Forests (Participation in Sustainable Forest Management) Rules, 2009 (Cap. 385)

[Rev. 2012] F11 - 51 [Issue 1] FORESTS (PARTICIPATION IN SUSTAINABLE FOREST MANAGEMENT) RULES, 2009 ARRANGEMENT OF RULES PART I – PRELIMINARY Rule 1. Citation. 2. Application. 3. Interpretation. 4. Objectives and purpose of the Rules. 5. Management plan. PART II – PRIVATE SECTOR PARTICIPATION 6. Service to invite private sector. 7. Types of agreements for private sector. 8. Eligibility of applicant. Permits 9. Permits for utilization of forest goods and services. 10. Variation or cancellation of permit. Timber Licenses 11. Determination of areas to be offered. 12. Content and duration of timber licence. 13. Pre-qualification procedure. 14. Consideration of applications. 15. Offering and advertisement. 16. Bidding procedure. 17. Selection of a bidder. 18. Award of timber license. 19. Monitoring and evaluation of licensee. 20. Non-transferability. Special-Use Licence 21. Content and procedure in grant of special-use licence. Contract 22. Procedure in the grant of contracts. Joint Management Agreements 23. Main features. 24. Procedure in the grant of a joint management agreement. 25. Evaluation of the application. 26. Joint management agreement. [Rev. 2012] [Issue 1] F11 - 52 Concession Agreements Rule 27. Determination of areas to be offered. 28. Content of concession agreement and duration. 29. Pre-qualification. 30. Consideration of an application. 31. Offering and advertisement. 32. Concession bidding procedure. 33. Consideration of the bids. 34. Announcement of intention to award. 35. Award of concession. 36. Performance of bond. 37. Review and evaluation. 38. Evaluation and renewal. 39. Employment of professional foresters. 40. Transferability. PART III – COMMUNITY PARTICIPATION 41. Service to invite community participation. 42. Types of agreements for community participation. PART IV – COMMUNITY FOREST MANAGEMENT AGREEMENTS 43. Forest management agreements. 44. Management units. 45. Procedure for entering into a community forest management agreement. 46. Forest-level management committee. 47. Monitoring of implementation. 48. Technical assistance from the Service. 49. Commercial activities. Non-Resident Cultivation 50. Agreement with forest association. 51. Zoning of forest areas. 52. Where plots may not be allocated. 53. Allocation of plots. 54. Conditions for permits. 55. Period of cultivation. 56. Planting of seedlings. 57. Monitoring of forests association. 58. Operational guidelines. PART IV – GENERAL PROVISIONS 59. Transitional provisions. 60. Verification of various existing authorizations. 61. Forms and documents under these rules. 62. Fees. [Rev. 2012] F11 - 53 [Issue 1] Rule 63. Applicable law. 64. Repeat advertisement. 65. Registers. 66. Compliance with other laws. 67. Liability under other laws. 68. Forest to remain property of State. 69. Appeals. SCHEDULE PRESCRIBED FORMS FORM 1 – PERMIT FORM 2 – TIMBER LICENCE FORM 3 – SPECIAL-USE LICENCE FORM 4 – JOINT FOREST MANAGEMENT AGREEMENT FORM 5 – COMMUNITY MANAGEMENT AGREEMENT FORM 6 – NON-RESIDENT CULTIVATION PERMIT [Rev. 2012] [Issue 1] F11 - 54 FORESTS (PARTICIPATION IN SUSTAINABLE FOREST MANAGEMENT) RULES, 2009 [L.N. 165/2009.] PART I – PRELIMINARY 1. Citation These Rules may be cited as the Forests (Participation in Sustainable Forest Management) Rules, 2009. 2. Application These Rules— (a) shall apply to the participation of the private sector and forest communities in the sustainable management of state forests; (b) may, with the necessary modifications, be applied by a local authority, with the consent of the Minister responsible for local authorities, to the participation of the private sector and forest communities in the management of local authority forests; and (c) shall apply to the authorisations issued by the Service in the management of provisional forests declared as such under section 26 of the Act. 3. Interpretation In these Rules, unless the context otherwise requires— “authorisation” includes a permit, timber-licence, special-use licence, contract, joint management agreement, concession, community forest management agreement and cultivation-permit; “community forest management plan” means a plan prepared by a forest association in partnership with the Service to govern implementation of a community forest management agreement; “concession management plan” means a site-specific management plan prepared by an applicant or holder for a concession; “contract management plan” means a site-specific management plan prepared by an applicant or holder for a contract; “cultivation-permit” means an authorisation issued under rule 53; “forest general guidelines” means administrative guidelines issued from time to time by the Service for effective carrying out of the functions of the Service; “joint management agreement” means an agreement under rule 26; “joint management plan” means a site-specific management plan prepared by an applicant or holder in partnership with the Service to govern implementation of a joint management agreement; “licence management plan” means a site-specific management plan prepared by an applicant for a licence; [Rev. 2012] F11 - 55 [Issue 1] “site-specific management plan” includes a concession management plan, contract management plan, joint management plan, or licence management plan prepared pursuant to section 37(3) of the Act and a community forest management plan prepared pursuant to section 46 of the Act. 4. Objective and purpose of the Rules The objective and purpose of these Rules is to provide for the circumstances under which authorisations may be applied for, granted, varied, cancelled or declined and the manner in which a person granted such authorisation may exercise a right or privilege conferred by the authorisation. 5. Management plan (1) The Service shall prepare or adopt a management plan covering a period of at least five years in respect of every state forest. (2) A person who wishes to make an application to the Service for an authorisation under these rules shall prepare a site-specific forest management plan in accordance with guidelines prescribed by the Service. (3) The Service shall evaluate the site-specific forest management plan submitted under paragraph (2) based on social, economic, environmental and sustainability factors and shall, with or without modification, review and approve the application. (4) A person authorised under these rules to undertake activities for more than one year shall prepare an operations plan for every year, on which all operations shall be based, and activities shall not commence unless such operations plan has been approved by the Service. (5) The Service shall evaluate the operations plan prepared under paragraph (4) to ensure that it conforms to the site-specific management plan and to sustainable forest use. (6) The Service shall not issue an authorization without a site-specific plan in place, except for forest management agreements and permits for minor activities not significantly and irreversibly affecting forest resources. PART II – PRIVATE SECTOR PARTICIPATION 6. Service to invite private sector The Service may, whenever circumstances make it necessary or appropriate to do so, invite the private sector to participate in the sustainable management of state forests. 7. Types of agreements for private sector (1) The Service may issue authorisations for forestry activities for purposes of rule 6 in the form of— (a) a permit, which may be issued to a person to undertake a specified forestry related activity or service; (b) a timber-licence, which may be issued to a person by the Service for timber harvesting in a specified forest area; (c) a special-use licence, which may be issued to a person to undertake an activity whose primary purpose is to yield public benefit in transportation, communication, energy, research or education; (d) a contract, which is entered into with a third party for performance of the activities specified in rule 22(2) on behalf of the Service in a forest area for a specified fee; [Rev. 2012] [Issue 1] F11 - 56 (e) a joint management agreement, which is an agreement where the Service agrees to enter into partnership with other persons for the joint management of a specified plantation or indigenous forest area, specifying the contribution, rights and obligations of each party and setting out the methods of sharing the costs and benefits accruing from the forest so managed; and (f) a concession agreement, which is a long term agreement that may be issued by the Service for the management of a specified forest area at a price determined after forest valuation and bidding under these rules. (2) No authorisation shall be issued in respect of a forest for which there is a pre-existing authorisation, except on terms mutually agreed upon by all the parties involved. 8. Eligibility of applicant (1) A person shall not be eligible to apply for an authorization under these rules unless that person— (a) possesses the necessary legal capacity to enter into binding agreements, and has the technical and financial capacity to undertake the forestry activities for which the authorization is sought; and (b) in the case of a foreign investor, has complied with all the laws for the time being in force relating to investment by foreigners. (2) In the case of timber-licences, contracts and concessions— (a) legal capacity includes the competence to enter into contracts which for business entities shall be demonstrated through proof of registration; (b) technical capacity includes the competence to undertake forestry activities, as demonstrated by employment of technical staff, access to equipment, satisfactory past performance and a record of good compliance with the laws and standards; and (c) financial capacity includes solvency and ability to conform to good business practices as demonstrated by the applicant’s financial statements for the past three years, where applicable, and tax compliance certificates. Permits 9. Permits for utilization of forest goods and services (1) A person who wishes to utilize forest goods or services other than in exercise of a customary right shall make an application to the Service for a permit in the prescribed form. (2) The Service shall evaluate the application, and may grant the permit if satisfied that the proposed utilization is sustainable. (3) A permit issued under these Rules shall be in Form 1 set out in the Schedule. 10. Variation or cancellation of permit (1) The Service may vary or cancel a permit— (a) on the request of the permit-holder; or (b) on its own, after giving fourteen days notice to the permit-holder thereof with reasons for such variation or cancellation in writing. (2) The Service may cancel the permit with immediate effect and without notice where the permit-holder breaches any of the conditions attached to it. [Rev. 2012] F11 - 57 [Issue 1] Timber Licences 11. Determination of areas to be offered (1) The Service shall in every year determine the areas of State forest suitable for private sector harvesting under timber licenses. (2) The Service shall only issue a timber license for a plantation area identified in the management plan as suitable for commercial harvesting. 12. Content and duration of timber licence (1) A timber licence issued under these Rules shall be in Form 2 set out in the Schedule. (2) A timber licence shall be valid for one year from the date of issue. 13. Pre-qualification procedure (1) The Service shall, once every year, pre-qualify suitable persons for the harvesting of timber in state forests following the procedure set out in this rule. (2) The Service shall invite applications for pre-qualification by placing a notice— (a) at a conspicuous place at the Service Headquarters; (b) in two newspapers of national circulation; and (c) on the website of the Service, or equivalent electronic means available to the public, detailing where a person can obtain an application form for pre-qualification, where the completed application form may be submitted, and when submission is due. (3) An application under paragraph (2) shall be made to the Service and shall— (a) specify the name of the applicant, and where the applicant is a business entity, or a forest association, shall be accompanied by the appropriate registration documents; (b) present a statement of the applicant’s technical and financial capacity to harvest timber; and (c) specify the area where they would be interested in conducting harvests. (4) The Service may forward applications to the appropriate forest conservation committee for evaluation and recommendations. 14. Consideration of applications (1) The Service shall consider the recommendations of the forest conservation committee and select an applicant qualified to harvest timber based on technical and financial capacity. (2) The Service shall issue a pre-qualification certificate to a person pre-qualified under paragraph (1) subject to such terms and conditions as the Service may determine. (3) Where the Service rejects an application for a pre-qualification certificate, the Service shall within seven days of the decision notify the applicant in writing. (4) Unless earlier revoked, a certificate of pre-qualification shall be valid for a period of two years from the date of issue. [Rev. 2012] [Issue 1] F11 - 58 15. Offering and advertisement (1) The Service shall, before advertising for bids on a timber license and in compliance with the existing management plan, prepare a draft timber licence and a prospectus containing— (a) information on the identity and description of the forest area, specifying the boundaries on maps; (b) an inventory and valuation of the forest resources; (c) the specific activities to be undertaken in the area; (d) a reserve price for the timber licence; and (e) a performance bond reasonably reflecting the commercial value of the timber license. (2) The Service shall in writing invite interested pre-qualified bidders to submit bids for the timber license and shall publish a notice of the bidding process, at the Service Headquarters, and at the forest stations responsible for the area. (3) The Service shall make available to an interested pre-qualified bidder, a copy of the notice prepared under paragraph (1). (4) A pre-qualified bidder may, after notifying the Service, visit the forest area that is subject of the announced bidding. 16. Bidding procedure (1) A pre-qualified person wishing to bid for a timber license shall purchase the bid documents and submit a bidding package to the Service, consisting of— (a) a bid of a fixed payment in a sealed envelope; (b) a proposed licence management plan; and (c) a bidder’s bond equivalent to two percent of the reserve price, which the bidder shall forfeit in case the Service awards the timber licence to the bidder and the bidder decides not to accept it. (2) The Service shall, before opening the sealed bids, review the proposed license management plan and inform the bidder of any modifications that may be necessary, at which a bidder may withdraw without forfeiture of the bidder’s bond under paragraph (1). (3) The Service shall open the sealed bids and read them out in a meeting to which all bidders are invited and the public allowed to attend. 17. Selection of a bidder (1) The highest bidder above the reserve price shall be awarded the timber license and in case of a tie, the Service shall conduct another round of bidding involving the parties who tied. (2) If the highest bidder declines the timber-license, it shall be awarded to the next highest bidder above the reserve price. (3) The Service shall return all bonds and declare no award if there is no bidder above the reserve price. (4) The Service shall inform any unsuccessful bidder of the results within a period of seven days from the time the bidding is completed. 18. Award of timber licence (1) The Service shall award the timber licence to the successful bidder. [Rev. 2012] F11 - 59 [Issue 1] (2) A licensee shall, before commencing any harvesting operations post the performance bond specified under rule 15, to cover any damage which might be incurred. (3) The Service may, at the request of the licensee, divide the harvest area into units and divide the bid price among the units. (4) A licensee shall, before commencing harvest in a particular unit, pay the Service the bid price assigned to such unit. 19. Monitoring and evaluation of licensee The Service shall periodically monitor the operations of the licensee. 20. Non-transferability A timber licence shall not be transferable. Special-Use Licence 21. Content and procedure in grant of special-use licence (1) A person who wishes to undertake an activity inside a state forest whose primary purpose is to benefit the public in transportation, communication, energy, water supply, research and education or such other purpose as the Service may approve, may apply to the Service in writing for a special-use licence. (2) The Service shall evaluate an application received under paragraph (1) and may, after completion of any environmental impact assessment required under the law, issue a special-use licence if satisfied that the proposed activity is in the public interest. (3) A special-use licence shall be in Form 3 set out in the Schedule. (4) The Service may vary, suspend or cancel a special-use license— (a) on the request of the holder upon completion of the activity, or for any other cause; or (b) on its own after giving fourteen days notice to the holder with reasons for such variation, suspension or cancellation: Provided that the Service may cancel the special-use licence with immediate effect where the holder breaches any of the conditions attached to the licence. Contracts 22. Procedure in the grant of contracts (1) The Service may, whenever it deems it appropriate to do so, enter into a contract with a suitably qualified person for the performance of a specified activity on its behalf within a State forest which is under its control. (2) The activities referred to in paragraph (1) shall be those set out in the management plan, and shall include— (a) raising of seedlings; (b) tree planting; (c) silviculture; (d) forest management and protection; (e) preparation and review of management plans; (f) resource assessment and valuation; (g) road construction; [Rev. 2012] [Issue 1] F11 - 60 (h) construction of buildings; (i) general improvement of infrastructure; (j) logging; and (k) other similar activities within the responsibility of the Service. (3) The Service shall consider an offer made under this rule, and subject to the procurement law where appropriate, accept the lowest offer for the performance of a specified activity. (4) The Service shall prepare a contract management plan containing details of the contract period, specific activities to be undertaken, the output expected, the expected standard of performance and such other matters as the Service may deem necessary. (5) A contract that involves logging shall not grant the contract holder title to the felled timber for off-site use or disposal. Joint Management Agreements 23. Main features (1) The Service may enter into a joint management agreement in the management of state forests. (2) The primary purpose of a joint management agreement is to conserve the forest and allow non-consumptive uses. However, an agreement may also allow limited consumptive use of forest resources if sustainable. (3) A joint management agreement— (a) shall be between the Service and a professional association, an educational institution, a research institution, a co-operative society, a forest association, a government agency, or a non-governmental organisation; (b) may apply to state plantation or indigenous forests; and (c) shall be non-transferable. 24. Procedure in the grant of a joint management agreement (1) The Service shall, before entering into a joint management agreement— (a) identify, delineate and describe the forest area for possible joint management; (b) conduct an inventory and valuation of the forest resources therein to support the preparation of the joint management plan; and (c) invite applications from interested persons by placing a notice on the availability of the area for joint management— (i) in two newspapers of local circulation near the forest area; (ii) at the Service Headquarters; (iii) at the forest station where the forest is located; and (iv) in such other place as may be suitable to bring the notice to the attention of the local community. (2) A person interested in forest management shall submit an application to the Service through the forest conservation committee responsible for that area within three months from the date of the notice. (3) An application under paragraph (2) shall be accompanied by— (i) a statement of the applicant’s technical and financial capability; and [Rev. 2012] F11 - 61 [Issue 1] (ii) a proposed joint management plan prepared in accordance with the guidelines set by the Service. 25. Evaluation of the application (1) The forest conservation committee shall evaluate an application and submit its comments and recommendations on the qualifications of the applicant to the Service within a period of one month from the date of expiry of the period specified under paragraph (2). (2) The Service shall evaluate an applicant on the basis of technical and financial capacity, and invite a qualified applicant to present a proposal for the management of the forest at a public hearing held by the Service. (3) The Service shall, after the evaluation and hearing under paragraph (2), select the most suitable applicant or, if pooling applications would lead to a stronger proposal, the most suitable coalition of applicants. (4) The Service shall facilitate the formation of a joint management team composed of representatives from the Service and from the selected joint managers to negotiate the creation of a joint management agreement and oversee its implementation. (5) The Service shall sign the agreement with the selected joint managers after successful negotiation under paragraph (4). (6) The Service shall in writing inform all unsuccessful applicants within fourteen days from the date of the conclusion of the process under this rule. 26. Joint management agreement (1) A joint management agreement shall be in Form 4 set out in the Schedule. (2) A joint management agreement shall be valid for ten years, and shall not be renewable for more than two terms. Concession Agreements 27. Determination of areas to be offered (1) The Service shall from time to time determine the areas of state forest suitable for management under concessions. (2) The Service shall issue concessions for areas identified as suitable for long-term private-sector management in the relevant management plans of the Service. 28. Content of concession agreement and duration (1) The Service shall prepare a model concession agreement which shall specify— (a) the name of the concession holder; (b) the land involved and the activities to be carried out under the concession; (c) the duration of the concession; (d) the charges payable to the Service including any fees in addition to the annual fees set by bidding, which shall be reviewed every year; (e) a requirement to comply with applicable environmental standards, including forest general guidelines and laws relating to environmental impact assessment; (f) the mechanism for settlement of disputes arising with respect to the concession; (g) monitoring and evaluation procedures; [Rev. 2012] [Issue 1] F11 - 62 (h) the obligations of the concession holder by way of social responsibility to ensure equity for the local community; and (i) any other terms and conditions applicable to the concession. (2) The maximum duration of a concession shall be thirty years, which may be renewed once subject to rule 38. 29. Pre-qualification (1) The Service shall at least once a year offer a person an opportunity to pre-qualify for bidding on concession agreements following the procedure set out in this rule. (2) The Service may, before inviting a person to pre-qualify, establish classes of concessions, including but not limited to eco-tourism or large-scale plantation management. (3) The Service shall invite applications for pre-qualification by placing an advertisement — (a) at a conspicuous place at the Service Headquarters; (b) in two newspapers of national circulation; (c) on the website of the Service, or equivalent electronic means available to the public; and (d) in such other place as may be suitable for bringing it to the attention of the local communities where the forest is located. (4) The advertisement shall specify— (a) where a person can obtain an application form for pre-qualification; (b) what classes of concessions are open for pre-qualification; and (c) where the completed application forms may be submitted, and when the application forms are due for submission. (5) An application for pre-qualification under paragraph (3) shall be made to the Service in writing and shall— (a) specify the name of the applicant, and where the applicant is a business entity, or a forest association, be accompanied by the appropriate registration documents; (b) specify the class or classes of concession for which the application is made; and (c) be accompanied by a statement of the applicant’s technical and financial capacity to undertake long-term forest management activities. (6) The Service shall submit all applications to the appropriate forest conservation committee for evaluation and recommendation. 30. Consideration of an application (1) The Service shall consider the recommendations of the forest conservation committee and select a qualified person based on technical and financial capacity. (2) The Service shall issue a pre-qualification certificate, to a person pre-qualified under paragraph (1), subject to such terms and conditions as it may determine. (3) Where the Service rejects an application for pre-qualification, it shall, within seven days of the decision, notify the applicant in writing. (4) Unless earlier revoked by the Service for just cause, a certificate of pre-qualification shall be valid for a period of five years from the date of issue. [Rev. 2012] F11 - 63 [Issue 1] (5) Pre-qualified bidders shall inform the Service the areas in which they are interested in conducting concessions. 31. Offering and advertisement (1) The Service shall, before advertising for bids on a concession— (a) ensure that offering the concession is consistent with the applicable strategic management plan; (b) hold consultations with the local communities; and (c) specify the activities to be undertaken in the area. (2) The Service shall prepare a draft concession agreement in accordance with rule 28 and a prospectus containing— (a) the identity and description the forest area, specifying the boundaries on maps; (b) an inventory and valuation of the forest resources; (c) specific mode, terms and conditions of the payment; (d) a reserve price for the concession; and (e) a performance bond reasonably reflecting the concession’s commercial value. (3) The Service shall in writing invite interested pre-qualified bidders to submit bids for the concession and shall publish a notice of the bidding process, at the Forest Service Headquarters, and at the forest stations responsible for the area. (4) The Service shall make available a copy of the prospectus prepared under paragraph (2) to a person who requests it. (5) A pre-qualified bidder may, after notifying the Service, visit the forest area subject of the concession. 32. Concession bidding procedure (1) A person wishing to bid for a concession agreement under rule 29 shall purchase the bid documents and submit to the Service an expression of interest consisting of a proposed concession management plan. (2) The Service shall, in consultation with the forest conservation committee of the concession area, review the proposed concession management plans and, within forty-five days after the bid submission deadline, either withdraw the concession for lack of sufficient bidder interest or inform each bidder of any modifications that may be necessary to the plan of the bidder of the concession management agreement. (3) A pre-qualified bidder shall, within fifteen days after receiving the results of the Service’s review of the proposed concession management plan, modify the plan if required to do so and submit a bidding package consisting of— (a) a bid in a sealed envelope; and (b) a bidder’s bond equivalent to two percent of the reserve price, which the bidder shall forfeit in case the Service awards the concession and the bidder declines to accept it. (4) The Service shall open the sealed bids and read them out in a meeting to which all bidders are invited and the public is allowed to attend. [Rev. 2012] [Issue 1] F11 - 64 33. Consideration of the bids (1) The concession shall be awarded to the highest bidder above the reserve price and in case of a tie; the Service shall conduct another round of bidding involving the tied parties. (2) If the highest bidder refuses the concession, it shall be awarded to the next highest bidder above the reserve price. (3) If no bidder is above the reserve price, the Service shall return all bonds and declare no award. (4) The Service shall inform all unsuccessful bidders the results of the bidding within a period of seven days from the time the bidding is completed. 34. Announcement of intention to award (1) The Service shall publish its intention to award the concession to the successful bidder in two daily newspapers of national circulation at least thirty days before the concession is to be signed. (2) The Service shall hear and consider all presentations and objections that may be raised in a process of public consultation. (3) The Service shall, based on the consultation made under paragraph (2)— (a) disqualify the bidder based on evidence of improper processor false, misleading, or no longer valid representations by the bidder who pre-qualified or qualified for the concession; or (b) award the concession under rule 31 with an appropriate modification in the draft concession agreement to accommodate concerns expressed in the consultation, however the modification may not lower the annual bid or materially increase the value of the agreement to the winning bidder; or (c) withdraw the concession and make no award, with the option of restarting the process of soliciting bids using a new draft concessions agreement; or (d) award the concession under rule 35 following the terms of the draft concession agreement. (4) If a bidder is disqualified under paragraph (3), the Service shall select the next highest bidder eligible for the award, and it shall then hold new consultations under this rule. (5) If the Service makes a minor modification to the concession agreement under paragraph (2)(b), the bidder may opt to withdraw the bid, in which case— (a) the Service shall return the bidder’s bond; and (b) the Service may either— (i) choose the next highest eligible bid and hold new consultations under this rule; or (ii) withdraw the concession and re offer it in modified form. 35. Award of concession (1) The Service shall, after the public consultations specified in rule 34, award the concession to the successful bidder. (2) The concession holder shall, before commencing operations— (a) post the performance bond, as set under rule 36, to cover any damage which might be incurred; and (b) pay the Service the bid price as set in the concession agreement. [Rev. 2012] F11 - 65 [Issue 1] (3) The performance bond under paragraph (2) shall be reviewed annually to take into account inflation. 36. Performance bond (1) The Service may draw a performance bond against a concession holder to recover unpaid annual fees or to cover damages to the forest caused by the concession holder or the agent of the concession holder. (2) The Service shall require the concession holder to make up the difference when it draws upon the bond under paragraph (1). (3) The Service shall return the remainder of the bond within six months after the expiry of the concession agreement, unless the agreement is renewed. (4) If the winning bidder fails to— (a) pay the initial bid amount; (b) post the performance bond; or (c) sign the agreement, within sixty days after a request by the Service, the Service shall collect the bidder’s bond posted under rule 32(3)(b), and either— (a) select the highest of the remaining bidders above the reserve price; or (b) reject all remaining bids with the option of restarting the process, and invite all pre-qualified applicants to re-submit bids. (5) After the completion of the award process as described in this rule, the Service shall return the bidder’s bond of the unsuccessful bidders. 37. Review and evaluation (1) A concession holder shall revise and submit to the Service a concession management plan at least once every five years. (2) The Service shall review the concession management plan and may require such modifications as may be necessary from time to time in compliance with these Rules. (3) A concession holder shall prepare and submit an annual operations plan to the Service. (4) The Service shall review the annual operations plan and require such modifications, if any, as may be necessary to meet the requirements of the existing management plan and the concession agreement. (5) A concession holder shall only undertake activities consistent with the applicable management plans, except in cases where an emergency action is required because of imminent danger to human life or property. (6) The Service shall undertake a comprehensive evaluation of the management of the concession area once in every five years. 38. Evaluation and renewal (1) The Service shall, at least three years before the concession agreement expires, begin a comprehensive evaluation, including public consultation, of the activities of the concession holder under the agreement. (2) The Service may, if the concession holder has carried out a sustainable management of the forest, negotiate a renewal of the concession at an adjusted fee greater than the original annual fee to cover inflation. [Rev. 2012] [Issue 1] F11 - 66 39. Employment of professional foresters Where the activities under a concession agreement are forestry activities, the concession holder shall employ professional foresters registered by the Forest Society of Kenya to assist in the management of the forest. 40. Transferability A concession agreement may, with the approval of the Service, be transferred to a third party only if— (a) the transferee has been in existence for at least six years; (b) the transferee is pre-qualified under these rules to apply for a concession; and (c) the transfer is not being done for the purposes of speculation. PART III – COMMUNITY PARTICIPATION 41. Service to invite community participation The Service may, whenever circumstances make it necessary or appropriate to do so, invite forest associations to participate in the sustainable management of state forests. 42. Types of agreements for community participation The Service may issue authorizations for community participation for purposes of rule 41 in the form of— (a) a community forest management agreement which shall be issued to a forest association to undertake community forestry activities; and (b) a cultivation-permit which shall be issued to members of a forest association to undertake non-resident cultivation. PART IV – COMMUNITY FOREST MANAGEMENT AGREEMENTS 43. Forest management agreements (1) The Service may enter into a community forest management agreement with a forest association wishing to conserve and utilize a forest for purposes of livelihood, cultural or religious practices. (2) A community forest management agreement shall be in Form 5 as set out in the Schedule to these Rules. 44. Management unit (1) For purposes of community participation, the management unit for a forest shall comprise— (a) the forest area under the jurisdiction of one forest station; or (b) where geographical factors make separation of the unit into blocks more practical, individual forest blocks within the jurisdiction of one forest station. (2) Each management unit shall be under a separate forest association, and the Service may decide whether the parties shall develop individual community management plans for each management unit or combined community management plans covering more than one unit. (3) Where more than one forest association makes an application in respect of the same management unit, the Service shall encourage them to consolidate themselves into one association for purposes of the application. [Rev. 2012] F11 - 67 [Issue 1] (4) In cases where forest associations fail or refuse to consolidate into one, the Service may conclude an agreement with the forest association which— (a) has the capacity to implement the activities set out in the community management plan; and (b) is most representative of the interests of the wider forest community. 45. Procedure for entering into a community forest management agreement (1) The Service and the forest community shall, before entering into a community forest management agreement— (a) identify the forest area proposed to be the subject of the agreement and its resources; (b) assess the method in which the forest community utilises the forest and the impact of such method; and (c) facilitate the formation of forest associations based on existing community structures. (2) Once a forest association is formed, the Service and the forest association shall— (a) facilitate the preparation or adoption of a community forest management plan in respect of the forest area; and (b) negotiate, draft and sign a community forest management agreement in respect of the forest area. (3) The Service shall apply the Participatory Forest Management Guidelines in the implementation of community participation in forest management. (4) The Service shall, in consultation with the stakeholders, from time to time review and revise the guidelines specified under paragraph (3). 46. Forest-level management committee The Service shall initiate the formation of a forest-level management committee consisting of— (a) representatives from the Service; (b) representatives from the forest association; and (c) other stakeholders in the area, to assist the forest association in the implementation of the community forest management agreement. 47. Monitoring of implementation (1) The Service shall monitor and evaluate the implementation of the community forest management plan. (2) The forest association shall review the findings made under paragraph (1) and together with the Service, may revise or alter the community forest management plan based on the findings. 48. Technical assistance from the Service The Service shall provide technical assistance and capacity building to a forest association so as to empower it to perform its functions under these rules. [Rev. 2012] [Issue 1] F11 - 68 49. Commercial activities (1) Where a forest association, in implementing a community forest management agreement, engages in commercial activities, the association shall comply with all the laws for the time being in force for the regulation of such activities. (2) Any violation of laws under paragraph (1) shall be deemed to be a breach of the community forest management agreement. Non-Resident Cultivation 50. Agreement with forest association (1) The Service may enter into a written agreement with a forest association to allow its members to engage in non-resident cultivation in adjacent forest areas. (2) The Service shall only allow non-resident cultivation in areas intended for the establishment of industrial plantations. 51. Zoning of forest areas (1) The Service shall for the purposes of Rule 50— (a) identify and zone off the forest areas available for such cultivation; (b) demarcate individual plots, which shall be of a minimum size of one quarter hectare and of a maximum size set by the Service based on local conditions; and (c) prepare a sketch map of all the plots, and display it prominently at the forest station responsible for the forest area. (2) The Service may open up new areas for cultivation in accordance with the approved planting programmes. 52. Where plots may not be allocated The Service shall not allocate a plot— (a) within an important water catchment area or a source of a spring; (b) on a slope exceeding thirty percent inclination; (c) within thirty metres on either side of a river course or wetland, spring or other water source; or (d) in a firebreak, road reserve, natural glade, natural forest area and an area under mature plantation. 53. Allocation of plots (1) The Service shall allocate a plot using a balloting system organised through the forest association. (2) A person allocated a plot under paragraph (1) shall be issued with a cultivation permit, in Form 6 as set out in the Schedule to these Rules. (3) The Service and the forest association shall ensure that the method of allocation gives preference to the poor and vulnerable members of the community. 54. Conditions for permits (1) A holder of a cultivation-permit issued under rule 53 shall be subject to the following conditions— (a) plant only annual crops approved by the Service; [Rev. 2012] F11 - 69 [Issue 1] (b) render assistance to the Service upon request in— (i) beating up or replanting, whichever may be appropriate, in cases of low survival rate of seedlings; (ii) controlling illegal forest activities; and (iii) preventing or fighting forest fires; (c) not lease, sublet or sell the allocated plot; (d) use only hand tools for land preparation; and (e) not erect any structure on the plot allocated, except, with written permission from the Service, in areas with high incidences of game damage. (2) A holder of a cultivation permit shall pay the annual rental fees upon allocation of the plot and subsequently after every twelve months. (3) A person who breaches the conditions of a cultivation-permit shall be guilty of an offence under the Act, and the Service shall withdraw the permit forthwith. 55. Period of cultivation (1) The holder of a cultivation permit shall vacate the plot to which the cultivation permit relates after a period of three years. (2) The Service shall not be under any obligation to allocate another plot to a holder of cultivation permit after the cultivation-permit issued to the holder has expired. 56. Planting of seedlings The planting of tree seedlings shall be done after the completion of one crop season, and the holder of the cultivation permit shall not interfere with the growth or development of the seedlings or trees. 57. Monitoring by forest association The forest association shall assist the Service in the monitoring of the activities of permit holders and shall ensure that none of its members or agents takes any action which harms the planted seedlings. 58. Operational guidelines (1) The Service shall, before issuing a cultivation-permit, issue a comprehensive operational guideline for the implementation of non-resident cultivation. (2) The Service may from time to time revise the guidelines. PART IV – GENERAL PROVISIONS 59. Transitional provisions (1) For an authorisation other than a concession applied for within five years of the commencement of these Rules, where there is no management plan governing the area of an application, the Service shall evaluate the site-specific management plan based on whether it is consistent with sustainable management of resources. (2) Where there is no forest conservation committee in a forest conservancy area, an application made under these Rules shall be evaluated by the Service. 60. Verification of various existing authorizations (1) A person who holds an authorisation issued prior to coming into effect of these Rules shall, submit a copy to the Service within a period of twelve months from the date of commencement of these Rules for verification and confirmation. [Rev. 2012] [Issue 1] F11 - 70 (2) The Service shall, within one month after the commencement of these Rules, notify, by appropriate means, the person referred to in paragraph (1). (3) Failure to submit an authorisation as required under paragraph (1) may be used by the Service as a ground for the revocation, amendment or cancellation of the authorisation. 61. Forms and documents under these rules An application or authorisation under these Rules shall be in the form prescribed in the schedule. 62. Fees (1) Where these Rules call for the Service to charge fees and do not set those fees by public bidding, the Service shall, by notice in Gazette, publish a schedule of the fees or an objective formula for calculating such fees. (2) The Service shall from time to time review and revise the fees payable under these Rules. (3) The fees payable under these Rules shall be subject to the approval of the Board. (4) In this Rule, “fees” includes royalties and other charges payable to the Service. 63. Applicable law The provisions of the Public Procurement and Disposal Act and the principles of the law of contract shall apply to the procedure for the award of a licence, contract and concession under these Rules. 64. Repeat advertisement Where no suitable applicant is found after advertising for the issuance of an authorisation, the Service may repeat the advertisement in the same or different terms. 65. Registers The Service shall maintain a register of all authorizations issued under these Rules, and a member of the public may inspect it or obtain a copy or an excerpt during working hours, upon payment of such fees as may be prescribed. 66. Compliance with other laws These rules shall not exempt a person authorised pursuant to these rules from the requirements of the any written law governing environmental matters or other written law. 67. Liability under other laws The suspension or cancellation of an authorization shall not exempt the holder or where the holder is a body corporate, its Board of Directors or officers, from liability under the Act or any other written law. 68. Forest to remain property of State (1) A forest which is the subject of an authorisation under these Rules shall be and remain the property of the State. (2) The rights to the land and underlying minerals or other resources shall not be deemed to be transferred to any person who is a holder of an authorisation or party to an agreement under these Rules. [Rev. 2012] F11 - 71 [Issue 1] 69. Appeals A person who is aggrieved by the decision of the Service with respect to an application for an authorisation or the action of the Service with respect thereto may appeal to Appeals Tribunal under Environmental Management and Coordination Act. SCHEDULE [Rev. 2012] [Issue 1] F11 - 72 [Rev. 2012] F11 - 73 [Issue 1] [Rev. 2012] [Issue 1] F11 - 74 [Rev. 2012] F11 - 75 [Issue 1] [Rev. 2012] [Issue 1] F11 - 76 [Rev. 2012] F11 - 77 [Issue 1] [Rev. 2012] [Issue 1] F11 - 78 [Rev. 2012] F11 - 79 [Issue 1] [Rev. 2012] [Issue 1] F11 - 80 [Rev. 2012] F11 - 81 [Issue 1] [Rev. 2012] [Issue 1] F11 - 82 [Rev. 2012] F11 - 83 [Issue 1] [Rev. 2012] [Issue 1] F11 - 84 [Rev. 2012] F11 - 85 [Issue 1] [Rev. 2012] [Issue 1] F11 - 86