use, the Holder shall focus its environmental analysis on mitigating the potential adverse environmental effects of its Operations on Natural Resources and the health of residents in Affected Communities. Section 42. Duties of the Authority (a) Although the Holder alone bears the responsibility of satisfying the requirements of the Environment Protection and Management Law, as amended, with respect to the impacts of the Holder’s Forest Resources License, the Authority shall use best efforts to ensure that, through coordination with the Environmental Protection Agency and a broad process of community consultation during the local validation process, the Environmental Protection Agency has deemed any area to be offered by the Government for a Forest Resources License suitable for Commercial Use. (b) To further clarify the relationship between the Authority and the Environmental Protection Agency, and thereby more effectively implement this Part, the Authority may seek to enter into a Memorandum of Understanding with the Agency pertaining to environmental impact assessment. Sections 43 to 50. Reserved 70 PART FIVE: FOREST MANAGEMENT PLANNING (FMC HOLDERS) Section 51. Preparation of a Forest Management Plan (a) The FMC Holder shall prepare a forest management plan covering the entire area subject to the contract. (b) In developing the plan required by this Part, the Holder shall ensure that the plan conforms to the requirements, including the requirements for public consultation, of the following: (1) The Forest Management Guidelines issued by the Authority; and (2) The Code of Forest Harvesting Practices issued by the Authority. (c) In developing the plan required by this Part, the FMC Holder may seek input and guidance from the Authority to ensure that the plan incorporates sound forestry principles and addresses any concerns that the Authority may have. (d) The FMC Holder shall submit its completed forest management plan, together with any supporting documents or other information, to the Authority for approval. Section 52. Approval by the Authority (a) Upon receipt of a forest management plan, the Authority shall review it for completeness, accuracy, and conformity with the requirements of the National Forestry Reform Law of 2006, this Regulation, the Forest Management Guidelines, the Code of Forest Harvesting Practices, and the terms of the Holder’s FMC. (b) If the Authority requires additional information to determine whether the forest management plan is complete, accurate, and in conformity with law, the Authority may request the information from the Holder or any other source. (c) If the Authority determines that the plan is incomplete, inaccurate, or otherwise not in conformity with law, the Authority shall reject the plan and provide to the Holder a written explanation of the reason for its decision. (1) The Authority may reject the plan for inadequate public consultation under the Forest Management Guidelines. (2) The Holder may seek to remedy any insufficiencies in the plan identified by the Authority and resubmit the plan. (d) If the Authority determines that the forest management plan is complete, accurate, and in conformity with law, the Authority shall provide the Holder with a written approval of the Plan. (e) The Authority shall promptly conduct any review required by Subsection (a) of this Section and shall not withhold approval of a forest management plan that substantially satisfies the requirements of this Part. 71 Sections 53 to 60. Reserved PART SIX: COMMUNITY FORESTRY DEVELOPMENT COMMITTEES; REQUESTS FOR DISBURSEMENT OF FUNDS Section 61. Requests for Disbursement Only a Community Forestry Development Committee established under this Part may make a request for disbursement of funds under a social agreement. Section 62. Community Forestry Development Committees (a) A Community Forestry Development Committee must consist of at least five members who are residents of the community or communities that the Committee represents. (b) All members of a Community Forestry Development Committee must be freely and fairly elected by residents of the community or communities represented by the Committee. (1) The Authority shall work with civil society organizations and the public to develop uniform standards by which membership elections are to take place. (2) The Authority and civil society organizations, upon request by community members, may help to facilitate membership elections. (c) A Community Forestry Development Committee must provide a means for all residents that it represents, including women and youth, to have their views heard and considered. (d) A Community Forestry Development Committee must be incorporated under the laws of the Republic. (e) The Authority shall maintain a list of Community Forestry Development Committees. (f) The Authority may, in consultation with civil society organizations and the public, issue additional guidelines governing the development and structure of Community Forestry Development Committees. Section 63. Consensus among Affected Communities; Consent of Authority (a) Prior to making a request for disbursement of funds under a social agreement, a Community Forestry Development Committee shall provide written notice to the Authority and the Holder of its intent to make the request. (b) The Authority shall consent to a request for disbursement of funds under a social agreement unless one or more Affected Communities with respect to the area to be logged under the Forest Resources License, as represented by their respective Community Forestry Development Committees, object to the request. Sections 64 to 70. Reserved 72 PART SEVEN: REPEALS AND EFFECTIVE DATE Section 71. Repeals This Regulation repeals no existing regulations. Section 72. Effective Date (a) This Regulation is effective on September 11, 2007. (b) The Authority shall announce this Regulation and make it available to the public and the media. SIGNED: Managing Director Forestry Development Authority