Last updated on August 7th, 2024 at 08:15 pm
Title 43—Public Lands: Interior–Volume 1
Subtitle A—Office of the Secretary of the Interior
PART 1—PRACTICES BEFORE THE DEPARTMENT OF THE INTERIOR
§ 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, DC, 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.
§ 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.
(b) Unless disqualified under the provisions of § 1.4 or by disciplinary action taken pursuant to § 1.6:
(1) Any individual who has been formally admitted to practice before the Department under any prior regulations and who is in good standing on December 31, 1963, shall be permitted to practice before the Department.
(2) Attorneys at law who are admitted to practice before the courts of any State, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Trust Territory of the Pacific Islands, or the District Court of the Virgin Islands will be permitted to practice without filing an application for such privilege.
(3) An individual who is not otherwise entitled to practice before the Department may practice in connection with a particular matter on his own behalf or on behalf of
(i) A member of his family;
(ii) A partnership of which he is a member;
(iii) A corporation, business trust, or an association, if such individual is an officer or full-time employee;
(iv) A receivership, decedent’s estate, or a trust or estate of which he is the receiver, administrator, or other similar fiduciary;
(v) The lessee of a mineral lease that is subject to an operating agreement or sublease which has been approved by the Department and which grants to such individual a power of attorney;
(vi) A Federal, State, county, district, territorial, or local government or agency thereof, or a government corporation, or a district or advisory board established pursuant to statute; or
(vii) An association or class of individuals who have no specific interest that will be directly affected by the disposition of the particular matter.
§ 1.4 Disqualifications.
No individual may practice before the Department if such practice would violate the provisions of 18 U.S.C. 203, 205, or 207.
§ 1.5 Signature to constitute certificate.
When an individual who appears in a representative capacity signs a paper in practice before the Department, his signature shall constitute his certificate:
(a) That under the provisions of this part and the law, he is authorized and qualified to represent the particular party in the matter;
(b) That, if he is the partner of a present or former officer or employee, including a special Government employee, the matter in respect of which he intends to practice is not a matter in which such officer or employee of the Government or special Government employee participates or has participated personally and substantially as a Government employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise and that the matter is not the subject of such partner’s official Government responsibility;
(c) That, if he is a former officer or employee, including a special Government employee, the matter in respect of which he intends to practice is not a matter in which he participated personally and substantially as a Government employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, while so employed and, if a period of one year has not passed since the termination of his employment with the Government, that the matter was not under his official responsibility as an officer or employee of the Government; and
(d) That he has read the paper; that to the best of his knowledge, information, and belief there is good ground to support its contents; that it contains no scandalous or indecent matter; and that it is not interposed for delay.
§ 1.6 Disciplinary proceedings.
(a) Disciplinary proceedings may be instituted against anyone who is practicing or has practiced before the Department on grounds that he is incompetent, unethical, or unprofessional, or that he is practicing without authority under the provisions of this part, or that he has violated any provisions of the laws and regulations governing practice before the Department, or that he has been disbarred or suspended by any court or administrative agency. Individuals practicing before the Department should observe the Canons of Professional Ethics of the American Bar Association and those of the Federal Bar Association, by which the Department will be guided in disciplinary matters.
(b) Whenever in the discretion of the Solicitor the circumstances warrant consideration of the question whether disciplinary action should be taken against an individual who is practicing or has practiced before the Department, the Solicitor shall appoint a hearing officer to consider and dispose of the case. The hearing officer shall give the individual adequate notice of, and an opportunity for a hearing on, the specific charges against him. The hearing shall afford the individual an opportunity to present evidence and cross-examine witnesses. The hearing officer shall render a decision either (1) dismissing the charges, or (2) reprimanding the individual or suspending or excluding him from practice before the Department.
(c) Within 30 days after receipt of the decision of the hearing officer reprimanding, suspending, or excluding an individual from practice before the Department, an appeal may be filed with the Solicitor, whose decision shall be final.
PART 2—FREEDOM OF INFORMATION ACT; RECORDS AND TESTIMONY
Subpart A—Introduction
§ 2.1 What should you know up front?
(a) Subparts A through I of this part contain the rules that the Department follows in processing records under the Freedom of Information Act (FOIA), 5 U.S.C. 552.
(b) Definitions of terms used in Subparts A through I of this part are found at § 2.70.
(c) Subparts A through I of this part should be read in conjunction with the text of the FOIA and the OMB Fee Guidelines.
(d) The Department’s FOIA Handbook and its attachments contain detailed information about Department procedures for making FOIA requests and descriptions of the types of records maintained by different Department bureaus or offices. This resource is available at https://www.doi.gov/foia/news/guidance.
(e) The Department’s regulations for requests made under the Privacy Act of 1974, 5 U.S.C. 552a, are located at subpart K of this part.
(f) Part 2 does not entitle any person to any service or to the disclosure of any record that is not required under the FOIA.
(g) Before you file a FOIA request, you are encouraged to review the Department’s electronic FOIA libraries at http://www.doi.gov/foia/libraries. The material you seek may be immediately available electronically at no cost.
§ 2.2 What kinds of records are not covered by the regulations in subparts A through I of this part?
Subparts A through I of this part do not apply to records that fall under the law enforcement exclusions in 5 U.S.C. 552(c)(1)-(3). These exclusions may be used only in the limited circumstances delineated by the statute and require both prior approval from the Deputy Chief FOIA Officer and the recording of their use and approval process.
Subpart B—How To Make a Request
§ 2.3 Where should you send a FOIA request?
(a) The Department does not have a central location for submitting FOIA requests and it does not maintain a central index or database of records in its possession. Instead, the Department’s records are decentralized and maintained by various bureaus and offices throughout the country.
(b) To make a request for Department records, you must write directly to the bureau that you believe maintains those records by utilizing the written forms of submission listed on the Department’s FOIA website, https://www.doi.gov/foia, or utilizing physical or facsimile addresses of an appropriate FOIA contact, located at http://www.doi.gov/foia/contacts.
(c) Questions about where to send a FOIA request should be directed to the bureau that manages the underlying program or to the appropriate FOIA Requester Center, as discussed in § 2.66 of this part.
§ 2.4 Does where you send your request affect its processing?
(a) A request to a particular bureau or a bureau component (for example, a request addressed to a regional or field office) will be presumed to seek only records from that particular bureau or component. A request will not be forwarded to another bureau or component unless it is clear on the face of your request that it was misdirected. For example, if you address your request to an appropriate FOIA contact in the National Park Service and ask for records concerning a specific park, but your request is delivered to the Fish and Wildlife Service, your request was clearly misdirected. In such a case, a FOIA contact in the receiving bureau or component will route the request to a FOIA contact in the proper bureau or component. If you need assistance determining where to send a request, you may seek assistance from the bureau’s designated FOIA contact or FOIA Requester Center (see § 2.66 of this part).
(b) If you seek records from an entire bureau, submit your request to the bureau FOIA Officer. The bureau FOIA Officer will forward it to the bureau component(s) that he or she believes has or are likely to have responsive records.
(c) If a request to a bureau states that it seeks records located at another specific component of the same bureau, the appropriate FOIA contact will forward the request to the other component.
(d) If a request to a bureau states that it seeks records from other unspecified components within the same bureau, the appropriate FOIA contact will send the request to the Bureau FOIA Officer. He or she will forward it to the components that the bureau FOIA Officer believes have or are likely to have responsive records.
§ 2.5 How should you describe the records you seek?
(a) You must reasonably describe the records sought. A reasonable description contains sufficient detail to enable bureau personnel familiar with the subject matter of the request to locate the records with a reasonable amount of effort.
(b) You should include as much detail as possible about the specific records or types of records that you are seeking. This will assist the bureau in identifying the requested records (for example, time frames involved or specific personnel who may have the requested records). For example, whenever possible, identify:
(1) The date, title or name, author, recipient, and subject of any particular records you seek;
(2) The office that created the records you seek;
(3) The timeframe for which you are seeking records; and
(4) Any other information that will assist the bureau in locating the records.
(c) The bureau’s FOIA Requester Center can assist you in formulating or reformulating a request in an effort to better identify the records you seek.
(d) If the bureau determines that your request does not reasonably describe the records sought, the bureau will inform you what additional information you need to provide in order to reasonably describe the records that you seek so the requested records can be located with a reasonable amount of effort. The bureau will also notify you that it will not be able to comply with your request unless the additional information it has requested is received from you in writing within 20 workdays after the bureau has requested it and that you may appeal its determination. If you receive this type of notification, you may wish to discuss it with the bureau’s designated FOIA contact or its FOIA Public Liaison (see § 2.66 of this part). If the bureau does not receive your written response containing the additional information within 20 workdays after the bureau has requested it, the bureau will presume that you are no longer interested in the records and will close the file on the request.
§ 2.6 How will fee information affect the processing of your request?
(a) Your request must explicitly state that you will pay all fees associated with processing the request, that you will pay fees up to a specified amount, and/or that you are seeking a fee waiver.
(b) If, after taking into consideration your fee category entitlements (see § 2.39 of this part), the bureau anticipates processing costs will exceed $50.00 (see § 2.37(g) of this part) and these processing costs exceed the amount you have agreed to pay or you did not agree in writing to pay processing fees or request a fee waiver, the bureau will notify you:
(1) Of the estimated processing fees;
(2) Of its need for either an advance payment (see § 2.50 of this part) or your written assurance that you will pay the anticipated fees (or fees up to a specified amount); and
(3) That it will not be able to fully comply with your request unless you provide a fee waiver request and/or the requested written assurance or advance payment.
(c) If the bureau does not receive a written response from you within 20 workdays after requesting the information in paragraph (b) of this section, it will presume that you are no longer interested in the records and will close the file on the request.
(d) If you are seeking a fee waiver, your request must include a justification that addresses and meets the criteria in §§ 2.45 and 2.48 of this part. Failure to provide sufficient justification will result in a denial of the fee waiver request. If you are seeking a fee waiver, you may also indicate the amount you are willing to pay if the fee waiver is denied. This allows the bureau to process the request for records while it considers your fee waiver request. You may also inform us of why you believe your request meets one or more of the criteria for a discretionary fee waiver under § 2.56 of this part.
(e) The bureau will begin processing your request only after all issues regarding fees are resolved.
(f) If you are required to pay a fee and it is later determined on appeal that you were entitled to a full or partial fee waiver or placement in a different fee category, you will receive an appropriate refund.
§ 2.7 What information should you include about your fee category?
(a) A request should indicate your fee category (that is, whether you are a commercial-use requester, news media, educational or noncommercial scientific institution, or other requester as described in §§ 2.38 and 2.39 of this part).
(b) If you submit a FOIA request on behalf of another person or organization (for example, if you are an attorney submitting a request on behalf of a client), the bureau will determine the fee category by considering the underlying requester’s identity and intended use of the information.
(c) If your fee category is unclear, the bureau may ask you for additional information (see § 2.51 of this part).
§ 2.8 Can you ask for records to be disclosed in a particular form or format?
(a) Generally, you may choose the form or format of disclosure for records requested. The bureau must provide the records in the requested form or format if the bureau can readily reproduce the record in that form or format. If the bureau cannot readily reproduce the record in that form or format, it must explain why it cannot.
(b) The bureau may charge you the direct costs involved in converting records to the requested format if the bureau does not normally maintain the records in that format (see § 2.44 of this part).
§ 2.9 What if your request seeks records about another person?
(a) When a request seeks records about another person, you may receive greater access by submitting proof that the person either:
(1) Consents to the release of the records to you (for example, a notarized authorization signed by that person); or
(2) Is deceased (for example, a copy of a death certificate or an obituary).
(b) The bureau can require you to supply additional information if necessary to verify that a particular person has consented to disclosure or is deceased.
§ 2.10 May you ask for the processing of your request to be expedited?
You may ask for the processing of your request to be expedited. If you are seeking expedited processing, your request must include a justification that addresses and meets the criteria in § 2.20 of this part and includes the certification required at § 2.20(b)(2) of this part. Failure to provide sufficient justification or the required certification will result in a denial of the expedited processing request.
§ 2.11 What contact information should your request include?
A request should include your name and a way (such as a mailing or email address) for the bureau to send responsive records to you and/or to request additional information or clarification of your request. You may also wish to include a daytime telephone number (or the name and telephone number of an appropriate contact).
Subpart C—Processing Requests
§ 2.12 What should you know about how bureaus process requests?
(a) Except as described in §§ 2.4 and 2.13 of this part, the bureau to which the request is addressed is responsible for responding to the request and for making a reasonable effort to search for responsive records.
(b) In determining which records are responsive to a request, the bureau will include only records in its possession and control on the date that it begins its search.
(c) The bureau will make reasonable efforts to search for the requested records. As part of its reasonable efforts, the bureau will search paper and/or electronic records (for example, emails), as appropriate. The bureau will not search for records in an electronic form or format if these efforts would significantly interfere with the operation of the bureau’s automated information system.
(d) If a bureau receives a request for records in its possession that primarily concern another bureau or Federal Government agency that is subject to FOIA, it may undertake consultations and/or referrals as described in § 2.13.
§ 2.13 How do consultations and referrals work?
(a) When a bureau (other than the Office of Inspector General) locates responsive records that primarily concern another bureau or Federal Government agency that is subject to FOIA, the bureau will determine whether that bureau or agency would be better able to determine whether the record is exempt from disclosure.
(b) If the bureau processing the request believes that another bureau or agency would be better able to determine whether the record is exempt from disclosure, the bureau will contact that bureau or agency to determine whether it should refer the record to that bureau or agency or consult with that bureau or agency.
(1) If the bureau processing the request refers a record to another bureau or agency, that other bureau or agency will respond to you directly about that record. If the bureau processing the request consults with another bureau or agency, the bureau processing the request will respond to you directly.
(2) If the bureau receives a request for records that another agency has classified under any applicable executive order concerning record classification, or that the bureau believes may be appropriate for classification by another agency, it will refer the request for those records to that agency for response.
(3) Whenever a bureau refers any part of the responsibility for responding to a request to another bureau or agency, it will:
(i) Document the referral;
(ii) Maintain a copy of the referred record; and
(iii) Notify you in writing of the referral, including whether all or part of your request has been referred, the name of the bureau or agency to which the record was referred, and that bureau or agency’s FOIA contact information.
(4) If disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemption that protects ongoing law enforcement investigations, a referral would be inappropriate and the bureau will coordinate with the agency instead.
(c) When a bureau receives a referral, the bureau will assign the referral to the appropriate processing track as described in § 2.15 of this part and process it according to the date that the consulting or referring bureau or agency received your request as described in § 2.14 of this part.
(d) Bureaus may establish written agreements with other bureaus or agencies to eliminate the need for consultations or referrals for particular types of records.
Subpart D—Timing of Responses to Requests
§ 2.14 In what order are responses usually made?
The bureau ordinarily will respond to requests according to their order of receipt within their processing track.
§ 2.15 What is multitrack processing and how does it affect your request?
(a) Bureaus use processing tracks to distinguish simple requests from more complex ones on the basis of the estimated number of workdays needed to process the request.
(b) In determining the number of workdays needed to process the request, the bureau considers factors such as the number of pages involved in processing the request or the need for consultations.
(c) The basic processing tracks are assigned according to the expected complexity of the collection/review/production process of each request and designated as follows:
(1) Simple: requests in this track would generally take between one to five workdays to process;
(2) Normal: requests in this track would generally take between six to twenty workdays to process;
(3) Complex: requests in this track would generally take between twenty-one workdays and sixty workdays to process; or
(4) Extraordinary: requests in this track involve very complex processing challenges, which may include a large number of potentially responsive records, and would generally take over sixty workdays to process.
(d) Bureaus also have a specific processing track for requests that are granted expedited processing under the standards in § 2.20 of this part. These requests will be processed as soon as practicable.
(e) Bureaus must advise you of the track into which your request falls and, when appropriate, will offer you an opportunity to narrow your request so that it can be placed in a different processing track. If you request placement in a particular processing track but the bureau places you in a different processing track, the bureau will provide you with an explanation of why you were not placed in the processing track you requested.
(f) The use of multitrack processing does not alter the statutory deadline for a bureau to determine whether to comply with your FOIA request (see § 2.16 of this part).
(g) You may track the status of your request, including its estimated processing completion date, at https://foia.doi.gov/requeststatus/.
§ 2.16 What is the basic time limit for responding to a request?
(a) Ordinarily, the bureau has 20 workdays (including the date of receipt) to determine whether to comply with a request, but unusual circumstances may allow the bureau to take longer than 20 workdays (see § 2.19 of this subpart).
(b) A consultation or referral under § 2.13 of this part does not restart the statutory time limit for responding to a request.
§ 2.17 When does the basic time limit begin for misdirected FOIA requests?
The basic time limit for a misdirected FOIA request (see § 2.4(a) of this part) begins no later than ten workdays after the request is first received by any component of the Department that is designated to receive FOIA requests.
§ 2.18 When can the bureau suspend the basic time limit?
(a) The basic time limit in § 2.16 of this part may be temporarily suspended for the time it takes you to respond to one written communication from the bureau reasonably asking for clarifying information.
(b) The basic time limit in § 2.16 may also repeatedly be temporarily suspended for the time it takes you to respond to written communications from the bureau that are necessary to clarify issues regarding fee assessment (see § 2.51 of this part).
§ 2.19 When may the bureau extend the basic time limit?
(a) The bureau may extend the basic time limit, if unusual circumstances exist, by notifying you in writing of:
(1) The unusual circumstances involved; and
(2) The date by which it expects to complete processing the request.
(b) If the processing time will extend beyond a total of 30 workdays, the bureau will:
(1) Give you an opportunity to limit the scope of the request or agree to an alternative time period for processing; and
(2) Make available the FOIA Public Liaison (see § 2.66 of this part) to assist in resolving any disputes between you and the bureau, and notify you of your right to seek dispute resolution from the Office of Government Information Services (OGIS).
(c) If the bureau extends the time limit under this section and you do not receive a response in accordance with § 2.16(a) in that time period, you may consider the request denied and file an appeal in accordance with the procedures in § 2.59.
(d) Your refusal to reasonably modify the scope of a request or arrange an alternative time frame for processing a request after being given the opportunity to do so may be considered for litigation purposes as a factor when determining whether exceptional circumstances exist.
§ 2.20 When will expedited processing be provided and how will it affect your request?
(a) The bureau will provide expedited processing upon request if you demonstrate to the satisfaction of the bureau that there is a compelling need for the records. The following circumstances demonstrate a compelling need:
(1) Failure to expedite the request could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(2) There is an urgency to inform the public about an actual or alleged Federal Government activity and the request is made by a person primarily engaged in disseminating information.
(i) In most situations, a person primarily engaged in disseminating information will be a representative of the news media.
(ii) If you are not a full time member of the news media, to qualify for expedited processing here, you must establish that your main professional activity or occupation is information dissemination, although it need not be your sole occupation.
(iii) The requested information must be the type of information that has particular value that will be lost if not disseminated quickly; this ordinarily refers to a breaking news story that concerns a matter of public exigency.
(iv) Information of historical interest only or information sought for litigation or commercial activities would not qualify, nor would a news media deadline unrelated to breaking news.
(b) If you seek expedited processing, you must submit a statement that:
(1) Explains in detail how all elements and subcomponents of your request meets each element of one or both of the criteria in paragraph (a) of this section; and
(2) Certifies that your explanation is true and correct to the best of your knowledge and belief.
(c) You may ask for expedited processing of your request by writing to the appropriate FOIA contact in the bureau that maintains the records requested any time before the bureau issues its final response to your request. Bureaus will consult with the Office of the Solicitor before granting expedited processing requests and responses to you will include the name and title of the Office of the Solicitor or Office of General Counsel attorney consulted. If only a portion of your request would qualify for expedited processing, we will:
(1) Assign the portion of the request that qualifies for expedited processing a new processing number and place it in the expedited processing track as described in § 2.15;
(2) Place the remainder of the request that does not qualify for expedited processing into the appropriate processing track as described in § 2.15; and
(3) Inform you of the basis for the partial denial of expedited processing and your right to file an appeal as set forth in § 2.20(g) of this subpart.
(d) When making a request for expedited processing of an administrative appeal, submit the request to the appropriate deciding official for FOIA appeals.
(e) The bureau must notify you of its decision to grant or deny expedited processing within 10 calendar days of receiving an expedited processing request.
(f) If expedited processing is granted, the request will be given priority, placed in the processing track for expedited requests, and be processed as soon as practicable.
(g) If expedited processing is denied, the bureau will:
(1) Inform you of the basis for the denial, including an explanation of why the expedited processing request does not meet the Department’s expedited processing criteria under this section; and
(2) Notify you of the right to appeal the decision on expedited processing in accordance with the procedures in subpart H of this part.
(h) If you appeal the bureau’s expedited processing decision, that portion of your appeal (if it is properly formatted under § 2.59) will be processed before appeals that do not challenge expedited processing decisions.
(i) If the bureau has not responded to the request for expedited processing within 10 calendar days, you may file an appeal (for nonresponse in accordance with § 2.57(a)(8)).
Subpart E—Responses to Requests
§ 2.21 How will the bureau respond to requests?
(a) When the bureau informs you of its decision to comply with a request by granting, partially granting, or denying the request, it will do so in writing and in accordance with the deadlines in subpart D of this part. The bureau’s written response will include a statement about the services offered by the FOIA Public Liaison. The bureau’s written response will also include a statement about the services offered by OGIS, using standard language that can be found at: https://www.doi.gov/foia/news/guidance.”
(b) If the bureau determines that your request will take longer than 10 workdays to process, the bureau immediately will send you a written acknowledgment that includes the request’s individualized tracking number and processing track (see § 2.15(e)). The acknowledgement may also include a brief description of the subject of your request.
§ 2.22 How will the bureau grant requests?
(a) Once the bureau makes a determination to grant a request in full or in part, it must notify you in writing.
(b) The notification will inform you of any fees charged under subpart G of this part.
(c) The bureau will release records (or portions of records) to you promptly upon payment of any applicable fees (or before then, at its discretion).
(d) If the records (or portions of records) are not included with the bureau’s notification, the bureau will advise you how, when, and where the records will be released or made available.
§ 2.23 When will the bureau deny a request or procedural benefits?
(a) A bureau denies a request when it makes a decision that:
(1) A requested record is exempt, in full or in part;
(2) The request does not reasonably describe the records sought;
(3) A requested record does not exist, cannot be located, or is not in the bureau’s possession and/or control; or
(4) A requested record is not readily reproducible in the form or format you seek.
(b) A bureau denies a procedural benefit only, and not access to the underlying records, when it makes a decision that:
(1) A fee waiver, or another fee-related issue, will not be granted; or
(2) Expedited processing will not be provided.
(c) The bureau must consult with the Office of the Solicitor before it denies a fee waiver request or withholds all or part of a requested record (unless the Office of the Solicitor has expressly preapproved such a withholding).
§ 2.24 How will the bureau deny requests?
(a)The bureau must notify you in writing of any denial of your request.
(b) The denial notification must include:
(1) The name and title or position of the person responsible for the denial, along with an office phone number or email address;
(2) A statement of the reasons for the denial;
(3) A reference to any FOIA exemption applied by the bureau to withhold records in full or in part, along with a statement that the bureau reasonably foresees that disclosure would harm an interest protected by the applied exemption(s) or disclosure is prohibited by law;
(4) An estimate of the volume of any records withheld in full or in part (for example, by providing the number of pages or some other reasonable form of estimation), unless the bureau notes that it does not have or could not locate responsive records or that including an estimate would harm an interest protected by an exemption used to withhold the records and the bureau explains this harm to you;
(5) The name and title of the Office of the Solicitor or Office of General Counsel attorney consulted (if the bureau is denying a fee waiver request or withholding all or part of a requested record); and
(6) A statement that the denial may be appealed under subpart H of this part and a description of the procedures in subpart H of this part.
§ 2.25 What if the requested records contain both exempt and nonexempt material?
If responsive records contain both exempt and nonexempt material, the bureau will consult with the Office of the Solicitor, as discussed in § 2.23(c). After consultation, the bureau will partially grant and partially deny the request by:
(a) Segregating and releasing the nonexempt information, unless the nonexempt material is so intertwined with the exempt material that disclosure of it would leave only meaningless words and phrases;
(b) Indicating on the released portion of the record the amount of information deleted and the FOIA exemption under which the deletion was made, unless doing so would harm an interest protected by the FOIA exemption used to withhold the information; and
(c) If technically feasible, indicating the amount of information deleted and the FOIA exemption under which the deletion was made at the place in the record where the deletion was made.
Subpart F—Handling Confidential Information
§ 2.26 May submitters of possibly confidential information designate information as confidential when making Departmental submissions?
(a) The Department encourages, but does not require, submitters to designate confidential information in good faith (in other words, to identify specific information as information the submitter considers protected from disclosure under Exemption 4 of the FOIA, found at 5 U.S.C. 552(b)(4)), at the time of submission or reasonably soon thereafter.
(b) The designations discussed in paragraph (a) of this section assist the bureau in identifying what information obtained from the submitter is possibly confidential and triggers the requirement for bureau-provided notifications under § 2.27(a)(1) of this subpart.
§ 2.27 When will the bureau notify a submitter of a request for their possibly confidential information?
(a) Except as outlined in § 2.29 of this subpart, a bureau must exercise due diligence to promptly notify a submitter in writing when it receives a FOIA request if:
(1) The requested information has been designated by the submitter as confidential information under § 2.26(a) of this subpart; or
(2) The requested information has not been designated as confidential information by the submitter under § 2.26(a) of this subpart, but the bureau identifies it as possibly confidential information.
(b) If a voluminous number of submitters are involved, the bureau may publish a notice in a manner reasonably calculated to reach the attention of the submitters (for example, in newspapers or newsletters, the bureau’s Web site, or the
§ 2.28 What information will the bureau include when it notifies a submitter of a request for their possibly confidential information?
A notice to a submitter must include:
(a) Either a copy of the request, the exact language of the request, or (for notices published under § 2.27(b) of this subpart) a general description of the request;
(b) Either a description of the possibly confidential information located in response to the request or a copy of the responsive records, or portions of records, containing the information;
(c) A description of the procedures for objecting to the release of the possibly confidential information under §§ 2.30 and 2.31 of this subpart;
(d) A time limit for responding to the bureau—no less than 10 workdays from receipt or publication of the notice (as set forth in § 2.27(b) of this subpart)—to object to the release and to explain the basis for the objection;
(e) Notice that information contained in the submitter’s objections may itself be subject to disclosure under the FOIA;
(f) Notice that the bureau, not the submitter, is responsible for deciding whether the information will be released or withheld;
(g) A request for the submitter’s views on whether they still consider the information to be confidential if the submitter designated the material as confidential commercial or financial information 10 or more years before the request; and
(h) Notice that failing to respond within the time frame specified under § 2.28(d) of this subpart will create a presumption that the submitter has no objection to the disclosure of the information in question.
§ 2.29 When will the bureau not notify a submitter of a request for their possibly confidential information?
The notice requirements of § 2.28 of this subpart will not apply if:
(a) The information has been lawfully published or officially made available to the public;
(b) Disclosure of the information is required or prohibited by a statute other than the FOIA or by a regulation (other than this part) issued in accordance with the requirements of Executive Order 12600; or
(c) The bureau has exercised due diligence to notify the submitter, but its efforts were unsuccessful.
§ 2.30 How and when may a submitter object to the disclosure of confidential information?
(a) If a submitter has any objections to the disclosure of confidential information, the submitter should provide a detailed written statement to the bureau that specifies all grounds for withholding the particular information under any FOIA exemption (see § 2.31 of this subpart for further discussion of Exemption 4 objection statements).
(b) A submitter who does not respond within the time period specified under § 2.28(d) of this subpart will be considered to have no objection to disclosure of the information. Responses received by the bureau after this time period will not be considered by the bureau unless the appropriate bureau FOIA contact determines, in his or her sole discretion, that good cause exists to accept the late response.
§ 2.31 What must a submitter include in a detailed Exemption 4 objection statement?
(a) To rely on Exemption 4 as a basis for nondisclosure, the submitter must explain why the information is confidential information. To do this, the submitter must provide a detailed written statement that explains why the information is a trade secret or, if the information is not a trade secret, certification that the information is both customarily and actually treated as private by the owner of the information. The statement must also include any available background on whether the information was provided to the government under an assurance that the government would keep it private.
(b) If not already provided, the submitter must include a daytime telephone number, an email and mailing address, and a fax number (if available).
§ 2.32 How will the bureau consider the submitter’s objections?
(a) The bureau must carefully consider a submitter’s objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.
(b) The bureau, not the submitter, is responsible for deciding whether the information will be released or withheld.
§ 2.33 What if the bureau determines it will disclose information over the submitter’s objections?
If the bureau decides to disclose information over the objection of a submitter, the bureau must notify the submitter by certified mail or other traceable mail, return receipt requested. The notification must be sent to the submitter’s last known address and must include:
(a) The specific reasons why the bureau determined that the submitter’s disclosure objections do not support withholding the information;
(b) Copies of the records or information the bureau intends to release; and
(c) Notice that the bureau intends to release the records or information no less than 10 workdays after receipt of the notice by the submitter.
§ 2.34 Will a submitter be notified of a FOIA lawsuit?
If you file a lawsuit seeking to compel the disclosure of confidential information, the bureau must promptly notify the submitter.
§ 2.35 Will you receive notification of activities involving the submitter?
If any of the following occur, the bureau will notify you:
(a) The bureau provides the submitter with notice and an opportunity to object to disclosure;
(b) The bureau notifies the submitter of its intent to disclose the requested information; or
(c) A submitter files a lawsuit to prevent the disclosure of the information.
§ 2.36 Can a bureau release information protected by Exemption 4?
If a bureau determines that the requested information is protected from release by Exemption 4 of the FOIA, the bureau has no discretion to release the information. Release of information protected from release by Exemption 4 is prohibited by the Trade Secrets Act, a criminal provision found at 18 U.S.C. 1905.
Subpart G—Fees
§ 2.37 What general principles govern fees?
(a) The bureau will charge for processing requests under the FOIA in accordance with this subpart and with the OMB Fee Guidelines.
(b) The bureau may contact you for additional information to resolve fee issues.
(c) The bureau ordinarily will collect all applicable fees before sending copies of records to you.
(d) You may usually pay fees by check, certified check, or money order made payable to the “Department of the Interior” or the bureau.
(1) Where appropriate, the bureau may require that your payment be made in the form of a certified check.
(2) You may also be able to pay your fees by credit card. You may contact the bureau to determine what forms of payment it accepts.
(e) The bureau should ensure that it conducts searches, review, and duplication in the most efficient and the least expensive manner so as to minimize costs for both you and the bureau.
(f) If the bureau does not comply with any time limit in the FOIA:
(1) Except as provided in paragraph (f)(2) of this section, the bureau cannot assess any search fees (or, if you are in the fee category of a representative of the news media or an educational and noncommercial scientific institution, duplication fees).
(2)(i) If the bureau has determined that unusual circumstances apply (as the term is defined in § 2.70) and the bureau provided you a timely written notice to extend the basic time limit in accordance with § 2.19, the noncompliance is excused for an additional 10 workdays.
(ii) If the bureau has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, the noncompliance is excused if the bureau has provided you a timely written notice in accordance with § 2.19 and has discussed with you via written mail, email, or telephone (or made not less than 3 good-faith attempts to do so) how you could effectively limit the scope of the request.
(iii) If a court has determined that exceptional circumstances exist (as that term is defined in § 2.70), the noncompliance is excused for the length of time provided by the court order.
(g) If the fee for processing your request is less than $50, you will not be charged unless multiple requests are aggregated under § 2.54 of this subpart to an amount that is $50 or more.
(h) If you fail to pay any FOIA-related fee within 30 calendar days of the date of billing, the processing of any new or ongoing requests and/or appeals from you shall ordinarily be suspended.
(i) If you would like to reformulate your request so it will meet your needs at a lower cost, you may wish to seek assistance from the bureau’s designated FOIA contact or its FOIA Requester Center(see § 2.66 of this part).
§ 2.38 What are the requester fee categories?
(a) There are four categories of requesters for the purposes of determining fees—commercial-use, educational and noncommercial scientific institutions, representatives of news media, and all others.
(b) The bureau’s decision to place you in a particular fee category will be made on a case-by-case basis based on your intended use of the information and, in most cases, your identity. If you do not submit sufficient information in your FOIA request for the bureau to determine your proper fee category, the bureau may ask you to provide additional information (see § 2.51 of this subpart). If you request placement in a particular fee category but the bureau places you in a different fee category, the bureau will provide you with an explanation of why you were not placed in the fee category you requested (for example, if you were placed in the commercial use requester category rather than the category you requested, the bureau will describe how the records would further your commercial, trade, or profit interests).
(c) See § 2.70 of this part for the definitions of each of these fee categories.
§ 2.39 How does your requester category affect the fees you are charged?
You will be charged as shown in the following table:
| Requester Category | Search fees | Review fees | Duplication fees |
|---|---|---|---|
| Commercial use requester | Yes | Yes | Yes. |
| Educational and noncommercial scientific institutions | No | No | Yes (first 100 pages, or equivalent volume, free). |
| Representative of news media requester | No | No | Yes (first 100 pages, or equivalent volume, free). |
| All other requesters | Yes (first 2 hours free) | No | Yes (first 100 pages, or equivalent volume, free). |
§ 2.40 How will fee amounts be determined?
(a) The bureau will charge the types of fees discussed below unless a waiver of fees is required under § 2.39 of this subpart or has been granted under § 2.45 or § 2.56.
(b) Because the types of fees discussed below already account for the overhead costs associated with a given fee type, the bureau should not add any additional costs to those charges.
§ 2.41 What search fees will you have to pay?
(a) The bureau will charge search fees for all requests, subject to the restrictions of §§ 2.37(f), 2.39, and 2.40(a) of this subpart. The bureau may charge you for time spent searching even if it does not locate any responsive records or if it determines that the records are entirely exempt from disclosure.
(b) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be the average hourly General Schedule (GS) base salary, plus the District of Columbia locality payment, plus 16 percent for benefits, of employees in the following three categories, as applicable:
(1) Clerical—Based on GS-6, Step 5, pay (all employees at GS-7 and below are classified as clerical for this purpose);
(2) Professional—Based on GS-11, Step 7, pay (all employees at GS-8 through GS-12 are classified as professional for this purpose); and
(3) Managerial—Based on GS-14, Step 2, pay (all employees at GS-13 and above are classified as managerial for this purpose).
(c) You can review the current fee schedule for the categories discussed above in paragraph (b) of this section at http://www.doi.gov/foia/fees-waivers.
(d) Some requests may require retrieval of records stored at a Federal records center operated by the National Archives and Records Administration. For these requests, bureaus will charge additional costs in accordance with the Transactional Billing Rate Schedule established by the National Archives and Records Administration.
§ 2.42 What duplication fees will you have to pay?
(a) The bureau will charge duplication fees, subject to the restrictions of §§ 2.37(f), 2.39, and 2.40(a) of this subpart.
(b) If photocopies or scans are supplied, the bureau will provide one copy per request at the cost determined by the table in appendix A to this part.
(c) For other forms of duplication, the bureau will charge the actual costs of producing the copy, including the time spent by personnel duplicating the requested records. For each quarter hour spent by personnel duplicating the requested records, the fees will be the same as those charged for a search under § 2.41(b) of this subpart.
(d) If the bureau must scan paper records to accommodate your preference to receive records in an electronic format or print electronic records to accommodate your preference to receive records in a paper format, you will pay both the per page amount noted in Appendix A to this part and the time spent by personnel scanning or printing the requested records. For each quarter hour spent by personnel scanning or printing the requested records, the fees will be the same as those charged for a search under § 2.41(b) of this subpart.
§ 2.43 What review fees will you have to pay?
(a) The bureau will charge review fees if you make a commercial-use request, subject to the restrictions of §§ 2.37(f), 2.39, and 2.40(a) of this subpart.
(b) The bureau will assess review fees in connection with the initial review of the record (the review conducted by the bureau to determine whether an exemption applies to a particular record or portion of a record).
(c) The Department will not charge for reviews at the administrative appeal stage of exemptions applied at the initial review stage. However, if the appellate authority determines that an exemption no longer applies, any costs associated with the bureau’s re-review of the records to consider the use of other exemptions may be assessed as review fees.
(d) The bureau will charge review fees at the same rates as those charged for a search under § 2.41(b) of this subpart.
(e) The bureau can charge review fees even if the record(s) reviewed ultimately is not disclosed.
§ 2.44 What fees for other services will you have to pay?
(a) Although not required to provide special services, if the bureau chooses to do so as a matter of administrative discretion, it will charge you the direct costs of providing the service.
(b) Examples of these services include providing multiple copies of the same record, converting records that are not already maintained in a requested format to the requested format, obtaining research data under § 2.69 of this part, sending records by means other than first class mail, and conducting a search that requires the creation of a new computer search program to locate the requested records.
(c) The bureau will notify you of these fees before they accrue and will obtain your written assurance of payment or an advance payment before proceeding. See §§ 2.49 and 2.50 of this subpart.
§ 2.45 When will the bureau waive fees?
(a) The bureau will release records responsive to a request without charge (in other words, it will give you a full fee waiver) or at a reduced charge (in other words, it will give you a partial fee waiver, as discussed further in paragraph (b) of this section) if the bureau determines, considering the information you have provided, that you have demonstrated (by addressing and meeting each of the criteria listed in § 2.48 of this subpart) that disclosing the information is:
(1) In the public interest because it is likely to contribute significantly to public understanding of government operations or activities, and
(2) Not primarily in your commercial interest.
(b) A partial fee waiver may be appropriate if some but not all of the requested records are likely to contribute significantly to public understanding of the operations and activities of the government.
(c) When deciding whether to waive or reduce fees, the bureau will rely on the fee waiver justification submitted in your request letter. If the letter does not include sufficient justification, the bureau will deny the fee waiver request. The bureau may, at its discretion, request additional information from you (see § 2.51 of this subpart).
(d) The burden is on you to justify entitlement to a fee waiver. Requests for fee waivers are decided on a case-by-case basis under the criteria discussed above in paragraph (a) of this section and § 2.48 of this subpart. If you have received a fee waiver in the past, that does not mean you are automatically entitled to a fee waiver for every request submitted.
(e) Discretionary fee waivers are addressed in § 2.56 of this subpart.
(f) The bureau must not make value judgments about whether the information at issue is “important” enough to be made public; it is not the bureau’s role to attempt to determine the level of public interest in requested information.
§ 2.46 When may you ask the bureau for a fee waiver?
(a) You should request a fee waiver when your request is first submitted to the bureau (see § 2.6 of this part).
(b) You may submit a fee waiver request at a later time if the bureau has not yet completed processing your request.
§ 2.47 How will the bureau notify you if it denies your fee waiver request?
If the bureau denies your request for a fee waiver, it will notify you, in writing, of the following:
(a) The basis for the denial, including a full explanation of why the fee waiver request does not meet the Department’s fee waiver criteria in § 2.48 of this subpart;
(b) The name and title or position of each person responsible for the denial;
(c) The name and title of the Office of the Solicitor attorney consulted;
(d) Your right to appeal the denial under subpart H of this part and a description of the requirements set forth therein, within 90 workdays from the date of the fee waiver denial letter; and
(e) Your anticipated fees, in accordance with § 2.49 of this subpart.
§ 2.48 How will the bureau evaluate your fee waiver request?
(a) In deciding whether your fee waiver request meets the requirements of § 2.45(a)(1) of this subpart, the bureau will consider the criteria listed in paragraphs (a)(1) through (a)(4) of this section. You must address and meet each of these criteria in order to demonstrate that you are entitled to a fee waiver.
(1) How the records concern the operations or activities of the Federal government. The subject of the request must concern discrete, identifiable agency activities, operations, or programs with a connection that is direct and clear, not remote or attenuated.
(2) How disclosure is likely to contribute significantly to public understanding of those operations or activities, including:
(i) How the contents of the records are meaningfully informative. The disclosure of information that is already readily available to you from other sources or easily accessible to the public, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public’s understanding and the bureau informs you of where the requested information is already available;
(ii) What the logical connection is between the content of the records and the operations or activities of the Federal government;
(iii) How disclosure will contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to your individual understanding;
(iv) Your expertise in the subject area as well as your identity, vocation, qualifications, and your plan to disclose the information in a manner that will be informative to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to furthering your individual understanding;
(v) Your ability and intent to disseminate the information to a reasonably broad audience of persons interested in the subject (for example, how and to whom you intend to disseminate the information). If we have categorized you as a representative of the news media under § 2.38, we will presume you have this ability and intent;
(vi) Whether the records would confirm or clarify data that has been released previously; and
(vii) How the public’s understanding of the subject in question will be enhanced to a significant extent by the disclosure.
(b) In deciding whether the fee waiver request meets the requirements in § 2.45(a)(2) of this subpart, the bureau will consider any commercial interest of yours that would be furthered by the requested disclosure. To determine whether disclosure of the requested records is primarily in your commercial interest (based on your intended use of the information), the bureau will consider:
(1) Whether the requested disclosure would further any commercial interest of yours.
(2) If you have a commercial interest, the bureau must determine whether that is the primary interest furthered by the request by balancing the commercial interest against the public interest in disclosure of the records. When the requirements of paragraph (a) are satisfied and any commercial interest is not the primary interest furthered by the request, this balancing test shows a waiver or reduction of fees is justified. Bureaus ordinarily will presume that, when a news media requester has satisfied paragraph (a) above, the request is not primarily in the commercial interest of the requester.
(3) You are encouraged to provide explanatory information regarding these considerations.
(4) The bureau will not find that disclosing the requested records will be primarily in your commercial interest where the public interest is greater than any identified commercial interest in disclosure.
(5) If you have a commercial interest that would be furthered by disclosure, explain how the public interest in disclosure would be greater than any commercial interest you may have in the documents.
(i) Your identity, vocation, and intended use of the requested records are all factors to be considered in determining whether disclosure would be primarily in your commercial interest.
(ii) If you are a representative of a news media organization seeking records as part of the news gathering process, we will ordinarily presume that the public interest outweighs your commercial interest. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.
(iii) If you represent a business/corporation/association or you are an attorney representing such an organization, we will presume that your commercial interest outweighs the public interest unless you demonstrate otherwise.
§ 2.49 When will you be notified of anticipated fees?
(a) The bureau will notify you under this section unless:
(1) The anticipated fee is less than $50 (see § 2.37(g) of this subpart).
(2) You have been granted a full fee waiver;
(3)Your request does not reasonably describe the records sought and/or does not explicitly state that you will pay all fees associated with the processing of the request, that you will pay fees up to a specified amount, and/or that you are seeking a fee waiver; or
(4) You have already agreed to pay all the fees associated with the request.
(b) If none of the above exceptions apply, the bureau will:
(1) Promptly notify you of the estimated costs for search, review, and/or duplication;
(2) Ask you to provide written assurance within 20 workdays that you will pay all fees or fees up to a designated amount;
(3) Notify you that it will not be able to comply with your FOIA request unless you provide the written assurance requested; and
(4) Give you an opportunity to reduce the fee by modifying the request.
(c) If the bureau does not receive your written response containing the additional information that resolves any fee issues, in accordance with paragraphs (b)(2) and/or (b)(4) of this section, within 20 workdays after the bureau has requested it, the bureau will presume that you are no longer interested in the records and will close the file on the request.
(d) After the bureau begins processing a request, if it finds that the actual cost will exceed the amount you previously agreed to pay, the bureau will:
(1) Stop processing the request;
(2) Promptly notify you of the higher amount and ask you to provide written assurance of payment; and
(3) Notify you that it will not be able to fully comply with your FOIA request unless you provide the written assurance requested; and
(4) Give you an opportunity to reduce the fee by modifying the request.
(e) If you wish to modify your request in an effort to reduce fees, the bureau’s FOIA Requester Center can assist you.
§ 2.50 When will the bureau require advance payment?
(a) The bureau will require advance payment before starting further work when it finds the estimated fee is over $250 and:
(1) You have never made a FOIA request to the Department requiring the payment of fees; or
(2) You did not pay a previous FOIA fee within 30 calendar days of the date of billing.
(b) If the bureau believes that you did not pay a previous FOIA fee within 30 calendar days of the date of billing, the bureau will require you to either:
(1) Demonstrate you paid prior fee within 30 calendar days of the date of billing; or
(2) Pay any unpaid amount of the previous fee, plus any applicable interest penalties (see § 2.53 of this subpart), and pay in advance the estimated fee for the new request.
(c) When the bureau notifies you that an advance payment is due under paragraph (a) of this section, it will give you an opportunity to reduce the fee by modifying the request.
(d) Your payment of the funds you owe the bureau for work it has already completed before records are sent to you is not an advance payment under paragraph (a) of this section.
(e) If the bureau requires advance payment, it will start further work only after receiving the advance payment. It will also notify you that it will not be able to comply with your FOIA request unless you provide the advance payment. Unless you pay the advance payment within 20 workdays after the date of the bureau’s fee letter, the bureau will presume that you are no longer interested and will close the file on the request.
§ 2.51 What if the bureau needs clarification about fee issues?
(a) If your FOIA request does not contain sufficient information for the bureau to determine your proper fee category or leaves another fee issue unclear, the bureau may ask you to provide additional clarification. If it does so, the bureau will notify you that it will not be able to comply with your FOIA request unless you provide the clarification requested.
(b) If the bureau asks you to provide clarification, the 20-workday statutory time limit for the bureau to respond to the request is temporarily suspended.
(1) If the bureau receives a written response within 20 workdays after the bureau has requested the additional clarification, the 20-workday statutory time limit for processing the request will resume (see § 2.16 of this part).
(2) If you still have not provided sufficient information to resolve the fee issue, the bureau may ask you again to provide additional clarification and notify you that it will not be able to comply with your FOIA request unless you provide the additional information requested within 20 workdays after the bureau has requested the additional clarification.
(3) If the bureau asks you again for additional clarification, the statutory time limit for response will be temporarily suspended again and will resume again if the bureau receives a written response from you within 20 workdays after the bureau has requested the additional clarification.
(c) If the bureau asks for clarification about a fee issue and does not receive a written response from you within 20 workdays after the bureau has requested the additional clarification, it will presume that you are no longer interested and will close the file on the request.
§ 2.52 How will you be billed?
If you are required to pay a fee associated with a FOIA request, the bureau processing the request will send a bill for collection.
§ 2.53 How will the bureau collect fees owed?
(a) The bureau may charge interest on any unpaid bill starting on the 31st day following the billing date.
(b) The bureau will assess interest charges at the rate provided in 31 U.S.C. 3717 and implementing regulations and interest will accrue from the billing date until the bureau receives payment.
(c) The bureau will follow the provisions of the Debt Collection Act of 1982 (Public Law 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset to collect overdue amounts and interest.
(d) This section does not apply if you are a state, local, or tribal government.
§ 2.54 When will the bureau combine or aggregate requests?
(a) The bureau may aggregate requests and charge accordingly when it reasonably believes that you, or a group of requesters acting in concert with you, are attempting to avoid fees by dividing a single request into a series of requests on a single subject or related subjects.
(1) The bureau may presume that multiple requests of this type made within a 30-day period have been made to avoid fees.
(2) The bureau may aggregate requests separated by a longer period only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved.
(b) The bureau will not aggregate multiple requests involving unrelated matters.
(c) The bureau may administratively aggregate requests without charging fees accordingly when it reasonably believes you, or a group of requesters acting in concert with you, are dividing a single request into a series of requests on a single subject or related subjects.
(1) The bureau may presume that multiple requests on a single subject or related subjects made within a 30-day period are dividing a single request into a series of requests.
(2) The bureau may administratively aggregate requests separated by a longer period only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved.
§ 2.55 What if other statutes require the bureau to charge fees?
(a) The fee schedule in appendix A to this part does not apply to fees charged under any statute that specifically requires the bureau to set and collect fees for particular types of records.
(b) If records otherwise responsive to a request are subject to a statutorily-based fee schedule, the bureau will inform you whom to contact to obtain the records.
§ 2.56 May the bureau waive or reduce your fees at its discretion?
(a) The bureau may waive or reduce fees at its discretion if a request involves furnishing:
(1) A copy of a record that the bureau has reproduced for free distribution;
(2) One copy of a personal document (for example, a birth certificate) to a person who has been required to furnish it for retention by the Department;
(3) One copy of the transcript of a hearing before a hearing officer in a grievance or similar proceeding to the employee for whom the hearing was held;
(4) Records to donors with respect to their gifts;
(5) Records to individuals or private nonprofit organizations having an official, voluntary, or cooperative relationship with the Department if it will assist their work with the Department;
(6) A reasonable number of records to members of the U.S. Congress; state, local, and foreign governments; public international organizations; or Indian tribes, when to do so is an appropriate courtesy, or when the recipient is carrying on a function related to a Departmental function and the waiver will help accomplish the Department’s work;
(7) Records in conformance with generally established business custom (for example, furnishing personal reference data to prospective employers of current or former Department employees); or
(8) One copy of a single record to assist you in obtaining financial benefits to which you may be entitled (for example, veterans or their dependents, employees with Government employee compensation claims).
(b) You cannot appeal the denial of a discretionary fee waiver or reduction.
Subpart H—Administrative Appeals
§ 2.57 When may you file an appeal?
(a) You may file an appeal when:
(1) The bureau withholds records, or parts of records;
(2) The bureau informs you that your request has not adequately described the records sought;
(3) The bureau informs you that it does not possess or cannot locate responsive records and you have reason to believe this is incorrect or that the search was inadequate;
(4) The bureau did not address all aspects of the request for records;
(5) You believe there is a procedural deficiency (for example, fees are improperly calculated or you have been placed in the wrong fee category);
(6) The bureau denied your request for a fee waiver;
(7) The bureau did not make a decision within the time limits in § 2.16 or, if applicable, § 2.18; or
(8) The bureau denied, or was late in responding to, a request for expedited processing filed under the procedures in § 2.20 of this part.
(b) An appeal under paragraph (a)(8) of this section relates only to the request for expedited processing and does not constitute an appeal of the underlying request for records. Special procedures apply to requests for expedited processing of an appeal (see § 2.63 of this subpart).
(c) Before filing an appeal, you may wish to communicate with the contact person listed in the FOIA response, the bureau’s FOIA Officer, and/or the FOIA Public Liaison to see if the issue can be resolved informally. However, appeals must be received by the FOIA Appeals Officer within the time limits in § 2.58 of this subpart or they will not be processed.
§ 2.58 How long do you have to file an appeal?
(a) Appeals covered by § 2.57(a)(1) through (5) of this subpart must be received by the FOIA Appeals Officer no later than 90 workdays from the date of the final response.
(b) Appeals covered by § 2.57(a)(6) of this subpart must be received by the FOIA Appeals Officer no later than 90 workdays from the date of the letter denying the fee waiver.
(c) Appeals covered by § 2.57(a)(7) of this subpart may be filed any time after the time limit for responding to the request has passed.
(d) Appeals covered by § 2.57(a)(8) of this subpart should be filed as soon as possible.
(e) Appeals arriving or delivered after 5 p.m. Eastern Time, Monday through Friday, will be deemed received on the next workday.
§ 2.59 How do you file an appeal?
(a) You must submit the appeal in writing by mail, fax or email to the FOIA Appeals Officer (using the address available at http://www.doi.gov/foia/appeals). Your failure to send an appeal directly to the FOIA Appeals Officer may delay processing.
(b) The appeal must include:
(1) Copies of all correspondence between you and the bureau concerning the FOIA request, including the request and the bureau’s response (if there is one); and
(2) An explanation of why you believe the bureau’s response was in error.
(c) The appeal should include your name, mailing address, daytime telephone number (or the name and telephone number of an appropriate contact), email address, and fax number (if available) in case the Department needs additional information or clarification.
(d) An appeal concerning a denial of expedited processing or a fee waiver denial should also demonstrate fully how the criteria in § 2.20 or §§ 2.45 and 2.48 of this part are met.
(e) All communications concerning an appeal should be clearly marked with the words: “FREEDOM OF INFORMATION APPEAL.”
(f) The Department will reject an appeal that does not attach all correspondence required by paragraph (b)(1) of this section, unless the FOIA Appeals Officer determines, in his or her sole discretion, that good cause exists to accept the defective appeal. The time limits for responding to an appeal will not begin to run until the correspondence is received.
§ 2.60 Who makes decisions on appeals?
(a) The FOIA Appeals Officer is the deciding official for FOIA appeals that do not appeal a decision of the Office of Inspector General.
(b) The General Counsel is the deciding official for FOIA appeals that appeal a decision of the Office of Inspector General.
(c) When necessary, the appropriate deciding official for FOIA appeals will consult other appropriate offices, including the Office of the Solicitor or Office of General Counsel for denials of records and fee waivers.
(d) The deciding official for FOIA appeals normally will not make a decision on an appeal if the request becomes a matter of FOIA litigation.
§ 2.61 How are decisions on appeals issued?
(a) A decision on an appeal must be made in writing.
(b) A decision that upholds the bureau’s determination will notify you of the decision and your statutory right to file a lawsuit.
(c) A decision that overturns, remands, or modifies the bureau’s determination will notify you of the decision. The bureau then must further process the request in accordance with the appeal determination.
§ 2.62 When can you expect a decision on your appeal?
(a) The basic time limit for responding to an appeal is 20 workdays after receipt of an appeal meeting the requirements of § 2.59 of this subpart.
(b) If the Department is unable to reach a decision on your appeal within the given time limit for response, the appropriate deciding official for FOIA appeals will notify you of your statutory right to seek review in a United States District Court.
§ 2.63 Can you receive expedited processing of appeals?
(a) To receive expedited processing of an appeal, you must demonstrate to the Department’s satisfaction that the appeal meets one of the criteria under § 2.20 of this part and include a statement that the need for expedited processing is true and correct to the best of your knowledge and belief.
(b) The appropriate deciding official for FOIA appeals will advise you whether the Department will grant expedited processing within 10 calendar days of receiving the appeal.
(c) If the appropriate deciding official for FOIA appeals decides to grant expedited processing, he or she will give the appeal priority over other pending appeals and process it as soon as practicable.
§ 2.64 Must you submit an appeal before seeking judicial review?
Before seeking review by a court of the bureau’s adverse determination, you generally must first submit a timely administrative appeal.
Subpart I—General Information
§ 2.65 Where are records made available?
Records that are required by the FOIA to be made proactively available for public inspection and copying are accessible on the Department’s Web site, http://www.doi.gov/foia/libraries. They may also be available at bureau office locations.
§ 2.66 What are FOIA Requester Centers and the FOIA Public Liaison?
(a) FOIA Requester Centers typically serve as your first point of contact for questions about how the FOIA works. Before and after you make a request, FOIA Requester Centers can assist you by:
(1) Identifying information that is already posted and available;
(2) Informing you about the types of records maintained by the bureau;
(3) Providing guidance on formulating effective requests;
(4) Describing the Department’s various processing tracks and the average processing times for the various tracks;
(5) Answering questions about expedited processing standards and the FOIA’s fee provisions; and
(6) Answering questions about the status of an existing request.
(b) The FOIA Public Liaison is responsible for:
(1) Assisting in reducing delays;
(2) Increasing transparency and understanding of the status of requests; and
(3) Assisting in the resolution of disputes between you and the agency.
(c) If you need further information or assistance after contacting the applicable FOIA Requester Center and the FOIA Public Liaison, you may wish to seek dispute resolution services from the Office of Government Information Services.
(d) Contact information for the FOIA Requester Centers and FOIA Public Liaison is available at https://www.doi.gov/foia/foiacenters.
§ 2.67 When will the Department make records available without a FOIA request?
(a) Each bureau must:
(1) Determine which of its records must be made publicly available under the FOIA (for example, certain frequently requested records);
(2) Identify additional records of interest to the public that are appropriate for public disclosure; and
(3) Post those records in FOIA libraries.
(b) Because of these proactive disclosures, you are encouraged to review the Department’s FOIA libraries before filing a FOIA request. The material you seek may be immediately available electronically at no cost.
§ 2.68 How will FOIA materials be preserved?
(a) Each bureau must preserve all correspondence pertaining to the requests that it receives under subpart B of this part, as well as copies of all requested records, until disposition or destruction is authorized by the General Records Schedule 4.2 of the National Archives and Records Administration (NARA) or another NARA-approved records schedule, such as DAA-0048-2013-0001.
(b) Materials that are identified as responsive to a FOIA request will not be disposed of or destroyed while the request or a related appeal or lawsuit is pending. This is true even if they would otherwise be authorized for disposition or destruction under the General Records Schedule 4.2 of NARA or another NARA-approved records schedule, such as DAA-0048-2013-0001.
§ 2.69 How will a bureau handle a request for federally-funded research data?
(a) If you request research data that were used by the Federal Government in developing certain kinds of agency actions, and the research data relate to published research findings produced under an award, in accordance with OMB Circular A-110:
(1) If the bureau was the awarding agency, it will request the research data from the recipient;
(2) The recipient must provide the research data within a reasonable time; and
(3) The bureau will review the research data to see if it can be released under the FOIA.
(b) If the bureau obtains the research data solely in response to your FOIA request, the bureau may charge you a reasonable fee equaling the full incremental cost of obtaining the research data.
(1) This fee should reflect costs incurred by the agency, the recipient, and applicable subrecipients.
(2) This fee is in addition to any fees the agency may assess under the FOIA.
(c) The bureau will forward a copy of the request to the recipient, who is responsible for searching for and reviewing the requested information in accordance with these FOIA regulations. The recipient will forward a copy of any responsive records that are located, along with any recommendations concerning the releasability of the data, and the total cost incurred in searching for, reviewing, and providing the data.
(d) The bureau will review and consider the recommendations of the recipient regarding the releasability of the requested research data. However, the bureau, not the recipient, is responsible for deciding whether the research data will be released or withheld.
§ 2.70 What definitions apply to subparts A through I of this part?
For the purposes of subparts A through I of this part, the following definitions apply:
Bureau means any major component of the Department administering its own FOIA program. A list of these components is available at: http://www.doi.gov/foia/contacts.
Commercial interest means a commercial, trade, or profit interest as these terms are commonly understood. Your status as profitmaking or non-profitmaking is not the deciding factor in determining whether you have a commercial interest.
Commercial use means a use that furthers your commercial, trade or profit interests or that of the person on whose behalf the request is made.
Confidential information means trade secrets or commercial or financial information (that is privileged or confidential and obtained by the Department from a person) that may be protected from disclosure under Exemption 4 of the FOIA.
Department means the Department of the Interior.
Direct costs means those resources that the bureau expends in searching for and duplicating (and, in the case of commercial-use requests, reviewing) records to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating machinery, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space and of heating or lighting a facility.
Duplication means reproducing a copy of a record or of the information contained in it necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others.
Educational institution means any school that operates a program of scholarly research. In order to fall within this category, you must show that the request is authorized by and made under the auspices of, a qualifying institution and that the records are not sought for a commercial use, but rather are sought to further scholarly research. Teachers (if they demonstrate how the requested records will further their teaching, scholarly research, or production of scholarly works) and students (if they demonstrate how the requested records will further their coursework or other school-sponsored activities) may also qualify as an educational institution for the purposes of this definition.
Exceptional circumstances means a delay that does not result from a predictable workload of requests (unless the bureau demonstrates reasonable progress in reducing its backlog of pending requests).
Exempt means the record in question, or a portion thereof, is not subject to disclosure due to one or more of the FOIA’s nine statutory exemptions, found at 5 U.S.C. 552(b)(1)-(9).
Exemption means one or more of the FOIA’s nine statutory exemptions, found at 5 U.S.C. 552(b)(1)-(9).
Expedited processing means giving a FOIA request priority and processing it ahead of other requests pending in the bureau because you have shown a compelling need for the records.
Fee category means one of the four categories, discussed in §§ 2.38 and 2.39, that agencies place you in for the purpose of determining whether you will be charged fees for search, review, and duplication.
FOIA means the Freedom of Information Act, 5 U.S.C. 552, as amended.
FOIA libraries means a physical or electronic compilation of records required to be made available to the public for inspection and copying under 5 U.S.C. 552(a)(2). It also includes a physical or electronic compilation of records that the bureau, at its discretion, makes available to the public for inspection and copying.
Frequently requested records means records that have been released to any person in response to a FOIA request and that have been requested, or that the bureau anticipates will be requested, at least two more times under the FOIA.
Multitrack processing means placing simple requests, requiring relatively minimal review, in one processing track and more voluminous and complex requests in one or more other tracks. Requests in each track are ordinarily processed on a first-in/first-out basis, but other factors, such as litigation, may affect the sequence and/or timing of processing.
Noncommercial scientific institution means an institution that is not operated for commerce, trade or profit, and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. To be in this category, you must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scientific research.
OMB Fee Guidelines means the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget at 52 FR 10012 (Mar. 27, 1987).
Published means, for the purposes of § 2.69 of this subpart only, when:
(1) Research findings are published in a peer-reviewed scientific or technical journal; or
(2) A Federal agency publicly and officially cites the research findings in support of an agency action that has the force and effect of law.
Recipient means, for the purposes of § 2.69 of this subpart only, an organization receiving financial assistance directly from Federal awarding agencies to carry out a project or program. The term includes public and private institutions of higher education, public and private hospitals, and other quasi-public and private non-profit organizations. The term may include commercial organizations, foreign or international organizations (such as agencies of the United Nations) which are recipients, subrecipients, or contractors or subcontractors of recipients or subrecipients at the discretion of the Federal awarding agency. The term does not include government-owned contractor-operated facilities or research centers providing continued support for mission-oriented, large-scale programs that are government-owned or controlled, or are designated as federally-funded research and development centers.
Record means an agency record that is either created or obtained by an agency and is under agency possession and control at the time of the FOIA request, or is maintained by an entity under Government contract for the purposes of records management.
Representative of the news media means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term news as used in this definition means information that is about current events or that would be of current interest to the public. Simply distributing copies of released records, electronically or otherwise, does not qualify as using editorial skills to turn the raw materials into a distinct work. Examples of news media entities are newspapers, television, Web sites, or radio stations broadcasting to the public at large, and publishers of periodicals (but only if such entities qualify as disseminators of news) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all inclusive. As methods of news delivery evolve, alternative representatives of news media may come into being. A freelance journalist will qualify as a news-media entity if he or she can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by that entity (for example, a publication contract would present a solid basis for such an expectation).
Research data means, for the purposes of § 2.69 of this subpart only, the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not any of the following: preliminary analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues. The term recorded as used in this definition excludes physical objects (e.g., laboratory samples). Research data also do not include:
(1) Trade secrets, commercial information, materials necessary to be held confidential by a researcher until they are published, or similar information which is protected under law; and
(2) Personnel and medical information and similar information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, such as information that could be used to identify a particular person in a research study.
Review means the examination of a record located in response to a request to determine whether any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential information submitter under subpart G of this part, but it excludes time spent resolving general legal or policy issues regarding the application of FOIA exemptions.
Search means the process of looking for and retrieving records responsive to a request. Search time includes page-by-page or line-by-line identification of information within records; and the reasonable efforts expended to locate and retrieve electronic records.
Submitter means any person or entity outside the Federal Government from whom the Department obtains confidential information, directly or indirectly. The term includes, but is not limited to individuals, corporations, and state, local, tribal, and foreign governments.
Unusual circumstances means the need to search for and collect requested records from field facilities or other establishments that are separate from the office processing the request; the need to search for, collect, and examine a voluminous amount of separate and distinct records which are demanded in a single request; or the need for consultation, which shall be conducted with all practicable speed, with another agency, or among two or more components of the Department, having a substantial interest in the determination of the request.
Workday means a regular Federal workday. It excludes Saturdays, Sundays, or Federal legal public holidays. Items arriving or delivered after 5 p.m. Eastern Time will be deemed received on the next workday.
You means a person requesting records, or filing an appeal, under the FOIA.
Subpart J—Declassification of Classified Documents
§ 2.200 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 FR 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 FR 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 12065 (or any predecessor executive order) and which is more than 10 years old, should address such request to the Chief, Division of Enforcement and Security Management, Office of Administrative Services, U.S. Department of the Interior, Washington, DC 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.
(4) Charges for locating and reproducing copies of records will be made when deemed applicable in accordance with appendix A to this part and the requester will be notified.
(b) Action on requests for classification review. (1) The Chief, Division of Enforcement and Security Management, 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 Enforcement and Security Management. Requests for declassification of documents over 30 years shall be referred directly to the Archivist of the United States. The bureau which has been assigned the request, or the Chief, Division of Enforcement and Security Management, 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 Oversight Committee for Security, U.S. Department of the Interior, Washington, DC 20240, for a decision on his request. The Committee must render a decision within thirty (30) days.
(c) Form of decision and appeal to Oversight Committee for Security. In the event that the bureau to which a request is assigned or the Chief, Division of Enforcement and Security Management, 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 cannot be declassified. He shall also be advised that if he desires he may appeal the determination to the Chairman, Department of the Interior Oversight Committee for Security, U.S. Department of the Interior, Washington, DC 20240. An appeal shall include a brief statement as to why the requester disagrees with the decision which he is appealing. The Department Oversight Committee for Security 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 judgement, continued protection is no longer required.
(d) Appeal to Interagency Classification Review Committee. Whenever the Department of the Interior Oversight Committee for Security 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 Interagency Classification Review Committee established under section 8(A) of the Executive Order 11652. Such appeals shall be addressed to the Interagency Classification Review Committee, the Executive Office Building, Washington, DC 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 Oversight Committee for Security, U.S. Department of the Interior, Washington, DC 20240.
Subpart K—Privacy Act
§ 2.220 Purpose and scope.
This subpart contains the regulations of the Department of the Interior implementing section 3 of the Privacy Act. Sections 2.47 through 2.57 describe the procedures and policies of the Department concerning maintenance of records which are subject to the Act. Sections 2.60 through 2.66 describe the procedure under which individuals may determine whether systems of records subject to the Act contain records relating to them and the procedure under which they may seek access to existing records. Sections 2.70 through 2.77 describe the procedure under which individuals may petition for amendment of records subject to the Act relating to them. Section 2.79 lists records systems that have been exempted from certain requirements of the Act.
§ 2.221 Definitions.
(a) Act. As used in this subpart, “Act” means section 3 of the Privacy Act, 5 U.S.C. 552a.
(b) Bureau. For purposes of this subpart, a “bureau” is any constituent bureau or office of the Department, including the Office of the Secretary and any other Departmental office.
(c) Individual. As used in this subpart, “individual” means a citizen of the United States or an alien lawfully admitted for permanent residence.
(d) Maintain. As used in this subpart, the term “maintain” includes maintain, collect, use or disseminate.
(e) Record. As used in this subpart, “record” means any item, collection, or grouping of information about an individual that is maintained by the Department or a bureau thereof, including, but not limited to, education, financial transactions, medical history, and criminal or employment history and that contains the individual’s name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print, or a photograph.
(f) System of records. As used in this subpart, “System of records” means a group of any records under the control of the Department or a bureau thereof from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.
(g) Medical records. As used in this subpart, “medical records” means records which relate to the identification, prevention, cure or alleviation of any disease, illness or injury including psychological disorders, alcoholism and drug addiction.
(h) Office of Personnel Management personnel records. As used in the subpart, “Office of Personnel Management personnel records” means records maintained for the Office of Personnel Management by the Department and used for personnel management programs or processes such as staffing, employee development, retirement, and grievances and appeals.
(i) Statistical records. As used in this subpart, “statistical records” means records in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual.
(j) Routine use. As used in this subpart, “routine use” means a use of a record for a purpose which is compatible with the purpose for which it was collected.
(k) System notice. As used in this subpart, “system notice” means the notice describing a system of records required by 5 U.S.C. 552a(e)(4) to be published in the
(l) System manager. As used in this subpart, “system manager” means the official designated in a system notice as having administrative responsibility for a system of records.
(m) Departmental Privacy Act Officer. As used in this subpart, “Departmental Privacy Act Officer” means the official in the Office of the Assistant Secretary—Policy, Budget and Administration charged with responsibility for assisting the Assistant Secretary—Policy, Budget and Administration in carrying out the functions assigned in this subpart and for coordinating the activities of the bureaus of the Department in carrying out the functions which they are assigned in this subpart.
(n) Bureau Privacy Act Officer. As used in this subpart, “Bureau Privacy Act Officer” means the official within each bureau assigned responsibility for bureau implementation of the Act and the regulations of this subpart.
(o) Working day. As used in this subpart, “working day” means a regular Federal work day. It does not include Saturdays, Sundays or public legal holidays.
§ 2.222 Records subject to Privacy Act.
The Privacy Act applies to all “records,” as that term is defined in § 2.46(e), which the Department maintains in a “system of records,” as that term is defined in § 2.46(f).
§ 2.223 Standards for maintenance of records subject to the Act.
(a) Content of records. Records subject to the Act shall contain only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or Executive Order of the President.
(b) Standards of accuracy. Records subject to the Act which are used in making any determination about any individual shall be maintained with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in making the determination.
(c) Collection of information. (1) Information which may be used in making determinations about an individual’s rights, benefits, and privileges under Federal programs shall, to the greatest extent practicable, be collected directly from that individual.
(2) In deciding whether collection of information from an individual, as opposed to a third party source, is practicable, the following factors, among others, may be considered:
(i) Whether the nature of the information sought is such that it can only be obtained from a third party;
(ii) Whether the cost of collecting the information from the individual is unreasonable when compared with the cost of collecting it from a third party;
(iii) Whether there is a risk that information collected from third parties, if inaccurate, could result in an adverse determination to the individual concerned;
(iv) Whether the information, if supplied by the individual, would have to be verified by a third party; or
(v) Whether provisions can be made for verification, by the individual, of information collected from third parties.
(d) Advice to individuals concerning uses of information. (1) Each individual who is asked to supply information about him or herself which will be added to a system of records shall be informed of the basis for requesting the information, how it may be used, and what the consequences, if any, are of not supplying the information.
(2) At a minimum, the notice to the individual must state:
(i) The authority (whether granted by statute or Executive Order of the President) which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary;
(ii) The principal purpose or purposes for which the information is intended to be used;
(iii) The routine uses which may be made of the information; and
(iv) The effects on the individual, if any, of not providing all or any part of the requested information.
(3)(i) When information is collected on a standard form, the notice to the individual shall be provided on the form, on a tear-off sheet attached to the form, or on a separate sheet, whichever is most practical.
(ii) When information is collected by an interviewer, the interviewer shall provide the individual with a written notice which the individual may retain. If the interview is conducted by telephone, however, the interviewer may summarize the notice for the individual and need not provide a copy to the individual unless the individual requests a copy.
(iii) An individual may be asked to acknowledge, in writing, that the notice required by this section has been provided.
(e) Records concerning activity protected by the First Amendment. No record may be maintained describing how any individual exercises rights guaranteed by the First Amendment to the Constitution unless the maintenance of the record is (1) expressly authorized by statute or by the individual about whom the record is maintained or (2) pertinent to and within the scope of an authorized law enforcement activity.
§ 2.224 [Reserved]
§ 2.225 Federal Register notices describing systems of records.
(a) The Privacy Act requires publication of a notice in the
(b) Each bureau shall notify the Departmental Privacy Act Officer promptly of any modifications or amendments which are required in the then-current notice describing a system of records for which it is responsible.
(c) A bureau desiring to establish a new system of records or a new use for an existing system of records shall notify the Departmental Privacy Act Officer, no fewer than ninety (90) calendar days in advance.
§ 2.226 Assuring integrity of records.
(a) Statutory requirement. The Privacy Act requires that records subject to the Act be maintained with appropriate administrative, technical and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained, 5 U.S.C. 552a(e)(10).
(b) Records maintained in manual form. When maintained in manual form, records subject to the Privacy Act shall be maintained in a manner commensurate with the sensitivity of the information contained in the system of records. The following minimum safeguards, or safeguards affording comparable protection, are applicable to Privacy Act systems of records containing sensitive information:
(1) Areas in which the records are maintained or regularly used shall be posted with an appropriate warning stating that access to the records is limited to authorized persons. The warning also shall summarize the requirements of § 2.52 and state that the Privacy Act contains a criminal penalty for the unauthorized disclosure of records to which it applies.
(2) During working hours, (i) the area in which the records are maintained or regularly used shall be occupied by authorized personnel or (ii) access to the records shall be restricted by their storage in locked metal file cabinets or a locked room.
(3) During non-working hours, access to the records shall be restricted by their storage in locked metal file cabinets or a locked room.
(4) Where a locked room is the method of security provided for a system, the bureau responsible for the system shall supplement that security by (i) providing lockable file cabinets or containers for the records or (ii) changing the lock or locks for the room so that they may not be opened with a master key. For the purposes of this paragraph, a master key is a key which may be used to open rooms other than the room containing records subject to the Privacy Act, unless those rooms are utilized by officials or employees authorized to have access to the records subject to the Privacy Act.
(c) Records maintained in computerized form. When maintained in computerized form, records subject to the Privacy Act shall be maintained, at a minimum, subject to safeguards based on those recommended in the National Bureau of Standard’s booklet “Computer Security Guidelines for Implementing the Privacy Act of 1974” (May 30, 1975), and any supplements thereto, which are adequate and appropriate to assuring the integrity of records in the system.
(d) Office of Personnel Management personnel records. A system of records made up of Office of Personnel Management personnel records shall be maintained under the security requirements set out in 5 CFR 293.106 and 293.107.
(e) Bureau responsibility. (1) The bureau responsible for a system of records shall be responsible for assuring that specific procedures are developed to assure that the records in the system are maintained with security meeting the requirements of the Act and this section.
(2) These procedures shall be in writing and shall be posted or otherwise periodically brought to the attention of employees working with the records contained in the system.
§ 2.227 Conduct of employees.
(a) Handling of records subject to the Act. Employees whose duties require handling of records subject to the Privacy Act shall, at all times, take care to protect the integrity, security and confidentiality of these records.
(b) Disclosure of records. No employee of the Department may disclose records subject to the Privacy Act unless disclosure is permitted under § 2.56 or is to the individual to whom the record pertains.
(c) Alteration of records. No employee of the Department may alter or destroy a record subject to the Privacy Act unless (1) such alteration or destruction is properly undertaken in the course of the employee’s regular duties or (2) such alteration or destruction is required by a decision under §§ 2.70 through 2.75 or the decision of a court of competent jurisdiction.
(d) Bureau responsibility. The bureau responsible for a system of records shall be responsible for assuring that employees with access to the system are made aware of the requirements of this section and of 5 U.S.C. 552a(i)(1), which imposes criminal penalties for knowingly and willfully disclosing a record about an individual without the written request or consent of that individual unless disclosure is permitted under one of the exceptions listed in § 2.56 (b) and (c).
§ 2.228 Government contracts.
(a) Required contract provisions. When a contract provides for the operation by or on behalf of the Department of a system of records to accomplish a Department function, the contract shall, consistent with the Department’s authority, cause the requirements of 5 U.S.C. 552a and the regulations contained in this subpart to be applied to such system.
(b) System manager. The head of the bureau responsible for the contract shall designate a regular employee of the bureau to be the manager for a system of records operated by a contractor.
§§ 2.229-2.230 [Reserved]
§ 2.231 Disclosure of records.
(a) Prohibition of disclosure. No record contained in a system of records may be disclosed by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.
(b) General exceptions. The prohibition contained in paragraph (a) does not apply where disclosure of the record would be:
(1) To those officers or employees of the Department who have a need for the record in the performance of their duties; or
(2) Required by the Freedom of Information Act, 5 U.S.C. 552.
(c) Specific exceptions. The prohibition contained in paragraph (a) of this section does not apply where disclosure of the record would be:
(1) For a routine use as defined in § 2.46(j) which has been described in a system notice published in the
(2) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of Title 13, U.S. Code.
(3) To a recipient who has provided the system manager responsible for the system in which the record is maintained with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;
(4) To the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the U.S. Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;
(5) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the Department specifying the particular portion desired and the law enforcement activity for which the record is sought;
(6) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;
(7) To either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;
(8) To the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the General Accounting Office;
(9) Pursuant to the order of a court of competent jurisdiction; or
(10) To a consumer reporting agency in accordance with section 3(d) of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3711(f)).
(d) Reviewing records prior to disclosure. (1) Prior to any disclosure of a record about an individual, unless disclosure is required by the Freedom of Information Act, reasonable efforts shall be made to assure that the records are accurate, complete, timely and relevant for agency purposes.
(2) When a record is disclosed in connection with a Freedom of Information request made under subpart B of this part and it is appropriate and administratively feasible to do so, the requester shall be informed of any information known to the Department indicating that the record may not be fully accurate, complete, or timely.
§ 2.232 Accounting for disclosures.
(a) Maintenance of an accounting. (1) Where a record is disclosed to any person, or to another agency, under any of the specific exceptions provided by § 2.56 (c), an accounting shall be made.
(2) The accounting shall record (i) the date, nature, and purpose of each disclosure of a record to any person or to another agency and (ii) the name and address of the person or agency to whom the disclosure was made.
(3) Accountings prepared under this section shall be maintained for at least five years or the life of the record, whichever is longer, after the disclosure for which the accounting is made.
(b) Access to accountings. (1) Except for accountings of disclosures made under § 2.56(c)(5), accountings of all disclosures of a record shall be made available to the individual to whom the record relates at the individual’s request.
(2) An individual desiring access to an accounting of disclosures of a record pertaining to the individual shall submit a request by following the procedures of § 2.63.
(c) Notification of disclosure. When a record is disclosed pursuant to § 2.56(c)(9) as the result of the order of a court of competent jurisdiction, reasonable efforts shall be made to notify the individual to whom the record pertains as soon as the order becomes a matter of public record.
§§ 2.233-2.234 [Reserved]
§ 2.235 Request for notification of existence of records: Submission.
(a) Submission of requests. (1)(i) Individuals desiring to determine under the Privacy Act whether a system of records contains records pertaining to them shall address inquiries to the system manager having responsibility for the system unless the system notice describing the system prescribes or permits submission to some other official or officials.
(ii) If a system notice describing a system requires individuals to contact more than two officials concerning the existence of records in the system, individuals desiring to determine whether the system contains records pertaining to them may contact the system manager for assistance in determining which official is most likely to be in possession of records pertaining to those individuals.
(2) Individuals desiring to determine whether records pertaining to them are maintained in two or more systems shall make a separate inquiry concerning each system.
(b) Form of request. (1) An inquiry to determine whether a system of records contains records pertaining to an individual shall be in writing.
(2) To insure expeditious handling, the request shall be prominently marked, both on the envelope and on the face of the request, with the legend “PRIVACY ACT INQUIRY.”
(3) The request shall state that the individual is seeking information concerning records pertaining to him or herself and shall supply such additional identifying information, if any, as is called for in the system notice describing the system.
(4) Individuals who have reason to believe that information pertaining to them may be filed under a name other than the name they are currently using (e.g., maiden name), shall include such information in the request.
§ 2.236 Requests for notification of existence of records: Action on.
(a) Decisions on request. (1) Individuals inquiring to determine whether a system of records contains records pertaining to them shall be promptly advised whether the system contains records pertaining to them unless (i) the records were compiled in reasonable anticipation of a civil action or proceeding or (ii) the system of records is one which has been excepted from the notification provisions of the Privacy Act by rulemaking (§ 2.79).
(2) If the records were compiled in reasonable anticipation of a civil action or proceeding or the system of records is one which has been excepted from the notification provisions of the Privacy Act by rulemaking, the individuals will be promptly notified that they are not entitled to notification of whether the system contains records pertaining to them.
(b) Authority to deny requests. A decision to deny a request for notification of the existence of records shall be made by the system manager responsible for the system of records concerning which inquiry has been made and shall be concurred in by the bureau Privacy Act officer for the bureau which maintains the system, provided, however that the head of a bureau may, in writing, require (1) that the decision be made by the bureau Privacy Act officer and/or (2) that the bureau head’s own concurrence in the decision be obtained.
(c) Form of decision. (1) No particular form is required for a decision informing individuals whether a system of records contains records pertaining to them.
(2) A decision declining to inform an individual whether or not a system of records contains records pertaining to him or her shall be in writing and shall:
(i) State the basis for denial of the request.
(ii) Advise the individual that an appeal of the declination may be made to the Assistant Secretary—Policy, Budget and Administration pursuant to § 2.65 by writing to the Privacy Act Officer, Office of the Assistant Secretary—Policy, Budget and Administration, U.S. Department of the Interior, Washington, DC 20240.
(iii) State that the appeal must be received by the foregoing official within twenty (20) working days of the date of the decision.
(3) If the decision declining a request for notification of the existence of records involves Department employee records which fall under the jurisdiction of the Office of Personnel Management, the individual shall be informed in a written response which shall:
(i) State the reasons for the denial.
(ii) Include the name, position title, and address of the official responsible for the denial.
(iii) Advise the individual that an appeal of the declination may be made only to the Assistant Director for Workforce Information, Personnel Systems Oversight Group, Office of Personnel Management, 1900 E Street NW., Washington, DC 20415.
(4) Copies of decisions declining a request for notification of the existence of records made pursuant to paragraphs (c)(2) and (c)(3) of this section shall be provided to the Departmental and Bureau Privacy Act Officers.
§ 2.237 Requests for access to records.
The Privacy Act permits individuals, upon request, to gain access to their records or to any information pertaining to them which is contained in a system and to review the records and have a copy made of all or any portion thereof in a form comprehensive to them. 5 U.S.C. 552a(d)(1). A request for access shall be submitted in accordance with the procedures in this subpart.
§ 2.238 Requests for access to records: Submission.
(a) Submission of requests. (1)(i) Requests for access to records shall be submitted to the system manager having responsibility for the system in which the records are maintained unless the system notice describing the system prescribes or permits submission to some other official or officials.
(ii) If a system notice describing a system requires individuals to contact more than two officials concerning access to records in the system, individuals desiring to request access to records pertaining to them may contact the system manager for assistance in determining which official is most likely to be in custody of records pertaining to that individual.
(2) Individuals desiring access to records maintained in two or more separate systems shall submit a separate request for access to the records in each system.
(b) Form of request. (1) A request for access to records subject to the Privacy Act shall be in writing.
(2) To insure expeditious handling, the request shall be prominently marked, both on the envelope and on the face of the request, with the legend “PRIVACY ACT REQUEST FOR ACCESS.”
(3) Requesters shall specify whether they seek all of the records contained in the system which relate to them or only some portion thereof. If only a portion of the records which relate to the individual are sought, the request shall reasonably describe the specific record or records sought.
(4) If the requester seeks to have copies of the requested records made, the request shall state the maximum amount of copying fees which the requester is willing to pay. A request which does not state the amount of fees the requester is willing to pay will be treated as a request to inspect the requested records. Requesters are further notified that under § 2.64(d) the failure to state willingness to pay fees as high as are anticipated by the Department will delay processing of a request.
(5) The request shall supply such identifying information, if any, as is called for in the system notice describing the system.
(6) Requests failing to meet the requirements of this paragraph shall be returned to the requester with a written notice advising the requester of the deficiency in the request.
§ 2.239 Requests for access to records: Initial decision.
(a) Decisions on requests. A request made under this subpart for access to a record shall be granted promptly unless (1) the record was compiled in reasonable anticipation of a civil action or proceeding or (2) the record is contained in a system of records which has been excepted from the access provisions of the Privacy Act by rulemaking (§ 2.79).
(b) Authority to deny requests. A decision to deny a request for access under this subpart shall be made by the system manager responsible for the system of records in which the requested record is located and shall be concurred in by the bureau Privacy Act officer for the bureau which maintains the system, provided, however, that the head of a bureau may, in writing, require (1) that the decision be made by the bureau Privacy Act officer and/or (2) that the bureau head’s own concurrence in the decision be obtained.
(c) Form of decision. (1) No particular form is required for a decision granting access to a record. The decision shall, however, advise the individual requesting the record as to where and when the record is available for inspection or, as the case may be, where and when copies will be available. If fees are due under § 2.64(d), the individual requesting the record shall also be notified of the amount of fees due or, if the exact amount has not been determined, the approximate amount of fees due.
(2) A decision denying a request for access, in whole or part, shall be in writing and shall:
(i) State the basis for denial of the request.
(ii) Contain a statement that the denial may be appealed to the Assistant Secretary—Policy, Budget and Administration pursuant to § 2.65 by writing to the Privacy Act Officer, Office of the Assistant Secretary—Policy, Budget and Administration, U.S. Department of the Interior, Washington, DC 20240.
(iii) State that the appeal must be received by the foregoing official within twenty (20) working days of the date of the decision.
(3) If the decision denying a request for access involves Department employee records which fall under the jurisdiction of the Office of Personnel Management, the individual shall be informed in a written response which shall:
(i) State the reasons for the denial.
(ii) Include the name, position title, and address of the official responsible for the denial.
(iii) Advise the individual that an appeal of the denial may be made only to the Assistant Director for Workforce Information, Personnel Systems and Oversight Group, Office of Personnel Management, 1900 E Street NW., Washington, DC 20415.
(4) Copies of decisions denying requests for access made pursuant to paragraphs (c)(2) and (c)(3) of this section will be provided to the Departmental and Bureau Privacy Act Officers.
(d) Fees. (1) No fees may be charged for the cost of searching for or reviewing a record in response to a request made under § 2.63.
(2) Fees for copying a record in response to a request made under § 2.63 shall be charged in accordance with the schedule of charges contained in Appendix A to this part, unless the official responsible for processing the request determines that reduction or waiver of fees is appropriate.
(3) Where it is anticipated that fees chargeable in connection with a request will exceed the amount the person submitting the request has indicated a willingness to pay, the official processing the request shall notify the requester and shall not complete processing of the request until the requester has agreed, in writing, to pay fees as high as are anticipated.
§ 2.240 Requests for notification of existence of records and for access to records: Appeals.
(a) Right of appeal. Except for appeals pertaining to Office of Personnel Management records, individuals who have been notified that they are not entitled to notification of whether a system of records contains records pertaining to them or have been denied access, in whole or part, to a requested record may appeal to the Assistant Secretary—Policy, Budget and Administration.
(b) Time for appeal. (1) An appeal must be received by the Privacy Act Officer no later than twenty (20) working days after the date of the initial decision on a request.
(2) The Assistant Secretary—Policy, Budget and Administration may, for good cause shown, extend the time for submission of an appeal if a written request for additional time is received within twenty (20) working days of the date of the initial decision on the request.
(c) Form of appeal. (1) An appeal shall be in writing and shall attach copies of the initial request and the decision on the request.
(2) The appeal shall contain a brief statement of the reasons why the appellant believes the decision on the initial request to have been in error.
(3) The appeal shall be addressed to Privacy Act Officer, Office of the Assistant Secretary—Policy, Budget and Administration, U.S. Department of the Interior, Washington, DC 20240.
(d) Action on appeals. (1) Appeals from decisions on initial requests made pursuant to §§ 2.61 and 2.63 shall be decided for the Department by the Assistant Secretary—Policy, Budget and Administration or an official designated by the Assistant Secretary after consultation with the Solicitor.
(2) The decision on an appeal shall be in writing and shall state the basis for the decision.
§ 2.241 Requests for access to records: Special situations.
(a) Medical records. (1) Medical records shall be disclosed to the individual to whom they pertain unless it is determined, in consultation with a medical doctor, that disclosure should be made to a medical doctor of the individual’s choosing.
(2) If it is determined that disclosure of medical records directly to the individual to whom they pertain could have an adverse effect on that individual, the individual may designate a medical doctor to receive the records and the records will be disclosed to that doctor.
(b) Inspection in presence of third party. (1) Individuals wishing to inspect records pertaining to them which have been opened for their inspection may, during the inspection, be accompanied by a person of their own choosing.
(2) When such a procedure is deemed appropriate, individuals to whom the records pertain may be required to furnish a written statement authorizing discussion of their records in the accompanying person’s presence.
§§ 2.242-2.244 [Reserved]
§ 2.245 Amendment of records.
The Privacy Act permits individuals to request amendment of records pertaining to them if they believe the records are not accurate, relevant, timely or complete. 5 U.S.C. 552a(d)(2). A request for amendment of a record shall be submitted in accordance with the procedures in this subpart.
§ 2.246 Petitions for amendment: Submission and form.
(a) Submission of petitions for amendment. (1) A request for amendment of a record shall be submitted to the system manager for the system of records containing the record unless the system notice describing the system prescribes or permits submission to a different official or officials. If an individual wishes to request amendment of records located in more than one system, a separate petition must be submitted to each system manager.
(2) A petition for amendment of a record may be submitted only if the individual submitting the petition has previously requested and been granted access to the record and has inspected or been given a copy of the record.
(b) Form of petition. (1) A petition for amendment shall be in writing and shall specifically identify the record for which amendment is sought.
(2) The petition shall state, in detail, the reasons why the petitioner believes the record, or the objectionable portion thereof, is not accurate, relevant, timely or complete. Copies of documents or evidence relied upon in support of these reasons shall be submitted with the petition.
(3) The petition shall state, specifically and in detail, the changes sought in the record. If the changes involve rewriting the record or portions thereof or involve adding new language to the record, the petition shall propose specific language to implement the changes.
§ 2.247 Petitions for amendment: Processing and initial decision.
(a) Decisions on petitions. In reviewing a record in response to a petition for amendment, the accuracy, relevance, timeliness and completeness of the record shall be assessed against the criteria set out in § 2.48. In addition, personnel records shall be assessed against the criteria for determining record quality published in the Federal Personnel Manual and the Departmental Manual addition thereto.
(b) Authority to decide. An initial decision on a petition for amendment may be made only by the system manager responsible for the system of records containing the challenged record. If the system manager declines to amend the record as requested, the bureau Privacy Act officer for the bureau which maintains the system must concur in the decision, provided, however, that the head of a bureau may, in writing, require (1) that the decision be made by the bureau Privacy Act officer and/or (2) that the bureau head’s own concurrence in the decision be obtained.
(c) Acknowledgement of receipt. Unless processing of a petition is completed within ten (10) working days, the receipt of the petition for amendment shall be acknowledged in writing by the system manager to whom it is directed.
(d) Inadequate petitions. (1) If a petition does not meet the requirements of § 2.71, the petitioner shall be so advised and shall be told what additional information must be submitted to meet the requirements of § 2.71.
(2) If the petitioner fails to submit the additional information within a reasonable time, the petition may be rejected. The rejection shall be in writing and shall meet the requirements of paragraph (e) of this section.
(e) Form of decision. (1) A decision on a petition for amendment shall be in writing and shall state concisely the basis for the decision.
(2) If the petition for amendment is rejected, in whole or part, the petitioner shall be informed in a written response which shall:
(i) State concisely the basis for the decision.
(ii) Advise the petitioner that the rejection may be appealed to the Assistant Secretary—Policy, Budget and Administration by writing to the Privacy Act Officer, Office of the Assistant Secretary—Policy, Budget and Administration, U.S. Department of the Interior, Washington, DC 20240.
(iii) State that the appeal must be received by the foregoing official within twenty (20) working days of the decision.
(3) If the petition for amendment involves Department employee records which fall under the jurisdiction of the Office of Personnel Management and is rejected, in whole or part, the petitioner shall be informed in a written response which shall:
(i) State concisely the basis for the decision.
(ii) Advise the petitioner that an appeal of the rejection may be made pursuant to 5 CFR 297.306 only to the Assistant Director for Workforce Information, Personnel Systems and Oversight Group, Office of Personnel Management, 1900 E Street NW., Washington, DC 20415.
(4) Copies of rejections of petitions for amendment made pursuant to paragraphs (e)(2) and (e)(3) of this section will be provided to the Departmental and Bureau Privacy Act Officers.
(f) Implementation of initial decision. If a petition for amendment is accepted, in whole or part, the bureau maintaining the record shall:
(1) Correct the record accordingly and,
(2) Where an accounting of disclosures has been made pursuant to § 2.57, advise all previous recipients of the record that the correction was made and the substance of the correction.
§ 2.248 Petitions for amendments: Time limits for processing.
(a) Acknowledgement of receipt. The acknowledgement of receipt of a petition required by § 2.72(c) shall be dispatched not later than ten (10) working days after receipt of the petition by the system manager responsible for the system containing the challenged record, unless a decision on the petition has been previously dispatched.
(b) Decision on petition. A petition for amendment shall be processed promptly. A determination whether to accept or reject the petition for amendment shall be made within thirty (30) working days after receipt of the petition by the system manager responsible for the system containing the challenged record.
(c) Suspension of time limit. The thirty (30) day time limit for a decision on a petition shall be suspended if it is necessary to notify the petitioner, pursuant to § 2.72(d), that additional information in support of the petition is required. Running of the thirty (30) day time limit shall resume on receipt of the additional information by the system manager responsible for the system containing the challenged record.
(d) Extensions of time. (1) The thirty (30) day time limit for a decision on a petition may be extended if the official responsible for making a decision on the petition determines that an extension is necessary for one of the following reasons:
(i) A decision on the petition requires analysis of voluminous record or records;
(ii) Some or all of the challenged records must be collected from facilities other than the facility at which the official responsible for making the decision is located.
(iii) Some or all of the challenged records are of concern to another bureau of the Department or another agency of the Federal Government whose assistance and views are being sought in processing the request.
(2) If the official responsible for making a decision on the petition determines that an extension is necessary, the official shall promptly inform the petitioner of the extension and the date on which a decision is expected to be dispatched.
§ 2.249 Petitions for amendment: Appeals.
(a) Right of appeal. Except for appeals pertaining to Office of Personnel Management records, where a petition for amendment has been rejected in whole or in part, the individual submitting the petition may appeal the denial to the Assistant Secretary—Policy, Budget and Administration.
(b) Time for appeal. (1) An appeal must be received no later than twenty (20) working days after the date of the decision on a petition.
(2) The Assistant Secretary—Policy, Budget and Administration may, for good cause shown, extend the time for submission of an appeal if a written request for additional time is received within twenty (20) working days of the date of the decision on a petition.
(c) Form of appeal. (1) An appeal shall be in writing and shall attach copies of the initial petition and the decision on that petition.
(2) The appeal shall contain a brief statement of the reasons why the appellant believes the decision on the petition to have been in error.
(3) The appeal shall be addressed to Privacy Act Officer, Office of the Assistant Secretary—Policy, Budget and Administration, U.S. Department of the Interior, Washington, DC 20240.
§ 2.250 Petitions for amendment: Action on appeals.
(a) Authority. Appeals from decisions on initial petitions for amendment shall be decided for the Department by the Assistant Secretary—Policy, Budget and Administration or an official designated by the Assistant Secretary, after consultation with the Solicitor.
(b) Time limit. (1) A final determination on any appeal shall be made within thirty (30) working days after receipt of the appeal.
(2) The thirty (30) day period for decision on an appeal may be extended, for good cause shown, by the Secretary of the Interior. If the thirty (30) day period is extended, the individual submitting the appeal shall be notified of the extension and of the date on which a determination on the appeal is expected to be dispatched.
(c) Form of decision. (1) The final determination on an appeal shall be in writing and shall state the basis for the determination.
(2) If the determination upholds, in whole or part, the initial decision rejecting the petition for amendment, the determination shall also advise the individual submitting the appeal:
(i) Of his or her right to file a concise statement of the reasons for disagreeing with the decision of the agency;
(ii) Of the procedure established by § 2.77 for the filing of the statement of disagreement;
(iii) That the statement which is filed will be made available to anyone to whom the record is subsequently disclosed together with, at the discretion of the Department, a brief statement by the Department summarizing its reasons for refusing to amend the record;
(iv) That prior recipients of the challenged record will be provided a copy of any statement of dispute to the extent that an accounting of disclosure was maintained; and
(v) Of his or her right to seek judicial review of the Department’s refusal to amend the record.
(3) If the determination reverses, in whole or in part, the initial decision rejecting the petition for amendment, the system manager responsible for the system containing the challenged record shall be directed to:
(i) Amend the challenged record accordingly; and
(ii) If an accounting of disclosures has been made, advise all previous recipients of the record of the amendment and its substance.
§ 2.251 [Reserved]
§ 2.252 Statements of disagreement.
(a) Filing of statement. If the determination of the Assistant Secretary—Policy, Budget and Administration under § 2.75 rejects in whole or part, a petition for amendment, the individual submitting the petition may file with the system manager for the system containing the challenged record a concise written statement setting forth the reasons for disagreement with the determination of the Department.
(b) Disclosure of statements. In any disclosure of a record containing information about which an individual has filed a statement of disagreement under this section which occurs after the filing of the statement, the disputed portion of the record will be clearly noted and the recipient shall be provided copies of the statement of disagreement. If appropriate, a concise statement of the reasons of the Department for not making the requested amendments may also be provided to the recipient.
(c) Maintenance of statements. System managers shall develop procedures to assure that statements of disagreement filed with them shall be maintained in such a way as to assure dissemination of the statements to recipients of the records to which the statements pertain.
§ 2.253 [Reserved]
§ 2.254 Exemptions.
(a) Criminal law enforcement records exempt under 5 U.S.C. 552a(j)(2). Pursuant to 5 U.S.C. 552a(j)(2) the following systems of records are exempted from all of the provisions of 5 U.S.C. 552a and the regulations in this subpart except paragraphs (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), (11), and (12), and (i) of 5 U.S.C. 552a and the portions of the regulations in this subpart implementing these paragraphs:
(1) INTERIOR/FWS-20, Investigative Case File System.
(2) INTERIOR/BIA-18, Law Enforcement Services System.
(3) INTERIOR/NPS-19, Law Enforcement Statistical Reporting System.
(4) INTERIOR/OIG-02, Investigative Records.
(5) INTERIOR/DOI-10, DOI Law Enforcement Records Management System (LE RMS).
(6) INTERIOR/DOI-50, Insider Threat Program.
(b) Classified records exempt under 5 U.S.C. 552a(k)(1). Pursuant to 5 U.S.C. 552a(k)(1), the following systems of records have been exempted from paragraphs (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) of 5 U.S.C. 552a and the provisions of the regulations in this subpart implementing these paragraphs:
(1) INTERIOR/DOI-50, Insider Threat Program.
(2) INTERIOR/DOI-45, Personnel Security Program Files.
(3) INTERIOR/OIG-02, Investigative Records.
(4) INTERIOR/DOI-10, DOI Law Enforcement Records Management System (LE RMS).
(c) Law enforcement records exempt under 5 U.S.C. 552a(k)(2). Pursuant to 5 U.S.C. 552a(k)(2), the following systems of records are exempted from paragraphs (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) of 5 U.S.C. 552a and the provisions of the regulations in this subpart implementing these paragraphs:
(1) INTERIOR/OIG-2, Investigative Records.
(2) INTERIOR/FWS-21, Permits System.
(3) INTERIOR/BLM-18, Criminal Case Investigation System.
(4) INTERIOR/BLM-19, Civil Trespass Case Investigations.
(5) INTERIOR/BLM-20, Employee Conduct Investigations.
(6)-(7) [Reserved]
(8) INTERIOR/NPS-17, Employee Financial Irregularities.
(9) INTERIOR/Reclamation-37, Trespass Cases.
(10) INTERIOR/SOL-1, Litigation, Appeal and Case Files System, to the extent that it consists of investigatory material compiled for law enforcement purposes.
(11) INTERIOR/FWS-19, Endangered Species Licenses System.
(12) INTERIOR/FWS-20, Investigative Case File System.
(13) INTERIOR/BIA-24, Timber Cutting and Trespass Claims Files.
(14) INTERIOR/DOI-11, Debarment and Suspension Program.
(15) INTERIOR/DOI-10, DOI Law Enforcement Records Management System (LE RMS).
(16) INTERIOR/DOI-50, Insider Threat Program.
(17) INTERIOR/DOI-24, Indian Arts and Crafts Board.
(18) INTERIOR/BSEE-01, Investigations Case Management System (CMS).
(19) INTERIOR/DOI-46, Physical Security Access Files.
(20) INTERIOR/DOI-45, Personnel Security Program Files.
(d) Records maintained in connection with providing protective services exempt under 5 U.S.C. 552a(k)(3). Pursuant to 5 U.S.C. 552a(k)(3), the following systems of records have been exempted from paragraphs (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of 5 U.S.C. 552a and the provisions of the regulations in this subpart implementing these paragraphs:
(1) INTERIOR/DOI-46, Physical Security Access Files.
(2) INTERIOR/DOI-45, Personnel Security Program Files.
(3) INTERIOR/OIG-02, Investigative Records.
(4) INTERIOR/DOI-10, DOI Law Enforcement Records Management System (LE RMS).
(e) Investigatory records exempt under 5 U.S.C. 552a(k)(5). Pursuant to 5 U.S.C. 552a(k)(5), the following systems of records have been exempted from paragraphs (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) of 5 U.S.C. 552a and the provisions of the regulations in this subpart implementing these paragraphs:
(1) [Reserved]
(2) INTERIOR/GS-9, National Research Council Grants Program.
(3) INTERIOR/OS-68, Committee Management Files.
(4) INTERIOR/DOI-11, Debarment and Suspension Program.
(5) INTERIOR/DOI-46, Physical Security Access Files.
(6) INTERIOR/DOI-50, Insider Threat Program.
(7) INTERIOR/DOI-45, Personnel Security Program Files.
(8) INTERIOR/OIG-02, Investigative Records.
(9) INTERIOR/DOI-10, DOI Law Enforcement Records Management System (LE RMS).
(f) Records maintained on testing and examination material exempt under 5 U.S.C. 552a(k)(6). Pursuant to U.S.C. 552a(k)(6), the following systems of records have been exempted from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f) and the provisions of the regulations in this subpart implementing these paragraphs.
(1) INTERIOR/DOI-45, Personnel Security Program Files.
(2) INTERIOR/DOI-10, DOI Law Enforcement Records Management System (LE RMS).
Subpart L—Legal Process: Testimony by Employees and Production of Records
General Information
§ 2.280 What does this subpart cover?
(a) This subpart describes how the Department of the Interior (including all its bureaus and offices) responds to requests or subpoenas for:
(1) Testimony by employees in State, territorial or Tribal judicial, legislative or administrative proceedings concerning information acquired while performing official duties or because of an employee’s official status;
(2) Testimony by employees in Federal court civil proceedings in which the United States is not a party concerning information acquired while performing official duties or because of an employee’s official status;
(3) Testimony by employees in any judicial or administrative proceeding in which the United States, while not a party, has a direct and substantial interest;
(4) Official records or certification of such records for use in Federal, State, territorial or Tribal judicial, legislative or administrative proceedings.
(b) In this subpart, “employee” means a current or former Department employee, including a contract or special government employee.
(c) This subpart does not apply to:
(1) Congressional requests or subpoenas for testimony or records;
(2) Federal court civil proceedings in which the United States is a party;
(3) Federal administrative proceedings;
(4) Federal, State and Tribal criminal court proceedings;
(5) Employees who voluntarily testify, while on their own time or in approved leave status, as private citizens as to facts or events that are not related to the official business of the Department. The employee must state for the record that the testimony represents the employee’s own views and is not necessarily the official position of the Department. See 5 CFR §§ 2635.702(b), 2635.807 (b).
(6) Testimony by employees as expert witnesses on subjects outside their official duties, except that they must obtain prior approval if required by § 2.90.
(d) This subpart does not affect the rights of any individual or the procedures for obtaining records under the Freedom of Information Act (FOIA), Privacy Act, or statutes governing the certification of official records. The Department FOIA and Privacy Act regulations are found at 43 CFR part 2, subparts B and D.
(e) Nothing in this subpart is intended to impede the appropriate disclosure under applicable laws of Department information to Federal, State, territorial, Tribal, or foreign law enforcement, prosecutorial, or regulatory agencies.
(f) This subpart only provides guidance for the internal operations of the Department, and neither creates nor is intended to create any enforceable right or benefit against the United States.
§ 2.281 What is the Department’s policy on granting requests for employee testimony or Department records?
(a) Except for proceedings covered by § 2.80(c) and (d), it is the Department’s general policy not to allow its employees to testify or to produce Department records either upon request or by subpoena. However, if you request in writing, the Department will consider whether to allow testimony or production of records under this subpart. The Department’s policy ensures the orderly execution of its mission and programs while not impeding any proceeding inappropriately.
(b) No Department employee may testify or produce records in any proceeding to which this subpart applies unless authorized by the Department under §§ 2.80 through 2.90 United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
Responsibilities of Requesters
§ 2.282 How can I obtain employee testimony or Department records?
(a) To obtain employee testimony, you must submit:
(1) A written request (hereafter a “Touhy Request;” see § 2.84 and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)); and
(2) A statement that you will submit a check for costs to the Department of the Interior, in accordance with § 2.85, if your Touhy Request is granted.
(b) To obtain official Department records, you must submit:
(1) A Touhy Request; and
(2) A Statement that you agree to pay the costs of duplication in accordance with 43 CFR part 2, appendix A, if your Touhy Request is granted.
(c) You must send your Touhy Request to:
(1) The employee’s office address;
(2) The official in charge of the employee’s bureau, division, office or agency; and
(3) The appropriate unit of the Solicitor’s Office.
(d) To obtain employee testimony or records of the Office of Inspector General, you must send your Touhy Request to the General Counsel for the Office of Inspector General.
(e) 43 CFR part 2, appendix B contains a list of the addresses of the Department’s bureaus and offices and the units of the Solicitor’s Office. The General Counsel for the Inspector General is located at the address for the Office of the Inspector General. If you do not know the employee’s address, you may obtain it from the employee’s bureau or office.
§ 2.283 If I serve a subpoena duces tecum, must I also submit a Touhy request?
Yes. If you serve a subpoena for employee testimony, you also must submit a request under United States ex rel. Touhy v. Regan, 340 U.S. 462 (1951)? If you serve a subpoena duces tecum for records in the possession of the Department, you also must submit a Touhy Request.
§ 2.284 What information must I put in my Touhy Request?
Your Touhy Request must:
(a) Identify the employee or record;
(b) Describe the relevance of the desired testimony or records to your proceeding and provide a copy of the pleadings underlying your request;
(c) Identify the parties to your proceeding and any known relationships they have to the Department’s mission or programs;
(d) Show that the desired testimony or records are not reasonably available from any other source;
(e) Show that no record could be provided and used in lieu of employee testimony;
(f) Provide the substance of the testimony expected of the employee; and
(g) Explain why you believe your Touhy Request complies with § 2.88.
§ 2.285 How much will I be charged?
We will charge you the costs, including travel expenses, for employees to testify under the relevant substantive and procedural laws and regulations. You must pay costs for record production under 43 CFR part 2, appendix A. Costs must be paid by check or money order payable to the Department of the Interior.
§ 2.286 Can I get an authenticated copy of a Department record?
Yes. We may provide an authenticated copy of a Department record, for purposes of admissibility under Federal, State or Tribal law. We will do this only if the record has been officially released or would otherwise be released under § 2.13 or this subpart.
Responsibility of the Department
§ 2.287 How will the Department process my Touhy Request?
(a) The appropriate Department official will decide whether to grant or deny your Touhy Request. Our Solicitor’s Office or, in the case of the Office of Inspector General, its General Counsel, may negotiate with you or your attorney to refine or limit both the timing and content of your Touhy Request. When necessary, the Solicitor’s Office or, in the case of the Office of Inspector General, its General Counsel, also will coordinate with the Department of Justice to file appropriate motions, including motions to remove the matter to Federal court, to quash, or to obtain a protective order.
(b) We will limit our decision to allow employee testimony to the scope of your Touhy Request.
(c) If you fail to follow the requirements of this Subpart, we will not allow the testimony or produce the records.
(d) If your Touhy Request is complete, we will consider the request under § 2.88.
§ 2.288 What criteria will the Department consider in responding to my Touhy Request?
In deciding whether to grant your Touhy Request, the appropriate Department official will consider:
(a) Your ability to obtain the testimony or records from another source;
(b) The appropriateness of the employee testimony and record production under the relevant regulations of procedure and substantive law, including the FOIA or the Privacy Act; and
(c) Our ability to:
(1) Conduct our official business unimpeded;
(2) Maintain impartiality in conducting our business;
(3) Minimize the possibility that we will become involved in issues that are not related to our mission or programs;
(4) Avoid spending public employee’s time for private purposes;
(5) Avoid the negative cumulative effect of granting similar requests;
(6) Ensure that privileged or protected matters remain confidential; and
(7) Avoid undue burden on us.
Responsibilities of Employees
§ 2.289 What must I, as an employee, do upon receiving a request?
(a) If you receive a request or subpoena that does not include a Touhy Request, you must immediately notify your supervisor and the Solicitor’s Office, or the General Counsel of the Office of the Inspector General, as applicable, for assistance in issuing the proper response.
(b) If you receive a Touhy Request, you must promptly notify your supervisor and forward the request to the head of your bureau, division or office. After consulting with the Solicitor’s Office or, in the case of the Office of Inspector General, its General Counsel, the official in charge will decide whether to grant the Touhy Request under § 2.88.
(c) All decisions granting or denying a Touhy Request must be in writing. The official in charge must ask the applicable unit of the Solicitor’s Office or, in the case of the Office of Inspector General, its General Counsel, for advice when preparing the decision.
(d) Under 28 U.S.C. 1733, Federal Rule of Civil Procedure 44(a)(1), or comparable State or Tribal law, a request for an authenticated copy of a Department record may be granted by the person having the legal custody of the record. If you believe that you have custody of a record:
(1) Consult your delegated authority to determine if you can grant a request for authentication of records; and
(2) Consult the Solicitor’s Office or, in the case of the Office of Inspector General, its General Counsel, concerning the proper form of the authentication (as authentication requirements may vary by jurisdiction).
§ 2.290 Must I get approval before testifying as an expert witness on a subject outside the scope of my official duties?
(a) You must comply with 5 CFR 2635.805(c), which details the authorization procedure for an employee to testify as an expert witness, not on behalf of the United States, in any judicial or administrative proceeding in which the United States is a party or has a direct and substantial interest. This procedure means:
(1) You must obtain the written approval of your Deputy Ethics Official;
(2) You must be in an approved leave status if you testify during duty hours; and
(3) You must state for the record that you are appearing as a private individual and that your testimony does not represent the official views of the Department.
(b) If you testify as an expert witness on a matter outside the scope of your official duties, and which is not covered by paragraph (a) of this section, you must comply with 5 CFR 2635.802 and 5 CFR 3501.105.
Subpart M—Social Security Number Fraud Prevention Act Requirements
§ 2.300 What is the purpose of this subpart?
(a) The purpose of this subpart is to implement the requirements of the Social Security Number Fraud Prevention Act of 2017 (the Act), Public Law 115-59, 42 U.S.C. 405 note, September 15, 2017.
(b) The Act:
(1) Prohibits Federal agencies from including any individual’s Social Security account number (SSN) on any document sent by mail unless the head of the agency determines that such inclusion is necessary; and
(2) Requires agencies to issue regulations that specify the circumstances under which such inclusion is necessary.
§ 2.301 What does this subpart cover?
(a) This subpart describes how DOI, including all its bureaus and offices, handles the use and protection of individuals’ SSNs in documents that are mailed. SSNs may only be included in documents that are mailed when authorized and necessary, and where appropriate safeguards are employed to protect individual privacy in accordance with the Act.
(b) This subpart includes the circumstances under which inclusion of an individual’s SSN on a document is authorized to be mailed;
(c) This subpart requires SSNs to be safeguarded when mailed by:
(1) Requiring the partial redaction of SSNs where feasible; and
(2) Prohibiting the display of SSNs on the outside of any package or mailing envelope sent by mail or through the window of an envelope or package.
§ 2.302 What terms are used in this subpart?
Act means the Social Security Number Fraud Prevention Act of 2017, Public Law 115-59.
Bureau is any component or constituent bureau or office of DOI, including the Office of the Secretary and any other Departmental office.
Department or DOI means the Department of the Interior.
Document means a piece of written or printed matter that provides information or evidence or that serves as an official record.
Individual means a natural person who is a citizen of the United States or an alien lawfully admitted for permanent residence as defined by the Privacy Act of 1974, as amended, 5 U.S.C. 552a.
Mail means artifacts used to assemble letters and packages that are sent or delivered by means of an authorized carrier of postal delivery or United States Postal Service (USPS) postal system. (For purposes of the subpart, the postal system that is managed by the U.S. Postal Service.)
Social Security number or Social Security account number means the nine-digit number issued by the Social Security Administration to U.S. citizens, permanent residents, and temporary (working) residents under section 205(c)(2) of the Social Security Act, codified as 42 U.S.C. 405(c)(2).
Truncated or partial SSN means the shortened or partial Social Security account number.
§ 2.303 What are DOI’s requirements for protecting SSNs in document sent by mail?
(a) DOI bureaus and offices may not include the full or partial SSN of an individual on any document sent via mail unless:
(1) The inclusion of an SSN on a document sent by mail is required or authorized by law;
(2) The responsible program office has conducted the proper assessment and taken steps to mitigate the use of the SSN and any impacts to individual privacy; and
(3) The Secretary of the Interior has determined that the inclusion of the SSN on the document is necessary and appropriate to meet legal and mission requirements in accordance with this subpart.
(b) Bureaus and offices shall partially redact or truncate SSNs in documents sent by mail where feasible to reduce the unnecessary use of SSNs and mitigate risk to individuals’ privacy.
(c) In no case shall any complete or partial SSN be visible on the outside of any envelope or package sent by mail or displayed on correspondence that is visible through the window of an envelope or package.
Appendix A to Part 2—Fee Schedule
| Types of Records | Fee |
|---|---|
| (1) Physical records: | |
| Pages no larger than 8.5 × 14 inches, when reproduced by standard office copying machines or scanned into an electronic format | $.15 per page ($.30 for double-sided copying). |
| Color copies of pages no larger than 8.5 × 11 inches | $.90 per page. |
| Pages larger than 8.5 × 14 inches | Direct cost to DOI. |
| Color copies of pages no larger than 11 × 17 inches | $1.50 per page. |
| Photographs and records requiring special handling (for example, because of age, size, or format) | Direct cost to DOI. |
| (2) Electronic records: | |
| Charges for services related to processing requests for electronic records | Direct cost to DOI. |
| (3) Certification | Fee. |
| Each certificate of verification attached to authenticate copies of records | $.25 |
| (4) Postage: | |
| Charges that exceed the cost of first class postage, such as express mail or overnight delivery | Postage or delivery charge. |
| (5) Other Services: | |
| Cost of special services or materials, other than those provided for by this fee schedule, when requester is notified of such costs in advance and agrees to pay them | Direct cost to DOI. |
Appendix B to Part 2—Mineral Leasing Act and Mineral Leasing Act for Acquired Lands—Special Rules
(a) Definitions. As used in the section:
(1) Exploration license means a license issued by the Secretary of the Interior to conduct coal exploration operations on land subject to the Mineral Leasing Act, under 30 U.S.C. 201(b), or subject to the Mineral Leasing Act for Acquired Lands, under 30 U.S.C. 351-360.
(2) Fair-market value of coal to be leased means the minimum amount of a bid the Secretary is willing to accept in leasing coal within leasing tracts offered in general lease sales or reserved and offered for lease to public bodies, including Federal agencies, rural electric cooperatives, or non-profit corporations controlled by any of such entities, under 30 U.S.C. 201(a)(1) or 30 U.S.C. 351-360.
(3) Information means data, statistics, samples and other facts, whether analyzed or processed or not, pertaining to Federal coal resources.
(b) Applicability. This Appendix applies to the following categories of information:
(1) Category A. Information provided to or obtained by a bureau under 30 U.S.C. 201(b)(3) (and corresponding information under 30 U.S.C. 351-360) from the holder of an exploration license;
(2) Category B. Information acquired from commercial or other sources under service contract with United States Geological Survey (USGS) under 30 U.S.C. 208-1(b) (and corresponding information under 30 U.S.C. 351-360), and information developed by USGS under an exploratory program authorized by 30 U.S.C. 208-1 (and corresponding information under 30 U.S.C. 351-360);
(3) Category C. Information obtained from commercial sources which the commercial source acquired while not under contract with the United States Government;
(4) Category D. Information provided to the Secretary by a Federal department or agency under 30 U.S.C. 208-1(e) (and corresponding information under 30 U.S.C. 351-360); and
(5) Category E. The fair-market value of coal to be leased and comments received by the Secretary with respect to such value.
(c) Availability of information. Information obtained by the Department from various sources will be made available to the public as follows:
(1) Category A—Information. Category A information must not be disclosed to the public until after the areas to which the information pertains have been leased by the Department, or until the Secretary determines that release of the information to the public would not damage the competitive position of the holder of the exploration license, whichever comes first.
(2) Category B—Information. Category B information must not be withheld from the public; it will be made available by means of and at the time of open filing or publication by USGS.
(3) Category C—Information. To the extent Category C information is proprietary, such information must not be made available to the public until after the areas to which the information pertains have been leased by the Department.
(4) Category D—Information. To the extent Category D information is proprietary, the Department will withhold the information from the public for the length of time the department or agency providing the information agreed to when it obtained the information.
(5) Category E—Information. Category E information must not be made public until the lands to which the information pertains have been leased, or until the Secretary has determined that its release prior to the issuance of a lease is in the public interest.
PART 3—PRESERVATION OF AMERICAN ANTIQUITIES
§ 3.1 Jurisdiction.
Jurisdiction over ruins, archeological sites, historic and prehistoric monuments and structures, objects of antiquity, historic landmarks, and other objects of historic and scientific interest, shall be exercised under the act by the respective Departments as follows:
(a) By the Secretary of Agriculture over lands within the exterior limits of forest reserves;
(b) By the Secretary of the Army over lands within the exterior limits of military reservations;
(c) By the Secretary of the Interior over all other lands owned or controlled by the Government of the United States, Provided, The Secretaries of the Army and Agriculture may by agreement cooperate with the Secretary of the Interior in the supervision of such monuments and objects covered by the Act of June 8, 1906 (34 Stat. 225; 16 U.S.C. 431-433), as may be located on lands near or adjacent to forest reserves and military reservations, respectively.
§ 3.2 Limitation on permits granted.
No permit for the removal of any ancient monument or structure which can be permanently preserved under the control of the United States in situ, and remain an object of interest, shall be granted.
§ 3.3 Permits; to whom granted.
Permits for the examination of ruins, the excavation of archeological sites, and the gathering of objects of antiquity will be granted, by the respective Secretaries having jurisdiction, to reputable museums, universities, colleges, or other recognized scientific or educational institutions, or to their duly authorized agents.
§ 3.4 No exclusive permits granted.
No exclusive permits shall be granted for a larger area than the applicant can reasonably be expected to explore fully and systematically within the time limit named in the permit.
§ 3.5 Application.
Each application for a permit should be filed with the Secretary having jurisdiction, and must be accompanied by a definite outline of the proposed work, indicating the name of the institution making the request, the date proposed for beginning the field work, the length of time proposed to be devoted to it, and the person who will have immediate charge of the work. The application must also contain an exact statement of the character of the work, whether examination, excavation, or gathering, and the public museum in which the collections made under the permit are to be permanently preserved. The application must be accompanied by a sketch plan or description of the particular site or area to be examined, excavated, or searched, so definite that it can be located on the map with reasonable accuracy.
§ 3.6 Time limit of permits granted.
No permit will be granted for a period of more than 3 years, but if the work has been diligently prosecuted under the permit, the time may be extended for proper cause upon application.
§ 3.7 Permit to become void.
Failure to begin work under a permit within 6 months after it is granted, or failure to diligently prosecute such work after it has been begun, shall make the permit void without any order or proceeding by the Secretary having jurisdiction.
§ 3.8 Applications referred for recommendation.
Applications for permits shall be referred to the Smithsonian Institution for recommendation.
§ 3.9 Form and reference of permit.
Every permit shall be in writing and copies shall be transmitted to the Smithsonian Institution and the field officer in charge of the land involved. The permitee will be furnished with a copy of the regulations in this part.
§ 3.10 Reports.
At the close of each season’s field work the permitee shall report in duplicate to the Smithsonian Institution, in such form as its secretary may prescribe, and shall prepare in duplicate a catalogue of the collections and of the photographs made during the season, indicating therein such material, if any, as may be available for exchange.
§ 3.11 Restoration of lands.
Institutions and persons receiving permits for excavation shall, after the completion of the work, restore the lands upon which they have worked to their customary condition, to the satisfaction of the field officer in charge.
§ 3.12 Termination.
All permits shall be terminable at the discretion of the Secretary having jurisdiction.
§ 3.13 Report of field officer.
The field officer in charge of land owned or controlled by the Government of the United States shall, from time to time, inquire and report as to the existence, on or near such lands, of ruins and archaeological sites, historic or prehistoric ruins or monuments, objects of antiquity, historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.
§ 3.14 Examinations by field officer.
The field officer in charge may at all times examine the permit of any person or institution claiming privileges granted in accordance with the act and this part, and may fully examine all work done under such permit.
§ 3.15 Persons who may apprehend or cause to be arrested.
All persons duly authorized by the Secretaries of Agriculture, Army and Interior may apprehend or cause to be arrested, as provided in the Act of February 6, 1905 (33 Stat. 700) any person or persons who appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument, or any object of antiquity on lands under the supervision of the Secretaries of Agriculture, Army, and Interior, respectively.
§ 3.16 Seizure.
Any object of antiquity taken, or collection made, on lands owned or controlled by the United States, without a permit, as prescribed by the act and this part, or there taken or made, contrary to the terms of the permit, or contrary to the act and this part, may be seized wherever found and at any time, by the proper field officer or by any person duly authorized by the Secretary having jurisdiction, and disposed of as the Secretary shall determine, by deposit in the proper national depository or otherwise.
§ 3.17 Preservation of collection.
Every collection made under the authority of the act and of this part shall be preserved in the public museum designated in the permit and shall be accessible to the public. No such collection shall be removed from such public museum without the written authority of the Secretary of the Smithsonian Institution, and then only to another public museum, where it shall be accessible to the public; and when any public museum, which is a depository of any collection made under the provisions of the act and this part, shall cease to exist, every such collection in such public museum shall thereupon revert to the national collections and be placed in the proper national depository.
Regulations concerning curation of federally owned or administered archeological collections are found in 36 CFR part 79. Objects excavated under the Antiquities Act may be eligible for disposal under subpart E of 36 CFR part 79.
PART 4—DEPARTMENT HEARINGS AND APPEALS PROCEDURES
Subpart A—General; Office of Hearings and Appeals
The Office of Hearings and Appeals, headed by a Director, is an authorized representative of the Secretary for the purpose of hearing, considering, and deciding matters within the jurisdiction of the Department involving hearings, appeals, and other review functions of the Secretary. The Office may hear, consider, and decide those matters as fully and finally as might the Secretary, subject to any limitations on its authority imposed by the Secretary. Principal components of the Office include:
(a) One or more Hearings Divisions consisting of administrative law judges who are authorized to conduct hearings in cases required by law to be conducted under 5 U.S.C. 554, and other deciding officials who are authorized to conduct hearings in cases arising under statutes and regulations of the Department; 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 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.
(1) Board of Indian Appeals. The Board decides finally for the Department appeals to the head of the Department pertaining to:
(i) Administrative actions of officials of the Bureau of Indian Affairs, issued under 25 CFR chapter I, except as limited in 25 CFR chapter I or § 4.330 of this part, and
(ii) Decisions and orders of administrative law judges and Indian probate judges in Indian probate matters, other than those involving estates of the Five Civilized Tribes of Indians. The Board also decides such other matters pertaining to Indians as are referred to it by the Secretary, the Director of the Office of Hearings and Appeals, or the Assistant Secretary-Indian Affairs for exercise of review authority of the Secretary. Special regulations applicable to proceedings before the Board are contained in subpart D of this part.
(2) Board of Land Appeals. The Board decides finally for the Department appeals to the head of the Department from decisions rendered by Departmental officials relating to: (i) The use and disposition of public lands and their resources, including land selections arising under the Alaska Native Claims Settlement Act, as amended; (ii) 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; and (iii) the conduct of surface coal mining under the Surface Mining Control and Reclamation Act of 1977. Special procedures for hearings, appeals and contests in public land cases are contained in subpart E of this part; special procedures for hearings and appeals under the Surface Mining Control and Reclamation Act of 1977 are contained in subpart L of this part.
(3) Ad Hoc Board of Appeals. Appeals to the head of the Department which do not lie within the appellate review jurisdiction of an established Appeals Board and which are not specifically excepted in the general delegation of authority to the Director may be considered and ruled upon by the Director or by Ad Hoc Boards of Appeals appointed by the Director to consider the particular appeals and to issue decisions thereon, deciding finally for the Department all questions of fact and law necessary for the complete adjudication of the issues. Jurisdiction of the Boards would include, but not be limited to, the appellate and review authority of the Secretary referred to in parts 13, 21, and 230 of this title, and in 36 CFR parts 8 and 20. Special regulations applicable to proceedings in such cases are contained in subpart G of this part.
§ 4.2 Membership of appeals boards; decisions, functions of Chief Judges.
(a) The Appeals Boards consist of regular members, who are hereby designated Administrative Judges, one of whom is designated as Chief Administrative Judge, the Director as an ex officio member, and alternate members who may serve, when necessary, in place of or in addition to regular members. The Chief Administrative Judge of an Appeals Board may direct that an appeal may be decided by a panel of any two Administrative Judges of the Board, but if they are unable to agree upon a decision, the Chief Administrative Judge may assign one or more additional Administrative Judges of the Board to consider the appeal. The concurrence of a majority of the Board Administrative Judges who consider an appeal shall be sufficient for a decision.
(b) Decisions of the Board must be in writing and signed by not less than a majority of the Administrative Judges who considered the appeal. The Director, being an ex officio member, may participate in the consideration of any appeal and sign the resulting decision.
(c) The Chief Administrative Judge of an Appeals Board shall be responsible for the internal management and administration of the Board, and the Chief Administrative Judge is authorized to act on behalf of the Board in conducting correspondence and in carrying out such other duties as may be necessary in the conduct of routine business of the Board.
§ 4.3 Representation before appeals boards.
(a) Appearances generally. Representation of parties in proceedings before Appeals Boards of the Office of Hearings and Appeals is governed by Part 1 of this subtitle, which regulates practice before the Department of the Interior.
(b) Representation of the Government. Department counsel designated by the Solicitor of the Department to represent agencies, bureaus, and offices of the Department of the Interior in proceedings before the Office of Hearings and Appeals, and Government counsel for other agencies, bureaus or offices of the Federal Government involved in any proceeding before the Office of Hearings and Appeals, shall represent the Government agency in the same manner as a private advocate represents a client.
(c) Appearances as amicus curiae. Any person desiring to appear as amicus curiae in any proceeding shall make timely request stating the grounds for such request. Permission to appear, if granted, will be for such purposes as established by the Director or the Appeals Board in the proceeding.
§ 4.4 Public records; locations of field offices.
Part 2 of this subtitle prescribes the rules governing availability of the public records of the Office of Hearings and Appeals. Contact information for offices referenced in part 4 is available in the OHA Standing Orders on Contact Information on the Department of the Interior OHA website.
§ 4.5 Power of the Secretary and Director.
(a) Secretary. Nothing in this part shall be construed to deprive the Secretary of any power conferred upon the Secretary by law. The authority reserved to the Secretary includes, but is not limited to:
(1) The authority to take jurisdiction at any stage of any case before any employee or employees of the Department, including any administrative law judge or board of the Office, and render the final decision in the matter after holding such hearing as may be required by law; and
(2) The authority to review any decision of any employee or employees of the Department, including any administrative law judge or board of the Office, or to direct any such employee or employees to reconsider a decision.
(b) Pursuant to his delegated authority from the Secretary, the Director may assume jurisdiction of any case before any board of the Office or review any decision of any board of the Office or direct reconsideration of any decision by any board of the Office. The Director may issue Standing Orders to convey current information to parties and the public. This includes, but is not limited to, the OHA Standing Orders on Contact Information and the OHA Standing Orders on Electronic Transmission to convey information related to electronic transmission, including filing and service. OHA Standing Orders may be issued related to emergency or other contingency. OHA Standing Orders are available on the Department of the Interior OHA website.
(c) Exercise of reserved power. If the Secretary or Director assumes jurisdiction of a case or reviews a decision, the parties and the appropriate Departmental personnel will be advised in writing of such action, the administrative record will be requested, and, after the review process is completed, a written decision will be issued.
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 Hearings 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:
(1) A decision will not be effective during the time in which a person adversely affected may file a notice of appeal; when the public interest requires, however, the Director or an Appeals Board may provide that a decision, or any part of a decision, shall be in full force and effective immediately;
(2) A decision will become effective on the day after the expiration of the time during which a person adversely affected may file a notice of appeal unless a petition for a stay pending appeal is filed together with a timely notice of appeal; a petition for a stay may be filed only by a party who may properly maintain an appeal;
(3) A decision, or that portion of a decision, for which a stay is not granted will become effective immediately after the Director or an Appeals Board denies or partially denies the petition for a stay, or fails to act on the petition within the time specified in paragraph (b)(4) of this section.
(b) Standards and procedures for obtaining a stay. Except as otherwise provided by law or other pertinent regulation:
(1) A petition for a stay of a decision pending appeal shall show sufficient justification based on the following standards:
(i) The relative harm to the parties if the stay is granted or denied,
(ii) The likelihood of the appellant’s success on the merits,
(iii) The likelihood of immediate and irreparable harm if the stay is not granted, and
(iv) Whether the public interest favors granting the stay;
(2) The appellant requesting the stay bears the burden of proof to demonstrate that a stay should be granted;
(3) The appellant shall serve a copy of its notice of appeal and petition for a stay on each party named in the decision from which the appeal is taken, and on the Director or the Appeals Board to which the appeal is taken, at the same time such documents are served on the appropriate officer of the Department; any party, including the officer who made the decision being appealed, may file a response to the stay petition within 10 days after service; failure to file a response shall not result in a default on the question of whether a stay should be granted; service shall be made by delivering copies personally or by sending them by registered or certified mail, return receipt requested; and
(4) The Director or an Appeals Board shall grant or deny a petition for a stay pending appeal, either in whole or in part, on the basis of the factors listed in paragraph (b)(1) of this section, within 45 calendar days of the expiration of the time for filing a notice of appeal.
(c) Exhaustion of administrative remedies. No decision which at the time of its rendition is subject to appeal to the Director or an Appeals Board shall be considered final so as to be agency action subject to judicial review under 5 U.S.C. 704, unless a petition for a stay of decision has been timely filed and the decision being appealed has been made effective in the manner provided in paragraphs (a)(3) or (b)(4) of this section or a decision has been made effective pending appeal pursuant to paragraph (a)(1) of this section or pursuant to other pertinent regulation.
(d) Finality of decision. No further appeal will lie in the Department from a decision of the Director or an Appeals Board of the 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; filing and service.
(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 its regular business hours and by a person authorized to receive it. A document received after the office’s regular business hours is considered filed on the next business day.
(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, except as otherwise provided by § 4.31. 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/her 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 order of a presiding official or 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, books, records, etc., received 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 proceedings. 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 in its discretion may, upon request and after notice to the other party or parties, 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. Transcripts of testimony and/or documents received or reviewed pursuant to § 4.31 of these rules shall be sealed against disclosure to unauthorized persons and retained with the official record, subject to the withdrawal and substitution provisions hereof.
(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 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.
(g) Electronic transmission of documents. A document may be electronically transmitted under the terms of specified in the OHA Standing Orders on Electronic Transmission issued by the Director. When done in accordance with the Standing Orders, a document may be:
(1) Filed by electronic transmission; and
(2) Served on or transmitted to a person or party by electronic transmission, if that person or party has consented to such means.
§ 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 documents 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 after a hearing or on appeal shall be based upon any record, statement, file, or similar document which is not open to inspection by the parties to the hearing or appeal, except for documents or other evidence received or reviewed pursuant to § 4.31(d).
(b) Official 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 administrative law judge.
(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 attends 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 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 communication—(1) Prohibition. Except to the extent required for the disposition of ex parte matters as authorized by law, there shall be no communication concerning the merits of a proceeding between any party to the proceeding or any person interested in the proceeding or any representative of a party or interested person and any Office personnel involved or who may reasonably be expected to become involved in the decisionmaking process on that proceeding, unless the communication, if oral, is made in the presence of all other parties or their representatives, or, if written, is furnished to all other parties. Proceedings include cases pending before the Office, rulemakings amending this Part 4 that might affect a pending case, requests for reconsideration or review by the Director, and any other related action pending before the Office. The terms “interested person” and “person interested in the proceeding” include any individual or other person with an interest in the agency proceeding that is greater than the interest that the public as a whole may have. This regulation does not prohibit communications concerning case status or advice concerning compliance with procedural requirements unless the area of inquiry is in fact an area of controversy in the proceeding. Any oral communication made in violation of this regulation shall be reduced to writing in a memorandum to the file by the person receiving the communication and shall be included in the record. Any written communication made in violation of this regulation shall be included in the record. In proceedings other than informal rulemakings copies of the memorandum or communication shall be provided to all parties, who shall be given an opportunity to respond in writing.
(2) Sanctions. The administrative law judge, board, or Director who has responsibility for the matter with respect to which a prohibited communication has been knowingly made may impose appropriate sanctions on the offending person or persons, which may include requiring an offending party to show cause why its claim, motion, or interest should not be dismissed, denied, or otherwise adversely affected; disciplining offending Office personnel pursuant to the Department’s standards of conduct (43 CFR part 20); and invoking such sanctions against other offending persons as may be appropriate under the circumstances.
(c) Disqualification. (1) An Office of Hearings and Appeals deciding official must withdraw from a case if circumstances exist that would disqualify a judge in such circumstances under the recognized canons of judicial ethics.
(2) A party may file a motion seeking the disqualification of a deciding official, setting forth in detail the circumstances that the party believes require disqualification. Any supporting facts must be established by affidavit or other sufficient evidence. A copy of the motion should be sent to the Director.
(3) The head of the appropriate unit within the Office or the Director may decide whether disqualification is required if the deciding official does not withdraw under paragraph (c)(1) of this section or in response to a motion under paragraph (c)(2) of this section.
(4) For purposes of this section, “deciding official” includes an attorney decision maker or Indian probate judge as defined in § 4.201, an administrative law judge, an administrative judge, or a member of any Board.
§ 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.
§ 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 Hearing and Appeals requires a form approved or prescribed by the Director, the Director may in that form require the submission of any information considered necessary for the effective administration of that regulation.
§ 4.31 Request for limiting disclosure of confidential information.
(a) If any person submitting a document in a proceeding under this part claims that some or all of the information contained in that document is exempt from the mandatory public disclosure requirements of the Freedom of Information Act (5 U.S.C. 552), is information referred to in section 1905 of title 18 of the United States Code (disclosure of confidential information), or is otherwise exempt by law from public disclosure, the person:
(1) Must indicate in the document that it is exempt, or contains information which is exempt, from disclosure;
(2) Must request the presiding officer or appeals board not to disclose such information except to the parties to the proceeding under the conditions provided in paragraphs (b) and (c) of this section, and must serve the request upon the parties to the proceeding. The request shall include the following items:
(i) A copy of the document from which has been deleted the information for which the person requests nondisclosure; if it is not practicable to submit such copy of the document because deletion of the information would render the document unintelligible, a description of the document may be substituted;
(ii) A statement specifying why the information is confidential, if the information for which nondisclosure is requested is claimed to come within the exception in 5 U.S.C. 552(b)(4) for trade secrets and commercial or financial information:
(iii) A statement specifying the justification for nondisclosure, if the information for which nondisclosure is requested is not within the exception in 5 U.S.C. 552(b)(4).
(b) If information is submitted in accordance with paragraph (a) of this section, the information will not be disclosed except as provided in the Freedom of Information Act, in accordance with part 2 of this title, or upon request from a party to the proceeding under the restrictions stated in paragraph (c) of this section.
(c) At any time, a party may request the presiding officer or appeals board to direct a person submitting information under paragraph (a) of this section to provide that information to the party. The presiding officer or board will so direct, unless paragraph (d) of this section is applicable, if the party requesting the information agrees under oath in writing:
(1) Not to use or disclose the information except in the context of the proceeding conducted pursuant to this part; and
(2) Not to retain in any format, and to return all physical copies of the information at the conclusion of the proceeding to the person submitting the information under paragraph (a) of this section.
(d) If any person submitting a document in a proceeding under this Part other than a hearing conducted pursuant to 5 U.S.C. 554 claims that a disclosure of information in that document to another party to the proceeding is prohibited by law, notwithstanding the protection provided under paragraph (c) of this section, such person:
(1) Must indicate in the original document that it contains information of which disclosure is prohibited;
(2) Must request that the presiding officer or appeals board review such evidence as a basis for its decision without disclosing it to the other party or parties, and serve the request upon the parties to the proceeding. The request shall include a copy of the document or description as required by paragraph (a)(2)(i) of this section and state why disclosure is prohibited, citing pertinent statutory or regulatory authority. If the prohibition on disclosure is intended to protect the interest of a person who is not a party to the proceeding, the party making the request must demonstrate that such person refused to consent to the disclosure of the evidence to other parties to the proceeding.
(3) If the presiding officer or an appeals board denies the request, the person who made the request shall be given an opportunity to withdraw the evidence before it is considered by the presiding official or board unless a Freedom of Information Act request, administrative appeal from the denial of a request, or lawsuit seeking release of the information is pending.
(e) If the person submitting a document does not submit the copy of the document or description required by paragraph (a)(2)(i) or (d)(2) of this section, the presiding officer or appeals board may assume that there is no objection to public disclosure of the document in its entirety.
(f) Where a decision by a presiding officer or appeals board is based in whole or in part on evidence not included in the public record or disclosed to all parties, the decision shall so state, specifying the nature of the evidence and the provision of law under which disclosure was denied, and the evidence so considered shall be retained under seal as part of the official record.
Subpart C [Reserved]
Subpart D—Rules Applicable in Indian Affairs Hearings and Appeals
For regulations pertaining to the processing of Indian probate matters within the Bureau of Indian Affairs, see 25 CFR part 15. For regulations pertaining to the probate of Indian trust estates within the Probate Hearings Division, Office of Hearings and Appeals, see 43 CFR part 30. For regulations pertaining to the authority, jurisdiction, and membership of the Board of Indian Appeals, Office of Hearings and Appeals, see subpart A of this part. For regulations generally applicable to proceedings before the Hearings Divisions and Appeal Boards of the Office of Hearings and Appeals, see subpart B of this part.
Scope of Subpart; Definitions
§ 4.200 How to use this subpart.
(a) The following table is a guide to the relevant contents of this subpart by subject matter.
| For provisions relating to . . . | Consult . . . |
|---|---|
| (1) Appeals to the Board of Indian Appeals generally | §§ 4.310 through 4.318. |
| (2) Appeals to the Board of Indian Appeals from decisions of the Probate Hearings Division in Indian probate matters | §§ 4.201 and 4.320 through 4.326. |
| (3) Appeals to the Board of Indian Appeals from actions or decisions of BIA | §§ 4.201 and 4.330 through 4.340. |
| (4) Review by the Board of Indian Appeals of other matters referred to it by the Secretary, Assistant Secretary-Indian Affairs, or Director-Office of Hearings and Appeals | §§ 4.201 and 4.330 through 4.340. |
| (5) Determinations under the White Earth Reservation Land Settlement Act of 1985 | §§ 4.350 through 4.357. |
(b) Except as limited by the provisions of this part, the regulations in subparts A and B of this part apply to these proceedings.
§ 4.201 Definitions.
Administrative law judge (ALJ) means an administrative law judge with OHA appointed under the Administrative Procedure Act, 5 U.S.C. 3105.
Agency means:
(1) The Bureau of Indian Affairs (BIA) agency office, or any other designated office in BIA, having jurisdiction over trust or restricted land and trust personalty; and
(2) Any office of a tribe that has entered into a contract or compact to fulfill the probate function under 25 U.S.C. 450f or 458cc.
BIA means the Bureau of Indian Affairs within the Department of the Interior.
Board means the Interior Board of Indian Appeals within OHA.
Day means a calendar day.
Decedent means a person who is deceased.
Decision or order (or decision and order) means:
(1) A written document issued by a judge making determinations as to heirs, wills, devisees, and the claims of creditors, and ordering distribution of trust or restricted land or trust personalty;
(2) The decision issued by an attorney decision maker in a summary probate proceeding; or
(3) A decision issued by a judge finding that the evidence is insufficient to determine that a person is deceased by reason of unexplained absence.
Devise means a gift of property by will. Also, to give property by will.
Devisee means a person or entity that receives property under a will.
Estate means the trust or restricted land and trust personalty owned by the decedent at the time of death.
Formal probate proceeding means a proceeding, conducted by a judge, in which evidence is obtained through the testimony of witnesses and the receipt of relevant documents.
Heir means any individual or entity eligible to receive property from a decedent in an intestate proceeding.
Individual Indian Money (IIM) account means an interest-bearing account for trust funds held by the Secretary that belong to a person who has an interest in trust assets. These accounts are under the control and management of the Secretary.
Indian probate judge (IPJ) means an attorney with OHA, other than an ALJ, to whom the Secretary has delegated the authority to hear and decide Indian probate cases.
Interested party means any of the following:
(1) Any potential or actual heir;
(2) Any devisee under a will;
(3) Any person or entity asserting a claim against a decedent’s estate;
(4) Any tribe having a statutory option to purchase the trust or restricted property interest of a decedent; or
(5) Any co-owner exercising a purchase option.
Intestate means that the decedent died without a valid will as determined in the probate proceeding.
Judge, except as used in the term “administrative judge,” means an ALJ or IPJ.
LTRO means the Land Titles and Records Office within BIA.
OHA means Office of Hearings and Appeals, Department of the Interior.
Probate means the legal process by which applicable tribal, Federal, or State law that affects the distribution of a decedent’s estate is applied in order to:
(1) Determine the heirs;
(2) Determine the validity of wills and determine devisees;
(3) Determine whether claims against the estate will be paid from trust personalty; and
(4) Order the transfer of any trust or restricted land or trust personalty to the heirs, devisees, or other persons or entities entitled by law to receive them.
Restricted property means real property, the title to which is held by an Indian but which cannot be alienated or encumbered without the Secretary’s consent. For the purposes of probate proceedings, restricted property is treated as if it were trust property. Except as the law may provide otherwise, the term “restricted property” as used in this part does not include the restricted lands of the Five Civilized Tribes of Oklahoma or the Osage Nation.
Secretary means the Secretary of the Interior or an authorized representative.
Trust personalty means all tangible personal property, funds, and securities of any kind that are held in trust in an IIM account or otherwise supervised by the Secretary.
Trust property means real or personal property, or an interest therein, the title to which is held in trust by the United States for the benefit of an individual Indian or tribe.
Will means a written testamentary document that was executed by the decedent and attested to by two disinterested adult witnesses, and that states who will receive the decedent’s trust or restricted property.
§§ 4.202-4.308 [Reserved]
General Rules Applicable to Proceedings on Appeal Before the Interior Board of Indian Appeals
§ 4.310 Documents.
(a) Filing. The effective date for filing a notice of appeal or other document with the Board during the course of an appeal is:
(1) For most documents, the date of mailing, the date of personal delivery, or the date of electronic transmission to the Board in accordance with paragraph (f); or
(2) For a motion for the Board to assume jurisdiction over an appeal under 25 CFR 2.20(e), the date that the Board receives the motion.
(b) Serving notices of appeal and other documents. Any party filing a notice of appeal or other document before the Board must serve copies on all interested parties in the proceeding. Service must be accomplished by personal delivery, mailing, or electronic transmission in accordance with paragraph (f).
(1) Where a party is represented in an appeal by an attorney or other representative authorized under 43 CFR 1.3, service of any document on the attorney or representative is service on the party.
(2) Where a party is represented by more than one attorney, service on any one attorney is sufficient.
(3) The certificate of service on an attorney or representative must include the name of the party whom the attorney or representative represents and indicate that service was made on the attorney or representative.
(c) 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:
(1) The day upon which the decision or document to be appealed or answered was served or the day of any other event after which a designated period of time begins to run is not to be included;
(2) The last day of the period is to be included, unless it is a nonbusiness day (e.g., Saturday, Sunday, or Federal holiday), in which event the period runs until the end of the next business day; and
(3) When the time prescribed or allowed is 7 days or less, intermediate Saturdays, Sundays, Federal holidays, and other nonbusiness days are excluded from the computation.
(d) Extensions of time. (1) The Board may extend the time for filing or serving any document except a notice of appeal.
(2) A request to the Board for an extension of time must be filed within the time originally allowed for filing.
(3) For good cause the Board may grant an extension of time on its own initiative.
(e) Retention of documents. All documents received in evidence at a hearing or submitted for the record in any proceeding before the Board will be retained with the official record of the proceeding. The Board, in its discretion, may permit the withdrawal of original documents while a case is pending or after a decision becomes final upon conditions as required by the Board.
(f) Electronic transmission of documents. A document may be electronically transmitted under the terms specified in the OHA Standing Orders on Electronic Transmission issued by the Director. When done in accordance with the Standing Orders, a document may be:
(1) Filed by electronic transmission; and
(2) Served on or transmitted to a person or party by electronic transmission, if that person or party has consented to such means.
§ 4.311 Briefs on appeal.
(a) The appellant may file an opening brief within 30 days after receiving the notice of docketing. The appellant must serve copies of the opening brief upon all interested parties or counsel and file a certificate with the Board showing service upon the named parties. Opposing parties or counsel will have 30 days from receiving the appellant’s brief to file answer briefs, copies of which must be served upon the appellant or counsel and all other interested parties. A certificate showing service of the answer brief upon all parties or counsel must be attached to the answer filed with the Board.
(b) The appellant may reply to an answering brief within 15 days from its receipt. A certificate showing service of the reply brief upon all parties or counsel must be attached to the reply filed with the Board. Except by special permission of the Board, no other briefs will be allowed on appeal.
(c) BIA is considered an interested party in any proceeding before the Board. The Board may request that BIA submit a brief in any case before the Board.
(d) An original only of each document should be filed with the Board. Documents should not be bound along the side.
(e) The Board may also specify a date on or before which a brief is due. Unless expedited briefing has been granted, such date may not be less than the appropriate period of time established in this section.
§ 4.312 Board decisions.
Decisions of the Board will be made in writing and will set forth findings of fact and conclusions of law. The decision may adopt, modify, reverse, or set aside any proposed finding, conclusion, or order of an administrative law judge, Indian probate judge, or BIA official. Distribution of decisions must be made by the Board to all parties concerned. Unless otherwise stated in the decision, rulings by the Board are final for the Department and must be given immediate effect.
§ 4.313 Amicus curiae; intervention; joinder motions.
(a) Any interested person or Indian tribe desiring to intervene, to join other parties, to appear as amicus curiae, or to obtain an order in an appeal before the Board must apply in writing to the Board stating the grounds for the action sought. The Board may grant the permission or relief requested for specified purposes and subject to limitations it established. This section will be liberally construed.
(b) Motions to intervene, to appear as amicus curiae, to join additional parties, or to obtain an order in an appeal pending before the Board must be served in the same manner as appeal briefs.
§ 4.314 Exhaustion of administrative remedies.
(a) No decision of an administrative law judge, Indian probate judge, or BIA official that at the time of its rendition is subject to appeal to the Board, will be considered final so as to constitute agency action subject to judicial review under 5 U.S.C. 704, unless it has been made effective pending a decision on appeal by order of the Board.
(b) No further appeal will lie within the Department from a decision of the Board.
(c) The filing of a petition for reconsideration is not required to exhaust administrative remedies.
§ 4.315 Reconsideration of a Board decision.
(a) Reconsideration of a decision of the Board will be granted only in extraordinary circumstances. Any party to the decision may petition for reconsideration. The petition must be filed with the Board within 30 days from the date of the decision and must contain a detailed statement of the reasons why reconsideration should be granted.
(b) A party may file only one petition for reconsideration.
(c) The filing of a petition will not stay the effect of any decision or order and will not affect the finality of any decision or order for purposes of judicial review, unless so ordered by the Board.
§ 4.316 Remands from courts.
Whenever any matter is remanded from any Federal court to the Board for further proceedings, the Board will remand the matter to an administrative law judge, an Indian probate judge, or BIA. In the alternative, to the extent the court’s directive and time limitations permit, the parties will be allowed an opportunity to submit to the Board a report recommending procedures for it to follow to comply with the court’s order. The Board will enter special orders governing matters on remand.
§ 4.317 Standards of conduct.
(a) Inquiries about cases. All inquiries about any matter pending before the Board must be made to the Chief Administrative Judge of the Board or the administrative judge assigned the matter.
(b) Disqualification. An administrative judge may withdraw from a case in accordance with standards found in the recognized canons of judicial ethics if the judge deems this action appropriate. If, before a decision of the Board, a party files an affidavit of personal bias or disqualification with substantiating facts, and the administrative judge concerned does not withdraw, the OHA Director will determine the matter of disqualification.
§ 4.318 Scope of review.
An appeal will be limited to those issues that were before the administrative law judge or Indian probate judge upon the petition for rehearing, reopening, or regarding tribal purchase of interests, or before the BIA official on review. However, except as specifically limited in this part or in title 25 of the Code of Federal Regulations, the Board will not be limited in its scope of review and may exercise the inherent authority of the Secretary to correct a manifest injustice or error where appropriate.
Appeals to the Board of Indian Appeals in Probate Matters
§ 4.320 Who may appeal a judge’s decision or order?
Any interested party has a right to appeal to the Board if he or she is adversely affected by a decision or order of a judge under part 30 of this subtitle:
(a) On a petition for rehearing;
(b) On a petition for reopening;
(c) Regarding purchase of interests in a deceased Indian’s estate; or
(d) Regarding modification of the inventory of an estate.
§ 4.321 How do I appeal a judge’s decision or order?
(a) A person wishing to appeal a decision or order within the scope of § 4.320 must file a written notice of appeal within 30 days after the judge has mailed the decision or order and accurate appeal instructions. We will dismiss any appeal not filed by this deadline.
(b) The notice of appeal must be signed by the appellant, the appellant’s attorney, or other qualified representative as provided in § 1.3 of this subtitle, and must be filed with the Board of Indian Appeals.
§ 4.322 What must an appeal contain?
(a) Each appeal must contain a written statement of the errors of fact and law upon which the appeal is based. This statement may be included in either the notice of appeal filed under § 4.321(a) or an opening brief filed under § 4.311(a).
(b) The notice of appeal must include the names and addresses of the parties served.
§ 4.323 Who receives service of the notice of appeal?
(a) The appellant must deliver or mail the original notice of appeal to the Board.
(b) A copy of the notice of appeal must be served on the judge whose decision is being appealed, as well as on every other interested party.
(c) The notice of appeal filed with the Board must include a certification that service was made as required by this section.
(d) A notice of appeal may be electronically filed or served in accordance with § 4.310(f).
§ 4.324 How is the record on appeal prepared?
(a) On receiving a copy of the notice of appeal, the judge whose decision is being appealed must notify:
(1) The agency concerned; and
(2) The LTRO where the original record was filed under § 30.233 of this subtitle.
(b) If a transcript of the hearing was not prepared, the judge must have a transcript prepared and forwarded to the LTRO within 30 days after receiving a copy of the notice of appeal. The LTRO must include the original transcript in the record.
(c) Within 30 days of the receipt of the transcript, the LTRO must do the following:
(1) Prepare a table of contents for the record;
(2) Make two complete copies of the original record, including the transcript and table of contents;
(3) Certify that the record is complete;
(4) Forward the certified original record, together with the table of contents, to the Board by certified mail, electronic transmission in accordance with § 4.310(f), or other service with delivery confirmation; and
(5) Send one copy of the complete record to the agency.
(d) While the appeal is pending, the copies of the record will be available for inspection at the LTRO and the agency.
(e) Any party may file an objection to the record. The party must file his or her objection with the Board within 15 days after receiving the notice of docketing under § 4.325.
(f) For any of the following appeals, the judge must prepare an administrative record for the decision and a table of contents for the record and must forward them to the Board:
(1) An interlocutory appeal under § 4.28;
(2) An appeal from a decision under §§ 30.126 or 30.127 regarding modification of an inventory of an estate; or
(3) An appeal from a decision under § 30.124 determining that a person for whom a probate proceeding is sought to be opened is not deceased.
§ 4.325 How will the appeal be docketed?
The Board will docket the appeal on receiving the probate record from the LTRO or the administrative record from the judge, and will provide a notice of the docketing and the table of contents for the record to all interested parties as shown by the record on appeal. The docketing notice will specify the deadline for filing briefs and will cite the procedural regulations governing the appeal.
§ 4.326 What happens to the record after disposition?
(a) After the Board makes a decision other than a remand, it must forward to the designated LTRO:
(1) The record filed with the Board under § 4.324(d) or (f); and
(2) All documents added during the appeal proceedings, including any transcripts and the Board’s decision.
(b) The LTRO must conform the duplicate record retained under § 4.324(b) to the original sent under paragraph (a) of this section and forward the duplicate record to the agency concerned.
Appeals to the Board of Indian Appeals from Administrative Actions of Officials of the Bureau of Indian Affairs: Administrative Review in Other Indian Matters Not Relating to Probate Proceedings
§ 4.330 Scope.
(a) The definitions set forth in 25 CFR 2.2 apply also to these special rules. These regulations apply to the practice and procedure for: (1) Appeals to the Board of Indian Appeals from administrative actions or decisions of officials of the Bureau of Indian Affairs issued under regulations in 25 CFR chapter 1, and (2) administrative review by the Board of Indian Appeals of other matters pertaining to Indians which are referred to it for exercise of review authority of the Secretary or the Assistant Secretary—Indian Affairs.
(b) Except as otherwise permitted by the Secretary or the Assistant Secretary—Indian Affairs by special delegation or request, the Board shall not adjudicate:
(1) Tribal enrollment disputes;
(2) Matters decided by the Bureau of Indian Affairs through exercise of its discretionary authority; or
(3) Appeals from decisions pertaining to final recommendations or actions by officials of the Minerals Management Service, unless the decision is based on an interpretation of Federal Indian law (decisions not so based which arise from determinations of the Minerals Management Service, are appealable to the Interior Board of Land Appeals in accordance with 43 CFR 4.410).
§ 4.331 Who may appeal.
Any interested party affected by a final administrative action or decision of an official of the Bureau of Indian Affairs issued under regulations in title 25 of the Code of Federal Regulations may appeal to the Board of Indian Appeals, except—
(a) To the extent that decisions which are subject to appeal to a higher official within the Bureau of Indian Affairs must first be appealed to that official;
(b) Where the decision has been approved in writing by the Secretary or Assistant Secretary—Indian Affairs prior to promulgation; or
(c) Where otherwise provided by law or regulation.
§ 4.332 Appeal to the Board; how taken; mandatory time for filing; preparation assistance; requirement for bond.
(a) A notice of appeal shall be in writing, signed by the appellant or by his attorney of record or other qualified representative as provided by 43 CFR 1.3, and filed with the Board of Indian Appeals, Office of Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy Street, Arlington, Virginia 22203, within 30 days after receipt by the appellant of the decision from which the appeal is taken. A copy of the notice of appeal shall simultaneously be filed with the Assistant Secretary—Indian Affairs. As required by § 4.333 of this part, the notice of appeal sent to the Board shall certify that a copy has been sent to the Assistant Secretary—Indian Affairs. A notice of appeal not timely filed shall be dismissed for lack of jurisdiction. A notice of appeal shall include:
(1) A full identification of the case;
(2) A statement of the reasons for the appeal and of the relief sought; and
(3) The names and addresses of all additional interested parties, Indian tribes, tribal corporations, or groups having rights or privileges which may be affected by a change in the decision, whether or not they participated as interested parties in the earlier proceedings.
(b) In accordance with 25 CFR 2.20(c) a notice of appeal shall not be effective for 20 days from receipt by the Board, during which time the Assistant Secretary—Indian Affairs may decide to review the appeal. If the Assistant Secretary—Indian Affairs properly notifies the Board that he has decided to review the appeal, any documents concerning the case filed with the Board shall be transmitted to the Assistant Secretary—Indian Affairs.
(c) When the appellant is an Indian or Indian tribe not represented by counsel, the official who issued the decision appealed shall, upon request of the appellant, render such assistance as is appropriate in the preparation of the appeal.
(d) At any time during the pendency of an appeal, an appropriate bond may be required to protect the interest of any Indian, Indian tribe, or other parties involved.
§ 4.333 Service of notice of appeal.
(a) On or before the date of filing of the notice of appeal the appellant shall serve a copy of the notice upon each known interested party, upon the official of the Bureau of Indian Affairs from whose decision the appeal is taken, and upon the Assistant Secretary—Indian Affairs. The notice of appeal filed with the Board shall certify that service was made as required by this section and shall show the names and addresses of all parties served. If the appellant is an Indian or an Indian tribe not represented by counsel, the appellant may request the official of the Bureau whose decision is appealed to assist in service of copies of the notice of appeal and any supporting documents.
(b) The notice of appeal will be considered to have been served upon the date of personal service or mailing or electronic transmission in accordance with § 4.310(f).
§ 4.334 Extensions of time.
Requests for extensions of time to file documents may be granted upon a showing of good cause, except for the time fixed for filing a notice of appeal which, as specified in § 4.332 of this part, may not be extended.
§ 4.335 Preparation and transmittal of record by official of the Bureau of Indian Affairs.
(a) Within 20 days after receipt of a notice of appeal, or upon notice from the Board, the official of the Bureau of Indian Affairs whose decision is appealed shall assemble and transmit the record to the Board. The record on appeal shall include, without limitation, copies of transcripts of testimony taken; all original documents, petitions, or applications by which the proceeding was initiated; all supplemental documents which set forth claims of interested parties; and all documents upon which all previous decisions were based.
(b) The administrative record shall include a Table of Contents noting, at a minimum, inclusion of the following:
(1) The decision appealed from;
(2) The notice of appeal or copy thereof; and
(3) Certification that the record contains all information and documents utilized by the deciding official in rendering the decision appealed.
(c) If the deciding official receives notification that the Assistant Secretary—Indian Affairs has decided to review the appeal before the administrative record is transmitted to the Board, the administrative record shall be forwarded to the Assistant Secretary—Indian Affairs rather than to the Board.
§ 4.336 Docketing.
An appeal shall be assigned a docket number by the Board 20 days after receipt of the notice of appeal unless the Board has been properly notified that the Assistant Secretary—Indian Affairs has assumed jurisdiction over the appeal. A notice of docketing shall be sent to all interested parties as shown by the record on appeal upon receipt of the administrative record. Any objection to the record as constituted shall be filed with the Board within 15 days of receipt of the notice of docketing. The docketing notice shall specify the time within which briefs shall be filed, cite the procedural regulations governing the appeal and include a copy of the Table of Contents furnished by the deciding official.
§ 4.337 Action by the Board.
(a) The Board may make a final decision, or where the record indicates a need for further inquiry to resolve a genuine issue of material fact, the Board may require a hearing. All hearings shall be conducted by an administrative law judge of the Office of Hearings and Appeals. The Board may, in its discretion, grant oral argument before the Board.
(b) Where the Board finds that one or more issues involved in an appeal or a matter referred to it were decided by the Bureau of Indian Affairs based upon the exercise of discretionary authority committed to the Bureau, and the Board has not otherwise been permitted to adjudicate the issue(s) pursuant to § 4.330(b) of this part, the Board shall dismiss the appeal as to the issue(s) or refer the issue(s) to the Assistant Secretary—Indian Affairs for further consideration.
§ 4.338 Submission by administrative law judge of proposed findings, conclusions and recommended decision.
(a) When an evidentiary hearing pursuant to § 4.337(a) of this part is concluded, the administrative law judge shall recommend findings of fact and conclusions of law, stating the reasons for such recommendations. A copy of the recommended decision shall be sent to each party to the proceeding, the Bureau official involved, and the Board. Simultaneously, the entire record of the proceedings, including the transcript of the hearing before the administrative law judge, shall be forwarded to the Board.
(b) The administrative law judge shall advise the parties at the conclusion of the recommended decision of their right to file exceptions or other comments regarding the recommended decision with the Board in accordance with § 4.339 of this part.
§ 4.339 Exceptions or comments regarding recommended decision by administrative law judge.
Within 30 days after receipt of the recommended decision of the administrative law judge, any party may file exceptions to or other comments on the decision with the Board.
§ 4.340 Disposition of the record.
Subsequent to a decision by the Board, the record filed with the Board and all documents added during the appeal proceedings, including the Board’s decision, shall be forwarded to the official of the Bureau of Indian Affairs whose decision was appealed for proper disposition in accordance with rules and regulations concerning treatment of Federal records.
White Earth Reservation Land Settlement Act of 1985; Authority of Administrative Judges; Determinations of the Heirs of Persons Who Died Entitled to Compensation
§ 4.350 Authority and scope.
(a) The rules and procedures set forth in §§ 4.350 through 4.357 apply only to the determination through intestate succession of the heirs of persons who died entitled to receive compensation under the White Earth Reservation Land Settlement Act of 1985, Public Law 99-264 (100 Stat. 61), amended by Public Law 100-153 (101 Stat. 886) and Public Law 100-212 (101 Stat. 1433).
(b) Whenever requested to do so by the Project Director, an administrative judge shall determine such heirs by applying inheritance laws in accordance with the White Earth Reservation Settlement Act of 1985 as amended, notwithstanding the decedent may have died testate.
(c) As used herein, the following terms shall have the following meanings:
(1) The term Act means the White Earth Reservation Land Settlement Act of 1985 as amended.
(2) The term Board means the Board of Indian Appeals in the Office of Hearings and Appeals, Office of the Secretary.
(3) The term Project Director means the Superintendent of the Minnesota Agency, Bureau of Indian Affairs, or other Bureau of Indian Affairs official with delegated authority from the Minneapolis Area Director to serve as the federal officer in charge of the White Earth Reservation Land Settlement Project.
(4) The term party (parties) in interest means the Project Director and any presumptive or actual heirs of the decedent, or of any issue of any subsequently deceased presumptive or actual heir of the decedent.
(5) The term compensation means a monetary sum, as determined by the Project Director, pursuant to section 8(c) of the Act.
(6) The term administrative judge means an administrative judge or an administrative law judge, attorney-advisor, or other appropriate official of the Office of Hearings and Appeals to whom the Director of the Office of Hearings and Appeals has redelegated his authority, as designee of the Secretary, for making heirship determinations as provided for in these regulations.
(7) The term appellant means a party aggrieved by a final order or final order upon reconsideration issued by an administrative judge who files an appeal with the Board.
§ 4.351 Commencement of the determination process.
(a) Unless an heirship determination which is recognized by the Act already exists, the Project Director shall commence the determination of the heirs of those persons who died entitled to receive compensation by filing with the administrative judge all data, identifying the purpose for which they are being submitted, shown in the records relative to the family of the decedent.
(b) The data shall include but are not limited to:
(1) A copy of the death certificate if one exists. If there is no death certificate, then another form of official written evidence of the death such as a burial or transportation of remains permit, coroner’s report, or church registry of death. Secondary forms of evidence of death such as an affidavit from someone with personal knowledge concerning the fact of death or an obituary or death notice from a newspaper may be used only in the absence of any official proof or evidence of death.
(2) Data for heirship finding and family history, certified by the Project Director. Such data shall contain:
(i) The facts and alleged facts of the decedent’s marriages, separations and divorces, with copies of necessary supporting documents;
(ii) The names and last known addresses of probable heirs at law and other known parties in interest;
(iii) Information on whether the relationships of the probable heirs at law to the decedent arose by marriage, blood, or adoption.
(3) Known heirship determinations, including those recognized by the Act determining the heirs of relatives of the decedent, and including those rendered by courts from Minnesota or other states, by tribal courts, or by tribunals authorized by the laws of other countries.
(4) A report of the compensation due the decedent, including interest calculated to the date of death of the decedent, and an outline of the derivation of such compensation, including its real property origins and the succession of the compensation to the deceased, citing all of the intervening heirs at law, their fractional shares, and the amount of compensation attributed to each of them.
(5) A certification by the Project Director or his designee that the addresses provided for the parties in interest were furnished after having made a due and diligent search.
§ 4.352 Determination of administrative judge and notice thereof.
(a) Upon review of all data submitted by the Project Director, the administrative judge will determine whether or not there are any apparent issues of fact that need to be resolved.
(b) If there are no issues of fact requiring determination, the administrative judge will enter a preliminary determination of heirs based upon inheritance laws in accordance with the Act. Such preliminary determination will be entered without a hearing, and, when possible and based upon the data furnished and/or information supplementary thereto, shall include the names, birth dates, relationships to the decedent, and shares of the heirs, or the fact that the decedent died without heirs.
(1) Upon issuing a preliminary determination, the administrative judge shall issue a notice of such action and shall mail a copy of said notice, together with a copy of the preliminary determination, to each party in interest allowing forty (40) days in which to show cause in writing why the determination should not become final. The administrative judge shall cause a certificate to be made as to the date and manner of such mailing.
(2) The Project Director shall also cause, within seven (7) days of receipt of such notice, the notice of the preliminary determination to be posted in the following sites:
The Project Director shall provide a certificate showing when the notice of the preliminary determination was forwarded for posting, and to which locations. A posting certificate showing the date and place of posting shall be signed by the person or official who performs the act and returned to the Project Director. The Project Director shall file with the administrative judge the original posting certificates and the Project Director’s certificate of mailing showing the posting locations and when the notice of the preliminary determination was forwarded for posting.
(3) If no written request for hearing or written objection is received in the office of the administrative judge within the forty (40) days of issuance of the notice, the administrative judge shall issue a final order declaring the preliminary determination to be final thirty (30) days from the date on which the final order is mailed to each party in interest.
(c) When the administrative judge determines either before or after issuance of a preliminary determination that there are issues which require resolution, or when a party objects to the preliminary determination and/or requests a hearing, the administrative judge may either resolve the issues informally or schedule and conduct a prehearing conference and/or a hearing. Any prehearing conference, hearing, or rehearing, conducted by the administrative judge shall be governed insofar as practicable by the regulations applicable to other hearings under this part and the general rules in subpart B of this part. After receipt of the testimony and/or evidence, if any, the administrative judge shall enter a final order determining the heirs of the decedent, which shall become final thirty (30) days from the date on which the final order is mailed to each party in interest.
(d) The final order determining the heirs of the decedent shall contain, where applicable, the names, birth dates, relationships to the decedent, and shares of heirs, or the fact that the decedent died without heirs.
§ 4.353 Record.
(a) The administrative judge shall lodge the original record with the Project Director.
(b) The record shall contain, where applicable, the following materials:
(1) A copy of the posted public notice of preliminary determination and/or hearing showing the posting certifications, the administrative judge’s certificate of mailing, the posting certificates, and the Project Director’s certificate of mailing.
(2) A copy of each notice served on parties in interest, with proof of mailing;
(3) The record of evidence received, including any transcript made of testimony;
(4) Data for heirship finding and family history, and data supplementary thereto;
(5) The final order determining the heirs of the decedent and the administrative judge’s notices thereof; and
(6) Any other material or documents deemed relevant by the administrative judge.
§ 4.354 Reconsideration or rehearing.
(a) Any party aggrieved by the final order of the administrative judge may, within thirty (30) days after the date of mailing such decision, file with the administrative judge a written petition for reconsideration and/or rehearing. Such petition must be under oath and must state specifically and concisely the grounds upon which it is based. If it is based upon newly discovered evidence, it shall be accompanied by affidavits of witnesses stating fully what the new evidence or testimony is to be. It shall also state justifiable reasons for the prior failure to discover and present the evidence.
(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 administrative judge shall issue an order denying the petition and shall set forth therein the reasons therefor. The administrative judge shall serve copies of such order on all parties in interest.
(c) If the petition appears to show merit, or if the administrative judge becomes aware of sufficient additional evidence to justify correction of error even without the filing of a petition, or upon remand from the Board following an appeal resulting in vacating the final order, the administrative judge shall cause copies of the petition, supporting papers, and other data, or in the event of no petition an order to show cause or decision of the Board vacating the final order in appropriate cases, to be served on all parties in interest. The parties in interest will be allowed a reasonable, specified time within which to submit answers or legal briefs in opposition to the petition or order to show cause or Board decision. The administrative judge shall then reconsider, with or without hearing, the issues of fact and shall issue a final order upon reconsideration, affirming, modifying, or vacating the original final order and making such further orders as are deemed warranted. The final order upon reconsideration shall be served on all parties in interest and shall become final thirty (30) days from the date on which it is mailed.
(d) Successive petitions for reconsideration and/or rehearing shall not be permitted. Nothing herein shall be considered as a bar to the remand of a case by the Board for further reconsideration, hearing, or rehearing after appeal.
§ 4.355 Omitted compensation.
When, subsequent to the issuance of a final order determining heirs under § 4.352, it is found that certain additional compensation had been due the decedent and had not been included in the report of compensation, the report shall be modified administratively by the Project Director. Copies of such modification shall be furnished to all heirs as previously determined and to the appropriate administrative judge.
§ 4.356 Appeals.
(a) A party aggrieved by a final order of an administrative judge under § 4.352, or by a final order upon reconsideration of an administrative judge under § 4.354, may appeal to the Board. A copy of the notice of appeal must also be sent to the Project Director and to the administrative judge whose decision is being appealed.
(b) The notice of appeal must be filed with the Board no later than thirty (30) days from the date on which the final order of the administrative judge was mailed, or, if there has been a petition for reconsideration or rehearing filed, no later than thirty (30) days from the date on which the final order upon reconsideration of the administrative judge was mailed. A notice of appeal that is not timely filed will be dismissed.
(c) The Project Director shall ensure that the record is expeditiously forwarded to the Board.
(d) Within thirty (30) days after the notice of appeal is filed, the appellant shall file a statement of the reasons why the final order or final order upon reconsideration is in error. If the Board finds that the appellant has set forth sufficient reasons for questioning the final order or final order upon reconsideration, the Board will issue an order giving all parties in interest an opportunity to respond, following which a decision shall be issued. If the Board finds that the appellant has not set forth sufficient reasons for questioning the final order, the Board may issue a decision on the appeal without further briefing.
(e) The Board may issue a decision affirming, modifying, or vacating the final order or final order upon reconsideration. A decision on appeal by the Board either affirming or modifying the final order or final order upon reconsideration shall be final for the Department of the Interior. In the event the final order or final order upon reconsideration is vacated, the proceeding shall be remanded to the appropriate administrative judge for reconsideration and/or rehearing.
§ 4.357 Guardians for minors and incompetents.
Persons less than 18 years of age and other legal incompetents who are parties in interest may be represented at all hearings by legally appointed guardians or by guardians ad litem appointed by the administrative judge.
Subpart E—Special Rules Applicable to Public Land Hearings and Appeals
See subpart A for the authority, jurisdiction and membership of the Board of Land Appeals within the Office of Hearings and Appeals. For general rules applicable to proceedings before the Board of Land Appeals as well as the other Appeals Boards of the Office of Hearings and Appeals, see subpart B.
Appeals Procedures
Appeals Procedures; General
§ 4.400 Definitions.
As used in this subpart:
Administrative law judge means an administrative law judge in the Office of Hearings and Appeals, appointed under 5 U.S.C. 3105.
BIA means the Bureau of Indian Affairs.
BLM means the Bureau of Land Management.
Board means the Interior Board of Land Appeals.
BOEM means the Bureau of Ocean Energy Management.
BSEE means the Bureau of Safety and Environmental
Bureau or Office means BIA, BLM, BOEM, BSEE, ONRR, the Deputy Assistant Secretary—Natural Resources Revenue, or any successor organization, as appropriate.
Last address of record means the address in a person’s most recent filing in an appeal or, if there has not been any filing, the person’s address as provided in the Bureau or Office decision under appeal.
ONRR means the Office of Natural Resources Revenue.
Office or officer includes “administrative law judge” or “Board” where the context so requires.
Party includes a party’s representative(s) where the context so requires.
Secretary means the Secretary of the Interior or an authorized representative.
§ 4.401 Documents; filing and service.
(a) Grace period for filing. Whenever a document is required under this subpart to be filed within a certain time and it is not received in the proper office during that time, the delay in filing will be waived if the document is filed not later than 10 days after it was required to be filed and it is determined that the document was transmitted or probably transmitted to the office in which the filing is required before the end of the period in which it was required to be filed. Determinations under this paragraph shall be made by the officer before whom is pending the appeal in connection with which the document is required to be filed.
(b) Transferees and encumbrancers. Transferees and encumbrancers of land the title to which is claimed or is in the process of acquisition under any public land law shall, upon filing notice of the transfer or encumbrance in the proper land office, become entitled to receive and be given the same notice of any appeal, or other proceeding thereafter initiated affecting such interest which is required to be given to a party to the proceeding. Every such notice of a transfer or encumbrance will be noted upon the records of the land office. Thereafter such transferee or encumbrancer must be made a party to any proceedings thereafter initiated adverse to the entry.
(c) Service of documents. (1) A party that files any document under this subpart must serve a copy of it concurrently as follows:
(i) On the appropriate official of the Office of the Solicitor under § 4.413(c) and (d);
(ii) For a notice of appeal and statement of reasons, on each person named in the decision under appeal; and
(iii) For all other documents, on each party to the appeal (including intervenors).
(2) Service on a person or party known to be represented by counsel or other designated representative must be made on the representative.
(3) Service must be made at the last address of record of the person or party (if unrepresented) or the representative, unless the person, party, or representative has notified the serving party of a subsequent change of address.
(4) Service may be made as shown in the following table:
| If the document is . . . | Service may be made by . . . |
|---|---|
| (i) A notice of appeal | (A) Personal delivery; |
| (B) Registered or certified mail, return receipt requested; | |
| (C) Delivery service, delivery receipt requested, if the last address of record is not a post office box; or | |
| (D) Electronic transmission if the person to be served has previously consented to that means in writing. | |
| (ii) Not a notice of appeal | (A) Personal delivery; |
| (B) Mail; | |
| (C) Delivery service, if the last address of record is not a post office box; or | |
| (D) Electronic transmission if the person to be served has previously consented to that means in writing. |
(5) At the conclusion of any document that a party must serve under the regulations in this subpart, the party must sign a written statement that:
(i) Certifies that service has been or will be made in accordance with the applicable rules; and
(ii) Specifies the date and manner of service.
(6) Service that complies with paragraphs (c)(2) through (4) of this section is complete as shown in the following table:
| If service is made by . . . | Service is complete when the document is . . . |
|---|---|
| (i) Personal delivery | Delivered to the party. |
| (ii) Mail or delivery service | Delivered to the party. |
| (iii) Electronic transmission | Transmitted to the party, unless the serving party learns that it did not reach the party to be served. |
(7) In the absence of evidence to the contrary, delivery under paragraph (c)(6)(ii) of this section is deemed to take place 5 business days after the document was sent. A document is considered sent when it is given to the U.S. Postal Service (or deposited in one of its mailboxes), properly addressed and with proper postage affixed, or when it is given to a delivery service (or deposited in one of its receptacles), properly addressed and with the delivery cost prepaid.
(d) Document format. (1) The format requirements in paragraph (d)(2) of this section apply to any pleading, motion, brief, or other document filed in a case under this subpart, other than an exhibit or attachment or the administrative record. A document filed with the Board by electronic transmission in a case must also comply with the requirements established in the OHA Standing Orders on Electronic Transmission, and the following requirements apply to any pleading, motion, brief, or other document filed in a case under this subpart, other than an exhibit of the administrative record.
(i) An exhibit or attachment must be 8
(ii) Any document that does not comply with the requirements in this paragraph (d) may be rejected.
(2) A document filed in a case must:
(i) Be 8
(ii) Be printed on just one side of the page;
(iii) Be clearly typewritten, printed, or otherwise reproduced by a process that yields legible and permanent copies;
(iv) Use 11 point font size or larger;
(v) Be double-spaced except for the case caption, argument headings, long quotations, and footnotes, which may be single-spaced;
(vi) Have margins of at least 1 inch;
(vii) Be numbered sequentially, starting on the second page; and
(vii) Be stapled in the upper left-hand corner, if stapled, or bound on the left side, if bound.
(e) Electronic transmission of documents. A document may be electronically transmitted under the terms specified in of OHA Standing Orders on Electronic Transmission issued by the Director. When done in accordance with the Standing Orders, a document may be:
(1) Filed by electronic transmission; and
(2) Served on or transmitted to a person or party by electronic transmission, if that person or party has consented to such means.
§ 4.402 Summary dismissal.
An appeal to the Board will be subject to summary dismissal by the Board for any of the following causes:
(a) If a statement of the reasons for the appeal is not included in the notice of appeal and is not filed within the time required;
(b) If the notice of appeal is not served upon adverse parties within the time required; and
(c) If the statement of reasons, if not contained in the notice of appeal, is not served upon adverse parties within the time required.
(d) If the statement of standing required by § 4.412(b) is not filed with the Board or is not served upon adverse parties within the time required.
§ 4.403 Finality of decision; reconsideration.
(a) The Board’s decision is final agency action and is effective on the date it is issued, unless the decision itself provides otherwise.
(b) The Board may reconsider its decision in extraordinary circumstances.
(1) A party that wishes to request reconsideration of a Board decision must file a motion for reconsideration with the Board within 60 days after the date of the decision.
(2) The motion may include a request that the Board stay the effectiveness of its decision.
(3) Any other party to the original appeal may file a response to a motion for reconsideration with the Board within 21 days after service of the motion, unless the Board orders otherwise.
(4) A motion for reconsideration will not stay the effectiveness or affect the finality of the Board’s decision unless so ordered by the Board for good cause.
(5) A party does not need to file a motion for reconsideration in order to exhaust its administrative remedies.
(c) A motion for reconsideration must:
(1) Specifically describe the extraordinary circumstances that warrant reconsideration; and
(2) Include all arguments and supporting documents.
(d) Extraordinary circumstances that may warrant granting reconsideration include, but are not limited to:
(1) Error in the Board’s interpretation of material facts;
(2) Recent judicial development;
(3) Change in Departmental policy; or
(4) Evidence that was not before the Board at the time the Board’s decision was issued and that demonstrates error in the decision.
(e) If the motion cites extraordinary circumstances under paragraph (d)(4) of this section, it must explain why the evidence was not provided to the Board during the course of the original appeal.
(f) The Board will not grant a motion for reconsideration that:
(1) Merely repeats arguments made in the original appeal, except in cases of demonstrable error; or
(2) Seeks relief from the legally binding consequences of a statute or regulation.
§ 4.404 Consolidation.
If the facts or legal issues in two or more appeals pending before the Board are the same or similar, the Board may consolidate the appeals, either on motion by a party or at the initiative of the Board.
§ 4.405 Extensions of time.
(a) If a document other than a notice of appeal is required to be filed or served within a definite time, a party may seek additional time by filing with the Board a motion requesting an extension of time.
(b) A motion requesting an extension must be filed no later than the day before the date the document is due, absent compelling circumstances. The motion may be filed and served by facsimile. Section 4.401(a) does not apply to a motion requesting an extension of time.
(c) Except as provided in paragraph (f) of this section, before filing a motion requesting an extension of time, the moving party must make reasonable efforts to contact each other party to determine whether the party opposes the motion. The moving party must state in its motion:
(1) Whether any party it reached opposes the motion; and
(2) What steps it took to contact any party it was unable to reach.
(d) Except as provided in paragraph (f) of this section, the party must support its motion requesting an extension of time by showing there is good cause to grant it.
(e) A Board order granting or denying a motion requesting an extension will state when the document must be filed. Except as provided in paragraph (f) of this section, if the Board does not act on a motion before the document is due, the document must be filed no later than 15 days after the original due date, unless the Board orders otherwise.
(f) A party seeking additional time to file an answer may have one automatic extension, not to exceed 30 days, of the deadline in § 4.414(a) by filing a motion for such extension under paragraphs (a) and (b) of this section.
§ 4.406 Intervention; amicus curiae.
(a) A person who wishes to intervene in an appeal must file a motion to intervene within 30 days after the person knew or should have known that the decision had been appealed to the Board.
(b) A motion to intervene must set forth the basis for the proposed intervention, including:
(1) Whether the person had a right to appeal the decision under § 4.410 or would be adversely affected if the Board reversed, vacated, set aside, or modified the decision; and
(2) How and when the person learned of the appeal.
(c) The Board may:
(1) Grant the motion to intervene;
(2) Deny the motion to intervene for good cause, e.g., where granting it would disadvantage the rights of the existing parties or unduly delay adjudication of the appeal; or
(3) Grant the motion to intervene but limit the person’s participation in the appeal.
(d) A person may file a motion at any time to file a brief as an amicus curiae.
(1) The motion must state the person’s interest in the appeal and how its brief will be relevant to the issues involved.
(2) The Board may grant or deny the motion in its discretion. The Board may also allow a person to file a brief as amicus curiae if it denies the person’s motion to intervene.
(e) A person granted full or limited intervenor status is a party to the appeal, while an amicus curiae is not. A person granted amicus curiae status must serve its brief on the parties to the appeal.
§ 4.407 Motions.
(a) Any motion filed with the Board must provide a concise statement of the reasons supporting the motion.
(b) When a person or party files a motion, other than a motion for an extension of time under § 4.405, any party has 15 days after service of the motion to file a written response, unless a provision of this subpart or the Board by order provides otherwise.
(c) The Board will rule on any motion as expeditiously as possible.
(d) The requirements of § 4.401(d) apply to a motion.
appeals to the board of land appeals
§ 4.410 Who may appeal.
(a) Any party to a case who is adversely affected by a decision of the Bureau or Office or an administrative law judge has the right to appeal to the Board, except:
(1) As otherwise provided in Group 2400 of chapter II of this title,
(2) To the extent that decisions of Bureau of Land Management officers must first be appealed to an administrative law judge under § 4.470 and part 4100 of this title,
(3) Where a decision has been approved by the Secretary, and
(4) As provided in paragraph (e) of this section.
(b) A party to a case, as set forth in paragraph (a) of this section, is one who has taken action that is the subject of the decision on appeal, is the object of that decision, or has otherwise participated in the process leading to the decision under appeal, e.g., by filing a mining claim or application for use of public lands, by commenting on an environmental document, or by filing a protest to a proposed action.
(c) Where the Bureau or Office provided an opportunity for participation in its decisionmaking process, a party to the case, as set forth in paragraph (a) of this section, may raise on appeal only those issues:
(1) Raised by the party in its prior participation; or
(2) That arose after the close of the opportunity for such participation.
(d) A party to a case is adversely affected, as set forth in paragraph (a) of this section, when that party has a legally cognizable interest, and the decision on appeal has caused or is substantially likely to cause injury to that interest.
(e) For decisions rendered by Departmental officials relating to land selections under the Alaska Native Claims Settlement Act, as amended, any party who claims a property interest in land affected by the decision, an agency of the Federal Government or a regional corporation shall have a right to appeal to the Board.
§ 4.411 Appeal; how taken, mandatory time limit.
(a) A person who wishes to appeal to the Board must file a notice that the person wishes to appeal.
(1) The notice of appeal must be filed in the office of the officer who made the decision (not the Board).
(2) Except as otherwise provided by law:
(i) A person served with the decision being appealed must transmit the notice of appeal in time for it to be received in the appropriate office no later than 30 days after the date of service of the decision; and
(ii) If a decision is published in the
(b) The notice of appeal must give the serial number or other identification of the case. The notice of appeal may include a statement of reasons for the appeal, and a statement of standing if required by § 4.412(b).
(c) No extension of time will be granted for filing the notice of appeal. If a notice of appeal is filed after the grace period provided in § 4.401(a), the notice of appeal will not be considered and the case will be closed by the officer from whose decision the appeal is taken. If the notice of appeal is filed during the grace period provided in § 4.401(a) and the delay in filing is not waived, as provided in that section, the notice of appeal will not be considered and the appeal will be dismissed by the Board.
(d) After receiving a timely notice of appeal, the office of the officer who made the decision must promptly forward to the Board:
(1) The notice of appeal;
(2) Any statement of reasons, statement of standing, and other documents included with the notice of appeal; and
(3) The complete administrative record compiled during the officer’s consideration of the matter leading to the decision being appealed.
§ 4.412 Statement of reasons; statement of standing; reply briefs.
(a) An appellant must file a statement of reasons for appeal with the Board no later than 30 days after the notice of appeal was filed. Unless the Board orders otherwise upon motion for good cause shown, the text of a statement of reasons may not exceed 30 pages, excluding exhibits, declarations, or other attachments.
(b) Where the decision being appealed relates to land selections under the Alaska Native Claims Settlement Act, as amended, the appellant also shall file with the Board a statement of facts upon which the appellant relies for standing under § 4.410(e) within 30 days after filing of the notice of appeal. The statement may be included with the notice of appeal filed pursuant to § 4.411 or the statement of reasons filed pursuant to paragraph (a) of this section or may be filed as a separate document.
(c) Failure to file the statement of reasons and statement of standing within the time required will subject the appeal to summary dismissal as provided in § 4.402, unless the delay in filing is waived as provided in § 4.401(a).
(d) The filing of a reply brief is discouraged. However, an appellant who wishes to file a reply brief may do so within 15 days after service of an answer under § 4.414.
(1) The reply brief is limited to the issues raised in the answer.
(2) Unless the Board orders otherwise upon motion for good cause shown, the text of a reply brief may not exceed 20 pages, excluding exhibits, declarations, or other attachments.
(e) The requirements of § 4.401(d) apply to a statement of reasons and a reply brief.
§ 4.413 Service of notice of appeal.
(a) The appellant must serve a copy of the notice of appeal on each person named in the decision from which the appeal is taken and on the Office of the Solicitor as identified in paragraphs (c) and (d) of this section. Service must be accomplished and certified as prescribed in § 4.401(c).
(b) Failure to serve a notice of appeal will subject the appeal to summary dismissal as provided in § 4.402.
(c) The appellant must serve a copy of the notice of appeal on the Office of the Solicitor as identified in OHA Standing Orders on Contact Information.
(d) This paragraph (d) applies to any appeal taken from a decision of a BLM State Office, including all District, Field, and Area Offices within that State Office’s jurisdiction. The appellant must serve documents on the Office of the Solicitor as identified in the OHA Standing Orders on Contact Information.
(e) A notice of appeal may be electronically filed or served in accordance with § 4.401(e).
(f) Parties must serve the Office of the Solicitor as required by this section until a particular attorney of the Office of the Solicitor files and serves a Notice of Appearance or Substitution of Counsel. Thereafter, parties must serve the Office of the Solicitor as indicated by the Notice of Appearance or Substitution of Counsel.
(g) The appellant must certify service as provided in § 4.401(c)(5).
§ 4.414 Answers.
(a) Any person served with a notice of appeal who wishes to participate in the appeal must file an answer or appropriate motion with the Board within 30 days after service of the statement of reasons for appeal. The answer must respond to the statement of reasons for appeal.
(b) Unless the Board orders otherwise upon motion for good cause shown:
(1) The text of the answer or motion may not exceed 30 pages, excluding exhibits, declarations, or other attachments; and
(2) The party may not file any further pleading.
(c) Failure to file an answer or motion will not result in a default. If an answer or motion is filed or served after the time required, the Board may disregard it in deciding the appeal, unless the delay in filing is waived as provided in § 4.401(a).
(d) The requirements of § 4.401(d) apply to an answer or motion.
§ 4.415 Motion for a hearing on an appeal involving questions of fact.
(a) Any party may file a motion that the Board refer a case to an administrative law judge for a hearing. The motion must state:
(1) What specific issues of material fact require a hearing;
(2) What evidence concerning these issues must be presented by oral testimony, or be subject to cross-examination;
(3) What witnesses need to be examined; and
(4) What documentary evidence requires explanation, if any.
(b) In response to a motion under paragraph (a) of this section or on its own initiative, the Board may order a hearing if there are:
(1) Any issues of material fact which, if proved, would alter the disposition of the appeal; or
(2) Significant factual or legal issues remaining to be decided, and the record without a hearing would be insufficient for resolving them.
(c) If the Board orders a hearing, it must:
(1) Specify the issues of fact upon which the hearing is to be held; and
(2) Request the administrative law judge to issue:
(i) Proposed findings of fact on the issues presented at the hearing;
(ii) A recommended decision that includes findings of fact and conclusions of law; or
(iii) A decision that will be final for the Department unless a notice of appeal is filed in accordance with § 4.411.
(d) If the Board orders a hearing, it may do one or more of the following:
(1) Suspend the effectiveness of the decision under review pending a final Departmental decision on the appeal if it finds good cause to do so;
(2) Authorize the administrative law judge to specify additional issues; or
(3) Authorize the parties to agree to additional issues that are material, with the approval of the administrative law judge.
(e) The hearing will be conducted under §§ 4.430 to 4.438 and the general rules in subpart B of this part. Unless the Board orders otherwise, the administrative law judge may consider other relevant issues and evidence identified after referral of the case for a hearing.
§ 4.416 Appeals of wildfire management decisions.
The Board must decide appeals from decisions under § 4190.1 and § 5003.1(b) of this title within 60 days after all pleadings have been filed, and within 180 days after the appeal was filed.
Hearings Procedures
§ 4.420 Applicability of general rules.
To the extent they are not inconsistent with these special rules, the general rules of the Office of Hearings and Appeals in subpart B of this part are also applicable to hearings, procedures.
§ 4.421 Definitions.
In addition to the definitions in § 4.400, as used in this subpart:
Director means the Director of BLM or a BLM Deputy Director or Assistant Director.
Manager means the BLM official with direct jurisdiction over the public lands that are pertinent to the decision or contest.
Person named in the decision means any of the following persons identified in a final BLM grazing decision: An affected applicant, permittee, lessee, or agent or lienholder of record, or an interested public as defined in § 4100.0-5 of this title.
State Director means the supervising BLM officer for the State in which a particular range lies, or an authorized representative.
§ 4.422 Documents; filing and service.
(a) Grace period for filing. Whenever a document is required under this subpart to be filed within a certain time and it is not received in the proper office during that time, the delay in filing will be waived if the document is filed not later than 10 days after it was required to be filed and it is determined that the document was transmitted or probably transmitted to the office in which the filing is required before the end of the period in which it was required to be filed. Determinations under this paragraph shall be made by the officer before whom is pending the appeal or contest in connection with which the document is required to be filed. This paragraph does not apply to requests for postponement of hearings under §§ 4.452-1 and 4.452-2.
(b) Transferees and encumbrancers. Transferees and encumbrancers of land, the title to which is claimed or is in the process of acquisition under any public land law shall, upon filing notice of the transfer or encumbrance in the proper land office, become entitled to receive and be given the same notice of any contest, appeal, or other proceeding thereafter initiated affecting such interest which is required to be given to a party to the proceeding. Every such notice of a transfer or encumbrance will be noted upon the records of the land office. Thereafter such transferee or encumbrancer must be made a party to any proceedings thereafter initiated adverse to the entry.
(c) Service of documents. (1) A party that files any document under this subpart must serve a copy of it concurrently as follows:
(i) On the appropriate official of the Office of the Solicitor under § 4.413(c) and (d);
(ii) For a notice of appeal and statement of reasons, on each person named in the decision under appeal; and
(iii) For all other documents, on each party to the appeal.
(2) Service on a party known to be represented by counsel or other designated representative must be made on the representative.
(3) Service must be made at the last address of record of the party (if unrepresented) or the representative, unless the party or representative has notified the serving party of a subsequent change of address.
(4) Service may be made as shown in the following table:
| If the document is . . . | Service may be made by . . . |
|---|---|
| (i) An appeal under § 4.470 | (A) Personal delivery; |
| (B) Registered or certified mail, return receipt requested; | |
| (C) Delivery service, delivery receipt requested, if the last address of record is not a post office box; or | |
| (D) Electronic transmission, if the person to be served has previously consented to that means of service in writing. | |
| (ii) A complaint under § 4.450-4 or 4.451-2 | (A) Any of the methods specified in paragraph (c)(4)(i) of this paragraph; or |
| (B) Publication as specified in § 4.450-5. | |
| (iii) Neither an appeal nor a complaint | (A) Personal delivery; |
| (B) Mail; | |
| (C) Delivery service, if the last address of record is not a post office box; or | |
| (D) Electronic transmission, if the person to be served has consented to that means in writing. |
(5) At the conclusion of any document that a party must serve under the regulations in this subpart, the party must sign a written statement that:
(i) Certifies that service has been or will be made in accordance with the applicable rules; and
(ii) Specifies the date and manner of service.
(6) Service that complies with paragraphs (c)(2) through (4) of this section is complete as shown in the following table:
| If service is made by . . . | Service is complete when . . . |
|---|---|
| (i) Personal delivery | The document is delivered to the party. |
| (ii) Mail or delivery service | The document is delivered to the party. |
| (iii) Electronic transmission | The document is transmitted to the party, unless the serving party learns that it did not reach the party to be served. |
| (iv) Publication | The final notice is published under § 4.450-5(b)(3). |
(7) In the absence of evidence to the contrary, delivery under paragraph (c)(6)(ii) of this section is deemed to take place 5 business days after the document was sent.
(d) The manager or administrative law judge, as the case may be, may extend the time for filing or serving any document in a contest, other than a notice of appeal under § 4.452-9.
(e) Electronic transmission of documents. A document may be electronically transmitted under the terms of the OHA Standing Orders on Electronic Transmission issued by the Director. When done in accordance with the Standing Orders, a document may be:
(1) Filed by electronic transmission; and
(2) Served on or transmitted to a person or party by electronic transmission if that person or party has consented to such means.
§ 4.423 Subpoena power and witness provisions.
The administrative law judge is authorized to issue subpoenas directing 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, for the purpose of taking testimony but not for discovery. The issuance of subpoenas, service, attendance fees, and similar matters shall be governed by the Act of January 31, 1903 (43 U.S.C. 102-106), and 28 U.S.C. 1821.
hearings on appeals involving questions of fact
§ 4.430 Prehearing conferences.
(a) The administrative law judge may, in his discretion, on his own motion or motion of one of the parties or of the Bureau or Office direct the parties or their representatives to appear at a specified time and place for a prehearing conference to consider: (1) The possibility of obtaining stipulations, admissions of facts and agreements to the introduction of documents, (2) the limitation of the number of expert witnesses, and (3) any other matters which may aid in the disposition of the proceedings.
(b) The administrative law judge shall issue an order which recites the action taken at the conference and the agreements made as to any of the matters considered, and which limits the issues for hearing to those not disposed of by admissions or agreements. Such order shall control the subsequent course of the proceeding before the administrative law judge unless modified for good cause, by subsequent order.
§ 4.431 Fixing of place and date for hearing; notice.
The administrative law judge shall fix a place and date for the hearing and notify all parties and the Bureau or Office. All hearings held in connection with land selection appeals arising under the Alaska Native Claims Settlement Act, as amended, shall be conducted within the State of Alaska, unless the parties agree otherwise.
§ 4.432 Postponements.
(a) Postponements of hearings will not be allowed upon the request of any party or the Bureau or Office except upon a showing of good cause and proper diligence. A request for a postponement must be served upon all parties to the proceeding and filed in the office of the administrative law judge at least 10 days prior to the date of the hearing. In no case will a request for postponement served or filed less than 10 days in advance of the hearing or made at the hearing be granted unless the party requesting it demonstrates that an extreme emergency occurred which could not have been anticipated and which justifies beyond question the granting of a postponement. In any such emergency, if time does not permit the filing of such request prior to the hearing, it may be made orally at the hearing.
(b) The request for a postponement must state in detail the reasons why a postponement is necessary. If a request is based upon the absence of witnesses, it must state what the substance of the testimony of the absent witnesses would be. No postponement will be granted if the adverse party or parties file with the administrative law judge within 5 days after the service of the request a statement admitting that the witnesses on account of whose absence the postponement is desired would, if present, testify as stated in the request. If time does not permit the filing of such statement prior to the hearing, it may be made orally at the hearing.
(c) Only one postponement will be allowed to a party on account of the absence of witnesses unless the party requesting a further postponement shall at the time apply for an order to take the testimony of the alleged absent witness by deposition.
§ 4.433 Authority of the administrative law judge.
(a) The administrative law judge has general authority to conduct the hearing in an orderly and judicial manner, including authority to:
(1) Administer oaths;
(2) Call and question witnesses;
(3) Subpoena witnesses as specified in paragraph (b) of this section;
(4) Issue findings and decisions as specified in paragraph (c) of this section; and
(5) Take any other actions that the Board may prescribe in referring the case for hearing.
(b) The administrative law judge has authority to subpoena witnesses and to take and cause depositions to be taken for the purpose of taking testimony but not for discovery. This authority must be exercised in accordance with the Act of January 31, 1903 (32 Stat. 790; 43 U.S.C. 102 through 106).
(c) The administrative law judge has authority to issue any of the following, as specified by the Board under § 4.415(c)(2):
(1) Proposed findings of fact on the issues presented at the hearing;
(2) A recommended decision that includes findings of fact and conclusions of law; or
(3) A decision that will be final for the Department unless a notice of appeal is filed in accordance with § 4.411 within 30 days of receipt of the decision.
(d) The issuance of subpoenas, the attendance of witnesses, and the taking of depositions are governed by §§ 4.423 and 4.26.
§ 4.434 Conduct of hearing.
(a) The administrative law judge may seek to obtain stipulations as to material facts.
(b) Unless the administrative law judge directs otherwise:
(1) The appellant will first present its evidence on the facts at issue; and
(2) The other parties and the Bureau or Office will then present their evidence on such issues.
§ 4.435 Evidence.
(a) All oral testimony shall be under oath and witnesses shall be subject to cross-examination. The administrative law judge may question any witnesses. Documentary evidence may be received if pertinent to any issue. The administrative law judge will summarily stop examination and exclude testimony which is obviously irrelevant and immaterial.
(b) Objections to evidence will be ruled upon by the administrative law judge. Such rulings will be considered, but need not be separately ruled upon, by the Board in connection with its decision. Where a ruling of an administrative law judge sustains an objection to the admission of evidence, the party affected may insert in the record, as a tender of proof, a summary written statement of the substance of the excluded evidence and the objecting party may then make an offer of proof in rebuttal.
§ 4.436 Reporter’s fees.
Reporter’s fees shall be borne by the Bureau or Office.
§ 4.437 Copies of transcript.
Each party must pay for any copies of the transcript that the party requests. The Bureau or Office will file the original transcript with the case record.
§ 4.438 Action by administrative law judge.
(a) Upon completion of the hearing and the incorporation of the transcript in the record, the administrative law judge will issue and serve on the parties, as specified by the Board under § 4.415(c)(2):
(1) Proposed findings of fact on the issues presented at the hearing;
(2) A recommended decision that includes findings of fact and conclusions of law and that advises the parties of their right to file exceptions under paragraph (c) of this section; or
(3) A decision that will be final for the Department unless a notice of appeal is filed in accordance with § 4.411.
(b) The administrative law judge will promptly send to the Board the record and:
(1) The proposed findings;
(2) The recommended decision; or
(3) The final decision if a timely notice of appeal is filed.
(c) The parties will have 30 days from service of proposed findings or a recommended decision to file exceptions with the Board.
§ 4.450 Private contests and protests.
§ 4.450-1 By whom private contest may be initiated.
Any person who claims title to or an interest in land adverse to any other person claiming title to or an interest in such land or who seeks to acquire a preference right pursuant to the Act of May 14, 1880, as amended (43 U.S.C. 185), or the Act of March 3, 1891 (43 U.S.C. 329), may initiate proceedings to have the claim of title or interest adverse to his claim invalidated for any reason not shown by the records of the Bureau of Land Management. Such a proceeding will constitute a private contest and will be governed by the regulations herein.
§ 4.450-2 Protests.
Where the elements of a contest are not present, any objection raised by any person to any action proposed to be taken in any proceeding before the Bureau will be deemed to be a protest and such action thereon will be taken as is deemed to be appropriate in the circumstances.
§ 4.450-3 Initiation of contest.
Any person desiring to initiate a private contest must file a complaint in the proper land office (see § 1821.2-1 of chapter II of this title). The contestant must serve a copy of the complaint on the contestee not later than 30 days after filing the complaint and must file proof of such service, as required by § 4.422(c), in the office where the complaint was filed within 30 days after service.
§ 4.450-4 Complaints.
(a) Contents of complaint. The complaint shall contain the following information, under oath:
(1) The name and address of each party interested;
(2) A legal description of the land involved;
(3) A reference, so far as known to the contestant, to any proceedings pending for the acquisition of title to, or an interest, in such land:
(4) A statement in clear and concise language of the facts constituting the grounds of contest;
(5) A statement of the law under which contestant claims or intends to acquire title to, or an interest in, the land and of the facts showing that he is qualified to do so;
(6) A statement that the proceeding is not collusive or speculative but is insitituted and will be diligently pursued in good faith;
(7) A request that the contestant be allowed to prove his allegations and that the adverse interest be invalidated;
(8) The office in which the complaint is filed and the address to which documents shall be sent for service on the contestant; and
(9) A notice that unless the contestee files an answer to the complaint in such office within 30 days after service of the notice, the allegations of the complaint will be taken as confessed.
(b) Amendment of complaint. Except insofar as the manager, administrative law judge, Director, Board or Secretary may raise issues in connection with deciding a contest, issues not raised in a complaint may not be raised later by the contestant unless the administrative law judge permits the complaint to be amended after due notice to the other parties and an opportunity to object.
(c) Corroboration required. All allegations of fact in the complaint which are not matters of official record or capable of being judicially noticed and which, if proved, would invalidate the adverse interest must be corroborated under oath by the statement of witnesses. Each such allegation of fact must be corroborated by the statement of at least one witness having personal knowledge of the alleged fact and such fact must be set forth in the statement. All statements by witnesses shall be attached to the complaint.
(d) Filing fee. Each complaint must be accompanied by a filing fee of $10 and a deposit of $20 toward reporter’s fees. Any complaint which is not accompanied by the required fee and deposit will not be accepted for filing.
(e) Waiver of issues. Any issue not raised by a private contestant in accordance with the provisions of paragraph (b) of this section, which was known to him, or could have been known to him by the exercise of reasonable diligence, shall be deemed to have been waived by him, and he shall thereafter be forever barred from raising such issue.
§ 4.450-5 Service.
The complaint must be served upon every contestee in the manner provided in § 4.422(c)(1). Proof of service must be made in the manner provided in § 4.422(c)(2). In certain circumstances, service may be made by publication as provided in paragraph (b)(1) of this section. When the contest is against the heirs of a deceased entryman, the notice must be served on each heir. If the person to be personally served is an infant or a person who has been legally adjudged incompetent, service of notice must be made by delivering a copy of the notice to the legal guardian or committee, if there is one, of such infant or incompetent person. If there is no guardian or committee, then service must be by delivering a copy of the notice to the person having the infant or incompetent person in charge.
(a) Summary dismissal; waiver of defect in service. If a complaint when filed does not meet all the requirements of § 4.450-4(a) and (c), or if the complaint is not served upon each contestee as required by this section, the complaint will be summarily dismissed by the manager and no answer need be filed. However, where prior to the summary dismissal of a complaint a contestee answers without questioning the service or proof of service of the complaint, any defect in service will be deemed waived as to such answering contestee.
(b) Service by publication—(1) When service may be made by publication. When the contestant has made diligent search and inquiry to locate the contestee, and cannot locate him, the contestant may proceed with service by publication after first filing with the manager an affidavit which shall:
(i) State that the contestee could not be located after diligent search and inquiry made within 15 days prior to the filing of the affidavit;
(ii) Be corroborated by the affidavits of two persons who live in the vicinity of the land which state that they have no knowledge of the contestee’s whereabouts or which give his last known address;
(iii) State the last known address of the contestee; and
(iv) State in detail the efforts and inquiries made to locate the party sought to be served.
(2) Contents of published notice. The published notice must give the names of the parties to the contest, legal description of the land involved, the substance of the charges contained in the complaint, the office in which the contest is pending, and a statement that upon failure to file an answer in such office within 30 days after the completion of publication of such notice, the allegations of the complaint will be taken as confessed. The published notice shall also contain a statement of the dates of publication.
(3) Publication, mailing and posting of notice. (i) Notice by publication shall be made by publishing notice at least once a week for 5 successive weeks in some newspaper of general circulation in the county in which the land in contest lies.
(ii) Within 15 days after the first publication of a notice, the contestant shall send a copy of the notice and the complaint by registered or certified mail, return receipt requested, to the contestee at his last known address and also to the contestee in care of the post office nearest the land. The return receipts shall be filed in the office in which the contest is pending.
(iii) A copy of the notice as published shall be posted in the office where the contest is pending and also in a conspicuous place upon the land involved. Such postings shall be made within 15 days after the first publication of the notice.
(c) Proof of service. (1) Proof of publication of the notice shall be made by filing in the office where the contest is pending a copy of the notice as published and the affidavit of the publisher or foreman of the newspaper publishing the same showing the publication of the notice in accordance with paragraph (b)(3) of this section.
(2) Proof of posting of the notice shall be by affidavit of the person who posted the notice on the land and by the certificate of the manager or the Director of the Bureau of Land Management as to posting in his office.
(3) Proof of the mailing of notice shall be by affidavit of the person who mailed the notice to which shall be attached the return receipt.
§ 4.450-6 Answer to complaint.
Within 30 days after service of the complaint or after the last publication of the notice, the contestee must file in the office where the contest is pending an answer specifically meeting and responding to the allegations of the complaint, together with proof of service of a copy of the answer upon a contestant as provided in § 4.450-5(b)(3). The answer shall contain or be accompanied by the address to which all notices or other documents shall be sent for service upon contestee.
§ 4.450-7 Action by manager.
(a) If an answer is not filed as required, the allegations of the complaint will be taken as admitted by the contestee and the manager will decide the case without a hearing.
(b) If an answer is filed and unless all parties waive a hearing, the manager will refer the case to an administrative law judge upon determining that the elements of a private contest appear to have been established.
§ 4.450-8 Amendment of answer.
At the hearing, any allegation not denied by the answer will be considered admitted. The administrative law judge may permit the answer to be amended after due notice to other parties and an opportunity to object.
§ 4.451 Government contests.
§ 4.451-1 How initiated.
The Government may initiate contests for any cause affecting the legality or validity of any entry or settlement or mining claim.
§ 4.451-2 Proceedings in Government contests.
The proceedings in Government contests shall be governed by the rules relating to proceedings in private contests with the following exceptions:
(a) No corroboration shall be required of a Government complaint and the complaint need not be under oath.
(b) A Government contest complaint will not be insufficient and subject to dismissal for failure to name all parties interested, or for failure to serve every party who has been named.
(c) No filing fee or deposit toward reporter’s fee shall be required of the Government.
(d) Any action required of the contestant may be taken by any authorized Government employee.
(e) The statements required by § 4.450-4(a) (5) and (6) need not be included in the complaint.
(f) No posting of notice of publication on the land in issue shall be required of the Government.
(g) Where service is by publication, the affidavits required by § 4.450-5(b)(1) need not be filed. The contestant shall file with the manager a statement of diligent search which shall state that the contestee could not be located after diligent search and inquiry, the last known address of the contestee and the detail of efforts and inquiries made to locate the party sought to be served. The diligent search shall be concluded not more than 15 days prior to the filing of the statement.
(h) In lieu of the requirements of § 4.450-5(b)(3)(ii) the contestant shall, as part of the diligent search before the publication or within 15 days after the first publication send a copy of the complaint by certified mail, return receipt requested, to the contestee at the last address of record. The return receipts shall be filed in the office in which the contest is pending.
(i) The affidavit required by § 4.450-5(c)(3) need not be filed.
(j) The provisions of paragraph (e) of § 4.450-4(e) shall be inapplicable.
§ 4.452 Proceedings before the administrative law judge.
§ 4.452-1 Prehearing conferences.
(a) The administrative law judge may in his discretion, on his own motion or on motion of one of the parties, or of the Bureau, direct the parties or their representatives to appear at a specified time and place for a prehearing conference to consider:
(1) The simplification of the issues,
(2) The necessity of amendments to the pleadings,
(3) The possibility of obtaining stipulations, admissions of facts and agreements to the introduction of documents,
(4) The limitation of the number of expert witnesses, and
(5) Such other matters as may aid in the disposition of the proceedings.
(b) The administrative law judge shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made as to any of the matters considered, and which limits the issues for hearing to those not disposed of by admission or agreements. Such order shall control the subsequent course of the proceedings before the administrative law judge unless modified for good cause, by subsequent order.
§ 4.452-2 Notice of hearing.
The administrative law judge shall fix a place and date for the hearing and notify all parties and the Bureau at least 30 days in advance of the date set, unless the parties and the Bureau request or consent to an earlier date. The notice shall include (a) the time, place, and nature of the hearing, (b) the legal authority and jurisdiction under which the hearing is to be held, and (c) the matters of fact and law asserted. All hearings held in connection with land selection appeals arising under the Alaska Native Claims Settlement Act, as amended, shall be conducted within the state of Alaska, unless the parties agree otherwise.
§ 4.452-3 Postponements.
(a) Postponements of hearings will not be allowed upon the request of any party or the Bureau except upon a showing of good cause and proper diligence. A request for a postponement must be served upon all parties to the proceeding and filed in the office of the administrative law judge at least 10 days prior to the date of the hearing. In no case will a request for postponement served or filed less than 10 days in advance of the hearing or made at the hearing be granted unless the party requesting it demonstrates that an extreme emergency occurred which could not have been anticipated and which justifies beyond question the granting of a postponement. In any such emergency, if time does not permit the filing of such request prior to the hearing, it may be made orally at the hearing.
(b) The request for a postponement must state in detail the reasons why a postponement is necessary. If a request is based upon the absence of witnesses, it must state what the substance of the testimony of the absent witnesses would be. No postponement will be granted if the adverse party or parties file with the administrative law judge within 5 days after the service of the request a statement admitting that the witnesses on account of whose absence the postponement is desired would, if present, testify as stated in the request. If time does not permit the filing of such statement prior to the hearing, it may be made orally at the hearing.
(c) Only one postponement will be allowed to a party on account of the absence of witnesses unless the party requesting a further postponement shall at the time apply for an order to take the testimony of the alleged absent witness by deposition.
§ 4.452-4 Authority of administrative law judge.
The administrative law judge is vested with general authority to conduct the hearing in an orderly and judicial manner, including authority to subpoena witnesses and to take and cause depositions to be taken for the purpose of tasking testimony but not for discovery in accordance with the act of January 31, 1903 (43 U.S.C. 102-106), to administer oaths, to call and question witnesses, and to make a decision. The issuance of subpoenas, the attendance of witnesses and the taking of depositions shall be governed by §§ 4.423 and 4.26 of the general rules in subpart B of this part.
§ 4.452-5 Conduct of hearing.
So far as not inconsistent with a prehearing order, the administrative law judge may seek to obtain stipulations as to material facts and the issues involved and may state any other issues on which he may wish to have evidence presented. He may exclude irrelevant issues. The contestant will then present his case following which the other parties (and in private contests the Bureau, if it intervenes) will present their cases.
§ 4.452-6 Evidence.
(a) All oral testimony shall be under oath and witnesses shall be subject to cross-examination. The administrative law judge may question any witness. Documentary evidence may be received if pertinent to any issue. The administrative law judge will summarily stop examination and exclude testimony which is obviously irrelevant and immaterial.
(b) Objections to evidence will be ruled upon by the administrative law judge. Such rulings will be considered, but need not be separately ruled upon, by the Board in connection with its decision. Where a ruling of an administrative law judge sustains an objection to the admission of evidence, the party affected may insert in the record, as a tender of proof, a summary written statement of the substance of the excluded evidence, and the objecting party may then make an offer of proof in rebuttal.
§ 4.452-7 Reporter’s fees.
(a) The Government agency initiating the proceedings will pay all reporting fees in hearings in Government contest proceedings, in hearings under the Surface Resources Act of 1955, as amended, in hearings under the Multiple Mineral Development Act of 1954, as amended, where the United States is a party, and in hearings under the Mining Claims Rights Restoration Act of 1955, regardless of which party is ultimately successful.
(b) In the case of a private contest, each party will be required to pay the reporter’s fees covering the party’s direct evidence and cross-examination of witnesses, except that if the ultimate decision is adverse to the contestant, he must in addition pay all the reporter’s fees otherwise payable by the contestee.
(c) Each party to a private contest shall be required by the administrative law judge to make reasonable deposits for reporter’s fees from time to time in advance of taking testimony. Such deposits shall be sufficient to cover all reporter’s fees for which the party may ultimately be liable under paragraph (b) of this section. Any part of a deposit not used will be returned to the depositor upon the final determination of the case except that deposits which are required to be made when a complaint is filed will not be returned if the party making the deposit does not appear at the hearing, but will be used to pay the reporter’s fee. Reporter’s fees will be at the rates established for the local courts, or, if the reporting is done pursuant to a contract, at rates established by the contract.
§ 4.452-8 Findings and conclusions; decision by administrative law judge.
(a) At the conclusion of the testimony the parties at the hearing shall be given a reasonable time by the administrative law judge, considering the number and complexity of the issues and the amount of testimony, to submit to the administrative law judge proposed findings of fact and conclusions of law and reasons in support thereof or to stipulate to a waiver of such findings and conclusions.
(b) As promptly as possible after the time allowed for presenting proposed findings and conclusions, the administrative law judge shall make findings of fact and conclusions of law (unless waiver has been stipulated), giving the reasons therefor, upon all the material issues of fact, law, or discretion presented on the record. The administrative law judge may adopt the findings of fact and conclusions of law proposed by one or more of the parties if they are correct. He must rule upon each proposed finding and conclusion submitted by the parties and such ruling shall be shown in the record. The administrative law judge will render a written decision in the case which shall become a part of the record and shall include a statement of his findings and conclusions, as well as the reasons or basis therefor, and his rulings upon the findings and conclusions proposed by the parties if such rulings do not appear elsewhere in the record. A copy of the decision will be served upon all parties to the case.
§ 4.452-9 Appeal to Board.
Any party, including the Government, adversely affected by the decision of the administrative law judge may appeal to the Board as provided in § 4.410, and the general rules in Subpart B of this part. No further hearing will be allowed in connection with the appeal to the Board but the Board, after considering the evidence, may remand any case for further hearing if it considers such action necessary to develop the facts.
Grazing Procedures (Inside and Outside Grazing Districts)
§ 4.470 How to appeal a final BLM grazing decision to an administrative law judge.
(a) Any applicant, permittee, lessee, or other person whose interest is adversely affected by a final BLM grazing decision may appeal the decision to an administrative law judge within 30 days after receiving it or within 30 days after a proposed decision becomes final as provided in § 4160.3(a) of this title. To do so, the person must file an appeal with the BLM field office that issued the decision and serve a copy of the appeal on any person named in the decision.
(b) The appeal must state clearly and concisely the reasons why the appellant thinks the BLM grazing decision is wrong.
(c) Any ground for appeal not included in the appeal is waived. The appellant may not present a waived ground for appeal at the hearing unless permitted or ordered to do so by the administrative law judge.
(d) Any person who, after proper notification, does not appeal a final BLM grazing decision within the period provided in paragraph (a) of this section may not later challenge the matters adjudicated in the final BLM decision.
(e) Filing an appeal does not by itself stay the effectiveness of the final BLM decision. To request a stay of the final BLM decision pending appeal, see § 4.471.
§ 4.471 How to petition for a stay of a final BLM grazing decision.
(a) An appellant under § 4.470 may petition for a stay of the final BLM grazing decision pending appeal by filing a petition for a stay together with the appeal under § 4.470 with the BLM field office that issued the decision.
(b) Within 15 days after filing the appeal and petition for a stay, the appellant must serve copies on—
(1) Any other person named in the decision from which the appeal is taken; and
(2) The appropriate office of the Office of the Solicitor, in accordance with § 4.413(a) and (c).
(c) A petition for a stay of a final BLM grazing decision pending appeal under paragraph (a) of this section must show sufficient justification based on the following standards:
(1) The relative harm to the parties if the stay is granted or denied;
(2) The likelihood of the appellant’s success on the merits;
(3) The likelihood of immediate and irreparable harm if the stay is not granted; and
(4) Whether the public interest favors granting the stay.
(d) The appellant requesting a stay bears the burden of proof to demonstrate that a stay should be granted.
§ 4.472 Action on an appeal and petition for a stay.
(a) BLM must transmit any documents received under §§ 4.470 and 4.471, within 10 days after receipt, to the Hearings Division, Office of Hearings and Appeals. If a petition for a stay has been filed, the transmittal must also include any response BLM wishes to file to a petition for a stay and the following documents from the case file: the application, permit, lease, or notice of unauthorized use underlying the final BLM grazing decision; the proposed BLM grazing decision; any protest filed by the appellant under § 4160.2; the final BLM grazing decision; and any other documents that BLM wishes the administrative law judge to consider in deciding the petition for a stay. BLM must serve a copy of any such response on the appellant and any other person named in the decision from which the appeal is taken.
(b) Any person named in the decision from which an appeal is taken (other than the appellant) who wishes to file a response to the petition for a stay may file with the Hearings Division a motion to intervene in the appeal, together with the response, within 10 days after receiving the petition. Within 15 days after filing the motion to intervene and response, the person must serve copies on the appellant, the appropriate office of the Office of the Solicitor in accordance with § 4.413(a) and (c), and any other person named in the decision.
(c) If a petition for a stay has not been filed, BLM must promptly transmit the following documents from the case file to the administrative law judge assigned to the appeal, once the appeal has been docketed by the Hearings Division: the application, permit, lease, or notice of unauthorized use underlying the final BLM grazing decision; the proposed BLM grazing decision; any protest filed by the appellant under § 4160.2; and the final BLM grazing decision.
(d) Within 45 days after the expiration of the time for filing a notice of appeal, an administrative law judge must grant or deny—
(1) A petition for a stay filed under § 4.471(a), in whole or in part; and
(2) A motion to intervene filed with a response to the petition under paragraph (b) of this section.
(e) Any final BLM grazing decision that is not already in effect and for which a stay is not granted will become effective immediately after the administrative law judge denies a petition for a stay or fails to act on the petition within the time set forth in paragraph (d) of this section.
(f) At any appropriate time, any party may file with the Hearings Division a motion to dismiss the appeal or other appropriate motion. The appellant and any other party may file a response to the motion within 30 days after receiving a copy.
(g) Within 15 days after filing a motion or response under paragraph (f) of this section, any moving or responding party must serve a copy on every other party. Service on BLM must be made on the appropriate office of the Office of the Solicitor in accordance with § 4.413(a) and (c).
§ 4.473 Time and place of hearing; notice; intervenors.
At least 30 days before the date set by the administrative law judge the authorized officer will notify the appellant of the time and place of the hearing within or near the district. Any other person who in the opinion of the authorized officer may be directly affected by the decision on appeal will also be notified of the hearing; such person may himself appear at the hearing, or by attorney, and upon a proper showing of interest, may be recognized by the administrative law judge as an intervenor in the appeal.
§ 4.474 Authority of administrative law judge.
(a) The administrative law judge is vested with the duty and general authority to conduct the hearing in an orderly, impartial, and judicial manner, including authority to subpoena witnesses, recognize intervenors, administer oaths and affirmations, call and question witnesses, regulate the course and order of the hearing, rule upon offers of proof and the relevancy of evidence, and to make findings of fact, conclusions of law, and a decision. The administrative law judge shall have authority to take or to cause depositions to be taken. Subpoenas, depositions, the attendance of witnesses, and witness and deposition fees shall be governed by § 4.26 of the general rules in Subpart B of this part, to the extent such regulations are applicable.
(b) The administrative law judge also may grant or order continuances, and set the times and places of further hearings. Continuances shall be granted in accordance with § 4.452-3.
(c) The administrative law judge may consider and rule on all motions and petitions, including a petition for a stay of a final BLM grazing decision.
(d) An administrative law judge may consolidate two or more appeals for purposes of hearing and decision when they involve a common issue or issues.
§ 4.475 Service.
Service of notice or other documents required under this subpart shall be governed by §§ 4.413 and 4.422. Proof of such service shall be filed in the same office where the notice or document was filed within 15 days after such service, unless filed with the notice or document.
§ 4.476 Conduct of hearing; reporter’s fees; transcript.
(a) The appellant, the State Director or his representative, and recognized intervenors will stipulate so far as possible all material facts and the issue or issues involved. The administrative law judge will state any other issues on which he may wish to have evidence presented. Issues which appear to the administrative law judge to be unnecessary to a proper disposition of the case will be excluded; but the party asserting such issue may state briefly for the record the substance of the proof which otherwise would have been offered in support of the issue. Issues not covered by the appellant’s specifications of error may not be admitted except with the consent of the State Director or his representative, unless the administrative law judge rules that such issue is essential to the controversy and should be admitted. The parties will then be given an opportunity to submit offers of settlement and proposals of adjustment for the consideration of the administrative law judge and of the other parties.
(b) Unless the administrative law judge orders otherwise, the State Director or his representative will then make the opening statement, setting forth the facts leading to the appeal. Upon the conclusion of the opening statement, the appellant shall present his case, consistent with his specifications of error. (In the case of a show cause, the State Director shall set forth the facts leading to the issuance of the show cause notice and shall present his case following the opening statement.) Following the appellant’s presentation, or upon his failure to make such presentation, the administrative law judge, upon his own motion or upon motion of any of the parties, may order summary dismissal of the appeal with prejudice because of the inadequacy or insufficiency of the appellant’s case, to be followed by a written order setting forth the reasons for the dismissal and taking such other action under this subpart as may be proper and warranted. An appeal may be had from such order as well as from any other final determination made by the administrative law judge.
(c) In the absence or upon denial of such motion the State Director or his representative and recognized intervenors may present evidence if such a presentation appears to the administrative law judge to be necessary for a proper disposition of the matters in controversy, adhering as closely as possible to the issues raised by the appellant. All oral testimony shall be under oath or affirmation, and witnesses shall be subject to cross-examination by any party to the proceeding. The administrative law judge may question any witness whenever it appears necessary. Documentary evidence will be received by the administrative law judge and made a part of the record, if pertinent to any issue, or may be entered by stipulation. No exception need be stated or noted and every ruling of the administrative law judge will be subject to review on appeal. The party affected by an adverse ruling sustaining an objection to the admission of evidence, may insert in the record, as a tender of proof, a brief written statement of the substance of the excluded evidence; and the opposing party may then make an offer of proof in rebuttal. The administrative law judge shall summarily stop examination and exclude testimony on any issue which he determines has been adjudicated previously in an appeal involving the same preference and the same parties or their predecessors in interest, or which is obviously irrelevant and immaterial to the issues in the case. At the conclusion of the testimony the parties at the hearing shall be given a reasonable opportunity, considering the number and complexity of the issues and the amount of testimony, to submit to the administrative law judge proposed findings of fact and conclusions of law, and reasons in support thereof, or to stipulate to a waiver of such findings and conclusions.
(d) The reporter’s fees will be borne by the Government. Each party must pay for any copies of the transcript that the party requests. The Government will file the original transcript with the case record.
§ 4.477 Findings and conclusions; decision by administrative law judge.
As promptly as possible after the time allowed for presenting proposed findings and conclusions, the administrative law judge will make findings of fact and conclusions of law, unless waiver has been stipulated, and will render a decision upon all issues of material fact and law presented on the record. In doing so, he or she may adopt the findings of fact and conclusions of law proposed by one or more of the parties if they are correct. The reasons for the findings, conclusions, and decision made will be stated, and along with the findings, conclusions, and decision, will become a part of the record in any further appeal. A copy of the decision must be sent by certified mail to all the parties or by electronic transmission if the parties consented to such means under the terms of OHA Standing Orders on Electronic Transmission.
§ 4.478 Appeals to the Board of Land Appeals; judicial review.
(a) Any person who has a right of appeal under § 4.410 or other applicable regulation may appeal to the Board from an order of an administrative law judge granting or denying a petition for a stay in accordance with § 4.411.
(b) As an alternative to paragraph (a) of this section, any party other than BLM may seek judicial review under 5 U.S.C. 704 of a final BLM grazing decision if the administrative law judge denies a petition for a stay, either directly or by failing to meet the deadline in § 4.472(d).
(c) If a party appeals under paragraph (a) of this section, the Board must issue an expedited briefing schedule and decide the appeal promptly.
(d) Unless the Board or a court orders otherwise, an appeal under paragraph (a) of this section does not—
(1) Suspend the effectiveness of the decision of the administrative law judge; or
(2) Suspend further proceedings before the administrative law judge.
(e) Any party adversely affected by the administrative law judge’s decision on the merits has the right to appeal to the Board under the procedures in this part.
§ 4.479 Effectiveness of decision during appeal.
(a) Consistent with the provisions of §§ 4.21(a) and 4.472(e) and except as provided in paragraphs (b) and (c) of this section or other applicable regulation, a final BLM grazing decision will not be effective—
(1) Until the expiration of the time for filing an appeal under § 4.470(a); and
(2) If a petition for a stay is filed under § 4.471(a), until the administrative law judge denies the petition for a stay or fails to act on the petition within the time set forth in § 4.472(d).
(b) Consistent with the provisions of §§ 4160.3 and 4190.1 of this title and notwithstanding the provisions of § 4.21(a), a final BLM grazing decision may provide that the decision will be effective immediately. Such a decision will remain effective pending a decision on an appeal, unless a stay is granted by an administrative law judge under § 4.472 or by the Board under § 4.478(a).
(c) Notwithstanding the provisions of § 4.21(a), when the public interest requires, an administrative law judge may provide that the final BLM grazing decision will be effective immediately.
(d) An administrative law judge or the Board may change or revoke any action that BLM takes under a final BLM grazing decision on appeal.
(e) In order to ensure exhaustion of administrative remedies before resort to court action, a BLM grazing decision is not final agency action subject to judicial review under 5 U.S.C. 704 unless—
(1) A petition for a stay of the BLM decision has been timely filed and the BLM decision has been made effective under § 4.472(e), or
(2) The BLM decision has been made effective under paragraphs (b) or (c) of this section or other applicable regulation, and a stay has not been granted.
(f) Exhaustion of administrative remedies is not required if a stay would not render the challenged portion of the BLM decision inoperative under subpart 4160 of this title.
§ 4.480 Conditions of decision action.
(a) Record as basis of decision; definition of record. No decision shall be rendered except on consideration of the whole record or such portions thereof as may be cited by any party or by the State Director and as supported by and in accordance with the reliable, probative, and substantial evidence. The transcript of testimony and exhibits, together with all documents and requests filed in the proceedings, shall constitute the exclusive record for decision.
(b) Effect of substantial compliance. No adjudication of grazing preference will be set aside on appeal, if it appears that it is reasonable and that it represents a substantial compliance with the provisions of part 4100 of this title.
Subpart F—Implementation of the Equal Access to Justice Act in Agency Proceedings
General Provisions
§ 4.601 What is the purpose of this subpart?
(a) The Equal Access to Justice Act provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (called “adversary adjudications”) before the Department of the Interior. Under the Act, an eligible party may receive an award when it prevails over the Department or other agency, unless the position of the Department or other agency was substantially justified or special circumstances make an award unjust. The regulations in this subpart describe the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards that the Office of Hearings and Appeals will use in ruling on those applications.
(b) The regulations in this subpart apply to any application for an award of attorney fees and other expenses that is:
(1) Pending on February 8, 2006; or
(2) Filed on or after February 8, 2006.
§ 4.602 What definitions apply to this subpart?
As used in this subpart:
Act means section 203(a)(1) of the Equal Access to Justice Act, Public Law 96-481, 5 U.S.C. 504, as amended.
Adjudicative officer means the deciding official(s) who presided at the adversary adjudication, or any successor official(s) assigned to decide the application.
Adversary adjudication means any of the following:
(1) An adjudication under 5 U.S.C. 554 in which the position of the Department or other agency is presented by an attorney or other representative who enters an appearance and participates in the proceeding;
(2) Any hearing conducted under section 6103(a) of the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.); or
(3) Any hearing or appeal involving the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.).
Affiliate means:
(1) Any individual, corporation, or other entity that directly or indirectly controls or owns a majority of the voting shares or other interest of the applicant; or
(2) Any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest.
Demand means the express demand of the Department or other agency that led to the adversary adjudication, but does not include a recitation by the Department or other agency of the maximum statutory penalty:
(1) In the administrative complaint; or
(2) Elsewhere when accompanied by an express demand for a lesser amount.
Department means the Department of the Interior or the component of the Department that is a party to the adversary adjudication (e.g., Bureau of Land Management).
Final disposition means the date on which either of the following becomes final and unappealable, both within the Department and to the courts:
(1) A decision or order disposing of the merits of the proceeding; or
(2) Any other complete resolution of the proceeding, such as a settlement or voluntary dismissal.
Other agency means any agency of the United States or the component of the agency that is a party to the adversary adjudication before the Office of Hearings and Appeals, other than the Department of the Interior and its components.
Party means a party as defined in 5 U.S.C. 551(3).
Position of the Department or other agency means:
(1) The position taken by the Department or other agency in the adversary adjudication; and
(2) The action or failure to act by the Department or other agency upon which the adversary adjudication is based.
Proceeding means an adversary adjudication as defined in this section.
You means a party to an adversary adjudication.
§ 4.603 What proceedings are covered by this subpart?
(a) The Act applies to adversary adjudications conducted by the Office of Hearings and Appeals, including proceedings to modify, suspend, or revoke licenses if they are otherwise adversary adjudications.
(b) The Act does not apply to:
(1) Other hearings and appeals conducted by the Office of Hearings and Appeals, even if the Department uses procedures comparable to those in 5 U.S.C. 554 in such cases;
(2) Any proceeding in which the Department or other agency may prescribe a lawful present or future rate; or
(3) Proceedings to grant or renew licenses.
(c) If a hearing or appeal includes both matters covered by the Act and matters excluded from coverage, any award made will include only fees and expenses related to covered issues.
§ 4.604 When am I eligible for an award?
(a) To be eligible for an award of attorney fees and other expenses under the Act, you must:
(1) Be a party to the adversary adjudication for which you seek an award; and
(2) Show that you meet all conditions of eligibility in this section.
(b) You are an eligible applicant if you are any of the following:
(1) An individual with a net worth of $2 million or less;
(2) The sole owner of an unincorporated business who has a net worth of $7 million or less, including both personal and business interests, and 500 or fewer employees;
(3) A charitable or other tax-exempt organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) with 500 or fewer employees;
(4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) with 500 or fewer employees;
(5) Any other partnership, corporation, association, unit of local government, or organization with a net worth of $7 million or less and 500 or fewer employees; or
(6) For purposes of § 4.605(c), a small entity as defined in 5 U.S.C. 601(6).
(c) For the purpose of eligibility, your net worth and the number of your employees must be determined as of the date the proceeding was initiated.
(1) Your employees include all persons who regularly perform services for remuneration under your direction and control.
(2) Part-time employees must be included on a proportional basis.
(d) You are considered an “individual” rather than a “sole owner of an unincorporated business” if:
(1) You own an unincorporated business; and
(2) The issues on which you prevail are related primarily to personal interests rather than to business interests.
(e) To determine your eligibility, your net worth and the number of your employees must be aggregated with the net worth and the number of employees of all of your affiliates. However, this paragraph does not apply if the adjudicative officer determines that aggregation would be unjust and contrary to the purposes of the Act in light of the actual relationship between the affiliated entities.
(f) The adjudicative officer may determine that financial relationships other than those described in the definition of “affiliate” in § 4.602 constitute special circumstances that would make an award unjust.
(g) If you participate in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible, you are not eligible for an award.
§ 4.605 Under what circumstances may I receive an award?
(a) You may receive an award for your fees and expenses in connection with a proceeding if:
(1) You prevailed in the proceeding or in a significant and discrete substantive portion of a proceeding; and
(2) The position of the Department or other agency over which you prevailed was not substantially justified. The Department or other agency has the burden of proving that its position was substantially justified.
(b) An award will be reduced or denied if you have unduly or unreasonably protracted the proceeding or if special circumstances make the award sought unjust.
(c) This paragraph applies to an adversary adjudication arising from an action by the Department or other agency to enforce compliance with a statutory or regulatory requirement:
(1) If the demand of the Department or other agency in the action is excessive and unreasonable compared with the adjudicative officer’s decision, then the adjudicative officer must award you your fees and expenses related to defending against the excessive demand, unless:
(i) You have committed a willful violation of law;
(ii) You have acted in bad faith; or
(iii) Special circumstances make an award unjust.
(2) Fees and expenses awarded under this paragraph will be paid only if appropriations to cover the payment have been provided in advance.
§ 4.606 What fees and expenses may be allowed?
(a) If the criteria in §§ 4.603 through 4.605 are met, you may receive an award under this subpart only for the fees and expenses of your attorney(s) and expert witness(es).
(b) The adjudicative officer must base an award on rates customarily charged by persons engaged in the business of acting as attorneys and expert witnesses, even if the services were made available to you without charge or at a reduced rate.
(1) The maximum that can be awarded for the fee of an attorney is $125 per hour.
(2) The maximum that can be awarded for the fee of an expert witness is the highest rate at which the Department or other agency pays expert witnesses with similar expertise.
(3) An award may also include the reasonable expenses of the attorney or expert witness as a separate item, if the attorney or expert witness ordinarily charges clients separately for those expenses.
(c) The adjudicative officer may award only reasonable fees and expenses under this subpart. In determining the reasonableness of the fee for an attorney or expert witness, the adjudicative officer must consider the following:
(1) If the attorney or expert witness is in private practice, his or her customary fee for similar services;
(2) If the attorney or expert witness is your employee, the fully allocated cost of the services;
(3) The prevailing rate for similar services in the community in which the attorney or expert witness ordinarily performs services;
(4) The time actually spent in representing you in the proceeding;
(5) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and
(6) Any other factors that bear on the value of the services provided.
(d) The adjudicative officer may award the reasonable cost of any study, analysis, engineering report, test, project, or similar matter prepared on your behalf to the extent that:
(1) The charge for the service does not exceed the prevailing rate for similar services; and
(2) The study or other matter was necessary for preparation of your case.
Information Required From Applicants
§ 4.610 What information must my application for an award contain?
(a) Your application for an award of fees and expenses under the Act must:
(1) Identify you;
(2) Identify the proceeding for which an award is sought;
(3) Show that you have prevailed;
(4) Specify the position of the Department or other agency that you allege was not substantially justified;
(5) Unless you are an individual, state the number of your employees and those of all your affiliates, and describe the type and purpose of your organization or business;
(6) State the amount of fees and expenses for which you seek an award;
(7) Be signed by you or your authorized officer or attorney;
(8) Contain or be accompanied by a written verification under oath or under penalty of perjury that the information in the application is true and correct; and
(9) Unless one of the exceptions in paragraph (b) of this section applies, include a statement that:
(i) Your net worth does not exceed $2 million, if you are an individual; or
(ii) Your net worth and that of all your affiliates does not exceed $7 million in the aggregate, if you are not an individual.
(b) You do not have to submit the statement of net worth required by paragraph (a)(9) of this section if you do any of the following:
(1) Attach a copy of a ruling by the Internal Revenue Service that you qualify as a tax-exempt organization described in 26 U.S.C. 501(c)(3);
(2) Attach a statement describing the basis for your belief that you qualify under 26 U.S.C. 501(c)(3), if you are a tax-exempt organization that is not required to obtain a ruling from the Internal Revenue Service on your exempt status;
(3) State that you are a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)); or
(4) Seek fees and expenses under § 4.605(c) and provide information demonstrating that you qualify as a small entity under 5 U.S.C. 601.
(c) You may also include in your application any other matters that you wish the adjudicative officer to consider in determining whether and in what amount an award should be made.
§ 4.611 What information must I include in my net worth exhibit?
(a) Unless you meet one of the criteria in § 4.610(b), you must file with your application a net worth exhibit that meets the requirements of this section. The adjudicative officer may also require that you file additional information to determine your eligibility for an award.
(b) The exhibit must show your net worth and that of any affiliates when the proceeding was initiated. The exhibit may be in any form that:
(1) Provides full disclosure of your and your affiliates’ assets and liabilities; and
(2) Is sufficient to determine whether you qualify under the standards in this subpart.
(c) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, if you object to public disclosure of information in any portion of the exhibit and believe there are legal grounds for withholding it from disclosure, you may submit that portion of the exhibit directly to the adjudicative officer in a sealed envelope labeled “Confidential Financial Information,” accompanied by a motion to withhold the information from public disclosure.
(1) The motion must describe the information sought to be withheld and explain, in detail:
(i) Why it falls within one or more of the exemptions from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552(b);
(ii) Why public disclosure of the information would adversely affect you; and
(iii) Why disclosure is not required in the public interest.
(2) You must serve the net worth exhibit and motion on counsel representing the agency against which you seek an award, but you are not required to serve it on any other party to the proceeding.
(3) If the adjudicative officer finds that the information should not be withheld from disclosure, it must be placed in the public record of the proceeding. Otherwise, any request to inspect or copy the exhibit will be disposed of in accordance with the Department’s procedures under the Freedom of Information Act, 43 CFR 2.7 et seq.
§ 4.612 What documentation of fees and expenses must I provide?
(a) Your application must be accompanied by full documentation of the fees and expenses for which you seek an award, including the cost of any study, analysis, engineering report, test, project, or similar matter.
(b) You must submit a separate itemized statement for each professional firm or individual whose services are covered by the application, showing:
(1) The hours spent in connection with the proceeding by each individual;
(2) A description of the specific services performed;
(3) The rates at which each fee has been computed;
(4) Any expenses for which reimbursement is sought;
(5) The total amount claimed; and
(6) The total amount paid or payable by you or by any other person or entity for the services provided.
(c) The adjudicative officer may require you to provide vouchers, receipts, logs, or other substantiation for any fees or expenses claimed, in accordance with § 4.624.
§ 4.613 When may I file an application for an award?
(a) You may file an application whenever you have prevailed in the proceeding or in a significant and discrete substantive portion of the proceeding. You must file the application no later than 30 days after the final disposition of the proceeding.
(b) Consideration of an application for an award must be stayed if:
(1) Any party seeks review or reconsideration of a decision in a proceeding in which you believe you have prevailed; or
(2) The Department or other agency (or the United States on its behalf) appeals an adversary adjudication to a court.
(c) A stay under paragraph (b)(1) of this section will continue until there has been a final disposition of the review or reconsideration of the decision. A stay under paragraph (b)(2) of this section will continue until either:
(1) A final and unreviewable decision is rendered by the court on the appeal; or
(2) The underlying merits of the case have been finally determined.
Procedures for Considering Applications
§ 4.620 How must I file and serve documents?
(a) You must file and serve all documents related to an application for an award under this subpart on all other parties to the proceeding in the same manner as other pleadings in the proceeding, except as provided in § 4.611(c) for confidential information. The Department or other agency and all other parties must likewise file and serve their pleadings and related documents on you and on each other, in the same manner as other pleadings in the proceeding.
(b) A document may be electronically transmitted under the terms specified in the OHA Standing Orders on Electronic Transmission issued by the Director. When done in accordance with the Standing Orders, a document may be:
(1) Filed by electronic transmission; and
(2) Served on or transmitted to a person or party by electronic transmission if that person or party has consented to such means.
§ 4.621 When may the Department or other agency file an answer?
(a) Within 30 days after service of an application, the Department or other agency against which an award is sought may file an answer to the application. However, if consideration of an application has been stayed under § 4.613(b), the answer is due within 30 days after the final disposition of the review or reconsideration of the decision.
(1) Except as provided in paragraph (a)(2) of this section, failure to file an answer within the 30-day period may be treated as a consent to the award requested. In such case, the adjudicative officer will issue a decision in accordance with § 4.625 based on the record before him or her.
(2) Failure to file an answer within the 30-day period will not be treated as a consent to the award requested if the Department or other agency either:
(i) Requests an extension of time for filing; or
(ii) Files a statement of intent to negotiate under paragraph (b) of this section.
(b) If the Department or other agency and you believe that the issues in the fee application can be settled, you may jointly file a statement of intent to negotiate a settlement. Filing this statement will extend for an additional 30 days the time for filing an answer, and the adjudicative officer may grant further extensions if you and the agency counsel so request.
(c) The answer must explain in detail any objections to the award requested and identify the facts relied on to support the Department’s or other agency’s position. If the answer is based on any alleged facts not already in the record of the proceeding, the Department or other agency must include with the answer either supporting affidavits or a request for further proceedings under § 4.624.
§ 4.622 When may I file a reply?
Within 15 days after service of an answer, you may file a reply. If your reply is based on any alleged facts not already in the record of the proceeding, you must include with the reply either supporting affidavits or a request for further proceedings under § 4.624.
§ 4.623 When may other parties file comments?
Any party to a proceeding other than the applicant and the Department or other agency may file comments on an application within 30 days after it is served or on an answer within 15 days after it is served. A commenting party may not participate further in the proceedings on the application unless the adjudicative officer determines that the public interest requires such participation in order to permit full exploration of matters raised in the comments.
§ 4.624 When may further proceedings be held?
(a) Ordinarily, the determination of an award will be made on the basis of the written record. However, the adjudicative officer may order further proceedings, which will be held only when necessary for full and fair resolution of the issues and will be conducted as promptly as possible.
(b) The adjudicative officer may order further proceedings on his or her own initiative or in response to a request by you or by the Department or other agency. A request for further proceedings under this section must:
(1) Identify the information sought or the disputed issues; and
(2) Explain why the additional proceedings are necessary to resolve the issues.
(c) As to issues other than substantial justification (such as your eligibility or substantiation of fees and expenses), further proceedings under this section may include an informal conference, oral argument, additional written submissions, pertinent discovery, or an evidentiary hearing.
(d) The adjudicative officer will determine whether the position of the Department or other agency was substantially justified based on the administrative record of the adversary adjudication as a whole.
§ 4.625 How will my application be decided?
The adjudicative officer must issue a decision on the application promptly after completion of proceedings on the application. The decision must include written findings and conclusions on all of the following that are relevant to the decision:
(a) Your eligibility and status as a prevailing party;
(b) The amount awarded, and an explanation of the reasons for any difference between the amount requested and the amount awarded;
(c) Whether the position of the Department or other agency was substantially justified;
(d) Whether you unduly protracted the proceedings; and
(e) Whether special circumstances make an award unjust.
§ 4.626 How will an appeal from a decision be handled?
(a) If the adjudicative officer is an administrative law judge, you or the Department or other agency may appeal his or her decision on the application to the appeals board that would have jurisdiction over an appeal involving the merits of the proceeding. The appeal will be subject to the same regulations and procedures that would apply to an appeal involving the merits of the proceeding. The appeals board will issue the final Departmental or other agency decision on the application.
(b) If the adjudicative officer is a panel of appeals board judges, their decision on the application is final for the Department or other agency.
§ 4.627 May I seek judicial review of a final decision?
You may seek judicial review of a final Departmental or other agency decision on an award as provided in 5 U.S.C. 504(c)(2).
§ 4.628 How will I obtain payment of an award?
(a) To obtain payment of an award against the Department or other agency, you must submit:
(1) A copy of the final decision granting the award; and
(2) A certification that no party is seeking review of the underlying decision in the United States courts, or that the process for seeking review of the award has been completed.
(b) If the award is against the Department:
(1) You must submit the material required by paragraph (a) of this section to the following address:
Director, Office of Financial Management, Policy, Management and Budget, U.S. Department of the Interior, Washington, DC 20240.
(2) Payment will be made by electronic funds transfer whenever possible. A representative of the Department will contact you for the information the Department needs to process the electronic funds transfer.
(c) If the award is against another agency, you must submit the material required by paragraph (a) of this section to the chief financial officer or other disbursing official of that agency. Agency counsel must promptly inform you of the title and address of the appropriate official.
(d) The Department or other agency will pay the amount awarded to you within 60 days of receiving the material required by this section.
Subpart G—Special Rules Applicable to Other Appeals and Hearings
§ 4.700 Who may appeal.
Any party aggrieved by an adjudicatory action or decision of a Departmental official relating to rights or privileges based upon law in any case or proceeding in which Departmental regulations allow a right of appeal to the head of the Department from such action or decision, should direct his appeal to the Director, Office of Hearings and Appeals, if the case is not one which lies within the appellate review jurisdiction of an established Appeals Board and is not excepted from the review authority delegated to the Director. No appeal will lie when the action of the Departmental official was based solely upon administrative or discretionary authority of such official.
§ 4.701 Notice of appeal.
The appellant shall file a written notice of appeal, signed by him or by his attorney or other qualified representative, in the Office of the Director, within 30 days from the date of mailing of the decision from which the appeal is taken. The notice shall contain an identification of the action or decision appealed from and give a concise but complete statement of the facts relied upon and the relief sought. The appellant shall mail a or electronically transmit under the terms of OHA Standing Orders copy of the notice of appeal, any accompanying statement of reasons therefor, and any written arguments or briefs, to each party to the proceedings or whose rights are involved in the case, and to the Departmental official whose action or decision is being appealed. The notice of appeal shall contain a certificate setting forth the names of the parties served, their addresses, and the dates of mailing.
§ 4.702 Transmittal of appeal file.
Within 10 days after receipt of a copy of the notice of appeal, the Departmental official whose action or decision is being appealed shall transmit to the Office of the Director the entire official file in the matter, including all records, documents, transcripts of testimony, and other information compiled during the proceedings leading to the decision being appealed.
§ 4.703 Documents; filing and service.
(a) If the parties wish to file briefs, they must comply with the following requirements: Appellant shall have 30 days from the date of filing of his notice of appeal within which to file an opening brief, and the opposing parties shall have 30 days from the date of receipt of appellant’s brief in which to file an answering brief. Additional or rebuttal briefs may be filed upon permission first obtained from the Director or the Ad Hoc Appeals Board appointed by him to consider and decide the particular appeal. Copies of all briefs shall be served upon all other parties or their attorneys of record or other qualified representatives, and a certificate to that effect shall be filed with said brief.
(b) A document may be electronically transmitted under the terms specified in the OHA Standing Orders on Electronic Transmission issued by the Director. When done in accordance with the Standing Orders, a document may be:
(1) Filed by electronic transmission; and
(2) Served on or transmitted to a person or party by electronic transmission if that person or party has consented to such means.
§ 4.704 Decisions on appeals.
The Director, or an Ad Hoc Appeals Board appointed by the Director to consider and decide the particular appeal, will review the record and take such action as the circumstances call for. The Director or the Ad Hoc Appeals Board may direct a hearing on the entire matter or specified portions thereof, may decide the appeal forthwith upon the record already made, or may make other disposition of the case. Upon request and for good cause shown, the Director or an Ad Hoc Appeals Board may grant an opportunity for oral argument. Any hearing on such appeals shall be conducted by the Ad Hoc Appeals Board or a member or members thereof, or by an administrative law judge of the Office of Hearings and Appeals and shall be governed insofar as practicable by the regulations applicable to other hearings under this part.
Subpart H [Reserved]
Subpart I—Special Procedural Rules Applicable to Practice and Procedure for Hearings, Decisions, and Administrative Review Under Part 17 of This Title—Nondiscrimination in Federally Assisted Programs of the Department of the Interior—Effectuation of Title VI of the Civil Rights Act of 1964
See subpart A for the organization, authority and jurisdiction of the Office of Hearings and Appeals, including its Hearings Division. To the extent they are not inconsistent with these special rules, the general rules applicable to all types of proceedings before the Hearings Division and the several Appeals Boards of the Office of Hearings and Appeals, contained in subpart B of this part, are applicable also to proceedings under these regulations.
General
§ 4.800 Scope and construction of rules.
(a) The rules of procedure in this subpart I supplement part 17 of this title and are applicable to the practice and procedure for hearings, decisions, and administrative review conducted by the Department of the Interior, pursuant to title VI of the Civil Rights Act of 1964 (section 602, 42 U.S.C. 2000d-1) and part 17 of this title, concerning nondiscrimination in Federally-assisted programs in connection with which Federal financial assistance is extended under laws administered in whole or in part by the Department of the Interior.
(b) These regulations shall be liberally construed to secure the just, prompt, and inexpensive determination of all proceedings consistent with adequate consideration of the issues involved and full protection of the rights of all interested parties including the Government.
§ 4.801 Suspension of rules.
Upon notice to all parties, the responsible Department official or the administrative law judge, with respect to matters pending before him, may modify or waive any rule in this part upon his determination that no party will be unduly prejudiced and the ends of justice will thereby be served.
§ 4.802 Definitions.
(a) The definitions set forth in § 17.12 of this title apply also to this subpart.
(b) Director means the Director, Office for Equal Opportunity, Department of the Interior.
(c) Administrative law judge means an administrative law judge designated by the Office of Hearings and Appeals, Office of the Secretary, in accordance with 5 U.S.C. 3105 and 3344.
(d) Notice means a notice of hearing in a proceeding instituted under Part 17 of this title and these regulations.
(e) Party means a recipient or applicant; the Director; and any person or organization participating in a proceeding pursuant to § 4.808.
§ 4.803 Computation of time.
Except as otherwise provided by law, in computing any period of time under these rules or in any order issued hereunder, the time begins with the day following the act or event, and includes the last day of the period, unless it is a Saturday, Sunday, or Federal legal holiday, or other nonbusiness day, in which event it includes the next following day which is not a Saturday, Sunday, Federal legal holiday, or other nonbusiness day. When the period of 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.
§ 4.804 Extensions of time.
A request for extension of time should be made to the designated administrative law judge or other appropriate Departmental official with respect to matters pending before him. Such request shall be served on all parties and set forth the reasons for the request. Extensions may be granted upon a showing of good cause by the applicant. Answers to such requests are permitted if made promptly.
§ 4.805 Reduction of time to file documents.
For good cause, the responsible Departmental official or the administrative law judge, with respect to matters pending before him, may reduce any time limit prescribed by the rules in this part, except as provided by law or in part 17 of this title.
Designation and Responsibilities of Administrative Law Judge
§ 4.806 Designation.
Hearings shall be held before an administrative law judge designated by the Office of Hearings and Appeals.
§ 4.807 Authority and responsibilities.
The administrative law judge shall have all powers necessary to preside over the parties and the proceedings, conduct the hearing, and make decisions in accordance with 5 U.S.C. 554 through 557. His powers shall include, but not be limited to, the power to:
(a) Hold conferences to settle, simplify, or fix the issues in a proceeding, or to consider other matters that may aid in the expeditious disposition of the proceeding.
(b) Require parties to state their position with respect to the various issues in the proceedings.
(c) Establish rules for media coverage of the proceedings.
(d) Rule on motions and other procedural items in matters before him.
(e) Regulate the course of the hearing, the conduct of counsel, parties, witnesses, and other participants.
(f) Administer oaths, call witnesses on his own motion, examine witnesses, and direct witnesses to testify.
(g) Receive, rule on, exclude, or limit evidence.
(h) Fix time limits for submission of written documents in matters before him.
(i) Take any action authorized by these regulations, by 5 U.S.C. 556, or by other pertinent law.
Appearance and Practice
§ 4.808 Participation by a party.
Subject to the provisions contained in part 1 of this subtitle, a party may appear in person, by representative, or by counsel, and participate fully in any proceeding held pursuant to part 17 of this title and these regulations. A State agency or any instrumentality thereof, a political subdivision of the State or instrumentality thereof, or a corporation may appear by any of its officers or employees duly authorized to appear on its behalf.
§ 4.809 Determination of parties.
(a) The affected applicant or recipient to whom a notice of hearing or a notice of an opportunity for hearing has been mailed in accordance with part 17 of this title and § 4.815, and the Director, are the initial parties to the proceeding.
(b) Other persons or organizations shall have the right to participate as parties if the final decision could directly and adversely affect them or the class they represent, and if they may contribute materially to the disposition of the proceedings.
(c) A person or organization wishing to participate as a party under this section shall submit a petition to the administrative law judge within 15 days after the notice has been served. The petition should be filed with the administrative law judge and served on the affected applicant or recipient, on the Director, and on any other person or organization who has been made a party at the time of filing. Such petition shall concisely state: (1) Petitioner’s interest in the proceeding, (2) how his participation as a party will contribute materially to the disposition of the proceeding, (3) who will appear for petitioner, (4) the issues on which petitioner wishes to participate, and (5) whether petitioner intends to present witnesses.
(d) The administrative law judge shall promptly ascertain whether there are objections to the petition. He shall then determine whether petitioners have the requisite interest to be a party in the proceedings, as defined in paragraphs (a) and (b) of this section, and shall permit or deny participation accordingly. Where petitions to participate as parties are made by individuals or groups with common interests, the administrative law judge may request all such petitioners to designate a single representative, or he may recognize one or more of such petitioners to represent all such petitioners. The administrative law judge shall give each such petitioner written notice of the decision on his petition. If the petition is denied, he shall briefly state the grounds for denial and shall then treat the petition as a request for participation as amicus curiae. The administrative law judge shall give written notice to each party of each petition granted.
(e) Persons or organizations whose petition for party participation is denied may appeal the decision to the Director, Office of Hearings and Appeals, within 7 days of receipt of denial. The Director, Office of Hearings and Appeals, will make the final decision for the Department to grant or deny the petition.
§ 4.810 Complainants not parties.
A person submitting a complaint pursuant to § 17.6 of this title is not a party to the proceedings governed by part 17 of this title and these regulations, but may petition, after proceedings are initiated, to become an amicus curiae. In any event a complainant shall be advised of the time and place of the hearing.
§ 4.811 Determination and participation of amici.
(a) Any interested person or organization wishing to participate as amicus curiae in the proceeding shall file a petition before the commencement of the hearing. Such petition shall concisely state the petitioner’s interest in the hearing and who will represent petitioner.
(b) The administrative law judge will grant the petition if he finds that the petitioner has an interest in the proceedings and may contribute materially to the disposition of the proceedings. The administrative law judge shall give the petitioner written notice of the decision on his petition.
(c) An amicus curiae is not a party and may not introduce evidence at a hearing but may only participate as provided in paragraph (d) of this section.
(d) An amicus curiae may submit a written statement of position to the administrative law judge at any time prior to the beginning of a hearing, and shall serve a copy on each party. He may also file a brief or written statement on each occasion a decision is to be made or a prior decision is subject to review. His brief or written statement shall be filed and served on each party within the time limits applicable to the party whose position he deems himself to support; or if he does not deem himself to support the position of any party, within the longest time limit applicable to any party at that particular stage of the proceedings.
(e) When all parties have completed their initial examination of a witness, any amicus curiae may request the administrative law judge to propound specific questions to the witness. The administrative law judge, in his discretion, may grant any such request if he believes the proposed additional testimony may assist materially in elucidating factual matters at issue between the parties and will not expand the issues.
Form and Filing of Documents
§ 4.812 Form.
Documents filed pursuant to a proceeding herein shall show the docket description and title of the proceeding, the party or amicus submitting the document, the dates signed, and the title, if any, and address of the signatory. The original will be signed in ink by the party representing the party or amicus. Copies need not be signed, but the name of the person signing the original shall be reproduced.
§ 4.813 Filing and service.
(a) All documents submitted in a proceeding shall be served on all parties. The original and two copies of each document shall be submitted for filing. Filings shall be made with the administrative law judge or other appropriate Departmental official before whom the proceeding is pending. With respect to exhibits and transcripts of testimony, only originals need be filed.
(b) Service upon a party or amicus shall be made by delivering one copy of each document requiring service in person or by certified mail, return receipt requested, properly addressed with postage prepaid, to the party or amicus or his attorney, or designated representative. Filing will be made in person or by certified mail, return receipt requested, to the administrative law judge or other appropriate Departmental official before whom the proceeding is pending.
(c) The date of filing or of service shall be the day when the matter is deposited in the U.S. mail or is delivered in person.
(d) A document may be electronically transmitted under the terms specified in § 4.22, subpart B.
§ 4.814 Certificate of service.
The original of every document filed and required to be served upon parties shall be endorsed with a certificate of service signed by the party or amicus curiae making service or by his attorney or representative, stating that such service has been made, the date of service, and the manner of service.
Procedures
§ 4.815 How proceedings are commenced.
Proceedings are commenced by the Director by mailing to an applicant or recipient a notice of alleged noncompliance with the Act and the regulations thereunder. The notice shall include either a notice of hearing fixing a date therefor or a notice of an opportunity for a hearing as provided in § 17.8 of this title. The notice shall advise the applicant or recipient of the action proposed to be taken, the specific provisions of part 17 of this title under which the proposed action is to be taken, and the matters of fact or law asserted as the basis of the action.
§ 4.816 Notice of hearing and response thereto.
A notice of hearing shall fix a date not less than 30 days from the date of service of the notice of a hearing on matters alleged in the notice. If the applicant recipient does not desire a hearing, he should so state in writing, in which case the applicant or recipient shall have the right to further participate in the proceeding. Failure to appear at the time set for a hearing, without good cause, shall be deemed a waiver of the right to a hearing under section 602 of the Act and the regulations thereunder and consent to the making of a decision on such information as is available which may be presented for the record.
§ 4.817 Notice of opportunity to request a hearing and response thereto.
A notice of opportunity to request a hearing shall set a date not less than 20 days from service of said notice within which the applicant or recipient may file a request for a hearing, or may waive a hearing and submit written information and argument for the record, in which case, the applicant or recipient shall have the right to further participate in the proceeding. When the applicant or recipient elects to file a request for a hearing, a time shall be set for the hearing at a date not less than 20 days from the date applicant or recipient is notified of the date set for the hearing. Failure of the applicant or recipient to request a hearing or to appear at the date set shall be deemed a waiver of the right to a hearing, under section 602 of the Act and the regulations thereunder and consent to the making of a decision on such information as is available which may be presented for the record.
§ 4.818 Answer.
In any case covered by § 4.816 or § 4.817, the applicant or recipient shall file an answer. Said answer shall admit or deny each allegation of the notice, unless the applicant or recipient is without knowledge, in which case the answer shall so state, and the statement will be considered a denial. Failure to file an answer shall be deemed an admission of all allegations of fact in the notice. Allegations of fact in the notice not denied or controverted by answer shall be deemed admitted. Matters alleged in the answer as affirmative defenses shall be separately stated and numbered. The answer under § 4.816 shall be filed within 20 days from the date of service of the notice of hearing. The answer under § 4.817 shall be filed within 20 days of service of the notice of opportunity to request a hearing.
§ 4.819 Amendment of notice or answer.
The Director may amend the notice of hearing or opportunity for hearing once as a matter of course before an answer is filed, and each respondent may amend his answer once as a matter of course not later than 10 days before the date fixed for hearing but in no event later than 20 days from the date of service of his original answer. Other amendments of the notice or of the answer to the notice shall be made only by leave of the administrative law judge. An amended notice shall be answered within 10 days of its service, or within the time for filing an answer to the original notice, whichever period is longer.
§ 4.820 Consolidated or joint hearings.
As provided in § 17.8(e) of this title, the Secretary may provide for proceedings in the Department to be joined or consolidated for hearing with proceedings in other Federal departments or agencies, by agreement with such other departments or agencies. All parties to any proceedings consolidated subsequently to service of the notice of hearing or opportunity for hearing shall be promptly served with notice of such consolidation.
§ 4.821 Motions.
Motions and petitions shall state the relief sought, the basis for relief and the authority relied upon. If made before or after the hearing itself, these matters shall be in writing. If made at the hearing, they may be stated orally; but the administrative law judge may require that they be reduced to writing and filed and served on all parties. Within 8 days after a written motion or petition is served, any party may file a response to a motion or petition. An immediate oral response may be made to an oral motion. Oral argument on motions will be at the discretion of the administrative law judge.
§ 4.822 Disposition of motions.
The administrative law judge may not grant a written motion or petition prior to expiration of the time for filing responses thereto, but may overrule or deny such motion or petition without awaiting response: Provided, however, That prehearing conferences, hearings, and decisions need not be delayed pending disposition of motions or petitions. Oral motions and petitions may be ruled on immediately.
§ 4.823 Interlocutory appeals.
Except as provided in § 4.809(e), a ruling of the administrative law judge may not be appealed to the Director, Office of Hearings and Appeals, prior to consideration of the entire proceeding by the administrative law judge unless permission is first obtained from the Director, Office of Hearings and Appeals, and the administrative law judge has certified the interlocutory ruling on the record 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 Director, Office of Hearings and Appeals. If an appeal is allowed, any party may file a brief within such period as the Director, Office of Hearings and Appeals, directs. Upon affirmance, reversal, or modification of the administrative law judge’s interlocutory ruling or order, by the Director, Office of Hearings and Appeals, the case will be remanded promptly to the administrative law judge for further proceedings.
§ 4.824 Exhibits.
Proposed exhibits shall be exchanged at the prehearing conference, or otherwise prior to the hearing, if the administrative law judge so directs. Proposed exhibits not so exchanged in accordance with the administrative law judge’s order may be denied admission as evidence. The authenticity of all exhibits submitted prior to the hearing, under direction of the administrative law judge, will be deemed admitted unless written objection thereto is filed and served on all parties, or unless good cause is shown for failure to file such written objection.
§ 4.825 Admissions as to facts and documents.
Not later than 15 days prior to the date of the hearing any party may serve upon an opposing party a written request for the admission of the genuineness and authenticity of any relevant documents described in, and exhibited with, the request, or for the admission of the truth of any relevant matters of fact stated in the request. Each of the matters as to which an admission is requested shall be deemed admitted, unless within a period of 10 days, the party to whom the request is directed serves upon the requesting party a statement either (a) denying specifically the matters as to which an admission is requested, or (b) setting forth in detail the reasons why he cannot truthfully either admit or deny such matters.
§ 4.826 Discovery.
(a) Methods. Parties may obtain discovery as provided in these rules by depositions, written interrogatories, production of documents, or other items; or by permission to enter property, for inspection and other purposes.
(b) Scope. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the hearing.
(c) Protective orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the administrative law judge may make any order which justice requires to limit or condition discovery in order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.
(d) Sequence and timing. Methods of discovery may be used in any sequence. The fact that a party is conducting discovery shall not operate to delay any other party’s discovery.
(e) Time limit. Discovery by all parties will be completed within such time as the administrative law judge directs, from the date the notice of hearing is served on the applicant or recipient.
§ 4.827 Depositions.
(a) A party may take the testimony of any person, including a party, by deposition upon oral examination. This may be done by stipulation or by notice, as set forth in paragraph (b) of this section. On motion of any party or other person upon whom the notice is served, the administrative law judge may for cause shown enlarge or shorten the time for the deposition, change the place of the deposition, limit the scope of the deposition or quash the notice. Depositions of persons other than parties or their representatives shall be upon consent of the deponent.
(b)(1) The party will give reasonable notice in writing to every other party of the time and place for taking depositions, the name and address of each person to be examined, if known, or a general description sufficient to identify him or the particular class or group to which he belongs.
(2) The notice to a deponent may be accompanied by a request for the production of documents and tangible things at the taking of the deposition.
(3) A party may name as the deponent a corporation, partnership, association, or governmental agency and may designate a particular person within the organization whose testimony is desired and the matters on which examination is requested. If no particular person is named, the organization shall designate one or more agents to testify on its behalf, and may set forth the matters on which each will testify. The persons so designated shall testify as to matters known or reasonably available to the organization.
(c) Examination and cross-examination of witnesses may proceed as permitted at the hearing. The witness shall be placed under oath by a disinterested person qualified to administer oaths by the laws of the United States or of the place where the examination is held, and the testimony taken by such person shall be recorded verbatim.
(d) During the taking of a deposition a party or deponent may request suspension of the deposition on grounds of bad faith in the conduct of the examination, annoyance, embarrassment, oppression of a deponent or party or improper questions propounded. The deposition will then be adjourned. However, the objecting party or deponent must immediately move the administrative law judge for a ruling on his objections to the deposition conduct or proceedings. The administrative law judge may then limit the scope or manner of the taking of the deposition.
(e) The officer shall certify the deposition and promptly file it with the administrative law judge. Documents or true copies of documents and other items produced for inspection during the examination of the witness shall, upon the request of a party, be marked for identification and annexed to the deposition.
(f) The party taking the deposition shall give prompt notice of its filing to all other parties.
§ 4.828 Use of depositions at hearing.
(a) Any part or all of a deposition so far as admissible under § 4.835 applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof as follows:
(1) Any deposition may be used for contradiction or impeachment of the deponent as a witness.
(2) The deposition of a party, or of an agent designated to testify on behalf of a party, may be used by an adverse party for any purpose.
(3) The deposition of any witness may be used for any purpose if the party offering the deposition has been unable to procure the attendance of the witness because he is dead; or if the witness is at a greater distance than 100 miles from the place of hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or if the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or, upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open hearing, to allow the deposition to be used.
(b) If only part of a deposition is offered in evidence, the remainder becomes subject to introduction by any party.
(c) Objection may be made at the hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
§ 4.829 Interrogatories to parties.
(a) Any party may serve upon any other party written interrogatories after the notice of hearing has been filed. If the party served is a corporation, partnership, association, or governmental agency, an agent shall furnish such information as is available to the party.
(b) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney or other representative making them. Answers and objections shall be made within 30 days after the service of the interrogatories. The party submitting the interrogatories may move for an order under § 4.831 with respect to any objection to or other failure to answer an interrogatory.
(c) Interrogatories shall relate to any matter not privileged which is relevant to the subject matter of the hearing.
§ 4.830 Production of documents and things and entry upon land for inspection and other purposes.
(a) After the notice of hearing has been filed, any party may serve on any other party a request to produce and/or permit the party, or someone acting on his behalf, to inspect and copy any designated documents, phonorecords, and other data compilations from which information can be obtained and which are in the possession, custody, or control of the party upon whom the request is served. If necessary, translation of data compilations shall be done by the party furnishing the information.
(b) After the notice of hearing has been filed, any party may serve on any other party a request to permit entry upon designated property in the possession or control of the party upon whom the request is served for the purpose of inspection, measuring, surveying or photographing, testing, or sampling the property or any designated object.
(c) Each request shall set forth with reasonable particularity the items to be inspected and shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.
(d) The party upon whom the request is served shall respond within 15 days after the service of the request. The response shall state, with respect to each item, that inspection and related activities will be permitted as requested, unless there are objections in which case the reasons for each objection shall be stated. The party submitting the request may move for an order under § 4.831 with respect to any objection to or other failure to respond.
§ 4.831 Sanctions.
(a) A party, upon reasonable notice to other parties and all persons affected thereby, may move for an order as follows:
(1) If a deponent fails to answer a question propounded or submitted under § 4.827(c), or a corporation or other entity fails to make a designation under § 4.827(b)(3), or a party fails to answer an interrogatory submitted under § 4.829, or if a party, under § 4.830 fails to respond that inspection will be permitted or fails to permit inspection, the discovering party may move for an order compelling an answer, a designation, or inspection.
(2) An evasive or incomplete answer is to be treated as a failure to answer.
(b) If a party or an agent designated to testify fails to obey an order to permit discovery, the administrative law judge may make such orders as are just, including:
(1) That the matters regarding which the order was made or any other designated facts shall be established in accordance with the claim of the party obtaining the order;
(2) Refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
(c) If a party or an agent designated to testify fails after proper service (1) to appear for his deposition, (2) to serve answers or objections to interrogatories submitted under § 4.829 or (3) to serve a written response to a request for inspection, submitted under § 4.830, the administrative law judge on motion may make such orders as are just, including those authorized under paragraphs (b) (1) and (2) of this section.
§ 4.832 Consultation and advice.
(a) The administrative law judge shall not consult any person, or party, on any fact in issue or on the merits of the matter before him unless upon notice and opportunity for all parties to participate.
(b) No employee or agent of the Federal Government engaged in the investigation and prosecution of a proceeding governed by these rules shall participate or advise in the rendering of any recommended or final decision, except as witness or counsel in the proceeding.
Prehearing
§ 4.833 Prehearing conferences.
(a) Within 15 days after the answer has been filed, the administrative law judge will establish a prehearing conference date for all parties including persons or organizations whose petition requesting party status has not been ruled upon. Written notice of the prehearing conference shall be sent by the administrative law judge.
(b) At the prehearing conference the following matters, among others, shall be considered: (1) Simplification and delineation of the issues to be heard; (2) stipulations; (3) limitation of number of witnesses; and exchange of witness lists; (4) procedure applicable to the proceeding; (5) offers of settlement; and (6) scheduling of the dates for exchange of exhibits. Additional prehearing conferences may be scheduled at the discretion of the administrative law judge, upon his own motion or the motion of a party.
Hearing
§ 4.834 Purpose.
(a) The hearing is directed primarily to receiving factual evidence and expert opinion testimony related to the issues in the proceeding. A hearing will be held only in cases where issues of fact must be resolved in order to determine whether the applicant or recipient has failed to comply with one or more applicable requirements of title VI of the Civil Rights Act of 1964 (sec. 602, 42 U.S.C. 2000d-1) and part 17 of this title. However, this shall not prevent the parties from entering into a stipulation of the facts.
(b) If all facts are stipulated, the proceedings shall go to conclusion in accordance with part 17 of this title and the rules in this subpart.
(c) In any case where it appears from the answer of the applicant or recipient to the notice of hearing or notice of opportunity to request a hearing, from his failure timely to answer, or from his admissions or stipulations in the record that there are no matters of material fact in dispute, the administrative law judge may enter an order so finding, vacating the hearing date if one has been set, and fixing the time for the submission of evidence by the Government for the record. Thereafter, the proceedings shall go to conclusion in accordance with part 17 of this title and the rules in this subpart. An appeal from such order may be allowed in accordance with the rules for interlocutory appeal in § 4.823.
§ 4.835 Evidence.
Formal rules of evidence will not apply to the proceeding. Irrelevant, immaterial, unreliable, and unduly repetitious evidence will be excluded from the record of a hearing. Hearsay evidence shall not be inadmissible as such.
§ 4.836 Official notice.
Whenever a party offers a public document, or part thereof, in evidence, and such document, or part thereof, has been shown by the offeror to be reasonably available to the public, such document need not be produced or marked for identification, but may be offered for official notice as a public document item by specifying the document or relevant part thereof. Official notice may also be taken of other matters, at the discretion of the administrative law judge.
§ 4.837 Testimony.
Testimony shall be given under oath by witnesses at the hearing. A witness shall be available for cross-examination, and, at the discretion of the administrative law judge, may be cross-examined without regard to the scope of direct examination as to any matter which is material to the proceeding.
§ 4.838 Objections.
Objections to evidence shall be timely, and the party making them shall briefly state the ground relied upon.
§ 4.839 Exceptions.
Exceptions to rulings of the administrative law judge are unnecessary. It is sufficient that a party, at the time the ruling of the administrative law judge is sought, makes known the action which he desires the administrative law judge to take, or his objection to an action taken, and his ground therefor.
§ 4.840 Offer of proof.
An offer of proof made in connection with an objection taken to any ruling of the administrative law judge excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony. If the excluded evidence consists of evidence in written form or consists of reference to documents, a copy of such evidence shall be marked for identification and shall accompany the record as the offer of proof.
§ 4.841 Official transcript.
An official reporter will be designated for all hearings. The official transcripts of testimony and argument taken, together with any exhibits, briefs, or memoranda of law filed therewith, shall be filed with the administrative law judge. Transcripts may be obtained by the parties and the public from the official reporter at rates not to exceed the applicable rates fixed by the contract with the reporter. Upon notice to all parties, the administrative law judge may authorize such corrections to the transcript as are necessary to accurately reflect the testimony.
Posthearing Procedures
§ 4.842 Proposed findings of fact and conclusions of law.
Within 30 days after the close of the hearing each party may file, or the administrative law judge may request, proposed findings of fact and conclusions of law together with supporting briefs. Such proposals and briefs shall be served on all parties and amici. Reply briefs may be submitted within 15 days after receipt of the initial proposals and briefs. Reply briefs should be filed and served on all parties and amici.
§ 4.843 Record for decision.
The administrative law judge will make his decision upon the basis of the record before him. The transcript of testimony, exhibits, and all papers, documents, and requests filed in the proceedings, shall constitute the record for decision and may be inspected and copied.
§ 4.844 Notification of right to file exceptions.
The provisions of § 17.9 of this title govern the making of decisions by administrative law judges, the Director, Office of Hearings and Appeals, and the Secretary. An administrative law judge shall, in any initial decision made by him, specifically inform the applicant or recipient of his right under § 17.9 of this title to file exceptions with the Director, Office of Hearings and Appeals. In instances in which the record is certified to the Director, Office of Hearings and Appeals, or he reviews the decision of an administrative law judge, he shall give the applicant or recipient a notice of certification or notice of review which specifically informs the applicant or recipient that, within a stated period, which shall not be less than 30 days after service of the notice, he may file briefs or other written statements of his contentions.
§ 4.845 Final review by Secretary.
Paragraph (f) of § 17.9 of this title requires that any final decision of an administrative law judge or of the Director, Office of Hearings and Appeals, which provides for the suspension or termination of, or the refusal to grant or continue Federal financial assistance, or the imposition of any other sanction available under part 17 of this title or the Act, shall be transmitted to the Secretary. The applicant or recipient shall have 20 days following service upon him of such notice to submit to the Secretary exceptions to the decision and supporting briefs or memoranda suggesting remission or mitigation of the sanctions proposed. The Director shall have 10 days after the filing of the exceptions and briefs in which to reply.
Subpart J—Special Rules Applicable to Appeals Concerning Federal Oil and Gas Royalties and Related Matters
§ 4.901 What is the purpose of this subpart?
This subpart tells you how the time limits of 30 U.S.C. 1724(h) apply to appeals subject to this subpart.
§ 4.902 What appeals are subject to this subpart?
(a) This subpart applies to appeals under 30 CFR part 1290, and 43 CFR part 4, subpart E, of Office of Natural Resources Revenue (ONRR) or delegated State orders or portions of orders concerning payment (or computation and payment) of royalties and other payments due, and delivery or taking of royalty in kind, under Federal oil and gas leases.
(b) This subpart does not apply to appeals of orders, or portions of orders, that
(1) Involve Indian leases or Federal leases for minerals other than oil and gas; or
(2) Relate to Federal oil and gas leases but do not involve a monetary or nonmonetary obligation.
§ 4.903 What definitions apply to this subpart?
For the purposes of this subpart only:
Assessment means any fee or charge levied or imposed by the Secretary or a delegated State other than:
(1) The principal amount of any royalty, minimum royalty, rental, bonus, net profit share or proceed of sale;
(2) Any interest; or
(3) Any civil or criminal penalty.
Delegated State means a State to which ONRR has delegated authority to perform royalty management functions under an agreement or agreements under 30 CFR part 1227.
Designee means the person designated by a lessee under 30 CFR 1218.52 to make all or part of the royalty or other payments due on a lease on the lessee’s behalf.
IBLA means the Interior Board of Land Appeals.
Lease means any agreement authorizing exploration for or extraction of any mineral, regardless of whether the instrument is expressly denominated as a “lease,” including any:
(1) Contract;
(2) Net profit share arrangement; or
(3) Joint venture.
Lessee means any person to whom the United States issues a Federal oil and gas lease, or any person to whom all or part of the lessee’s interest or operating rights in a Federal oil and gas lease has been assigned.
Monetary obligation means a lessee’s, designee’s or payor’s duty to pay, or to compute and pay, any obligation in any order, or the Secretary’s duty to pay, refund, offset, or credit the amount of any obligation that is the subject of a decision by the ONRR or a delegated State denying a lessee’s, designee’s, or payor’s written request for the payment, refund, offset, or credit. To determine the amount of any monetary obligation, for purposes of the default rule of decision in § 4.906 and 30 U.S.C. 1724(h):
(1) If an order asserts a monetary obligation arising from one issue or type of underpayment that covers multiple leases or production months, the total obligation for all leases or production months involved constitutes a single monetary obligation;
(2) If an order asserts monetary obligations arising from different issues or types of underpayments for one or more leases, the obligations arising from each separate issue, subject to paragraph (1) of this definition, constitute separate monetary obligations; and
(3) If an order asserts a monetary obligation with a stated amount of additional royalties due, plus an order to perform a restructured accounting arising from the same issue or cause as the specifically stated underpayment, the stated amount of royalties due plus the estimated amount due under the restructured accounting, subject to paragraphs (1) and (2) of this definition, together constitutes a single monetary obligation.
Nonmonetary obligation means any duty of a lessee or its designee to deliver oil or gas in kind, or any duty of the Secretary to take oil or gas royalty in kind.
Notice of Order means the notice that ONRR or a delegated State issues to a lessee that informs the lessee that ONRR or the delegated State has issued an order to the lessee’s designee.
Obligation means:
(1) A lessee’s, designee’s or payor’s duty to:
(i) Deliver oil or gas royalty in kind; or
(ii) Make a lease-related payment, including royalty, minimum royalty, rental, bonus, net profit share, proceeds of sale, interest, penalty, civil penalty, or assessment; and
(2) The Secretary’s duty to:
(i) Take oil or gas royalty in kind; or
(ii) Make a lease-related payment, refund, offset, or credit, including royalty, minimum royalty, rental, bonus, net profit share, proceeds of sale, or interest.
OHA means Office of Hearings and Appeals, Department of the Interior.
Order means any document or portion of a document issued by ONRR or a delegated State that contains mandatory or ordering language regarding any monetary or nonmonetary obligation under any Federal oil and gas lease or leases.
(1) Order includes:
(i) An order to pay (Order to Pay) or to compute and pay (Order to Perform a Restructured Accounting); and
(ii) An ONRR or delegated State decision to deny a lessee’s, designee’s, or payor’s written request that asserts an obligation due the lessee, designee, or payor.
(2) Order does not include:
(i) A non-binding request, information, or guidance, such as:
(A) Advice or guidance on how to report or pay, including valuation determination, unless it contains mandatory or ordering language; and
(B) A policy determination;
(ii) A subpoena;
(iii) An order to pay that ONRR issues to a refiner or other person involved in disposition of royalty taken in kind; or
(iv) A Notice of Noncompliance or a Notice of Civil Penalty issued under 30 U.S.C. 1719 and 30 CFR part 1241, or a decision of an administrative law judge or of the IBLA following a hearing on the record on a Notice of Noncompliance or Notice of Civil Penalty.
(v) A “Dear Payor,” “Dear Operator,” or “Dear Reporter” letter unless it explicitly includes the right to appeal in writing; or
(vi) Any correspondence that does not include the right to appeal in writing.
Party means ONRR, any person who files a Notice of Appeal under 30 CFR part 290 in effect prior to May 13, 1999 and contained in the 30 CFR, parts 200 to 699, edition revised as of July 1, 1998, 30 CFR part 1290, or 43 CFR part 4, subpart E, and any person who files a Notice of Joinder in an appeal under 30 CFR part 1290.
Payor means any person responsible for reporting and paying royalties for Federal oil and gas leases.
§ 4.904 When does my appeal commence and end?
For purposes of the period in which the Department must issue a final decision in your appeal under § 4.906:
(a) Your appeal commences on the date ONRR receives your Notice of Appeal.
(b) Your appeal ends on the same day of the 33rd calendar month after your appeal commenced under paragraph (a) of this section, plus the number of days of any applicable time extensions under § 4.909 or 30 CFR 1290.109. If the 33rd calendar month after your appeal commenced does not have the same day of the month as the day of the month your appeal commenced, then the initial 33-month period ends on the last day of the 33rd calendar month.
§ 4.905 What if a due date falls on a day the Department or relevant office is not open for business?
If a due date under this subpart falls on a day the relevant office is not open for business (such as a weekend, Federal holiday, or shutdown), the due date is the next day the relevant office is open for business.
§ 4.906 What if the Department does not issue a decision by the date my appeal ends?
(a) If the IBLA or an Assistant Secretary (or the Secretary or the Director of OHA) does not issue a final decision by the date an appeal ends under § 4.904(d), then under 30 U.S.C. 1724(h)(2), the Secretary will be deemed to have decided the appeal:
(1) In favor of the appellant for any nonmonetary obligation at issue in the appeal, or any monetary obligation at issue in the appeal with a principal amount of less than $10,000;
(2) In favor of the Secretary for any monetary obligation at issue in the appeal with a principal amount of $10,000 or more.
(b)(1) If your appeal ends before the ONRR Director issues a decision in your appeal, then the provisions of paragraph (a) of this section apply to the monetary and nonmonetary obligations in the order that you contested in your appeal to the Director.
(2) If the ONRR Director issues a decision in your appeal before your appeal ends, and if you appealed the Director’s decision to IBLA under 43 CFR part 4, subpart E, then the provisions of paragraph (a) of this section apply to the monetary and nonmonetary obligations in the Director’s decision that you contested in your appeal to IBLA.
(3) If the ONRR Director issues an order or a decision in your appeal, and if you do not appeal the Director’s order or decision to IBLA within the time required under 30 CFR part 1290, then the ONRR Director’s order or decision is the final decision of the Department and 30 U.S.C. 1724(h)(2) has no application.
(c) If the IBLA issues a decision before the date your appeal ends, that decision is the final decision of the Department and 30 U.S.C. 1724(h)(2) has no application. A petition for reconsideration does not extend or renew the 33-month period.
(d) If any part of the principal amount of any monetary obligation is not specifically stated in an order or ONRR Director’s decision and must be computed to comply with the order or ONRR Director’s decision, then the principal amount referred to in paragraph (a) of this section means the principal amount ONRR estimates you would be required to pay as a result of the computation required under the order, plus any amount due stated in the order.
§ 4.907 What if an IBLA decision requires ONRR or a delegated State to recalculate royalties or other payments?
(a) An IBLA decision modifying an order or an ONRR Director’s decision and requiring ONRR or a delegated State to recalculate royalties or other payments is a final decision in the administrative proceeding for purposes of 30 U.S.C. 1724(h).
(b) ONRR or the delegated State must provide to IBLA and all parties any recalculation IBLA requires under paragraph (a) of this section within 60 days of receiving IBLA’s decision.
(c) There is no further appeal within the Department from ONRR’s or the State’s recalculation under paragraph (b) of this section.
(d) The IBLA decision issued under paragraph (a) of this section together with recalculation under paragraph (b) of this section are the final action of the Department that is judicially reviewable under 5 U.S.C. 704.
§ 4.908 What is the administrative record for my appeal if it is deemed decided?
If your appeal is deemed decided under § 4.906, the record for your appeal consists of:
(a) The record established in an appeal before the ONRR Director;
(b) Any additional correspondence or submissions to the ONRR Director;
(c) The ONRR Director’s decision in an appeal;
(d) Any pleadings or submissions to the IBLA; and
(e) Any IBLA orders and decisions.
§ 4.909 How do I request an extension of time?
(a) If you are a party to an appeal subject to this subpart before the IBLA, and you need additional time after an appeal commences for any purpose, you may obtain an extension of time under this section.
(b) You must submit a written request for an extension of time before the required filing date.
(1) You must submit your request to the IBLA at Interior Board of Land Appeals, using the U.S. Postal Service, a private delivery or courier service, hand delivery or electronic transmission under the terms of OHA Standing Orders on Electronic Transmission;
(2) If you file a document by telefax, you must send an additional copy of your document to the IBLA using the U.S. Postal Service, a private delivery or courier service or hand delivery so that it is received within 5 business days of your telefax transmission.
(c) If you are an appellant, in addition to meeting the requirements of paragraph (b) of this section, you must agree in writing in your request to extend the period in which the Department must issue a final decision in your appeal under § 4.906 by the amount of time for which you are requesting an extension.
(d) If you are any other party, the IBLA may require you to submit a written agreement signed by the appellant to extend the period in which the Department must issue a final decision in the appeal under § 4.906 by the amount of time for which you are requesting an extension.
(e) The IBLA has the discretion to decline any request for an extension of time.
(f) You must serve your request on all parties to the appeal.
(g) A document may be electronically transmitted under the terms specified in the OHA Standing Orders on Electronic Transmissions.
Subpart K—Hearing Process Concerning Acknowledgment of American Indian Tribes
General Provisions
§ 4.1001 What terms are used in this subpart?
As used in this subpart:
ALJ means an administrative law judge in DCHD appointed under 5 U.S.C. 3105 and assigned to preside over the hearing process.
Assistant Secretary means the Assistant Secretary—Indian Affairs within the Department of the Interior, or that officer’s authorized representative, but does not include representatives of OFA.
Day means a calendar day. Computation of time periods is discussed in § 4.1004.
Department means the Department of the Interior, including the Assistant Secretary and OFA.
DCHD means the Departmental Cases Hearings Division, Office of Hearings and Appeals, Department of the Interior.
Discovery means a prehearing process for obtaining facts or information to assist a party in preparing or presenting its case.
Ex parte communication means an oral or written communication to the ALJ that is made without providing all parties reasonable notice and an opportunity to participate.
Full intervenor means a person granted leave by the ALJ to intervene as a full party under § 4.1021.
Hearing process means the process by which DCDH handles a case forwarded to DCHD by OFA pursuant to 25 CFR 83.39(a), from receipt to issuance of a recommended decision as to whether the petitioner should be acknowledged as a federally recognized Indian tribe for purposes of federal law.
OFA means the Office of Federal Acknowledgment within the Office of the Assistant Secretary—Indian Affairs, Department of the Interior.
OHA means Office of Hearings and Appeals, Department of the Interior.
Party means the petitioner, OFA, or a full intervenor.
Person means an individual; a partnership, corporation, association, or other legal entity; an unincorporated organization; and any federal, state, tribal, county, district, territorial, or local government or agency.
Petitioner means an entity that has submitted a documented petition to OFA requesting Federal acknowledgment as a federally recognized Indian tribe under 25 CFR part 83 and has elected to have a hearing under 25 CFR 83.38.
Representative means a person who:
(1) Is authorized by a party to represent the party in a hearing process under this subpart; and
(2) Has filed an appearance under § 4.1010.
Secretary means the Secretary of the Interior or his or her designee.
Senior Department employee has the same meaning as the term “senior employee” in 5 CFR 2641.104.
§ 4.1002 What is the purpose of this subpart?
(a) The purpose of this subpart is to establish rules of practice and procedure for the hearing process available under 25 CFR 83.38(a)(1) and 83.39 to a petitioner for Federal acknowledgment that receives from OFA a negative proposed finding on Federal acknowledgment and elects to have a hearing before an ALJ. This subpart includes provisions governing prehearing conferences, discovery, motions, an evidentiary hearing, briefing, and issuance by the ALJ of a recommended decision on Federal acknowledgment for consideration by the Assistant Secretary—Indian Affairs (AS-IA).
(b) This subpart will be construed and applied to each hearing process to achieve a just and speedy determination, consistent with adequate consideration of the issues involved.
§ 4.1003 Which rules of procedure and practice apply?
(a) The rules which apply to the hearing process under this subpart are the provisions of §§ 4.1001 through 4.1051.
(b) Notwithstanding the provisions of § 4.20, the general rules in subpart B of this part, do not apply to the hearing process, except as provided in § 4.1017(a).
§ 4.1004 How are time periods computed?
(a) General. Time periods are computed as follows:
(1) The day of the act or event from which the period begins to run is not included.
(2) The last day of the period is included.
(i) If that day is a Saturday, Sunday, or other day on which the Federal government is closed for business, the period is extended to the next business day.
(ii) The last day of the period ends at 5 p.m. at the place where the filing or other action is due.
(3) If the period is less than 7 days, any Saturday, Sunday, or other day on which the Federal government is closed for business that falls within the period is not included.
(b) Extensions of time. (1) No extension of time can be granted to file a motion for intervention under § 4.1021.
(2) An extension of time to file any other document under this subpart may be granted only upon a showing of good cause.
(i) To request an extension of time, a party must file a motion under § 4.1018 stating how much additional time is needed and the reasons for the request.
(ii) The party must file the motion before the applicable time period expires, unless the party demonstrates extraordinary circumstances that justify a delay in filing.
(iii) The ALJ may grant the extension only if:
(A) It would not unduly prejudice other parties; and
(B) It would not delay the recommended decision under § 4.1051.
Representatives
§ 4.1010 Who may represent a party, and what requirements apply to a representative?
(a) Individuals. A party who is an individual may either act as his or her own representative in the hearing process under this subpart or authorize an attorney to act as his or her representative.
(b) Organizations. A party that is an organization or other entity may authorize one of the following to act as its representative:
(1) An attorney;
(2) A partner, if the entity is a partnership;
(3) An officer or full-time employee, if the entity is a corporation, association, or unincorporated organization;
(4) A receiver, administrator, executor, or similar fiduciary, if the entity is a receivership, trust, or estate; or
(5) An elected or appointed official or an employee, if the entity is a federal, state, tribal, county, district, territorial, or local government or component.
(c) OFA. OFA’s representative will be an attorney from the Office of the Solicitor.
(d) Appearance. A representative must file a notice of appearance. The notice must:
(1) Meet the form and content requirements for documents under § 4.1011;
(2) Include the name and address of the person on whose behalf the appearance is made;
(3) If the representative is an attorney (except for an attorney with the Office of the Solicitor), include a statement that he or she is a member in good standing of the bar of the highest court of a state, the District of Columbia, or any territory or commonwealth of the United States (identifying which one); and
(4) If the representative is not an attorney, include a statement explaining his or her authority to represent the entity.
(e) Disqualification. The ALJ may disqualify any representative for misconduct or other good cause.
Document Filing and Service
§ 4.1011 What are the form and content requirements for documents under this subpart?
(a) Form. Each document filed in a case under this subpart must:
(1) Measure 8-1/2 by 11 inches, except that a table, chart, diagram, or other attachment may be larger if folded to 8-1/2 by 11 inches and attached to the document;
(2) Be printed on just one side of the page;
(3) Be clearly typewritten, printed, or otherwise reproduced by a process that yields legible and permanent copies;
(4) Use 12-point font size or larger;
(5) Be double-spaced except for footnotes and long quotations, which may be single-spaced;
(6) Have margins of at least 1 inch; and
(7) Be bound on the left side, if bound.
(b) Caption. Each document must begin with a caption that includes:
(1) The name of the case under this subpart and the docket number, if one has been assigned;
(2) The name and docket number of the proceeding to which the case under this subpart relates; and
(3) A descriptive title for the document, indicating the party for whom it is filed and the nature of the document.
(c) Signature. The original of each document must be signed by the representative of the person for whom the document is filed. The signature constitutes a certification by the representative that:
(1) He or she has read the document;
(2) The statements in the document are true to the best of his or her knowledge, information, and belief; and
(3) The document is not being filed for the purpose of causing delay.
(d) Contact information. Below the representative’s signature, the document must provide the representative’s name, mailing address, street address (if different), telephone number, facsimile number (if any), and electronic mail address (if any).
§ 4.1012 Where and how must documents be filed?
(a) Place of filing. Any documents relating to a case under this subpart must be filed with DCHD. DCHD’s contact information is identified in the OHA Standing Orders on Contact Information
(b) Method of filing. (1) Unless otherwise ordered by the ALJ, a document must be filed with DCHD using one of the following methods:
(i) By hand delivery of the original document;
(ii) By sending the original document by express mail or courier service for delivery on the next business day;
(iii) By sending the document by facsimile if:
(A) The document is 20 pages or less, including all attachments;
(B) The sending facsimile machine confirms that the transmission was successful; and
(C) The original of the document is sent by regular mail on the same day.
(2) Parties are encouraged, but not required, to supplement any filing made under paragraphs (b)(1)(i) through (iii) of this section by providing the appropriate office with an electronic copy of the document.
(c) Date of filing. A document under this subpart is considered filed on the date it is received. However, any document received by DCHD after 5 p.m. is considered filed on the next regular business day.
(d) Nonconforming documents. If any document submitted for filing under this subpart does not comply with the requirements of this subpart or any applicable order, it may be rejected. If the defect is minor, the filer may be notified of the defect and given a chance to correct it.
(e) A document may be electronically transmitted under the terms specified in OHA Standing Orders on Electronic Transmission.
§ 4.1013 How must documents be served?
(a) Filed documents. Any document related to a case under this subpart must be served at the same time the document is delivered or sent for filing. Copies must be served on each party, using one of the methods of service in paragraph (c) of this section.
(b) Documents issued by DCHD or the ALJ. A complete copy of any notice, order, recommended decision, or other document issued by DCHD or the ALJ under this subpart must be served on each party, using one of the methods of service in paragraph (c) of this section.
(c) Method of service. Unless otherwise ordered by the ALJ, service must be accomplished by one of the following methods:
(1) By hand delivery of the document;
(2) By sending the document by express mail or courier service for delivery on the next business day; or
(3) By sending the document by facsimile if:
(i) The document is 20 pages or less, including all attachments;
(ii) The sending facsimile machine confirms that the transmission was successful; and
(iii) The document is sent by regular mail on the same day; or
(4) By transmitting the document electronically if there is electronic confirmation that the transmission was successful and if under the terms specified in OHA Standing Orders.
(d) Certificate of service. A certificate of service must be attached to each document filed under this subpart. The certificate must be signed by the serving party’s representative and include the following information:
(1) The name, address, and other contact information of each party’s representative on whom the document was served;
(2) The means of service, including information indicating compliance with paragraph (c)(3) or (4) of this section, if applicable; and
(3) The date of service.
§ 4.1014 What are the powers of the ALJ?
The ALJ has all powers necessary to conduct the hearing process in a fair, orderly, expeditious, and impartial manner, including the powers to:
(a) Administer oaths and affirmations;
(b) Issue subpoenas to the extent authorized by law;
(c) Rule on motions;
(d) Authorize discovery under exceptional circumstances as provided in this subpart;
(e) Hold hearings and conferences;
(f) Regulate the course of hearings;
(g) Call and question witnesses;
(h) Exclude any person from a hearing or conference for misconduct or other good cause;
(i) Impose non-monetary sanctions for a person’s failure to comply with an ALJ order or provision of this subpart;
(j) Issue a recommended decision; and
(k) Take any other action authorized by law.
(a) If the ALJ becomes unavailable or otherwise unable to perform the duties described in § 4.1014, DCHD will designate a successor.
(b) If a hearing has commenced and the ALJ cannot proceed with it, a successor ALJ may do so. At the request of a party, the successor ALJ may recall any witness whose testimony is material and disputed, and who is available to testify again without undue burden. The successor ALJ may, within his or her discretion, recall any other witness.
§ 4.1016 When can an ALJ be disqualified?
(a) The ALJ may withdraw from a case at any time the ALJ deems himself or herself disqualified.
(b) At any time before issuance of the ALJ’s recommended decision, any party may move that the ALJ disqualify himself or herself for personal bias or other valid cause.
(1) The party must file the motion promptly after discovering facts or other reasons allegedly constituting cause for disqualification.
(2) The party must file with the motion an affidavit or declaration setting forth the facts or other reasons in detail.
(c) The ALJ must rule upon the motion, stating the grounds for the ruling.
(1) If the ALJ concludes that the motion is timely and meritorious, he or she must disqualify himself or herself and withdraw from the case.
(2) If the ALJ does not disqualify himself or herself and withdraw from the case, the ALJ must continue with the hearing process and issue a recommended decision.
§ 4.1017 Are ex parte communications allowed?
(a) Ex parte communications with the ALJ or his or her staff are prohibited in accordance with § 4.27(b).
(b) This section does not prohibit ex parte inquiries concerning case status or procedural requirements, unless the inquiry involves an area of controversy in the hearing process.
Motions
§ 4.1018 What are the requirements for motions?
(a) General. Any party may apply for an order or ruling on any matter related to the hearing process by presenting a motion to the ALJ. A motion may be presented any time after DCHD issues the docketing notice.
(1) A motion made at a hearing may be stated orally on the record, unless the ALJ directs that it be written.
(2) Any other motion must:
(i) Be in writing;
(ii) Comply with the requirements of this subpart with respect to form, content, filing, and service; and
(iii) Not exceed 10 pages, unless the ALJ orders otherwise.
(b) Content. (1) Each motion must state clearly and concisely:
(i) Its purpose and the relief sought;
(ii) The facts constituting the grounds for the relief sought; and
(iii) Any applicable statutory or regulatory authority.
(2) A proposed order must accompany the motion.
(c) Response. Except as otherwise required by this subpart or by order of the ALJ, any other party may file a response to a written motion within 14 days after service of the motion. When a party presents a motion at a hearing, any other party may present a response orally on the record.
(d) Reply. Unless the ALJ orders otherwise, no reply to a response may be filed.
(e) Effect of filing. Unless the ALJ orders otherwise, the filing of a motion does not stay the hearing process.
(f) Ruling. The ALJ will rule on the motion as soon as feasible, either orally on the record or in writing. The ALJ may summarily deny any dilatory, repetitive, or frivolous motion.
Prior Decisions
§ 4.1019 How may a party submit prior Departmental final decisions?
A party may submit as an appendix to a motion, brief, or other filing a prior Departmental final decision in support of a finding that the evidence or methodology is sufficient to satisfy one or more criteria for Federal acknowledgment of the petitioner because the Department found that evidence or methodology sufficient to satisfy the same criteria in the prior decision.
Hearing Process
Docketing, Intervention, Prehearing Conferences, and Summary Decision
§ 4.1020 What will DCHD do upon receiving the election of hearing from a petitioner?
Within 5 days after petitioner files its election of hearing under 25 CFR 83.38(a), the actions required by this section must be taken.
(a) DCHD must:
(1) Docket the case;
(2) Assign an ALJ to preside over the hearing process and issue a recommended decision; and
(3) Issue a docketing notice that informs the parties of the docket number and the ALJ assigned to the case.
(b) The ALJ assigned under paragraph (a)(2) of this section must issue a notice setting the time, place, and method for conducting an initial prehearing conference under § 4.1022(a). This notice may be combined with the docketing notice under paragraph (a)(3) of this section.
§ 4.1021 What are the requirements for motions for intervention and responses?
(a) General. A person may file a motion for intervention within 30 days after OFA issues the notice of the election of hearing under 25 CFR 83.39(a)(1).
(b) Content of the motion. The motion for intervention must contain the following:
(1) A statement setting forth the interest of the person and, if the person seeks intervention under paragraph (d) of this section, a showing of why that interest may be adversely affected by the final determination of the Assistant Secretary under 25 CFR 83.43;
(2) An explanation of the person’s position with respect to the issues of law and issues of material fact raised in the election of hearing in no more than five pages; and
(3) A list of the witnesses and exhibits the person intends to present at the hearing, other than solely for impeachment purposes, including:
(i) For each witness listed, his or her name, address, telephone number, and qualifications and a brief narrative summary of his or her expected testimony; and
(ii) For each exhibit listed, a statement specifying where the exhibit is located in the administrative record reviewed by OFA.
(c) Timing of response to a motion. Any response to a motion for intervention must be filed by a party within 7 days after service of the motion.
(d) Intervention of right. The ALJ will grant intervention where the person has an interest that may be adversely affected by the Assistant Secretary’s final determination under 25 CFR 83.43.
(e) Permissive intervention. If paragraph (d) of this section does not apply, the ALJ will consider the following in determining whether intervention is appropriate:
(1) The nature of the issues;
(2) The adequacy of representation of the person’s interest which is provided by the existing parties to the proceeding; and
(3) The ability of the person to present relevant evidence and argument.
(f) How an intervenor may participate. (1) A person granted leave to intervene under paragraph (d) of this section may participate as a full party or in a capacity less than that of a full party.
(2) If the intervenor wishes to participate in a limited capacity or if the intervenor is granted leave to intervene under paragraph (e) of this section, the extent and the terms of the participation will be determined by the ALJ.
(3) An intervenor may not raise issues of law or issues of material fact beyond those raised in the election of hearing under 25 CFR 83.38(a)(1).
§ 4.1022 How are prehearing conferences conducted?
(a) Initial prehearing conference. The ALJ will conduct an initial prehearing conference with the parties at the time specified in the docketing notice under § 4.1020, within 55 days after issuance of the docketing notice.
(1) The initial prehearing conference will be used:
(i) To identify, narrow, and clarify the disputed issues of material fact and exclude issues that do not qualify for review as factual, material, and disputed;
(ii) To discuss the evidence on which each party intends to rely at the hearing; and
(iii) To set the date, time, and place of the hearing.
(2) The initial prehearing conference may also be used:
(i) To discuss limiting and grouping witnesses to avoid duplication;
(ii) To discuss stipulations of fact and of the content and authenticity of documents;
(iii) To consider requests that the ALJ take official notice of public records or other matters;
(iv) To discuss pending or anticipated motions, if any; and
(v) To consider any other matters that may aid in the disposition of the case.
(b) Other conferences. The ALJ may direct the parties to attend one or more other prehearing conferences, if consistent with the need to complete the hearing process within 180 days. Any party may by motion request a conference.
(c) Notice. The ALJ must give the parties reasonable notice of the time and place of any conference.
(d) Method. A conference will ordinarily be held by telephone, unless the ALJ orders otherwise.
(e) Representatives’ preparation and authority. Each party’s representative must be fully prepared during the prehearing conference for a discussion of all procedural and substantive issues properly raised. The representative must be authorized to commit the party that he or she represents respecting those issues.
(f) Parties’ meeting. Before the initial prehearing conference, the parties’ representatives must make a good faith effort:
(1) To meet in person, by telephone, or by other appropriate means; and
(2) To reach agreement on the schedule of remaining steps in the hearing process.
(g) Failure to attend. Unless the ALJ orders otherwise, a party that fails to attend or participate in a conference, after being served with reasonable notice of its time and place, waives all objections to any agreements reached in the conference and to any consequent orders or rulings.
(h) Scope. During a conference, the ALJ may dispose of any procedural matters related to the case.
(i) Order. Within 3 days after the conclusion of each conference, the ALJ must issue an order that recites any agreements reached at the conference and any rulings made by the ALJ during or as a result of the conference.
§ 4.1023 What are the requirements for motions for recommended summary decision, responses, and issuance of a recommended summary decision?
(a) Motion for recommended summary decision or partial recommended summary decision. A party may move for a recommended summary decision, identifying each issue on which summary decision is sought. The ALJ may issue a recommended summary decision if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a recommended decision as a matter of law. The ALJ should state on the record the reasons for granting or denying the motion.
(b) Time to file a motion. Except as otherwise ordered by the ALJ, a party may file a motion for recommended summary decision on all or part of the proceeding at any time after DCHD issues a docketing notice under § 4.1020.
(c) Procedures—(1) Supporting factual positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(i) Citing to particular parts of materials in the hearing process record, including affidavits or declarations, stipulations (including those made for purposes of the motion only), or other materials; or
(ii) Showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection that a fact is not supported by admissible evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials not cited. The ALJ need consider only the cited materials, but the ALJ may consider other materials in the hearing process record.
(4) Affidavits or declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
(d) When facts are unavailable to the nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the ALJ may:
(1) Defer considering the motion or deny it;
(2) Allow time to obtain affidavits or declarations or, under extraordinary circumstances, to take discovery; or
(3) Issue any other appropriate order.
(e) Failing to properly support or address a fact. If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by paragraph (c) of this section, the ALJ may:
(1) Give an opportunity to properly support or address the fact;
(2) Consider the fact undisputed for purposes of the motion;
(3) Issue a recommended summary decision if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or
(4) Issue any other appropriate order.
(f) Issuing a recommended summary decision independent of the motion. After giving notice and a reasonable time to respond, the ALJ may:
(1) Issue a recommended summary decision for a nonmovant;
(2) Grant a motion for recommended summary decision on grounds not raised by a party; or
(3) Consider issuing a recommended summary decision on his or her own after identifying for the parties material facts that may not be genuinely in dispute.
(g) Failing to grant all the requested relief. If the ALJ does not grant all the relief requested by the motion, the ALJ may enter an order stating any material fact that is not genuinely in dispute and treating the fact as established in the case.
Information Disclosure
§ 4.1030 What are the requirements for OFA’s witness and exhibit list?
Within 14 days after OFA issues the notice of the election of hearing under 25 CFR 83.39(a)(1), OFA must file a list of the witnesses and exhibits it intends to present at the hearing, other than solely for impeachment purposes, including:
(a) For each witness listed, his or her name, address, telephone number, qualifications, and a brief narrative summary of his or her expected testimony; and
(b) For each exhibit listed, a statement specifying where the exhibit is in the administrative record reviewed by OFA.
(a) General. A party may obtain discovery of information to assist in preparing or presenting its case only if the ALJ determines that the party has met the criteria set forth in paragraph (b) of this section and authorizes the discovery in a written order or during a prehearing conference. Available methods of discovery are:
(1) Written interrogatories;
(2) Depositions; and
(3) Requests for production of designated documents or tangible things or for entry on designated land for inspection or other purposes.
(b) Criteria. The ALJ may authorize discovery only under extraordinary circumstances and if the party requesting discovery demonstrates:
(1) That the discovery will not unreasonably delay the hearing process;
(2) That the scope of the discovery is not unduly burdensome;
(3) That the method to be used is the least burdensome method available;
(4) That any confidential information can be adequately safeguarded; and
(5) That the information sought:
(i) Will be admissible at the hearing or appears reasonably calculated to lead to the discovery of admissible evidence;
(ii) Is not otherwise obtainable by the party;
(iii) Is not cumulative or repetitious; and
(iv) Is not privileged or protected from disclosure by applicable law.
(c) Motions. A party seeking the ALJ’s authorization for discovery must file a motion that:
(1) Briefly describes the proposed methodology, purpose, and scope of the discovery;
(2) Explains how the discovery meets the criteria in paragraph (b) of this section; and
(3) Attaches a copy of any proposed discovery request (written interrogatories, notice of deposition, or request for production of designated documents or tangible things or for entry on designated land).
(d) Timing of motions. Any discovery motion under paragraph (c) of this section must be filed:
(1) Within 30 days after issuance of the docketing notice under § 4.1020 if the discovery sought is between the petitioner and OFA; and
(2) Within 50 days after issuance of the docketing notice under § 4.1020 if the discovery sought is between a full intervenor and another party.
(e) Objections. (1) A party must file any objections to a discovery motion or to specific portions of a proposed discovery request within 10 days after service of the motion.
(2) An objection must explain how, in the objecting party’s view, the discovery sought does not meet the criteria in paragraph (b) of this section.
§ 4.1032 When must a party supplement or amend information?
(a) Witnesses and exhibits. (1) Each party must file an updated version of the list of witnesses and exhibits required under 25 CFR 83.38(a)(2), § 4.1021(b)(3), or § 4.1030 by no later than 15 days prior to the hearing date, unless otherwise ordered by the ALJ.
(2) If a party wishes to include any new witness or exhibit on its updated list, it must provide an explanation of why it was not feasible for the party to include the witness or exhibit on its list under 25 CFR 83.38(a)(2), § 4.1021(b)(3), or § 4.1030.
(b) Failure to disclose. (1) A party that fails to disclose information required under 25 CFR 83.38(a)(2), § 4.1021(b)(3), § 4.1030, or paragraph (a)(1) of this section will not be permitted to introduce as evidence at the hearing testimony from a witness or other information that it failed to disclose.
(2) Paragraph (b)(1) of this section does not apply if the failure to disclose was substantially justified or is harmless.
(3) Before or during the hearing, a party may object under paragraph (b)(1) of this section to the admission of evidence.
(4) The ALJ will consider the following in determining whether to exclude evidence under paragraphs (b)(1) through (3) of this section:
(i) The prejudice to the objecting party;
(ii) The ability of the objecting party to cure any prejudice;
(iii) The extent to which presentation of the evidence would disrupt the orderly and efficient hearing of the case;
(iv) The importance of the evidence; and
(v) The reason for the failure to disclose, including any bad faith or willfulness regarding the failure.
(a) General. A party may depose a witness to preserve testimony only if the ALJ determines that the party has met the criteria set forth in paragraph (b) of this section and authorizes the deposition in a written order or during a prehearing conference. Authorization of depositions for discovery purposes is governed by § 4.1031.
(b) Criteria. (1) The ALJ may authorize a deposition to preserve testimony only if the party shows that the witness:
(i) Will be unable to attend the hearing because of age, illness, or other incapacity; or
(ii) Is unwilling to attend the hearing voluntarily, and the party is unable to compel the witness’s attendance at the hearing by subpoena.
(2) Paragraph (b)(1)(ii) of this section does not apply to any person employed by or under contract with the party seeking the deposition.
(3) A party may depose a senior Department employee of OFA only if the party shows:
(i) That the employee’s testimony is necessary in order to provide significant, unprivileged information that is not available from any other source or by less burdensome means; and
(ii) That the deposition would not significantly interfere with the employee’s ability to perform his or her official duties.
(c) Motion and notice. A party seeking the ALJ’s authorization to take a deposition to preserve testimony must file a motion which explains how the criteria in paragraph (b) of this section have been met and states:
(1) The time and place that the deposition is to be taken;
(2) The name and address of the person before whom the deposition is to be taken;
(3) The name and address of the witness whose deposition is to be taken; and
(4) Any documents or materials that the witness is to produce.
§ 4.1034 What are the procedures for limiting disclosure of information which is confidential or exempt by law from public disclosure?
(a) A party or a prospective witness or deponent may file a motion requesting a protective order to limit from disclosure to other parties or to the public a document or testimony containing information which is confidential or exempt by law from public disclosure.
(b) In the motion the person must describe the information sought to be protected from disclosure and explain in detail:
(1) Why the information is confidential or exempt by law from public disclosure;
(2) Why disclosure of the information would adversely affect the person; and
(3) Why disclosure is not required in the public interest.
(c) If the person seeks non-disclosure of information in a document:
(1) The motion must include a copy of the document with the confidential information deleted. If it is not practicable to submit such a copy of the document because deletion of the information would render the document unintelligible, a description of the document may be substituted.
(2) The ALJ may require the person to file a sealed copy of the document for in camera inspection.
(d) Ordinarily, documents and testimony introduced into the public hearing process are presumed to be public. In issuing a protective order, the ALJ may make any order which justice requires to protect the person, consistent with the mandatory public disclosure requirements of the Freedom of Information Act, 5 U.S.C. 552(b), and other applicable law.
§ 4.1035 What are the requirements for subpoenas and witness fees?
(a) Request for subpoena. (1) Except as provided in paragraph (a)(2) of this section, any party may file a motion requesting the ALJ to issue a subpoena to the extent authorized by law for the attendance of a person, the giving of testimony, or the production of documents or other relevant evidence during discovery or for the hearing.
(2) A party may subpoena an OFA employee if the employee participated in the preparation of the negative proposed finding, except that if the OFA employee is a senior Department employee, the party must show:
(i) That the employee’s testimony is necessary in order to provide significant, unprivileged information that is not available from any other source or by less burdensome means; and
(ii) That the employee’s attendance would not significantly interfere with the ability to perform his or her government duties.
(b) Service. (1) A subpoena may be served by any person who is not a party and is 18 years of age or older.
(2) Service must be made by hand delivering a copy of the subpoena to the person named therein.
(3) The person serving the subpoena must:
(i) Prepare a certificate of service setting forth the date, time, and manner of service or the reason for any failure of service; and
(ii) Swear to or affirm the certificate, attach it to a copy of the subpoena, and return it to the party on whose behalf the subpoena was served.
(c) Witness fees. (1) A party who subpoenas a witness who is not a party must pay him or her the same fees and mileage expenses that are paid witnesses in the district courts of the United States.
(2) A witness who is not a party and who attends a deposition or hearing at the request of any party without having been subpoenaed to do so is entitled to the same fees and mileage expenses as if he or she had been subpoenaed. However, this paragraph does not apply to federal employees who are called as witnesses by OFA.
(d) Motion to quash. (1) A person to whom a subpoena is directed may request by motion that the ALJ quash or modify the subpoena.
(2) The motion must be filed:
(i) Within 5 days after service of the subpoena; or
(ii) At or before the time specified in the subpoena for compliance, if that is less than 5 days after service of the subpoena.
(3) The ALJ may quash or modify the subpoena if it:
(i) Is unreasonable;
(ii) Requires evidence beyond the limits on witnesses and evidence found in §§ 4.1042 and 4.1046;
(iii) Requires evidence during discovery that is not discoverable; or
(iv) Requires evidence during a hearing that is privileged or irrelevant.
(e) Enforcement. For good cause shown, the ALJ may apply to the appropriate United States District Court for the issuance of an order compelling the appearance and testimony of a witness or the production of evidence as set forth in a subpoena that has been duly issued and served.
Hearing, Briefing, and Recommended Decision
§ 4.1040 When and where will the hearing be held?
(a) Time and place. (1) Except as provided in paragraph (b) of this section, the hearing will be held at the time and place set at the initial prehearing conference under § 4.1022(a)(1)(iii), generally within 90 days after the date DCHD issues the docketing notice under § 4.1020(a)(3).
(2) The ALJ will consider the convenience of all parties, their representatives, and witnesses in setting the time and place for hearing.
(b) Change. On motion by a party or on the ALJ’s initiative, the ALJ may change the date, time, or place of the hearing if he or she finds:
(1) That there is good cause for the change; and
(2) That the change will not unduly prejudice the parties and witnesses.
§ 4.1041 What are the parties’ rights during the hearing?
Consistent with the provisions of this subpart, and as necessary to ensure full and accurate disclosure of the facts, each party may exercise the following rights during the hearing:
(a) Present direct and rebuttal evidence;
(b) Make objections, motions, and arguments; and
(c) Cross-examine witnesses, including OFA staff, and conduct re-direct and re-cross examination as permitted by the ALJ.
§ 4.1042 Who may testify?
(a) Except as provided in paragraph (b) of this section, each party may present as witnesses the following persons only:
(1) Persons who qualify as expert witnesses; and
(2) OFA staff who participated in the preparation of the negative proposed finding, except that if the OFA employee is a senior Department employee, any party other than OFA must first obtain a subpoena for that employee under § 4.1035.
(b) The ALJ may authorize testimony from witnesses in addition to those identified in paragraph (a) of this section only under extraordinary circumstances.
§ 4.1043 What are the methods for testifying?
Oral examination of a witness in a hearing, including on cross-examination or redirect, must be conducted under oath with an opportunity for all parties to question the witness. The witness must testify in the presence of the ALJ unless the ALJ authorizes the witness to testify by telephonic conference call. The ALJ may issue a subpoena under § 4.1035 directing a witness to testify by telephonic conference call.
§ 4.1044 How may a party use a deposition in the hearing?
(a) In general. Subject to the provisions of this section, a party may use in the hearing any part or all of a deposition taken against any party who:
(1) Was present or represented at the taking of the deposition; or
(2) Had reasonable notice of the taking of the deposition.
(b) Admissibility. (1) No part of a deposition will be included in the hearing record, unless received in evidence by the judge.
(2) The judge will exclude from evidence any question and response to which an objection:
(i) Was noted at the taking of the deposition; and
(ii) Would have been sustained if the witness had been personally present and testifying at a hearing.
(3) If a party offers only part of a deposition in evidence:
(i) An adverse party may require the party to introduce any other part that ought in fairness to be considered with the part introduced; and
(ii) Any other party may introduce any other parts.
(c) Video-recorded deposition. If the deposition was video recorded and is admitted into evidence, relevant portions will be played during the hearing and transcribed into the record by the reporter.
§ 4.1045 What are the requirements for exhibits, official notice, and stipulations?
(a) General. (1) Except as provided in paragraphs (d) and (e) of this section, any material offered in evidence, other than oral testimony, must be offered in the form of an exhibit.
(2) Each exhibit offered by a party must be marked for identification.
(3) Any party who seeks to have an exhibit admitted into evidence must provide:
(i) The original of the exhibit to the reporter, unless the ALJ permits the substitution of a copy; and
(ii) A copy of the exhibit to the ALJ.
(b) ALJ exhibits. (1) At any time prior to issuance of the recommended decision, the ALJ, on his or her own initiative, may admit into evidence as an exhibit any document from the administrative record reviewed by OFA.
(2) If the ALJ admits a document under paragraph (b)(1) of this section, the ALJ must notify the parties and give them a brief opportunity to submit comments on the document.
(c) Material not offered. If a document offered as an exhibit contains material not offered as evidence:
(1) The party offering the exhibit must:
(i) Designate the matter offered as evidence;
(ii) Segregate and exclude the material not offered in evidence, to the extent feasible; and
(iii) Provide copies of the entire document to the other parties appearing at the hearing.
(2) The ALJ must give the other parties an opportunity to inspect the entire document and offer in evidence any other portions of the document.
(d) Official notice. (1) At the request of any party at the hearing, the ALJ may take official notice of any matter of which the courts of the United States may take judicial notice, including the public records of the Department, except materials in the administrative record reviewed by OFA.
(2) The ALJ must give the other parties appearing at the hearing an opportunity to show the contrary of an officially noticed fact.
(3) Any party requesting official notice of a fact after the conclusion of the hearing must show good cause for its failure to request official notice during the hearing.
(e) Stipulations. (1) The parties may stipulate to any relevant facts or to the authenticity of any relevant documents.
(2) If received in evidence at the hearing, a stipulation is binding on the stipulating parties.
(3) A stipulation may be written or made orally at the hearing.
§ 4.1046 What evidence is admissible at the hearing?
(a) Scope of evidence. (1) The ALJ may admit as evidence only documentation in the administrative record reviewed by OFA, including comments on OFA’s proposed finding and petitioner’s responses to those comments, and testimony clarifying or explaining the information in that documentation, except as provided in paragraph (a)(2) of this section.
(2) The ALJ may admit information outside the scope of paragraph (a)(1) of this section only if the party seeking to admit the information explains why the information was not submitted for inclusion in the administrative record reviewed by OFA and demonstrates that extraordinary circumstances exist justifying admission of the information.
(3) Subject to the provisions of § 4.1032(b) and paragraphs (a)(1) and (2) of this section, the ALJ may admit any written, oral, documentary, or demonstrative evidence that is:
(i) Relevant, reliable, and probative; and
(ii) Not privileged or unduly repetitious or cumulative.
(b) General. (1) The ALJ may exclude evidence if its probative value is substantially outweighed by the risk of undue prejudice, confusion of the issues, or delay.
(2) Hearsay evidence is admissible. The ALJ may consider the fact that evidence is hearsay when determining its probative value.
(3) The Federal Rules of Evidence do not directly apply to the hearing, but may be used as guidance by the ALJ and the parties in interpreting and applying the provisions of this section.
(c) Objections. Any party objecting to the admission or exclusion of evidence shall concisely state the grounds. A ruling on every objection must appear in the record.
§ 4.1047 What are the requirements for transcription of the hearing?
(a) Transcript and reporter’s fees. The hearing must be transcribed verbatim.
(1) DCHD will secure the services of a reporter and pay the reporter’s fees to provide an original transcript to DCHD on an expedited basis.
(2) Each party must pay the reporter for any copies of the transcript obtained by that party.
(b) Transcript corrections. (1) Any party may file a motion proposing corrections to the transcript. The motion must be filed within 5 days after receipt of the transcript, unless the ALJ sets a different deadline.
(2) Unless a party files a timely motion under paragraph (b)(1) of this section, the transcript will be presumed to be correct and complete, except for obvious typographical errors.
(3) As soon as feasible after the close of the hearing and after consideration of any motions filed under paragraph (b)(1) of this section, the ALJ will issue an order making any corrections to the transcript that the ALJ finds are warranted.
§ 4.1048 What is the standard of proof?
The ALJ will consider a criterion to be met if the evidence establishes a reasonable likelihood of the validity of the facts related to the criteria. Conclusive proof of the facts relating to a criterion shall not be required in order for the criterion to be considered met.
§ 4.1049 When will the hearing record close?
(a) The hearing record will close when the ALJ closes the hearing, unless he or she directs otherwise.
(b) Except as provided in § 4.1045(b)(1), evidence may not be added after the hearing record is closed, but the transcript may be corrected under § 4.1047(b).
§ 4.1050 What are the requirements for post-hearing briefs?
(a) General. (1) Each party may file a post-hearing brief within 20 days after the close of the hearing, unless the ALJ sets a different deadline.
(2) A party may file a reply brief only if requested by the ALJ. The deadline for filing a reply brief, if any, will be set by the ALJ.
(3) The ALJ may limit the length of the briefs to be filed under this section.
(b) Content. (1) An initial brief must include:
(i) A concise statement of the case;
(ii) A separate section containing proposed findings regarding the issues of material fact, with supporting citations to the hearing record;
(iii) Arguments in support of the party’s position; and
(iv) Any other matter required by the ALJ.
(2) A reply brief, if requested by the ALJ, must be limited to any issues identified by the ALJ.
(c) Form. (1) An exhibit admitted into evidence or marked for identification in the record may not be reproduced in the brief.
(i) Such an exhibit may be reproduced, within reasonable limits, in an appendix to the brief.
(ii) Any pertinent analysis of an exhibit may be included in a brief.
(2) If a brief exceeds 30 pages, it must contain:
(i) A table of contents and of points made, with page references; and
(ii) An alphabetical list of citations to legal authority, with page references.
§ 4.1051 What are the requirements for the ALJ’s recommended decision?
(a) Timing. The ALJ must issue a recommended decision within 180 days after issuance of the docketing notice under § 4.1020(a)(3), unless the ALJ issues an order finding good cause to issue the recommended decision at a later date.
(b) Content. (1) The recommended decision must contain all of the following:
(i) Recommended findings of fact on all disputed issues of material fact;
(ii) Recommended conclusions of law:
(A) Necessary to make the findings of fact (such as rulings on materiality and on the admissibility of evidence); and
(B) As to whether the applicable criteria for Federal acknowledgment have been met; and
(iii) Reasons for the findings and conclusions.
(2) The ALJ may adopt any of the findings of fact proposed by one or more of the parties.
(c) Service. Promptly after issuing a recommended decision, the ALJ must:
(1) Serve the recommended decision on each party to the hearing process; and
(2) Forward the complete hearing record to the Assistant Secretary—Indian Affairs, including the recommended decision.
Subpart L—Special Rules Applicable to Surface Coal Mining Hearings and Appeals
General Provisions
§ 4.1100 Definitions.
As used in the regulations in this subpart, the term—
Act means the Surface Mining Control and Reclamation Act of 1977, 91 Stat. 445 et seq., 30 U.S.C. 1201 et seq.
Administrative law judge means an administrative law judge in the Hearings Division of the Office of Hearings and Appeals appointed under 5 U.S.C. 3105 (1970).
Board means the Board of Land Appeals in the Office of Hearings and Appeals.
Hearings Division means the Departmental Cases Hearings Division, Office of Hearings and Appeals.
OHA means the Office of Hearings and Appeals, Department of the Interior.
OSM and OSMRE mean the Office of Surface Mining Reclamation and Enforcement, Department of the Interior.
§ 4.1101 Jurisdiction of the Board.
(a) The jurisdiction of the Board, as set forth in § 4.1(b)(3), and subject to §§ 4.21(d) and 4.5, includes the authority to exercise the final decisionmaking power of the Secretary under the act pertaining to—
(1) Applications for review of decisions by OSM regarding determinations concerning permits for surface coal mining operations pursuant to section 514 of the act;
(2) Petitions for review of proposed assessments of civil penalties issued by OSM pursuant to section 518 of the act;
(3) Applications for review of notices of violation and orders of cessation or modifications, vacations, or terminations thereof, issued pursuant to section 521(a)(2) or section 521(a)(3) of the act;
(4) Proceedings for suspension or revocation of permits pursuant to section 521(a)(4) of the act;
(5) Applications for review of alleged discriminatory acts filed pursuant to section 703 of the act;
(6) Applications for temporary relief;
(7) Petitions for award of costs and expenses under section 525(e) of the act;
(8) Preliminary findings concerning a demonstrated pattern of willful violations under section 510(c) of the act;
(9) Suspension or rescission of improvidently-issued permits;
(10) Challenges to ownership or control listings or findings;
(11) Determinations under 30 CFR part 761;
(12) Appeals from orders or decisions of administrative law judges; and
(13) All other appeals and review procedures under the act which are permitted by these regulations.
(b) In performing its functions under paragraph (a) of this section, the Board is authorized to—
(1) Order hearings; and
(2) Issue orders to secure the just and prompt determination of all proceedings.
§ 4.1102 Construction.
These rules shall be construed to achieve the just, timely, and inexpensive determination of all proceedings consistent with adequate consideration of the issues involved.
§ 4.1103 Eligibility to practice.
(a) An administrative law judge or the Board may determine the eligibility of persons to practice before OHA in any proceeding under the act pursuant to 43 CFR part 1.
(b) If an administrative law judge or the Board determines that any person is not qualified to practice before OHA, the administrative law judge or the Board shall disqualify the person and report the disqualification to the Director of OHA.
(c) Upon receipt of a report under paragraph (b) of this section, the Director of OHA may request the Solicitor to initiate a disciplinary proceeding under 43 CFR 1.6.
§ 4.1104 General rules relating to procedure and practice.
Proceedings in OHA under the act are subject to the general rules relating to procedures and practice in subpart B of this part.
§ 4.1105 Parties.
(a) All persons indicated in the act as parties to administrative review proceedings under the act shall be considered statutory parties. Such statutory parties include—
(1) In a civil penalty proceeding under § 4.1150, OSM, as represented by the Office of the Solicitor, Department of the Interior, and any person against whom a proposed assessment is made who files a petition;
(2) In a review proceeding under §§ 4.1160 through 4.1171, 4.1180 through 4.1187, 4.1300 through 4.1309, 4.1350 through 4.1356, 4.1360 through 4.1369, 4.1370 through 4.1377, 4.1380 through 4.1387 or 4.1390 through 4.1394 of this part, OSM, as represented by the Office of the Solicitor, Department of the Interior, and—
(i) If an applicant, operator, or permittee files an application or request for review, the applicant, operator, or permittee; and
(ii) If any other person having an interest which is or may be adversely affected files an application or request for review, the applicant, operator, or permittee and the person filing such application or request;
(3) In a proceeding to suspend or revoke a permit under § 4.1190 et seq. OSM, as represented by the Office of the Solicitor, Department of the Interior, and the permittee who is ordered to show cause why the permit should not be suspended or revoked; and
(4) In a discriminatory discharge proceeding under § 4.1200 et seq. OSM, as represented by the Office of the Solicitor, Department of the Interior, any employee or any authorized representative of employees who files an application for review, and the alleged discriminating party, except where the applicant files a request for the scheduling of a hearing under § 4.1201(c) only such applicant and the alleged discriminating party.
(5) In an appeal to the Board in accordance with 43 CFR 4.1280 through 4.1286 from a determination of the Director of OSM or his or her designee under 30 CFR 842.15(d) or a determination of an authorized representative under 30 CFR 843.12(i), the permittee of the operation that is the subject of the determination and any person whose interests may be adversely affected by the outcome on appeal and who participated before OSM. A person who wishes his or her identity kept confidential under 30 CFR 842.12(b) is responsible for maintaining that confidentiality when serving documents in accordance with § 4.1109.
(b) Any other person claiming a right to participate as a party may seek leave to intervene in a proceeding by filing a petition to do so pursuant to § 4.1110.
(c) If any person has a right to participate as a full party in a proceeding under the act and fails to exercise that right by participating in each stage of the proceeding, that person may become a participant with the rights of a party by order of an administrative law judge or the Board.
§ 4.1106 Hearing sites.
Unless the act requires otherwise, hearings shall be held in a location established by the administrative law judge; however, the administrative law judge shall give due regard to the convenience of the parties or their representatives and witnesses.
§ 4.1107 Filing of documents.
(a) Any initial pleadings in a proceeding to be conducted or being conducted by an administrative law judge under these rules shall be filed with the Hearings Division by hand or by mail under the terms specified in the Standing Orders on Contact Information or by electronic transmission under the terms specified in OHA Standing Orders on Electronic Transmission.
(b) Where a proceeding has been assigned to an administrative law judge, the parties will be notified by the Chief Administrative Law Judge of the name and address of the administrative law judge assigned to the case and thereafter all further documents shall be filed with the Administrative Law Judge, Office of Hearings and Appeals, at the address designated in the notice.
(c) Any notice of appeal, petition for review or other documents in a proceeding to be conducted or being conducted by the Board shall be filed with the Board of Land Appeals by hand or by mail under the terms specified in the OHA Standing Orders on Contact Information or by electronic transmission under the terms specified in OHA Standing Orders on Electronic Transmission.
(d) Any person filing initial pleadings with the Hearings Division or a notice of appeal with the Board by hand or by mail shall furnish an original and one copy. Any person filing other documents with OHA by hand or by mail shall furnish only an original.
(e) Any person who has initiated a proceeding under these rules before the Hearings Division or filed a notice of appeal with the Board shall file proof of service with the same in the form of a return receipt where service is by registered or certified mail, or an acknowledgement by the party served or a verified return where service is made personally. A certificate of service shall accompany all other documents filed by a party in any proceeding.
(f) The effective filing date for documents initiating proceedings before the Hearings Division, OHA, Arlington, VA, shall be the date of receipt in that office, if filed by hand, or the date such document is postmarked, if filed by mail, or the date of electronic transmission under the terms specified in the OHA Standing Orders on Electronic Transmission.
(g) The effective filing date for a notice of appeal or a petition for discretionary review filed with the Board shall be the date of mailing or the date of personal delivery or the date of electronic transmission under the terms specified in the OHA Standing Orders on Electronic Transmission, except the effective filing date for a notice of appeal from a decision in an expedited review of a cessation order proceeding or from a decision in a suspension or revocation proceeding shall be the date of receipt of the document by the Board. The burden of establishing the date of mailing shall be on the person filing the document.
(h) The effective filing date for all other documents filed with an administrative law judge or with the Board shall be the date of mailing or personal delivery or electronic transmission under the terms specified in the OHA Standing Orders on Electronic Transmission. The burden of establishing the date of mailing shall be on the person filing the document.
§ 4.1108 Form of documents.
(a) Any document filed with OHA in any proceeding brought under the act shall be captioned with—
(1) The names of the parties;
(2) The name of the mine to which the document relates; and
(3) If review is being sought under section 525 of the act, identification by number of any notice or order sought to be reviewed.
(b) After a docket number has been assigned to the proceeding by OHA, the caption shall contain such docket number.
(c) The caption may include other information appropriate for identification of the proceeding, including the permit number or OSM identification number.
(d) Each document shall contain a title that identifies the contents of the document following the caption.
(e) The original of any document filed with OHA shall be signed by the person submitting the document or by that person’s attorney.
(f) The address and telephone number of the person filing the document or that person’s attorney shall appear beneath the signature.
(g) Documents filed under this subpart must conform to the requirements of § 4.401(d).
§ 4.1109 Service.
(a)(1) Any party initiating a proceeding in OHA under the Act shall, on the date of filing, simultaneously serve copies of the initiating documents on the officer in the Office of the Solicitor, U.S. Department of the Interior, representing OSMRE in the state in which the mining operation at issue is located, and on any other statutory parties specified under § 4.1105 of this part.
(2) The jurisdictions, addresses, and telephone numbers of the applicable officers of the Office of the Solicitor to be served under paragraph (a)(1) of this section are identified in the OHA Standing Orders on Contact Information.
(3) Any party or other person who subsequently files any other document with OHA in the proceeding shall simultaneously serve copies of that document on all other parties and persons participating in the proceeding.
(b) Copies of documents by which any proceeding is initiated shall be served on all statutory parties personally or by registered or certified mail, return receipt requested, or by electronic transmission under the terms of the OHA Standing Orders on Electronic Transmission. All subsequent documents shall be served personally or by first class mail or by electronic transmission under the terms of the OHA Standing Orders on Electronic Transmission.
(c) Service of copies of all documents is complete at the time of personal service or, if service is made by mail, upon receipt, or, if service is made by electronic transmission, at the time of transmission.
(d) Whenever an attorney has entered an appearance for a party in a proceeding before an administrative law judge or the Board, service thereafter shall be made upon the attorney.
§ 4.1110 Intervention.
(a) Any person, including a State, or OSM may petition for leave to intervene at any stage of a proceeding in OHA under the act.
(b) A petitioner for leave to intervene shall incorporate in the petition a statement setting forth the interest of the petitioner and, where required, a showing of why his interest is or may be adversely affected.
(c) The administrative law judge or the Board shall grant intervention where the petitioner—
(1) Had a statutory right to initiate the proceeding in which he wishes to intervene; or
(2) Has an interest which is or may be adversely affected by the outcome of the proceeding.
(d) If neither paragraph (c)(1) nor (c)(2) of this section apply, the administrative law judge or the Board shall consider the following in determining whether intervention is appropriate—
(1) The nature of the issues;
(2) The adequacy of representation of petitioner’s interest which is provided by the existing parties to the proceeding;
(3) The ability of the petitioner to present relevant evidence and argument; and
(4) The effect of intervention on the agency’s implementation of its statutory mandate.
(e) Any person, including a State, or OSM granted leave to intervene in a proceeding may participate in such proceeding as a full party or, if desired, in a capacity less than that of a full party. If an intervenor wishes to participate in a limited capacity, the extent and the terms of the participation shall be in the discretion of the administrative law judge or the Board.
§ 4.1111 Voluntary dismissal.
Any party who initiated a proceeding before OHA may seek to withdraw by moving to dismiss at any stage of a proceeding and the administrative law judge or the Board may grant such a motion.
§ 4.1112 Motions.
(a) Except for oral motions made in proceedings on the record, or where the administrative law judge otherwise directs, each motion shall—
(1) Be in writing; and
(2) Contain a concise statement of supporting grounds.
(b) Unless the administrative law judge or the Board orders otherwise, any party to a proceeding in which a motion is filed under paragraph (a) of this section shall have 15 days from service of the motion to file a statement in response.
(c) Failure to make a timely motion or to file a statement in response may be construed as a waiver of objection.
(d) An administrative law judge or the Board shall rule on all motions as expeditiously as possible.
§ 4.1113 Consolidation of proceedings.
When proceedings involving a common question of law or fact are pending before an administrative law judge or the Board, such proceedings are subject to consolidation pursuant to a motion by a party or at the initiative of an administrative law judge or the Board.
§ 4.1114 Advancement of proceedings.
(a) Except in expedited review proceedings under § 4.1180, or in temporary relief proceedings under § 4.1266, at any time after commencement of a proceeding, any party may move to advance the scheduling of a proceeding.
(b) Except as otherwise directed by the administrative law judge or the Board, any party filing a motion under this section shall—
(1) Make the motion in writing;
(2) Describe the exigent circumstances justifying advancement;
(3) Describe the irreparable harm that would result if the motion is not granted; and
(4) Incorporate in the motion affidavits to support any representations of fact.
(c) Service of a motion under this section shall be accomplished by personal delivery or telephonic communication followed by mail or by electronic transmission under the terms specified in the OHA Standing Orders on Electronic Transmission. Service is complete upon mailing or, if service is made by electronic transmission, at the time of transmission.
(d) Unless otherwise directed by the administrative law judge or the Board, all parties to the proceeding in which the motion is filed shall have 10 days from the date of service of the motion to file a statement in response to the motion.
(e) Following the timely receipt by the administrative law judge of statements in response to the motion, the administrative law judge may schedule a hearing regarding the motion. If the motion is granted, the administrative law judge may advance pleading schedules, prehearing conferences, and the hearing, as deemed appropriate: Provided, A hearing on the merits shall not be scheduled with less than 5 working days notice to the parties, unless all parties consent to an earlier hearing.
(f) If the motion is granted, the Board may, if it deems such action to be appropriate, advance the appeal on its calendar and order such other advancement as may be appropriate, including an abbreviated schedule for briefing or oral argument.
§ 4.1115 Waiver of right to hearing.
Any person entitled to a hearing before an administrative law judge under the act may waive such right in writing. Where parties are directed by any rule in these regulations to file a responsive pleading on or before a specified time, any party who fails to file such responsive pleading by the time specified, may be deemed to have waived his right to a hearing. Unless all parties to a proceeding who are entitled to a hearing waive, or are deemed to have waived such right, a hearing will be held.
§ 4.1116 Status of notices of violation and orders of cessation pending review by the Office of Hearings and Appeals.
Except where temporary relief is granted pursuant to section 525(c) or section 526(c) of the act, notices of violation and orders of cessation issued under the act shall remain in effect during the pendency of review before an administrative law judge or the Board.
§ 4.1117 Reconsideration.
A party may file a motion for reconsideration of any decision of the Board under this subpart within 60 days after the date of the decision. The provisions of § 4.403 apply to a motion filed under this paragraph.
Evidentiary Hearings
§ 4.1120 Presiding officers.
An administrative law judge in the Office of Hearings and Appeals shall preside over any hearing required by the act to be conducted pursuant to 5 U.S.C. 554 (1970).
§ 4.1121 Powers of administrative law judges.
(a) Under the regulations of this part, an administrative law judge may—
(1) Administer oaths and affirmations;
(2) Issue subpoenas;
(3) Issue appropriate orders relating to discovery;
(4) Rule on procedural requests or similar matters;
(5) Hold conferences for settlement or simplification of the issues;
(6) Regulate the course of the hearing;
(7) Rule on offers of proof and receive relevant evidence;
(8) Take other actions authorized by this part, by 5 U.S.C. 556 (1970), or by the act; and
(9) Make or recommend decisions in accordance with 5 U.S.C. 557 (1970).
(b) An administrative law judge may order a prehearing conference—
(1) To simplify and clarify issues;
(2) To receive stipulations and admissions;
(3) To explore the possibility of agreement disposing of any or all of the issues in dispute; and
(4) For such other purposes as may be appropriate.
(c) Except as otherwise provided in these regulations, the jurisdiction of an administrative law judge shall terminate upon—
(1) The filing of a notice of appeal from an initial decision or other order dispositive of the proceeding;
(2) The issuance of an order of the Board granting a petition for review; or
(3) The expiration of the time period within which a petition for review or an appeal to the Board may be filed.
§ 4.1122 Conduct of administrative law judges.
Administrative law judges shall adhere to the “Code of Judicial Conduct.”
§ 4.1123 Notice of hearing.
(a) An administrative law judge shall give notice to the parties of the time, place and nature of any hearing.
(b) Except for expedited review proceedings and temporary relief proceedings where time is of the essence, notice given under this section shall be in writing.
(c) In an expedited proceeding when there is only opportunity to give oral notice, the administrative law judge shall enter that fact contemporaneously on the record by a signed and dated memorandum describing the notice given.
§ 4.1124 Certification of interlocutory ruling.
Upon motion or upon the initiative of an administrative law judge, the judge may certify to the Board a ruling which does not finally dispose of the case if the ruling presents a controlling question of law and an immediate appeal would materially advance ultimate disposition by the judge.
§ 4.1125 Summary decision.
(a) At any time after a proceeding has begun, a party may move for summary decision of the whole or part of a case.
(b) The moving party under this section shall verify any allegations of fact with supporting affidavits, unless the moving party is relying upon depositions, answers to interrogatories, admissions, or documents produced upon request to verify such allegations.
(c) An administrative law judge may grant a motion under this section if the record, including the pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows that—
(1) There is no disputed issue as to any material fact; and
(2) The moving party is entitled to summary decision as a matter of law.
(d) If a motion for summary decision is not granted for the entire case or for all the relief requested and an evidentiary hearing is necessary, the administrative law judge shall, if practicable, and upon examination of all relevant documents and evidence before him, ascertain what material facts are actually and in good faith controverted. He shall thereupon, issue an order specifying the facts that appear without substantial controversy and direct such further proceedings as deemed appropriate.
§ 4.1126 Proposed findings of fact and conclusions of law.
The administrative law judge shall allow the parties to a proceeding an opportunity to submit proposed findings of fact and conclusions of law together with a supporting brief at a time designated by the administrative law judge.
§ 4.1127 Initial orders and decisions.
An initial order or decision disposing of a case shall incorporate—
(a) Findings of fact and conclusions of law and the basis and reasons therefore on all the material issues of fact, law, and discretion presented on the record; and
(b) An order granting or denying relief.
§ 4.1128 Effect of initial order or decision.
An initial order or decision shall become final if that order or decision is not timely appealed to the Board under § 4.1270 or § 4.1271.
§ 4.1129 Certification of record.
Except in expedited review proceedings under § 4.1180, within 5 days after an initial decision has been rendered, the administrative law judge shall certify the official record of the proceedings, including all exhibits, and transmit the official record for filing in the Hearings Division, Office of Hearings and Appeals.
Discovery
§ 4.1130 Discovery methods.
Parties may obtain discovery by one or more of the following methods—
(a) Depositions upon oral examination or upon written interrogatories;
(b) Written interrogatories;
(c) Production of documents or things or permission to enter upon land or other property, for inspection and other purposes; and
(d) Requests for admission.
§ 4.1131 Time for discovery.
Following the initiation of a proceeding, the parties may initiate discovery at any time as long as it does not interfere with the conduct of the hearing.
§ 4.1132 Scope of discovery.
(a) Unless otherwise limited by order of the administrative law judge in accordance with these rules, the parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.
(b) It is not ground for objection that information sought will not be admissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(c) A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (a) of this section and prepared in anticipation of or for the hearing by or for another party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the administrative law judge shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding.
(d) Upon motion by a party or the person from whom discovery is sought, and for good cause shown, the administrative law judge may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following—
(1) The discovery not be had;
(2) The discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) The discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
(4) Certain matters not relevant may not be inquired into, or that the scope of discovery be limited to certain matters;
(5) Discovery be conducted with no one present except persons designated by the administrative law judge; or
(6) A trade secret or other confidential research, development or commercial information may not be disclosed or be disclosed only in a designated way.
§ 4.1133 Sequence and timing of discovery.
Unless the administrative law judge upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery.
§ 4.1134 Supplementation of responses.
A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows—
(a) A party is under a duty to supplement timely his response with respect to any question directly addressed to—
(1) The identity and location of persons having knowledge of discoverable matters; and
(2) The identity of each person expected to be called as an expert witness at the hearing, the subject matter on which he is expected to testify and the substance of his testimony.
(b) A party is under a duty to amend timely a prior response if he later obtains information upon the basis of which—
(1) He knows the response was incorrect when made; or
(2) He knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
(c) A duty to supplement responses may be imposed by order of the administrative law judge or agreement of the parties.
§ 4.1135 Motion to compel discovery.
(a) If a deponent fails to answer a question propounded, or a party upon whom a request is made pursuant to § 4.1140, or a party upon whom answers to interrogatories are served fails to adequately respond or objects to the request, or any part thereof, or fails to permit inspection as requested, the discovering party may move the administrative law judge for an order compelling a response or inspection in accordance with the request.
(b) The motion shall set forth—
(1) The nature of the questions or request;
(2) The response or objection of the party upon whom the request was served; and
(3) Arguments in support of the motion.
(c) For purposes of this section, an evasive answer or incomplete answer or response shall be treated as a failure to answer or respond.
(d) In ruling on a motion made pursuant to this section, the administrative law judge may make such a protective order as he is authorized to make on a motion made pursuant to § 4.1132(d).
§ 4.1136 Failure to comply with orders compelling discovery.
If a party or an officer, director, or other agent of a party fails to obey an order to provide or permit discovery, the administrative law judge before whom the action is pending may make such orders in regard to the failure as are just, including but not limited to the following—
(a) An order that the matters sought to be discovered or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters into evidence; or
(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
§ 4.1137 Depositions upon oral examination or upon written questions.
(a) Any party desiring to take the testimony of any other party or other person by deposition upon oral examination or written questions shall, without leave of the administrative law judge, give reasonable notice in writing to every other party, to the person to be examined and to the administrative law judge of—
(1) The proposed time and place of taking the deposition;
(2) The name and address of each person to be examined, if known, or if the name is not known, a general description sufficient to identify him or the particular group or class to which he belongs;
(3) The matter upon which each person will be examined; and
(4) The name or descriptive title and address of the officer before whom the deposition is to be taken.
(b) A deposition may be taken before any officer authorized to administer oaths by the laws of the United States or of the place where the examination is held.
(c) The actual taking of the deposition shall proceed as follows—
(1) The deposition shall be on the record;
(2) The officer before whom the deposition is to be taken shall put the witness on oath or affirmation;
(3) Examination and cross-examination shall proceed as at a hearing;
(4) All objections made at the time of the examination shall be noted by the officer upon the deposition;
(5) The officer shall not rule on objections to the evidence, but evidence objected to shall be taken subject to the objections.
(d) When the testimony is fully transcribed, the deposition shall be submitted to the deponent for examination and signature, unless examination and signature is waived by the deponent. The officer shall certify the deposition or, if the deposition is not signed by the deponent, shall certify the reasons for the failure to sign.
(e) Where the deposition is to be taken upon written questions, the party taking the deposition shall serve a copy of the questions, showing each question separately and consecutively numbered, on every other party with a notice stating the name and address of the person who is to answer them, and the name, description, title, and address of the officer before whom they are to be taken. Within 30 days after service, any other party may serve cross-questions. The questions, cross-questions, and answers shall be recorded and signed, and the deposition certified, as in the case of a deposition on oral examination.
(f) A deposition will not become a part of the record in the hearing unless received in evidence. If only part of a deposition is offered in evidence by a party, any other party may introduce any other parts.
(g) A deponent whose deposition is taken and the officer taking a deposition shall be entitled to the same fees as are paid for like services in the district courts of the United States, to be paid by the party at whose instance the deposition is taken.
(h) The deponent may be accompanied, represented, and advised by legal counsel.
§ 4.1138 Use of depositions.
At the hearing, any part or all of a deposition, so far as admissible, may be used against any party who was present or represented at the taking of the deposition, or who had reasonable notice thereof, in accordance with any of the following provisions—
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness;
(b) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or a person designated to testify on behalf of a public or private corporation, partnership, or association or governmental agency which is a party may be used by an adverse party for any purpose; or
(c) The deposition of a witness, whether or not a party, may be used by a party for any purpose if the administrative law judge finds that—
(1) The witness is dead;
(2) The witness is at a distance greater than 100 miles from the place of hearing, or is outside the United States, unless it appears that the absence of the witness was procured by the party offering the deposition;
(3) The witness is unable to attend or testify because of age, illness, infirmity, or imprisonment;
(4) The party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
(5) Such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally at the hearing, to allow the deposition to be used.
§ 4.1139 Written interrogatories to parties.
(a) Any party may serve upon any other party written interrogatories to be answered in writing by the party served, or if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. A copy of the interrogatories, answers, and all related pleadings shall be served on the administrative law judge and upon all parties to the proceeding.
(b) Each interrogatory shall be answered separately and fully in writing under oath or affirmation, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answer and objections shall be signed by the person making them. The party upon whom the interrogatories were served shall serve a copy of the answers and objections upon all parties to the proceeding within 30 days after service of the interrogatories, or within such shorter or longer period as the administrative law judge may allow.
(c) Interrogatories may relate to any matters which can be inquired into under § 4.1132. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the administrative law judge may order that such an interrogatory need not be answered until after designated discovery has been completed or until a prehearing conference or other later time.
§ 4.1140 Production of documents and things and entry upon land for inspection and other purposes.
(a) Any party may serve on any other party a request to—
(1) Produce and permit the party making the request, or a person acting on his behalf, to inspect and copy any designated documents, or to inspect and copy, test, or sample any tangible things within the scope of § 4.1132 and which are in the possession, custody, or control of the party upon whom the request is served; or
(2) Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property (including the air, water, and soil) or any designated object or operation thereon, within the scope of § 4.1132.
(b) The request may be served on any party without leave of the administrative law judge.
(c) The request shall—
(1) Set forth the items to be inspected either by individual item or by category;
(2) Describe each item or category with reasonable particularity; and
(3) Specify a reasonable time, place, and manner of making the inspection and performing the related acts.
(d) The party upon whom the request is served shall serve on the party submitting the request a written response within 30 days after service of the request.
(e) The response shall state, with respect to each item or category—
(1) That inspection and related activities will be permitted as requested; or
(2) That objection is made in whole or in part, in which case the reasons for objection shall be stated.
§ 4.1141 Admissions.
(a) A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the genuineness and authenticity of any relevant document described in or attached to the request, or for the admission of the truth of any specified relevant matter of fact.
(b) Each matter of which an admission is requested is admitted unless, within 30 days after service of the request or such shorter or longer time as the administrative law judge may allow, the party to whom the request is directed serves on the requesting party—
(1) A sworn statement denying specifically the relevant matters of which an admission is requested;
(2) A sworn statement setting forth in detail the reasons why he can neither truthfully admit nor deny them; or
(3) Written objections on the ground that some or all of the matters involved are privileged or irrelevant or that the request is otherwise improper in whole or in part.
(c) An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.
(d) The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the administrative law judge determines that an objection is justified, he shall order that an answer be served. If the administrative law judge determines that an answer does not comply with the requirements of this section, he may order either that the matter is admitted or that an amended answer be served. The administrative law judge may, in lieu of these orders, determine that final disposition of the request be made at a prehearing conference or at a designated time prior to hearing.
(e) Any matter admitted under this section is conclusively established unless the administrative law judge on motion permits withdrawal or amendment of the admission.
(f) Any admission made by a party under this section is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.
Petitions for Review of Proposed Assessments of Civil Penalties
§ 4.1150 Who may file.
Any person charged with a civil penalty may file a petition for review of a proposed assessment of that penalty with the Hearings Division, OHA, 801 North Quincy Street, Arlington, Va. 22203.
§ 4.1151 Time for filing.
(a) A petition for review of a proposed assessment of a civil penalty must be filed within 30 days of receipt of the proposed assessment; or
(b) If a timely request for a conference has been made pursuant to 30 CFR 723.18 or 845.18, a petition for review must be filed within 30 days from service of notice by the conference officer that the conference is deemed completed.
(c) No extension of time will be granted for filing a petition for review of a proposed assessment of a civil penalty as required by paragraph (a) or (b) of this section. If a petition for review is not filed within the time period provided in paragraph (a) or (b) of this section, the appropriateness of the amount of the penalty, and the fact of the violation if there is no proceeding pending under section 525 of the Act to review the notice of violation or cessation order involved, shall be deemed admitted, the petition shall be dismissed, and the civil penalty assessed shall become a final order of the Secretary.
§ 4.1152 Contents of petition; payment required.
(a) The petition shall include—
(1) A short and plain statement indicating the reasons why either the amount of the penalty or the fact of the violation is being contested;
(2) If the amount of penalty is being contested based upon a misapplication of the civil penalty formula, a statement indicating how the civil penalty formula contained in 30 CFR part 723 or 845 was misapplied, along with a proposed civil penalty utilizing the civil penalty formula;
(3) Identification by number of all violations being contested;
(4) The identifying number of the cashier’s check, certified check, bank draft, personal check, or bank money order accompanying the petition; and
(5) A request for a hearing site.
(b) The petition shall be accompanied by—
(1) Full payment of the proposed assessment in the form of a cashier’s check, certified check, bank draft, personal check or bank money order made payable to—Assessment Office, OSM—to be placed in an escrow account pending final determination of the assessment; and
(2) On the face of the payment an identification by number of the violations for which payment is being tendered.
(c) As required by section 518(c) of the act, failure to make timely payment of the proposed assessment in full shall result in a waiver of all legal rights to contest the violation or the amount of the penalty.
(d) No extension of time will be granted for full payment of the proposed assessment. If payment is not made within the time period provided in § 4.1151 (a) or (b), the appropriateness of the amount of the penalty, and the fact of the violation if there is no proceeding pending under section 525 of the Act of review the notice of violation or cessation order involved, shall be deemed admitted, the petition shall be dismissed, and the civil penalty assessed shall become a final order of the Secretary.
§ 4.1153 Answer.
OSM shall have 30 days from receipt of a copy of the petition within which to file an answer to the petition with the Hearings Division, OHA.
§ 4.1154 Review of waiver determination.
(a) Within 10 days of the filing of a petition under this part, petitioner may move the administrative law judge to review the granting or denial of a waiver of the civil penalty formula pursuant to 30 CFR 723.16 or 845.16.
(b) The motion shall contain a statement indicating all alleged facts relevant to the granting or denial of the waiver;
(c) Review shall be limited to the written determination of the Director of OSM granting or denying the waiver, the motion and responses to the motion. The standard of review shall be abuse of discretion.
(d) If the administrative law judge finds that the Director of OSM abused his discretion in granting or denying the waiver, the administrative law judge shall hold the hearing on the petition for review of the proposed assessment required by section 518(b) of the act and make a determination pursuant to § 4.1157.
§ 4.1155 Burdens of proof in civil penalty proceedings.
In civil penalty proceedings, OSM shall have the burden of going forward to establish a prima facie case as to the fact of the violation and the amount of the civil penalty and the ultimate burden of persuasion as to the amount of the civil penalty. The person who petitioned for review shall have the ultimate burden of persuasion as to the fact of the violation.
§ 4.1156 Summary disposition.
(a) In a civil penalty proceeding where the person against whom the proposed civil penalty is assessed fails to comply on time with any prehearing order of an administrative law judge, the administrative law judge shall issue an order to show cause why—
(1) That person should not be deemed to have waived his right to a hearing; and
(2) The proceedings should not be dismissed and referred to the assessment officer.
(b) If the order to show cause is not satisfied as required, the administrative law judge shall order the proceedings summarily dismissed and shall refer the case to the assessment officer who shall enter the assessment as the final order of the Department.
(c) Where the person against whom the proposed civil penalty is assessed fails to appear at a hearing, that person will be deemed to have waived his right to a hearing and the administration law judge may assume for purposes of the assessment—
(1) That each violation listed in the notice of violation or order occurred; and
(2) The truth of any facts alleged in such notice or order.
(d) In order to issue an initial decision assessing the appropriate penalty when the person against whom the proposed civil penalty is assessed fails to appear at the hearing, an administrative law judge shall either conduct an ex parte hearing or require OSM to furnish proposed findings of fact and conclusions of law.
(e) Nothing in this section shall be construed to deprive the person against whom the penalty is assessed of his opportunity to have OSM prove the violations charged in open hearing with confrontation and cross-examination of witnesses, except where that person fails to comply with a prehearing order or fails to appear at the scheduled hearing.
§ 4.1157 Determination by administrative law judge.
(a) The administrative law judge shall incorporate in his decision concerning the civil penalty, findings of fact on each of the four criteria set forth in 30 CFR 723.13 or 845.13, and conclusions of law.
(b) If the administrative law judge finds that—
(1) A violation occurred or that the fact of violation is uncontested, he shall establish the amount of the penalty, but in so doing, he shall adhere to the point system and conversion table contained in 30 CFR 723.13 and 723.14 or 845.13 and 845.14, except that the administrative law judge may waive the use of such point system where he determines that a waiver would further abatement of violations of the Act. However, the administrative law judge shall not waive the use of the point system and reduce the proposed assessment on the basis of an argument that a reduction in the proposed assessment could be used to abate other violations of the Act; or
(2) No violation occurred, he shall issue an order that the proposed assessment be returned to the petitioner.
(c) If the administrative law judge makes a finding that no violation occurred or if the administrative law judge reduces the amount of the civil penalty below that of the proposed assessment and a timely petition for review of h