[Title 43 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2002 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



                    43


          Parts 1 to 999

                         Revised as of October 1, 2002

Public Lands: Interior





          Containing a codification of documents of general 
          applicability and future effect
          As of October 1, 2002
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2002



  For sale by the Superintendent of Documents, U.S. Government Printing 
                                  Office
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      Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001



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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 43:
          Subtitle A--Office of the Secretary of the Interior        3
    Subtitle B--Regulations Relating to Public Lands
          Chapter I--Bureau of Reclamation, Department of the 
          Interior                                                 545
  Finding Aids:
      Material Approved for Incorporation by Reference........     647
      Table of CFR Titles and Chapters........................     649
      Alphabetical List of Agencies Appearing in the CFR......     667
      List of CFR Sections Affected...........................     677



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                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 43 CFR 1.1 refers to 
                       title 43, part 1, section 
                       1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2002), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call (202) 523-4534.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

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REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
info@fedreg.nara.gov.

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll free, 
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512-1803.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, The United States 
Government Manual, the Federal Register, Public Laws, Public Papers, 
Weekly Compilation of Presidential Documents and the Privacy Act 
Compilation are available in electronic format at www.access.gpo.gov/
nara (``GPO Access''). For more information, contact Electronic 
Information Dissemination Services, U.S. Government Printing Office. 
Phone 202-512-1530, or 888-293-6498 (toll-free). E-mail, 
gpoaccess@gpo.gov.
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA 
site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

October 1, 2002.



[[Page ix]]



                               THIS TITLE

    Title 43--Public Lands: Interior is composed of two volumes. Volume 
one (parts 1-999) contains all current regulations issued under subtitle 
A--Office of the Secretary of the Interior and chapter I--Bureau of 
Reclamation, Department of the Interior. Volume two (part 1000 to End) 
includes all regulations issued under chapter II--Bureau of Land 
Management, Department of the Interior, and Chapter III--Utah 
Reclamation Mitigation and Conservation Commission. The contents of 
these volumes represent all current regulations codified under this 
title of the CFR as of October 1, 2002.

    In the second volume, containing chapter II--Bureau of Land 
Management, Department of the Interior, the OMB control numbers appear 
in a ``Note'' immediately below the ``Group'' headings throughout the 
chapter, if applicable.

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[[Page 1]]



                    TITLE 43--PUBLIC LANDS: INTERIOR




                   (This book contains parts 1 to 999)

  --------------------------------------------------------------------
                                                                    Part

SUBTITLE A--Office of the Secretary of the Interior.........           1

            SUBTITLE B--Regulations Relating to Public Lands

chapter i--Bureau of Reclamation, Department of the Interior         402

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           Subtitle A--Office of the Secretary of the Interior

  --------------------------------------------------------------------

Part                                                                Page
1               Practices before the Department of the 
                    Interior................................           5
2               Records and testimony; Freedom of 
                    Information Act.........................           6
3               Preservation of American antiquities........          39
4               Department hearings and appeals procedures..          41
5               Making pictures, television productions or 
                    sound tracks on certain areas under the 
                    jurisdiction of the Department of the 
                    Interior................................         166
6               Patent regulations..........................         167
7               Protection of archaeological resources......         176
8               Joint policies of the Departments of the 
                    Interior and of the Army relative to 
                    reservoir project lands.................         192
9               Intergovernmental review of Department of 
                    the Interior programs and activities....         193
10              Native American graves protection and 
                    repatriation regulations................         196
11              Natural resource damage assessments.........         220
12              Administrative and audit requirements and 
                    cost principles for assistance programs.         281
13              Vending facilities operated by blind persons         362
14              Petitions for rulemaking....................         365
15              Key Largo Coral Reef Preserve...............         365
16              Conservation of helium......................         367
17              Nondiscrimination in federally assisted 
                    programs of the Department of the 
                    Interior................................         368
18              New restrictions on lobbying................         405
19              Wilderness preservation.....................         417
20              Employee responsibilities and conduct.......         420
21              Occupancy of cabin sites on public 
                    conservation and recreation areas.......         431

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22              Administrative claims under the Federal Tort 
                    Claims Act and indemnification of 
                    Department of the Interior employees....         435
23              Surface exploration, mining and reclamation 
                    of lands................................         437
24              Department of the Interior fish and wildlife 
                    policy: State-Federal relationships.....         445
26              Grants to States for establishing Youth 
                    Conservation Corps programs.............         450
27              Nondiscrimination in activities conducted 
                    under permits, rights-of-way, public 
                    land orders, and other Federal 
                    authorizations granted or issued under 
                    Title II of Public Law 93-153...........         455
28              Fire protection emergency assistance........         467
29              Trans-Alaska Pipeline Liability Fund........         467
32              Grants to States for establishing Young 
                    Adult Conservation Corps (YACC) program.         474
33              Allocation of duty-free watches from the 
                    Virgin Islands, Guam, and American Samoa 
                    [Note]..................................         484
34              Requirements for equal opportunity during 
                    construction and operation of the Alaska 
                    Natural Gas Transportation System.......         484
35              Administrative remedies for fraudulent 
                    claims and statements...................         495
36              Transportation and utility systems in and 
                    across, and access into, conservation 
                    system units in Alaska..................         510
37              Cave management.............................         520
38              Pay of U.S. Park Police--interim geographic 
                    adjustments.............................         523
41              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         524

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PART 1--PRACTICES BEFORE THE DEPARTMENT OF THE INTERIOR--Table of Contents




Sec.
1.1  Purpose.
1.2  Definitions.
1.3  Who may practice.
1.4  Disqualifications.
1.5  Signature to constitute certificate.
1.6  Disciplinary proceedings.

    Authority: Sec. 5, 23 Stat. 101; 43 U.S.C. 1464.

    Source: 29 FR 143, Jan. 7, 1964, unless otherwise noted.



Sec. 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.



Sec. 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.



Sec. 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 Sec. 1.4 or by 
disciplinary action taken pursuant to Sec. 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.



Sec. 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.

[[Page 6]]



Sec. 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.



Sec. 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--RECORDS AND TESTIMONY; FREEDOM OF INFORMATION ACT--Table of Contents




  Subpart A--Opinions in Adjudication of Cases, Administrative Manuals

Sec.
2.1  Purpose and scope.
2.2  Opinions in adjudication of cases.
2.3  Administrative manuals.

                     Subpart B--Requests for Records

2.11  Purpose and scope.
2.12  Definitions.
2.13  Records available.
2.14  Requests for records.
2.15  Preliminary processing of requests.
2.16  Action on initial requests.
2.17  Time limits for processing initial requests.

[[Page 7]]

2.18  Appeals.
2.19  Action on appeals.
2.20  Fees.
2.21  Waiver of fees.
2.22  Special rules governing certain information concerning coal 
          obtained under the Mineral Leasing Act.

           Subpart C--Declassification of Classified Documents

2.41  Declassification of classified documents.

                         Subpart D--Privacy Act

2.45  Purpose and scope.
2.46  Definitions.
2.47  Records subject to Privacy Act.
2.48  Standards for maintenance of records subject to the Act.
2.49  [Reserved]
2.50  Federal Register notices describing systems of records.
2.51  Assuring integrity of records.
2.52  Conduct of employees.
2.53  Government contracts.
2.54-2.55  [Reserved]
2.56  Disclosure of records.
2.57  Accounting for disclosures.
2.58-2.59  [Reserved]
2.60  Request for notification of existence of records: Submission.
2.61  Requests for notification of existence of records: Action on.
2.62  Requests for access to records.
2.63  Requests for access to records: Submission.
2.64  Requests for access to records: Initial decision.
2.65  Requests for notification of existence of records and for access 
          to records: Appeals.
2.66  Requests for access to records: Special situations.
2.67-2.69  [Reserved]
2.70  Amendment of records.
2.71  Petitions for amendment: Submission and form.
2.72  Petitions for amendment: Processing and initial decision.
2.73  Petitions for amendments: Time limits for processing.
2.74  Petitions for amendment: Appeals.
2.75  Petitions for amendment: Action on appeals.
2.76  [Reserved]
2.77  Statements of disagreement.
2.78  [Reserved]
2.79  Exemptions.

   Subpart E--Legal Process: Testimony by Employees and Production of 
                                 Records

                           General Information

2.80  What does this subpart cover?
2.81  What is the Department's policy on granting requests for employee 
          testimony or Department records?

                     Responsibilities of Requesters

2.82  How can I obtain employee testimony or Department records?
2.83  If I serve a subpoena duces tecum, must I also submit a Touhy 
          Request?
2.84  What information must I put in my Touhy Request?
2.85  How much will I be charged?
2.86  Can I get an authenticated copy of a Department record?

                   Responsibilities of the Department

2.87  How will the Department process my Touhy Request?
2.88  What criteria will the Department consider in responding to my 
          Touhy Request?

                      Responsibilities of Employees

2.89  What must I, as an employee, do upon receiving a request?
2.90   Must I get approval before testifying as an expert witness on a 
          subject outside the scope of my official duties?

Appendix A to Part 2--Fees
Appendix B to Part 2--Bureaus and Offices of the Department of the 
          Interior

    Authority: 5 U.S.C. 301, 552 and 552a; 31 U.S.C. 9701; and 43 U.S.C. 
1460.

    Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.



  Subpart A--Opinions in Adjudication of Cases, Administrative Manuals



Sec. 2.1  Purpose and scope.

    This subpart contains the regulations of the Department of the 
Interior concerning the availability to the public of opinions issued in 
the adjudication of cases and of administrative manuals. Persons 
interested in obtaining access to other records are directed to the 
procedures for submission of Freedom of Information requests set out in 
subpart B of this part.



Sec. 2.2  Opinions in adjudication of cases.

    (a)(1) Copies of final decisions and orders issued on and after July 
1, 1970, in the following categories of cases are available for 
inspection and copying in the Office of Hearings and Appeals, 801 North 
Quincy Street, Arlington, Va. 22203:

[[Page 8]]

    (i) Contract appeals;
    (ii) Appeals from decisions rendered by departmental officials 
relating to the use and disposition of public lands and their resources 
and the use and disposition of mineral resources in certain acquired 
lands of the United States and in the submerged lands of the Outer 
Continental Shelf;
    (iii) Appeals from orders and decisions issued by departmental 
officials and administrative law judges in proceedings relating to mine 
health and safety; and
    (iv) Appeals from orders and decisions of administrative law judges 
in Indian probate matters other than those involving estates of Indians 
of the Five Civilized Tribes and Osage Indians.
    (2) Copies of final opinions and orders issued in the following 
categories of cases are available for inspection and copying in the 
Docket and Records Section, Office of the Solicitor, Interior Building, 
Washington, DC 20240:
    (i) Tort claims decided in the headquarters office of the Office of 
the Solicitor, and appeals from decisions of Regional Solicitors or 
Field Solicitors on tort claims;
    (ii) Irrigation claims under Public Works Appropriation Acts (e.g., 
79 Stat., 1103) or 25 U.S.C. 388 decided in the headquarters office of 
the Office of the Solicitor, and appeals from decisions of Regional 
Solicitors on irrigation claims;
    (iii) Appeals under Sec. 2.18 respecting availability of records;
    (iv) Appeals from decisions of officials of the Bureau of Indian 
Affairs, and Indian enrollment appeals; and
    (v) Appeals from decisions of officers of the Bureau of Land 
Management and of the Geological Survey in proceedings relating to lands 
or interests in land, contract appeals, and appeals in Indian probate 
proceedings, issued prior to July 1, 1970.
    (3) An Index-Digest is issued by the Department. All decisions, 
opinions and orders issued in the categories of cases described in 
paragraphs (a)(1), (i), (ii), and (iii) of this section (that is, 
contract appeals, land appeals, and mine health and safety appeals), are 
covered in the Index-Digest; in addition, the Index-Digest covers the 
more important decisions, opinions and orders in the remaining 
categories of cases described in paragraphs (a)(1)(iv) and (a)(2) (i) 
through (iv) of this section, and the more important opinions of law 
issued by the Office of the Solicitor. The Index-Digest is available for 
use by the public in the Office of Hearings and Appeals, 801 North 
Quincy Street, Arlington, Va. 22203, in the Docket and Records Section, 
Office of the Solicitor, Interior Building, Washington, DC 20240, and in 
the offices of the Regional Solicitors and Field Solicitors. Selected 
decisions, opinions, and orders are published in a series entitled 
``Decisions of the United States Department of the Interior'' (cited as 
I.D.), and copies may be obtained by subscription from the 
Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20402.
    (4) Copies of final opinions and orders issued by Regional 
Solicitors on tort claims and irrigation claims, and copies of final 
opinions and orders on appeals in Indian probate proceedings issued by 
Regional Solicitors prior to July 1, 1970, are available for inspection 
and copying in their respective offices. Copies of final opinions and 
orders issued by Field Solicitors on tort claims are available for 
inspection and copying in their respective offices.
    (b)(1) Copies of final decisions and orders issued prior to July 1, 
1970, on appeals to the Director, Bureau of Land Management, and by 
hearing examiners of the Bureau of Land Management, in proceedings 
relating to lands and interests in land are available for inspection and 
copying in the Office of Hearings and Appeals, 801 North Quincy Street, 
Arlington, Va. 22203, and in the offices of the Departmental 
administrative law judges.
    (2) Copies of final decisions, opinions and orders issued on and 
after July 1, 1970, by departmental administrative law judges in all 
proceedings before them are available for inspection and copying in 
their respective offices and in the Office of Hearings and Appeals, , 
Arlington, VA 22203.
    (3) Copies of final decisions, opinions and orders issued by 
administrative

[[Page 9]]

law judges in Indian probate proceedings are available for inspection 
and copying in their respective offices.

[40 FR 7305, Feb. 19, 1975, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 2.3  Administrative manuals.

    The Departmental Manual is available for inspection in the 
Departmental Library, Interior Building, Washington, DC, and at each of 
the regional offices of bureaus of the Department. The administrative 
manuals of those bureaus which have issued such documents are available 
for inspection at the headquarters officers and at the regional offices 
of the bureaus.



                     Subpart B--Requests for Records

    Source: 52 FR 45586, Nov. 30, 1987, unless otherwise noted.



Sec. 2.11  Purpose and scope.

    (a) This subpart contains the procedures for submission to and 
consideration by the Department of the Interior of requests for records 
under the Freedom of Information Act.
    (b) Before invoking the formal procedures set out below, persons 
seeking records from the Department may find it useful to consult with 
the appropriate bureau FOIA officer. Bureau offices are listed in 
Appendix B to this part.
    (c) The procedures in this subpart do not apply to:
    (1) Records published in the Federal Register, opinions in the 
adjudication of cases, statements of policy and interpretations, and 
administrative staff manuals that have been published or made available 
under subpart A of this part.
    (2) Records or information compiled for law enforcement purposes and 
covered by the disclosure exemption described in Sec. 2.13(c)(7) if--
    (i) The investigation or proceeding involves a possible violation of 
criminal law; and
    (ii) There is reason to believe that--
    (A) The subject of the investigation or proceeding is not aware of 
its pendency, and
    (B) Disclosure of the existence of the records could reasonably be 
expected to interfere with enforcement proceedings.
    (3) Informant records maintained by a criminal law enforcement 
component of the Department under an informant's name or personal 
identifier, if requested by a third party according to the informant's 
name or personal identifier, unless the informant's status as an 
informant has been officially confirmed.



Sec. 2.12  Definitions.

    (a) Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552.
    (b) Bureau refers to all constituent bureaus of the Department of 
the Interior, the Office of the Secretary, and the other Departmental 
offices. A list of bureaus is contained in Appendix B to this part.
    (c) Working day means a regular Federal workday. It does not include 
Saturdays, Sundays or public legal holidays.



Sec. 2.13  Records available.

    (a) Department policy. It is the policy of the Department of the 
Interior to make the records of the Department available to the public 
to the greatest extent possible, in keeping with the spirit of the 
Freedom of Information Act.
    (b) Statutory disclosure requirement. The Act requires that the 
Department, on a request from a member of the public submitted in 
accordance with the procedures in this subpart, make requested records 
available for inspection and copying.
    (c) Statutory exemptions. Exempted from the Act's statutory 
disclosure requirement are matters that are:
    (1)(i) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and
    (ii) Are in fact properly classified pursuant to such Executive 
order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute (other than the 
Privacy Act), provided that such statute--
    (i) Requires that the matters be withheld from the public in such a 
manner

[[Page 10]]

as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information--
    (i) Could reasonably be expected to interfere with enforcement 
proceedings,
    (ii) Would deprive a person of a right to a fair or an impartial 
adjudication,
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy,
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigtion, information furnished by a confidential 
source,
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law, or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (d) Decisions on requests. It is the policy of the Department to 
withhold information falling within an exemption only if--
    (1) Disclosure is prohibited by statute or Executive order or
    (2) Sound grounds exist for invocation of the exemption.
    (e) Disclosure of reasonably segregable nonexempt material. If a 
requested record contains material covered by an exemption and material 
that is not exempt, and it is determined under the procedures in this 
subpart to withhold the exempt material, any reasonably segregable 
nonexempt material shall be separated from the exempt material and 
released.



Sec. 2.14  Requests for records.

    (a) Submission of requests. (1) A request to inspect or copy records 
shall be made to the installation where the records are located. If the 
records are located at more than one installation or if the specific 
location of the records is not known to the requester, he or she may 
direct a request to the head of the appropriate bureau or to the 
bureau's FOIA officer. Addresses for bureau heads and FOIA officers are 
contained in Appendix B to this part.
    (2) Exceptions. (i) A request for records located in all components 
of the Office of the Secretary (other than the Office of Hearings and 
Appeals) shall be submitted to: Director, Office of Administrative 
Services, U.S. Department of the Interior, Washington, DC 20240. A 
request for records located in the Office of Hearings and Appeals shall 
be submitted to: Director, Office of Hearings and Appeals, 801 North 
Quincy Street, Arlington, Virginia 22203.
    (ii) A request for records of the Office of Inspector General shall 
be submitted to: Inspector General, Office of the Inspector General, 
U.S. Department of the Interior, Washington, DC 20240.
    (iii) A request for records of the Office of the Solicitor shall be 
submitted to: Solicitor, Office of the Solicitor,

[[Page 11]]

U.S. Department of the Interior, Washington, DC 20240.
    (b) Form of requests. (1) Requests under this subpart shall be in 
writing and must specifically invoke the Act.
    (2) A request must reasonably describe the records requested. A 
request reasonably describes the records requested if it will enable an 
employee of the Department familiar with the subject area of the request 
to locate the record with a reasonable amount of effort. If such 
information is available, the request should identify the subject matter 
of the record, the date when it was made, the place where it was made, 
the person or office that made it, the present custodian of the record, 
and any other information that will assist in locating the requested 
record. If the request involves a matter known by the requester to be in 
litigation, the request should also state the case name and court 
hearing the case.
    (3)(i) A request shall--
    (A) Specify the fee category (commercial use, news media, 
educational institution, noncommercial scientific institution, or other) 
in which the requester claims the request to fall and the basis of this 
claim (see Sec. 2.20(b) through (e) for definitions) and
    (B) State the maximum amount of fees that the requester is willing 
to pay or include a request for a fee waiver.
    (ii) Requesters are advised that, under Sec. 2.20 (f) and (g), the 
time for responding to requests may be delayed--
    (A) If a requester has not sufficiently identified the fee category 
applicable to the request,
    (B) If a requester has not stated a willingness to pay fees as high 
as anticipated by the Department or
    (C) If a fee waiver request is denied and the requester has not 
included an alternative statement of willingness to pay fees as high as 
anticipated by the Department.
    (4) A request seeking a fee waiver shall, to the extent possible, 
address why the requester believes that the criteria for fee waivers set 
out in Sec. 2.21 are met.
    (5) To ensure expeditious handling, requests should be prominently 
marked, both the envelope and on the face of the request, with the 
legend ``FREEDOM OF INFORMATION REQUEST.''
    (c) Creation of records. A request may seek only records that are in 
existence at the time the request is received. A request may not seek 
records that come into existence after the date on which it is received 
and may not require that new records be created in response to the 
request by, for example, combining or compiling selected items from 
manual files, preparing a new computer program, or calculating 
proportions, percentages, frequency distributions, trends or 
comparisons. In those instances where the Department determines that 
creating a new record will be less burdensome than disclosing large 
volumes of unassembled material, the Department may, in its discretion, 
agree to creation of a new record as an alternative to disclosing 
existing records.

[52 FR 45586, Nov. 30, 1987, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 2.15  Preliminary processing of requests.

    (a) Scope of requests. (1) Unless a request clearly specifies 
otherwise, requests to field installations of a bureau may be presumed 
to seek only records at that installation and requests to a bureau head 
or bureau FOIA officer may be presumed to seek only records of that 
bureau.
    (2) If a request to a field installation of a bureau specifies that 
it seeks records located at other installations of the same bureau, the 
installation shall refer the request to the other installation(s) or the 
bureau FOIA officer for appropriate processing. The time limit provided 
in Sec. 2.17(a) does not start until the request is received at the 
installation having the records or by the bureau FOIA officer.
    (3) If a request to a bureau specifies that it seeks records of 
another bureau, the bureau may return the request (or the relevant 
portion thereof) to the requester with instructions as to how the 
request may be resubmitted to the other bureau.
    (b) Intradepartmental consultation and referral. (1) If a bureau 
(other than the Office of Inspector General) receives a request for 
records in its possession

[[Page 12]]

that originated with or are of substantial concern to another bureau, it 
shall consult with that bureau before deciding whether to release or 
withhold the records.
    (2) As an alternative to consultation, a bureau may refer the 
request (or the relevant protion thereof) to the bureau that originated 
or is substantially concerned with the records. Such referrals shall be 
made expeditiously and the requester shall be notified in writing that a 
referral has been made. A referral under this paragraph does not restart 
the time limit provided in Sec. 2.17.
    (c) Records of other departments and agencies. (1) If a requested 
record in the possession of the Department of the Interior originated 
with another Federal department or agency, the request shall be referred 
to that agency unless--
    (i) The record is of primary interest to the Department,
    (ii) The Department is in a better position than the originating 
agency to assess whether the record is exempt from disclosure, or
    (iii) The originating agency is not subject to the Act.

The Department has primary interest in a record if it was developed or 
prepared pursuant to Department regulations, directives or request.
    (2) In accordance with Execuctive Order 12356, a request for 
documents that were classified by another agency shall be referred to 
that agency.
    (d) Consultation with submitters of commercial and financial 
information. (1) If a request seeks a record containing trade secrets or 
commercial or financial information submitted by a person outside of the 
Federal government, the bureau processing the request shall provide the 
submitter with notice of the request whenever--
    (i) The submitter has made a good faith designation of the 
information as commercially or financially sensitive, or
    (ii) The bureau has reason to believe that disclosure of the 
information may result in commercial or financial injury to the 
submitter.

Where notification of a voluminous number of submitters is required, 
such notification may be accomplished by posting or publishing the 
notice in a place reasonably calculated to accomplish notification.
    (2) The notice to the submitter shall afford the submitter a 
reasonable period within which to provide a detailed statement of any 
objection to disclosure. The submitter's statement shall explain the 
basis on which the information is claimed to be exempt under the FOIA, 
including a specification of any claim of competitive or other business 
harm that would result from disclosure. The statement shall also include 
a certification that the information is confidential, has not been 
disclosed to the public by the submitter, and is not routinely available 
to the public from other sources.
    (3) If a submitter's statement cannot be obtained within the time 
limit for processing the request under Sec. 2.17, the requester shall be 
notified of the delay as provided in Sec. 2.17(f).
    (4) Notification to a submitter is not required if:
    (i) The bureau determines, prior to giving notice, that the request 
for the record should be denied;
    (ii) The information has previously been lawfully published or 
officially made available to the public;
    (iii) Disclosure is required by a statute (other than the FOIA) or 
regulation (other than this subpart);
    (iv) Disclosure is clearly prohibited by a statute, as described in 
Sec. 2.13(c)(3);
    (v) The information was not designated by the submitter as 
confidential when it was submitted, or a reasonable time thereafter, if 
the submitter was specifically afforded an opportunity to make such a 
designation; however, a submitter will be notified of a request for 
information that was not designated as confidential at the time of 
submission, or a reasonable time thereafter, if there is substantial 
reason to believe that disclosure of the information would result in 
competitive harm.
    (vi) The designation of confidentiality made by the submitter is 
obviously frivolous; or
    (vii) The information was submitted to the Department more than 10 
years prior to the date of the request, unless the bureau has reason to 
believe that it continues to be confidential.

[[Page 13]]

    (5) If a requester brings suit to compel disclosure of information, 
the submitter of the information will be promptly notified.



Sec. 2.16  Action on initial requests.

    (a) Authority. (1) Requests to field installations shall be decided 
by the head of the installation or by such higher authority as the head 
of the bureau may designate in writing.
    (2) Requests to the headquarters of a bureau shall be decided only 
by the head of the bureau or an official whom the head of the bureau has 
in writing designated.
    (3) Requests to the Office of the Secretary may be decided by the 
Director of Administrative Services, an Assistant Secretary or Assistant 
Secretary's designee, and any official whom the Secretary has in writing 
designated.
    (4) A decision to withhold a requested record, to release a record 
that is exempt from disclosure, or to deny a fee waiver shall be made 
only after consultation with the office of the appropriate associate, 
regional, or field solicitor.
    (b) Form of grant. (1) When a requested record has been determined 
to be available, the official processing the request shall notify the 
requester as to when and where the record is available for inspection 
or, as the case may be, when and how copies will be provided. If fees 
are due, the official shall state the amount of fees due and the 
procedures for payment, as described in Sec. 2.20.
    (2) If a requested record (or portion thereof) is being made 
available over the objections of a submitter made in accordance with 
Sec. 2.15(d), both the requester and the submitter shall be notified of 
the decision. The notice to the submitter (a copy of which shall be made 
available to the requester) shall be forwarded a reasonable number of 
days prior to the date on which disclosure is to be made and shall 
include:
    (i) A statement of the reasons why the submitter's objections were 
not sustained;
    (ii) A specification of the portions of the record to be disclosed, 
if the submitter's objections were sustained in part; and
    (iii) A specified disclosure date.
    (3) If a claim of confidentiality has been found frivolous in 
accordance with Sec. 2.15(d)(4)(vi) and a determination is made to 
release the information without consultation with the submitter, the 
submitter of the information shall be notified of the decision and the 
reasons therefor a reasonable number of days prior to the date on which 
disclosure is to be made.
    (c) Form of denial. (1) A decision withholding a requested record 
shall be in writing and shall include:
    (i) A reference to the specific exemption or exemptions authorizing 
the withholding;
    (ii) If neither a statute or an Executive order requires 
withholding, the sound ground for withholding;
    (iii) A listing of the names and titles or positions of each person 
responsible for the denial; and
    (iv) A statement that the denial may be appealed to the Assistant 
Secretary--Policy, Budget and Administration and a description of the 
procedures in Sec. 2.18 for appeal.
    (2) A decision denying a request for failure to reasonably describe 
requested records or for other procedural deficiency or because 
requested records cannot be located shall be in writing and shall 
include:
    (i) A description of the basis of the decision;
    (ii) A list of the names and titles or positions of each person 
responsible; and
    (iii) A statement that the matter may be appealed to the Assistant 
Secretary--Policy, Budget and Administration and a description of the 
procedures in Sec. 2.18 for appeal.



Sec. 2.17  Time limits for processing initial requests.

    (a) Basic limit. Requests for records shall be processed promptly. A 
determination whether to grant or deny a request shall be made within no 
more than 10 working days after receipt of a request. This determination 
shall be communicated immediately to the requester.
    (b) Running of basic time limit. (1) The 10 working day time limit 
begins to run when a request meeting the requirements of Sec. 2.14(b) is 
received at a

[[Page 14]]

field installation or bureau headquarters designated in Sec. 2.14(a) to 
receive the request.
    (2) The running of the basic time limit may be delayed or tolled as 
explained in Sec. 2.20 (f), (g) and (h) if a requester--
    (i) Has not stated a willingnes to pay fees as high as are 
anticipated and has not sought and been granted a full fee waiver, or
    (ii) Has not made a required advance payment.
    (c) Extensions of time. In the following unusual circumstances, the 
time limit for acting on an initial request may be extended to the 
extent reasonably necessary to the proper processing of the request, but 
in no case may the time limit be extended for more than 10 working days:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
installation processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records demanded in a single 
request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
Department having substantial subject-matter interest therein.
    (d) Notice of extension. A requester shall be notified in writing of 
an extension under paragraph (c) of this section. The notice shall state 
the reason for the extension and the date on which a determination on 
the request is expected to be made.
    (e) Treatment of delay as denial. If no determination has been 
reached at the end of the 10 working day period for deciding an initial 
request, or an extension thereof under paragraph (c) of this section, 
the requester may deem the request denied and may exercise a right of 
appeal in accordance with Sec. 2.18.
    (f) Notice of delay. When a determination cannot be reached within 
the time limit, or extension thereof, the requester shall be notified of 
the reason for the delay, of the date on which a determination may be 
expected, and of the right to treat the delay as a denial for purposes 
of appeal to the Assistant Secretary--Policy, Budget and Administration, 
including a description of the procedures for filing an appeal in 
Sec. 2.18.



Sec. 2.18  Appeals.

    (a) Right of appeal. A requester may appeal to the Assistant 
Secretary--Policy, Budget and Administration when--
    (1) Records have been withheld,
    (2) A request has been denied for failure to describe requested 
records or for other procedural deficiency or because requested records 
cannot be located,
    (3) A fee waiver has been denied, or
    (4) A request has not been decided within the time limits provided 
in Sec. 2.17.
    (b) Time for appeal. An appeal must be received no later than 20 
working days after the date of the initial denial, in the case of a 
denial of an entire request, or 20 working days after records have been 
made available, in the case of a partial denial.
    (c) Form of appeal. (1) An appeal shall be initiated by filing a 
written notice of appeal. The notice shall be accompanied by copies of 
the original request and the initial denial and should, in order to 
expedite the appellate process and give the requester an opportunity to 
present his or her arguments, contain a brief statement of the reasons 
why the requester believes the initial denial to have been in error.
    (2) The appeal shall be addressed to the Freedom of Information Act 
Appeals Officer, Office of the Assistant Secretary--Policy, Budget and 
Administration, U.S. Department of the Interior, Washington, DC 20240.
    (3) To expedite processing, both the envelope containing a notice of 
appeal and the face of the notice should bear the legend ``FREEDOM OF 
INFORMATION APPEAL.''



Sec. 2.19  Action on appeals.

    (a) Authority. Appeals shall be decided by the Assistant Secretary--
Policy, Budget and Administration, or the Assistant Secretary's 
designee, after consultation with the Solicitor, the Director of Public 
Affairs and the appropriate program Assistant Secretary.

[[Page 15]]

    (b) Time limit. A final determination shall be made within 20 
working days after receipt of an appeal meeting the requirements of 
Sec. 2.18(c).
    (c) Extensions of time. (1) If the time limit for responding to the 
initial request for a record was not extended under the provisions of 
Sec. 2.17(c) or was extended for fewer than 10 working days, the time 
for processing of the appeal may be extended to the extent reasonably 
necessary to the proper processing of the appeal, but in no event may 
the extension, when taken together with any extension made during 
processing of the initial request, result in an aggregate extension with 
respect to any one request of more than 10 working days. The time for 
processing of an appeal may be extended only if one or more of the 
unusual circumstances listed in Sec. 2.17(c) requires an extension.
    (2) The appellant shall be advised in writing of the reasons for the 
extension and the date on which a final determination on the appeal is 
expected to be dispatched.
    (3) If no determination on the appeal has been reached at the end of 
the 20 working day period, or the extension thereof, the requester is 
deemed to have exhausted his administrative remedies, giving rise to a 
right of review in a district court of the United States, as specified 
in 5 U.S.C. 552(a)(4). When no determination can be reached within the 
applicable time limit, the appeal will nevertheless continue to be 
processed. On expiration of the time limit, the requester shall be 
informed of the reason for the delay, of the date on which a 
determination may be reached to be dispatched and of the right to seek 
judicial review.
    (d) Form of decision. (1) The final determination on an appeal shall 
be in writing and shall state the basis for the determination. If the 
determination is to release the requested records or portions thereof, 
the Assistant Secretary--Policy, Budget and Administration shall 
immediately make the records available or instruct the appropriate 
bureau to make them immediately available. If the determination upholds 
in whole or part the initial denial of a request for records, the 
determination shall advise the requester of the right to obtain judicial 
review in the U.S. District Court for the district in which the withheld 
records are located, or in which the requester resides or has his or her 
principal place of business or in the U.S. District Court for the 
District of Columbia, and shall set forth the names and titles or 
positions of each person responsible for the denial.
    (2) If a requested record (or portion thereof) is being made 
available over the objections of a submitter made in accordance with 
Sec. 2.15(d), the submitter shall be provided notice as described in 
Sec. 2.16(b)(2).



Sec. 2.20  Fees.

    (a) Policy. (1) Unless waived pursuant to the provisions of 
Sec. 2.21, fees for responding to FOIA requests shall be charged in 
accordance with the provisions of this section and the schedule of 
charges contained in Appendix A to this part.
    (2) Fees shall not be charged if the total amount chargeable does 
not exceed $15.00.
    (3) Where there is a reasonable basis to conclude that a requester 
or group of requesters acting in concert has divided a request into a 
series of requests on a single subject or related subjects to avoid 
assessment of fees, the requests may be aggregated and fees charged 
accordingly.
    (b) Commercial use requests. (1) A requester seeking records for 
commercial use shall be charged fees for costs incurred in document 
search, duplication and review.
    (2) A commercial use requester may not be charged fees for time 
spent resolving legal and policy issues affecting access to requested 
records.
    (3) A commercial use request is a request from or on behalf of a 
person who seeks information for a use or purpose that further the 
commercial, trade or profit interests of the requester or the person on 
whose behalf the request is made. The intended use of records may be 
determined on the basis of information submitted by a requester and from 
reasonable inferences based on the identity of the requester and any 
other available information.

[[Page 16]]

    (c) Educational and noncommercial scientific institution requests. 
(1) A requester seeking records under the auspices of an educational 
institution in furtherance of scholarly research or a noncommercial 
scientific institution in furtherance of scientific research shall be 
charged for document duplication, except that the first 100 pages of 
paper copies (or the equivalent cost thereof if the records are in some 
other form) shall be provided without charge.
    (2) Such requesters may not be charged fees for costs incurred in--
    (i) Searching for requested records,
    (ii) Examining requested records to determine whether they are 
exempt from mandatory disclosure,
    (iii) Deleting reasonably segregable exempt matter,
    (iv) Monitoring the requesters' inspection of agency records, or
    (v) Resolving legal and policy issues affecting access to requested 
records.
    (3) An ``educational institution'' is a preschool, a public or 
private elementary or secondary school, an institution of graduate 
higher education, an institution of undergraduate higher education, an 
institution of professional education, or an institution of vocational 
education, which operates a program or programs of scholarly research.
    (4) A ``noncommercial scientific institution'' is 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.
    (d) News media requests. (1) A representative of the new media shall 
be charged for document duplication, except that the first 100 pages of 
paper copies (or the equivalent cost thereof if the records are in some 
other form) shall be provided without charge.
    (2) Representatives of the news media may not be charged fees for 
costs incurred in--
    (i) Searching for requested records,
    (ii) Examining requested records to determine whether they are 
exempt from mandatory disclosure,
    (iii) Deleting reasonably segregable exempt matter,
    (iv) Monitoring the requester's inspection of agency records, or
    (v) Resolving legal and policy issues affecting access to requested 
records.
    (3)(i) A ``representative of the news media'' is any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term ``news'' means information 
that is about current events or that is (or would be) of current 
interest to the public. Examples of news media entities include, but are 
not limited to, television or radio stations broadcasting to the public 
at large, and publishers of periodicals (but only in those instances 
when they can qualify as disseminators of ``news'') who make their 
products available for purchase or subscription by the general public. 
As traditional methods of news delivery evolve (e.g., electronic 
dissemination of newspapers through telecommunications services), such 
alternative media would be included in this category.
    (ii) Free-lance journalists may be considered ``representatives of 
the news media'' if they demonstrate a solid basis for expecting 
publication through a news organization, even though not actually 
employed by it. A publication contract or past record of publication, or 
evidence of a specific free-lance assignment from a news organization 
may indicate a solid basis for expecting publication.
    (e) Other requests. (1) A requester not covered by paragraphs (b), 
(c) or (d) of this section shall be charged fees for document search and 
duplication, except that the first two hours of search time and the 
first 100 pages of paper copies (or the equivalent cost thereof if the 
records are in some other form) shall be provided without charge.
    (2) Such requesters may not be charged for costs incurred in--
    (i) Examining requested records to determine whether they are exempt 
from disclosure,
    (ii) Deleting reasonably segregable exempt matter,
    (iii) Monitoring the requester's inspection of agency records, or
    (iv) Resolving legal and policy issues affecting access to requested 
records.

[[Page 17]]

    (f) Requests for clarification. Where a request does not provide 
sufficient information to determine whether it is covered by paragraph 
(b), (c), (d) or (e) of this section, the requester should be asked to 
provide additional clarification. If it is necessary to seek such 
clarification, the request may be deemed to have not been received for 
purposes of the time limits established in Sec. 2.17 until the 
clarification is received. Requests to requesters for clarification 
shall be made promptly.
    (g) Notice of anticipated fees. Where a request does not state a 
willingness to pay fees as high as anticipated by the Department, and 
the requester has not sought and been granted a full waiver of fees 
under Sec. 2.21, the request may be deemed to have not been received for 
purposes of the time limits established in Sec. 2.17 until the requester 
has been notified of and agrees to pay the anticipated fee. Advice to 
requesters with respect to anticipated fees shall be provided promptly.
    (h) Advance payment. (1) Where it is anticipated that allowable fees 
are likely to exceed $250.00 and the requester does not have a history 
of prompt payment of FOIA fees, the requester may be required to make an 
advance payment of the entire fee before processing of his or her 
request.
    (2) Where a requester has previously failed to pay a fee within 30 
calendar days of the date of billing, processing of any new request from 
that requester shall ordinarily be suspended until the requester pays 
any amount still owed, including applicable interest, and makes advance 
payment of allowable fees anticipated in connection with the new 
request.
    (3) Advance payment of fees may not be required except as described 
in paragraphs (h) (1) and (2) of this section.
    (4) Issuance of a notice requiring payment of overdue fees or 
advance payment shall toll the time limit in Sec. 2.17 until receipt of 
payment.
    (i) Form of payment. Payment of fees should be made by check or 
money order payable to the Department of the Interior or the bureau 
furnishing the information. The term United States or the initials 
``U.S.'' should not be included on the check or money order. Where 
appropriate, the official responsible for handling a request may require 
that payment by check be made in the form of a certified check.
    (j) Billing procedures. A bill for collection, Form DI-1040, shall 
be prepared for each request that requires collection of fees. The 
requester shall be provided the first sheet of the DI-1040. This 
Accounting Copy of the Form shall be transmitted to the agency's finance 
office for entry into accounts receivable records. Upon receipt of 
payment from the requester, the recipient shall forward the payment 
along with a copy of the DI-1040 to the finance office.
    (k) Collection of fees. The bill for collection or an accompanying 
letter to the requester shall include a statement that interest will be 
charged in accordance with the Debt Collection Act of 1982, 31 U.S.C. 
3717, and implementing regulations, 4 CFR 102.13, if the fees are not 
paid within 30 calendar days of the date of the bill for collection is 
mailed or hand-delivered to the requester. This requirement does not 
apply if the requester is a unit of state or local government. Other 
authorities of the Debt Collection Act of 1982 shall be used, as 
appropriate, to collect the fees (see 4 CFR parts 101-105).



Sec. 2.21  Waiver of fees.

    (a) Statutory fee waiver. (1) Documents shall be furnished without 
charge or at a charge reduced below the fees chargeable under Sec. 2.20 
and appendix A to this part if disclosure of the information is in the 
public interest because it--
    (i) Is likely to contribute significantly to public understanding of 
the operations or activities of the government and
    (ii) Is not primarily in the commercial interest of the requester.
    (2) Factors to be considered in determining whether disclosure of 
information ``is likely to contribute significantly to public 
understanding of the operations or activities of the government'' are 
the following:
    (i) Does the record concern the operations or activities of the 
government? Records concern the operations or activities of the 
government if they relate to or will illuminate the manner in which the 
Department or a bureau is carrying out identifiable operations or

[[Page 18]]

activities or the manner in which an operation or activity affects the 
public. The connection between the records and the operations and 
activities to which they are said to relate should be clear and direct, 
not remote and attenuated. Records developed outside of the government 
and submitted to or obtained by the Department may relate to the 
operations and activities of the government if they are informative on 
how an agency is carrying out its regulatory, enforcement, procurement 
or other activities that involve private entities.
    (ii) If a record concerns the operations or activities of the 
government, is its disclosure likely to contribute to public 
understanding of these operations and activities? The likelihood of a 
contribution to public understanding will depend on consideration of the 
content of the record, the identity of the requester, and the 
interrelationship between the two. Is there a logical connection between 
the content of the requested record and the operations or activities in 
which the requester is interested? Are the disclosable contents of the 
record meaningfully informative on the operations or activities? Is the 
focus of the requester on contribution to public understanding, rather 
than on the individual understanding of the requester or a narrow 
segment of interested persons? Does the requester have expertise in the 
subject area and the ability and intention to disseminate the 
information to the general public or otherwise use the information in a 
manner that will contribute to public understanding of government 
operations or activities? Is the requested information sought by the 
requester because it may be informative on government operations or 
activities or because of the intrinsic value of the information 
independent of the light that it may shed on government operations or 
activities?
    (iii) If there is likely to be a contribution to public 
understanding, will that contribution be significant? A contribution to 
public understanding will be significant if the information disclosed is 
new, clearly supports public oversight of Department operations, 
including the quality of Department activities and the effect of policy 
and regulations on public health and safety, or otherwise confirms or 
clarifies data on past or present operations of the Department. A 
contribution will not be significant if disclosure will not have a 
positive impact on the level of public understanding of the operations 
or activities involved that existed prior to the disclosure. In 
particular, a significant contribution is not likely to arise from 
disclosure of information already in the public domain because it has, 
for example, previously been published or is routinely available to the 
general public in a public reading room.
    (3) Factors to be considered in determining whether disclosure ``is 
primarily in the commercial interest of the requester'' are the 
following:
    (i) Does the requester have a commercial interest that would be 
furthered by the requested disclosure? A commercial interest is a 
commercial, trade or profit interest as these terms are commonly 
understood. An entity's status is not determinative. Not only profit-
making corporations, but also individuals or other organizations, may 
have a commercial interest to be served by disclosure, depending on the 
circumstances involved.
    (ii) If the requester has a commercial interest, will disclosure be 
primarily in that interest? The requester's commercial interest is the 
primary interest if the magnitude of that interest is greater than the 
public interest to be served by disclosure. Where a requester is a 
representative of a news media organization seeking information as part 
of the news gathering process, it may be presumed that the public 
interest outweighs the organization's commercial interest.
    (4) Notice of denial. If a requested statutory fee waiver or 
reduction is denied, the requester shall be notified in writing. The 
notice shall include:
    (i) A statement of the basis on which the waiver or reduction has 
been denied.
    (ii) A listing of the names and titles or positions of each person 
responsible for the denial.

[[Page 19]]

    (iii) A statement that the denial may be appealed to the Assistant 
Secretary--Policy, Budget and Administration and a description of the 
procedures in Sec. 2.18 for appeal.
    (b) Discretionary waivers. Fees otherwise chargeable may be waived 
at the discretion of a bureau if a request involves:
    (1) Furnishing unauthenticated copies of documents reproduced for 
gratuitous distribution;
    (2) Furnishing one copy of a personal document (e.g., a birth 
certificate) to a person who has been required to furnish it for 
retention by the Department;
    (3) Furnishing 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) Furnishing records to donors with respect to their gifts;
    (5) Furnishing records to individuals or private non-profit 
organizations having an official voluntary or cooperative relationship 
with the Department to assist the individual or organization in its work 
with the Department;
    (6) Furnishing records to state, local and foreign governments, 
public international organizations, and Indian tribes, when to do so 
without charge is an appropriate courtesy, or when the recipient is 
carrying on a function related to that of the Department and to do so 
will help to accomplish the work of the Department;
    (7) Furnishing a record when to do so saves costs and yields income 
equal to the direct cost of providing the records (e.g., where the 
Department's fee for the service would be included in a billing against 
the Department);
    (8) Furnishing records when to do so is in conformance with 
generally established business custom (e.g., furnishing personal 
reference data to prospective employers of former Department employees);
    (9) Furnishing one copy of a record in order to assist the requester 
to obtain financial benefits to which he or she is entitled (e.g., 
veterans or their dependents, employees with Government employee 
compensation claims or persons insured by the Government).



Sec. 2.22  Special rules governing certain information concerning coal obtained under the Mineral Leasing Act.

    (a) Definitions. As used in the section:
    (1) Act means the Mineral Leasing Act of February 25, 1920, as 
amended by the Act of August 4, 1976, Pub. L. 94-377, 90 Stat. 1083 (30 
U.S.C. 181 et seq.), and the Mineral Leasing Act for Acquired Lands, as 
amended (30 U.S.C. 351 et seq.)
    (2) Exploration license means a license issued by the Secretary of 
the Interior to conduct coal exploration operations on land subject to 
the Act pursuant to the authority in section 2(b) of the Act, as amended 
(30 U.S.C. 201(b)).
    (3) Fair-market value of coal to be leased means the minimum amount 
of a bid the Secretary has determined he 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 pursuant to section 2(a) of the Act (30 U.S.C. 
201(a)(1)).
    (4) Information means data, statistics, samples and other facts, 
whether analyzed or processed or not, pertaining to Federal coal 
resources, which fit within an exemption to the Freedom of Information 
Act, 5 U.S.C. 552(b).
    (b) Applicability. This section applies to the following categories 
of information:
    (1) Category A. Information provided to or obtained by a bureau 
under section 2(b)(3) of the Act from the holder of an exploration 
license;
    (2) Category B. Information acquired from commercial or other 
sources under service contract with Geological Survey pursuant to 
section 8A(b) of the Act, and information developed by the Geological 
Survey under an exploratory program authorized by section 8A of the Act;
    (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 pursuant to section 8A(e) of the Act; and

[[Page 20]]

    (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 shall 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 shall not be 
withheld from the public; it will be made available by means of and at 
the time of open filing or publication by Geological Survey.
    (3) Category C--Information. Category C information shall 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. Category D information shall be made 
available to the public under the terms and conditions to which, at the 
time he or she acquired it, the head of the department or agency from 
whom the Secretary later obtained the information agreed.
    (5) Category E--Information. Category E information shall 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.



           Subpart C--Declassification of Classified Documents



Sec. 2.41  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

[[Page 21]]

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.

[40 FR 7305, Feb. 19, 1975, as amended at 47 FR 38327, Aug. 31, 1982]



                         Subpart D--Privacy Act

    Source: 40 FR 44505, Sept. 26, 1975, unless otherwise noted.



Sec. 2.45  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.

[48 FR 56583, Dec. 22, 1983]



Sec. 2.46  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,

[[Page 22]]

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 Federal Register upon establishment or 
revision of the system of records.
    (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.

[40 FR 44505, Sept. 26, 1975, as amended at 47 FR 38327, Aug. 31, 1982; 
48 FR 56583, Dec. 22, 1983; 53 FR 3749, Feb. 9, 1988]



Sec. 2.47  Records subject to Privacy Act.

    The Privacy Act applies to all ``records,'' as that term is defined 
in Sec. 2.46(e), which the Department maintains in a ``system of 
records,'' as that term is defined in Sec. 2.46(f).



Sec. 2.48  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.

[[Page 23]]

    (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 privide 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.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56583, Dec. 22, 1983]



Sec. 2.49  [Reserved]



Sec. 2.50  Federal Register notices describing systems of records.

    (a) The Privacy Act requires publication of a notice in the Federal 
Register describing each system of records subject to the Act. Such 
notice will be published prior to the establishment or a revision of the 
system of records. 5 U.S.C. 552a(e)(4).
    (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.

[48 FR 56583, Dec. 22, 1983]



Sec. 2.51  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

[[Page 24]]

which could result in substantial harm, embarassment, 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 Sec. 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.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56583, Dec. 22, 1983]



Sec. 2.52  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 Sec. 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 Secs. 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

[[Page 25]]

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 Sec. 2.56 (b) and (c).



Sec. 2.53  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.



Secs. 2.54-2.55  [Reserved]



Sec. 2.56  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 Sec. 2.46(j) which has been 
described in a system notice published in the Federal Register;
    (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

[[Page 26]]

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.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983; 
50 FR 45114, Oct. 30, 1985]



Sec. 2.57  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 Sec. 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 Sec. 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 Sec. 2.63.
    (c) Notification of disclosure. When a record is disclosed pursuant 
to Sec. 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.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983]



Secs. 2.58-2.59  [Reserved]



Sec. 2.60  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.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983]

[[Page 27]]



Sec. 2.61  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 (Sec. 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 Sec. 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.

[48 FR 56584, Dec. 22, 1983, as amended at 53 FR 3749, Feb. 9, 1988]



Sec. 2.62  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.

[48 FR 56584, Dec. 22, 1983]



Sec. 2.63  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.

[[Page 28]]

    (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 Sec. 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.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983]



Sec. 2.64  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 
(Sec. 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 Sec. 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 
Sec. 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.

[[Page 29]]

    (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 Sec. 2.63.
    (2) Fees for copying a record in response to a request made under 
Sec. 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.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983; 
53 FR 3749, Feb. 9, 1988]



Sec. 2.65  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 Secs. 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.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983; 
53 FR 3749, Feb. 9, 1988]



Sec. 2.66  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

[[Page 30]]

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.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983]



Secs. 2.67-2.69  [Reserved]



Sec. 2.70  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.

[48 FR 56585, Dec. 22, 1983]



Sec. 2.71  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.

[48 FR 56585, Dec. 22, 1983]



Sec. 2.72  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 Sec. 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 Sec. 2.71, the petitioner shall be so advised and shall 
be told what additional information must be submitted to meet the 
requirements of Sec. 2.71.
    (2) If the petitioner fails to submit the additional information 
within a

[[Page 31]]

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 
Sec. 2.57, advise all previous recipients of the record that the 
correction was made and the substance of the correction.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983; 
53 FR 3750, Feb. 9, 1988]]



Sec. 2.73  Petitions for amendments: Time limits for processing.

    (a) Acknowledgement of receipt. The acknowledgement of receipt of a 
petition required by Sec. 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 Sec. 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.

[[Page 32]]

    (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.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56586, Dec. 22, 1983; 
53 FR 3750, Feb. 9, 1988]



Sec. 2.74  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.

[40 FR 44505, Sept. 26, 1975, as amended at 47 FR 38328, Aug. 31, 1982; 
53 FR 3750, Feb. 9, 1988]



Sec. 2.75  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 Sec. 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

[[Page 33]]

    (ii) If an accounting of disclosures has been made, advise all 
previous recipients of the record of the amendment and its substance.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56586, Dec. 22, 1983; 
53 FR 3750, Feb. 9, 1988]



Sec. 2.76  [Reserved]



Sec. 2.77  Statements of disagreement.

    (a) Filing of statement. If the determination of the Assistant 
Secretary--Policy, Budget and Administration under Sec. 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.

[48 FR 56586, Dec. 22, 1983]



Sec. 2.78  [Reserved]



Sec. 2.79  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 have been exempted from all of the provisions of 5 U.S.C. 552a 
and the regulations in the subpart except paragraphs (b), (c) (1) and 
(2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and (11), and (i) 
of 5 U.S.C. 552a and the portions of the regulations in this subpart 
implementing these paragraphs:
    (1) Investigative Case File System, Interior/FWS-20.
    (2) Law Enforcement Services System, Interior/BIA-18.
    (3) Law Enforcement Statistical Reporting System, Interior/NPS-19.
    (4) Investigative Records, Interior/Office of Inspector General--2.
    (b) 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 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) Investigative Records, Interior/Office of Inspector General--2.
    (2) Permits System, Interior/FWS-21.
    (3) Criminal Case Investigation System, Interior/BLM-18.
    (4) Civil Trespass Case Investigations, Interior/BLM-19.
    (5) Employee Conduct Investigations, Interior/BLM-20.
    (6)-(7) [Reserved]
    (8) Employee Financial Irregularities, Interior/NPS-17.
    (9) Trespass Cases, Interior/Reclamation-37.
    (10) Litigation, Appeal and Case Files System, Interior/Office of 
the Solicitor-1 to the extent that it consists of investigatory material 
compiled for law enforcement purposes.
    (11) Endangered Species Licenses System, Interior/FWS-19.
    (12) Investigative Case File, Interior/ FWS-20.
    (13) Timber Cutting and Trespass Claims Files, Interior/BIA-24.
    (c) Investigatory records exempt under 5 U.S.C. 552a(k)(5), the 
following systems of records have been exempted from subsections (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 
subsections:
    (1) [Reserved]
    (2) National Research Council Grants Program, Interior/GS-9

[[Page 34]]

    (3) Committee Management Files, Interior/Office of the Secretary--
68.

(5 U.S.C. 301, 552a and 5 U.S.C. app. sections 9(a)(1)(D) and 9(b); 5 
U.S.C. 301, 552, and 552a; 31 U.S.C. 483a; and 43 U.S.C. 1460)

[40 FR 44505, Sept. 26, 1975, as amended at 40 FR 54790, Nov. 26, 1975; 
47 FR 38328, Aug. 31, 1982; 48 FR 37412, Aug. 18, 1983; 48 FR 56586, 
Dec. 22, 1983; 49 FR 6907, Feb. 24, 1984]



   Subpart E--Legal Process: Testimony by Employees and Production of 
                                 Records

    Source: 65 FR 46369, July 28, 2000, unless otherwise noted.

                           General Information



Sec. 2.80  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 Secs. 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 Sec. 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.



Sec. 2.81  What is the Department's policy on granting requests for employee testimony or Department records?

    (a) Except for proceedings covered by Sec. 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 Secs. 2.80 through 2.90 United States

[[Page 35]]

ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

                     Responsibilities of Requesters



Sec. 2.82  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 Sec. 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 Sec. 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.



Sec. 2.83  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.



Sec. 2.84  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 
Sec. 2.88.



Sec. 2.85  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.



Sec. 2.86  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 Sec. 2.13 or this Subpart.

                    Responsibility of the Department



Sec. 2.87  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

[[Page 36]]

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 Sec. 2.88.



Sec. 2.88  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



Sec. 2.89  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 Sec. 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).



Sec. 2.90  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 yoru

[[Page 37]]

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.

                       Appendix A to Part 2--Fees

    The following uniform fee schedule is applicable to all constituent 
units of the Department. It states the fees to be charged to members of 
the public for services performed in searching for, reviewing and 
duplicating requested records in connection with FOIA requests made 
under subpart B of this part and to services performed in making 
documents available for inspection and copying under subpart A of this 
part. The duplicating fees stated in the schedule are also applicable to 
duplicating of records in response to requests made under the Privacy 
Act. The schedule also states the fee to be charged for certification of 
documents.
    (1) Copies, basic fee. For copies of documents reproduced on a 
standard office copying machine in sizes to 8\1/
2\x14, the charge will be $0.13 per page.
    Examples: For one copy of a three-page document, the fee would be 
$0.39. For two copies of a three-page document, the fee would be $0.78. 
For one copy of a 60-page document, the fee would be $7.80.
    (2) Copies, documents requiring special handling. For copies of 
documents which require special handling because of their age, size, 
etc., cost will be based on direct costs of reproducing the materials.
    (3)-(4) [Reserved]
    (5) Searches. For each quarter hour, or portion thereof, spent by 
clerical personnel in manual searches to locate requested records: 
$2.30. For each quarter hour, or portion thereof, spent by professional 
or managerial personnel in manual searches to locate requested records 
because the search cannot be performed by clerical personnel: $4.65.
    Search time for which fees may be charged includes all time spent 
looking for material that is responsive to a request, including line-by-
line or page-by-page search to determine whether a record is responsive, 
even if the search fails to locate records or the records located are 
determined to be exempt from disclosure. Searches will be conducted in 
the most efficient and least expensive manner, so as to minimize costs 
for both the agency and the requester. Line-by-line or page-by-page 
identification should not be necessary if it is clear on the face of a 
document that it is covered by a request.
    (6) Review of records. For each quarter hour, or portion thereof, 
spent by clerical personnel in reviewing records: $2.30. For each 
quarter hour, or portion thereof, spent by professional or managerial 
personnel in reviewing records: $4.65.
    Review is the examination of documents located in response to a 
commercial use request to determine whether any portion of any document 
located is permitted to be withheld and the subsequent processing of 
documents for disclosure by excising exempt material or otherwise 
preparing them for release. Review does not include time spent in 
resolving general legal or policy issues regarding the application of 
exemptions.
    (7) [Reserved]
    (8) Certification. For each certificate of verification attached to 
authenticated copies of records furnished to the public the charge will 
be $0.25.
    (9) [Reserved]
    (10) Computerized records. Charges for services in processing 
requests for records maintained in computerized form will be calculated 
in accordance with the following criteria:
    (a) Costs for processing a data request will be calculated using the 
same standard direct costs charged to other users of the facility, and/
or as specified in the user's manual or handbook published by the 
computer center in which the work will be performed.
    (b) An itemized listing of operations required to process the job 
will be prepared (i.e., time for central processing unit, input/output, 
remote terminal, storage, plotters, printing, tape/disc mounting, etc.) 
with related associated costs applicable to each operation.
    (c) Material costs (i.e., paper, disks, tape, etc.) will be 
calculated using the latest acquisition price paid by the facility.
    (d) ADP facility managers must assure that all cost estimates are 
accurate, and if challenged, be prepared to substantiate that the rates 
are not higher than those charged to other users of the facility for 
similar work. Upon request, itemized listings of operations and 
associated costs for processing the job may be furnished to members of 
the public.
    (e) Requesters entitled to two hours of free search time under 43 
CFR 2.20(e) shall not be charged for that portion of a computer search 
that equals two hours of the salary of the operator performing the 
search.
    (11) Postage/mailing costs. Mailing charges may be added for 
services (such as express mail) that exceed the cost of first class 
postage.
    (12)-(13) [Reserved]
    (14) Other services. When a response to a request requires services 
or materials other than those described in this schedule, the direct 
cost of such services or materials to the Government may be charged, but 
only if the requester has been notified of such cost before it is 
incurred.
    (15) Effective date. This schedule applies to all requestes made 
under the Freedom of Information Act and Privacy Act after December 30, 
1987.

[52 FR 45592, Nov. 30, 1987]

[[Page 38]]

   Appendix B to Part 2--Bureaus and Offices of the Department of the 
                                Interior

    1. Bureaus and Offices of the Department of the Interior. (The 
address for all bureaus and offices, unless otherwise indicated, is U.S. 
Department of the Interior, Washington, DC 20240.)

Secretary of the Interior, Office of the Secretary
Office of Administrtative Services (for Office of the Secretary 
components)
Assistant Secretary, Territorial and International Affairs
Commissioner, Bureau of Indian Affairs
Director, U.S. Fish and Wildlife Service
Director, National Park Service, P.O. Box 37127, Washington, DC, 20013-
7127
Commissioner, Bureau of Reclamation
Director, Bureau of Land Management
Director, Minerals Management Service
Director, Bureau of Mines, Columbia Plaza, 2401 E Street NW., 
Washington, DC 20241
Director, Geological Survey, The National Center, Reston, VA 22092
Director, Office of Surface Mining Reclamation and Enforcement
Director, Office of Hearings and Appeals, 801 North Quincy Street, 
Arlington, VA 22203
Inspector General, Office of Inspector General
Solicitor, Office of the Solicitor

    2. Freedom of Information Officers of the Department of the 
Interior. (The address for all Freedom of Information Officers, unless 
otherwise indicated, is U.S. Department of the Interior, Washington, DC 
20240.)

Director, Office of Administrative Services (for Office of the Secretary 
components), U.S. Department of the Interior
Director, Office of Administration, Bureau of Indian Affairs
Freedom of Information Act Officer, Bureau of Land Management
Assistant Director, Finance and Management, Bureau of Mines, Columbia 
Plaza, 2401 E Street NW., Washington, DC 20241
Freedom of Information Act Officer, Bureau of Reclamation
Chief, Division of Media Information, National Park Service
Chief, Regulatory Development and Issues Management, Office of Surface 
Mining Reclamation and Enforcement
Chief, Directives Management Branch, Policy and Directives Management, 
U.S. Fish and Wildlife Service,
Chief, Paperwork Management Unit, U.S. Geological Survey, The National 
Center, Reston, VA 22092
Freedom of Information Act Officer, Minerals Management Service, 12203 
Sunrise Valley Drive, Reston, VA 22091
Information Officer, Office of Inspector General

    3. Office of Hearings and Appeals--Field Offices:

Administrative Law Judge, 710 Locust St., Federal Building, Suite 116, 
Knoxville, TN 37902
Administrative Law Judges, 6432 Federal Bldg., Salt Lake City, UT 84138
Administrative Law Judge, 2901 N. Central Ave., Suite 955, Phoenix, AZ 
85012-2739
Administrative Law Judge, 2020 Hurley Way, Suite 150, Sacramento, CA 
95825
Administrative Law Judges, Bishop Henry Whipple Federal Building, 1 
Federal Drive, rooms 674 and 688, Fort Snelling, MN 55111
Administrative Law Judge, 1700 Louisiana N.E., Suite 220, Albuquerque, 
NM 87110
Administrative Law Judge, 215 Dean A. McGee Ave., room 507, Oklahoma 
City, OK 73102
Administrative Law Judge (Indian Probate), Federal Bldg. & Courthouse, 
515 9th St., Suite 201, Rapid City, SD 57701
Administrative Law Judge (Indian Probate), Federal Bldg. & Courthouse, 
Rm. 3329, 316 N. 26th St., Billings, MT 59101

    4. Office of the Solicitor-- Field Offices.

                           Regional Solicitors

Regional Solicitor, U.S. Department of the Interior, 701 C Street, 
Anchorage, AK 99513
Regional Solicitor, U.S. Department of the Interior, Room E-2753, 2800 
Cottage Way, Sacramento, CA 95825
Regional Solicitor, U.S. Department of the Interior, P.O. Box 25007, 
Denver Federal Center, Denver, CO 80225
Regional Solicitor, U.S. Department of the Interior, Richard B. Russell 
Federal Building, 75 Spring Street, SW., Suite 1328, Atlanta, GA 30303
Regional Solicitor, U.S. Department of the Interior, Suite 612, One 
Gateway Center, Newton Corner, MA 02158
Regional Solicitor, U.S. Department of the Interior, Room 3068, Page 
Belcher Federal Building, 333 West 4th Street, Tulsa, OK 74103
Regional Solicitor, U.S. Department of the Interior, Lloyd 500 Building, 
Suite 607, 500 N.E. Multnomah, Portland, OR 97232
Regional Solicitor, U.S. Department of the Interior, Suite 6201, Federal 
Building, 125 South State Street, Salt Lake City, UT 84138

                            Field Solicitors

Field Solicitor, U.S. Department of the Interior, Suite 150, 505 North 
Second St., Phoenix, AZ 85004
Field Solicitor, U.S. Department of the Interior, P.O. Box M, Window 
Rock, AZ 86515

[[Page 39]]

Field Solicitor, U.S. Department of the Interior, Box 36064, 450 Golden 
Gate Avenue, Room 14126, San Francisco, CA 94102
Field Solicitor, U.S. Department of the Interior, Box 020, Federal 
Building, U.S. Courthouse, 550 West Fort Street, Boise, ID 83724
Field Solicitor, U.S. Department of the Interior, 686 Federal Building, 
Twin Cities, MN 55111
Field Solicitor, U.S. Department of the Interior, Room 5431, Federal 
Building, 316 N. 26th Street, Billings, MT 59101
Field Solicitor, U.S. Department of the Interior, P.O. Box 1042, Santa 
Fe, NM 87504
Field Solicitor, U.S. Department of the Interior, Osage Agency, 
Grandview Avenue, Pawhuska, OK 74056
Field Solicitor, U.S. Department of the Interior, Suite 502J, U.S. Post 
Office and Courthouse, Pittsburgh, PA 15219
Field Solicitor, U.S. Department of the Interior, P.O. Box 15006, 
Knoxville, TN 37901
Field Solicitor, U.S. Department of the Interior, 1100 South Fillmore, 
Amarillo, TX 79101
Field Solicitor, U.S. Department of the Interior, 603 Morris Street, 2nd 
Floor, Charleston, WV 25301.

[52 FR 45593, Nov. 30, 1987, as amended at 53 FR 16128, May 5, 1988; 58 
FR 48973, Sept. 21, 1993; 67 FR 4368, Jan. 30, 2002]



PART 3--PRESERVATION OF AMERICAN ANTIQUITIES--Table of Contents




Sec.
3.1  Jurisdiction.
3.2  Limitation on permits granted.
3.3  Permits; to whom granted.
3.4  No exclusive permits granted.
3.5  Application.
3.6  Time limit of permits granted.
3.7  Permit to become void.
3.8  Applications referred for recommendation.
3.9  Form and reference of permit.
3.10  Reports.
3.11  Restoration of lands.
3.12  Termination.
3.13  Report of field officer.
3.14  Examinations by field officer.
3.15  Persons who may apprehend or cause to be arrested.
3.16  Seizure.
3.17  Preservation of collection.

    Authority: Secs. 3, 4, 34 Stat. 225, as amended; 16 U.S.C. 432.

    Source: 19 FR 8838, Dec. 23, 1954, unless otherwise noted.



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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,

[[Page 40]]

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.



Sec. 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.



Sec. 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.



Sec. 3.8  Applications referred for recommendation.

    Applications for permits shall be referred to the Smithsonian 
Institution for recommendation.



Sec. 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 permittee will be furnished with a copy of the regulations 
in this part.



Sec. 3.10  Reports.

    At the close of each season's field work the permittee 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.



Sec. 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.



Sec. 3.12  Termination.

    All permits shall be terminable at the discretion of the Secretary 
having jurisdiction.



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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

[[Page 41]]

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.



Sec. 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.



PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES--Table of Contents




           Subpart A--General; Office of Hearings and Appeals

Sec.
4.1  Scope of authority; applicable regulations.
4.2  Membership of appeals boards; decisions, functions of Chief Judges.
4.3  Representation before appeals boards.
4.4  Public records; locations of field offices.
4.5  Power of the Secretary and Director.

      Subpart B--General Rules Relating to Procedures and Practice

4.20  Purpose.
4.21  General provisions.
4.22  Documents.
4.23  Transcript of hearings.
4.24  Basis of decision.
4.25  Oral argument.
4.26  Subpoena power and witness provisions generally.
4.27  Standards of conduct.
4.28  Interlocutory appeals.
4.29  Remands from courts.
4.30  Information required by forms.
4.31  Request for limiting disclosure of confidential information.

   Subpart C--Special Rules of Practice Before the Interior Board of 
                            Contract Appeals

4.100  General rules and guidelines.

                       Prehearing Procedure Rules

4.101  Who may appeal.
4.102  Appeals--how taken.
4.103  Forwarding and docketing of appeals.
4.104  Preparation, organization, transmittal, and status of appeal 
          file.
4.105  Dismissal for lack of jurisdiction.
4.106  Representation and appearances.
4.107  Pleadings.
4.108  Amendments of pleadings or record.
4.109  Hearing--election.
4.110  Prehearing briefs.
4.111  Prehearing or presubmission conference.
4.112  Submission without a hearing.
4.113  Optional small claims (expedited) and accelerated procedures. 
          (See Sec. 4.100(a)(2).)
4.114  Settling of the record.
4.115  Discovery--depositions.
4.116  Interrogatories to parties; inspection of documents; admission of 
          facts.
4.117  Service of papers.

                         Hearing Procedure Rules

4.118  Hearings--where and when held.
4.119  Notice of hearings.
4.120  Subpoenas. (See Sec. 4.100(a)(2).)
4.121  Unexcused absence of a party.
4.122  Nature of hearings.
4.123  Examination of witnesses.
4.124  Submission of briefs.

                       Posthearing Procedure Rules

4.125  Decisions.
4.126  Motions for reconsideration.
4.127  Dismissals.
4.128  Remands from courts.

Appendix I to Subpart C of Part 4--Suggested Form of Notice of Appeal

   Subpart D--Rules Applicable in Indian Affairs Hearings and Appeals

 Determinations of Heirs and Approval of Wills, Except as to Members of 
    the Five Civilized Tribes and Osage Indians; Tribal Purchases of 
                    Interests Under Special Statutes

  Scope of Regulations; Definitions; General Authority of OHA Deciding 
                                Officials

4.200  Scope of regulations.
4.201  Definitions.
4.202  General authority of OHA deciding officials.

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 Determination of Heirs; Approval of Wills; Settlement of Indian Trust 
                                 Estates

4.203  Determination as to nonexistent persons and other irregularities 
          of allotments.
4.204  Presumption of death.
4.205  Escheat.
4.206  Determinations of nationality or citizenship and status affecting 
          character of land titles.
4.207  Compromise settlement.
4.208  Renunciation of interest.

                   Commencement of Probate Proceedings

4.210  Commencement of probate.
4.211  Notice.
4.212  Contents of notice.

            Depositions, Discovery, and Prehearing Conference

4.220  Production of documents for inspection and copying.
4.221  Depositions.
4.222  Written interrogatories; admission of facts and documents.
4.223  Objections to and limitations on production of documents, 
          depositions, and interrogatories.
4.224  Failure to comply with orders.
4.225  Prehearing conference.

                                Hearings

4.230  Authority and duties of the OHA deciding official.
4.231  Hearings.
4.232  Evidence; form and admissibility.
4.233  Proof of wills, codicils, and revocations.
4.234  Witnesses, interpreters, and fees.
4.235  Supplemental hearings.
4.236  Record.

                                Decisions

4.240  Decision of administrative law judge and notice thereof.
4.241  Rehearing.
4.242  Reopening.
4.243  Appeals from BIA.

                                 Claims

4.250  Filing and proof of creditor claims; limitations.
4.251  Priority of claims.
4.252  Property subject to claims.

                                  Wills

4.260  Making; review as to form; revocation.
4.261  Anti-lapse provisions.
4.262  Felonious taking of testator's life.

                   Custody and Distribution of Estates

4.270  Custody and control of trust estates.
4.271  Omitted property.
4.272  Improperly included property.
4.273  Distribution of estates.

                              Miscellaneous

4.281  Claims for attorney fees.
4.282  Guardians for incompetents.

           Tribal Purchase of Interests Under Special Statutes

4.300  Authority and scope.
4.301  Valuation report.
4.302  Conclusion of probate and tribal exercise of statutory option.
4.303  Notice by surviving spouse to reserve a life estate.
4.304  Rehearing.
4.305  Hearing.
4.306  Time for payment.
4.307  Title.
4.308  Disposition of income.

 General Rules Applicable to Proceedings on Appeal Before the Interior 
                         Board of Indian Appeals

4.310  Documents.
4.311  Briefs on appeal.
4.312  Decisions.
4.313  Amicus Curiae; intervention; joinder motions.
4.314  Exhaustion of administrative remedies.
4.315  Reconsideration.
4.316  Remands from courts.
4.317  Standards of conduct.
4.318  Scope of review.

        Appeals to the Board of Indian Appeals in Probate Matters

4.320  Who may appeal.
4.321  Notice of transmittal of record on appeal.
4.322  Docketing.
4.323  Disposition of the record.

 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.
4.331  Who may appeal.
4.332  Appeal to the Board; how taken; mandatory time for filing; 
          preparation assistance; requirement for bond.
4.333  Service of notice of appeal.
4.334  Extensions of time.
4.335  Preparation and transmittal of record by official of the Bureau 
          of Indian Affairs.
4.336  Docketing.
4.337  Action by the Board.
4.338  Submission by administrative law judge of proposed findings, 
          conclusions and recommended decision.

[[Page 43]]

4.339  Exceptions or comments regarding recommended decision by 
          administrative law judge.
4.340  Disposition of the record.

   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.
4.351  Commencement of the determination process.
4.352  Determination of administrative judge and notice thereof.
4.353  Record.
4.354  Reconsideration or rehearing.
4.355  Omitted compensation.
4.356  Appeals.
4.357  Guardians for minors and incompetents.

 Subpart E--Special Rules Applicable to Public Land Hearings and Appeals

                           Appeals Procedures

                       appeals procedures; general

4.400  Definitions.
4.401  Documents.
4.402  Summary dismissal.
4.403  Finality of decision; reconsideration.

                  appeals to the board of land appeals

4.410  Who may appeal.
4.411  Appeal; how taken, mandatory time limit.
4.412  Statement of reasons, statement of standing, written arguments, 
          briefs.
4.413  Service of notice of appeal and of other documents.
4.414  Answers.

                    actions by board of land appeals

4.415  Request for hearings on appeals involving questions of fact.

                           Hearings Procedures

                      hearings procedures; general

4.420  Applicability of general rules.
4.421  Definitions.
4.422  Documents.
4.423  Subpoena power and witness provisions.

             hearings on appeals involving questions of fact

4.430  Prehearing conferences.
4.431  Fixing of place and date for hearing; notice.
4.432  Postponements.
4.433  Authority of the administrative law judge.
4.434  Conduct of hearing.
4.435  Evidence.
4.436  Reporter's fees.
4.437  Copies of transcript.
4.438  Summary of evidence.
4.439  Action by administrative law judge.

                     contest and protest proceedings

4.450  Private contests and protests.
4.450-1  By whom private contest may be initiated.
4.450-2  Protests.
4.450-3  Initiation of contest.
4.450-4  Complaints.
4.450-5  Service.
4.450-6  Answer to complaint.
4.450-7  Action by manager.
4.450-8  Amendment of answer.
4.451  Government contests.
4.451-1  How initiated.
4.451-2  Proceedings in Government contests.
4.452  Proceedings before the administrative law judge.
4.452-1  Prehearing conferences.
4.452-2  Notice of hearing.
4.452-3  Postponements.
4.452-4  Authority of administrative law judge.
4.452-5  Conduct of hearing.
4.452-6  Evidence.
4.452-7  Reporter's fees.
4.452-8  Findings and conclusions; decision by administrative law judge; 
          submission to Board for decision.
4.452-9  Appeal to Board.

       Grazing Proceedures (Inside and Outside Grazing Districts)

4.470  Appeal to administrative law judge; motion to dismiss.
4.471  Time and place of hearing; notice; intervenors.
4.472  Authority of administrative law judge.
4.473  Service.
4.474  Conduct of hearing; reporter's fees; transcript.
4.475  Findings of fact and decision by administrative law judge: 
          Notice; submission to Board of Land Appeals for decision.
4.476  Appeals to the Board of Land Appeals.
4.477  Effect of decision suspended during appeal.
4.478  Conditions of decision action.

 Subpart F--Implementation of the Equal Access to Justice Act in Agency 
                               Proceedings

                           General Provisions

4.601  Purpose of these rules.
4.602  Definitions.
4.603  Proceedings covered.
4.604  Applicability to Department of the Interior proceedings.
4.605  Eligibility of applicants.
4.606  Standards for awards.
4.607  Allowable fees and expenses.

[[Page 44]]

                  Information Required From Applicants

4.608  Contents of application.
4.609  Net worth exhibit.
4.610  Documentation of fees and expenses.
4.611  Time for submission of application.

                 Procedures for Considering Applications

4.612  Filing and service of documents.
4.613  Answer to application.
4.614  Settlement.
4.615  Extensions of time and further proceedings.
4.616  Decision on application.
4.617  Appeals Board review.
4.618  Judicial review.
4.619  Payment of award.

    Subpart G--Special Rules Applicable to Other Appeals and Hearings

4.700  Who may appeal.
4.701  Notice of appeal.
4.702  Transmittal of appeal file.
4.703  Pleadings.
4.704  Decisions on appeals.

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

                                 General

4.800  Scope and construction of rules.
4.801  Suspension of rules.
4.802  Definitions.
4.803  Computation of time.
4.804  Extensions of time.
4.805  Reduction of time to file documents.

      Designation and Responsibilities of Administrative Law Judge

4.806  Designation.
4.807  Authority and responsibilities.

                         Appearance and Practice

4.808  Participation by a party.
4.809  Determination of parties.
4.810  Complainants not parties.
4.811  Determination and participation of amici.

                      Form and Filing of Documents

4.812  Form.
4.813  Filing and service.
4.814  Certificate of service.

                               Procedures

4.815  How proceedings are commenced.
4.816  Notice of hearing and response thereto.
4.817  Notice of opportunity to request a hearing and response thereto.
4.818  Answer.
4.819  Amendment of notice or answer.
4.820  Consolidated or joint hearings.
4.821  Motions.
4.822  Disposition of motions.
4.823  Interlocutory appeals.
4.824  Exhibits.
4.825  Admissions as to facts and documents.
4.826  Discovery.
4.827  Depositions.
4.828  Use of depositions at hearing.
4.829  Interrogatories to parties.
4.830  Production of documents and things and entry upon land for 
          inspection and other purposes.
4.831  Sanctions.
4.832  Consultation and advice.

                               Prehearing

4.833  Prehearing conferences.

                                 Hearing

4.834  Purpose.
4.835  Evidence.
4.836  Official notice.
4.837  Testimony.
4.838  Objections.
4.839  Exceptions.
4.840  Offer of proof.
4.841  Official transcript.

                         Posthearing Procedures

4.842  Proposed findings of fact and conclusions of law.
4.843  Record for decision.
4.844  Notification of right to file exceptions.
4.845  Final review by Secretary.

 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?
4.902  What appeals are subject to this subpart?
4.903  What definitions apply to this subpart?
4.904  When does my appeal commence and end?
4.905  What if a due date falls on a day the Department or relevant 
          office is not open for business?
4.906  What if the Department does not issue a decision by the date my 
          appeal ends?
4.907  What if an IBLA decision requires MMS or a delegated State to 
          recalculate royalties or other payments?
4.908  What is the administrative record for my appeal if it is deemed 
          decided?
4.909  How do I request an extension of time?

[[Page 45]]

Subpart K  [Reserved]

Subpart L--Special Rules Applicable to Surface Coal Mining Hearings and 
                                 Appeals

                           General Provisions

4.1100  Definitions.
4.1101  Jurisdiction of the Board.
4.1102  Construction.
4.1103  Eligibility to practice.
4.1104  General rules relating to procedure and practice.
4.1105  Parties.
4.1106  Hearing sites.
4.1107  Filing of documents.
4.1108  Form of documents.
4.1109  Service.
4.1110  Intervention.
4.1111  Voluntary dismissal.
4.1112  Motions.
4.1113  Consolidation of proceedings.
4.1114  Advancement of proceedings.
4.1115  Waiver of right to hearing.
4.1116  Status of notices of violation and orders of cessation pending 
          review by the Office of Hearings and Appeals.

                          Evidentiary Hearings

4.1120  Presiding officers.
4.1121  Powers of administrative law judges.
4.1122  Conduct of administrative law judges.
4.1123  Notice of hearing.
4.1124  Certification of interlocutory ruling.
4.1125  Summary decision.
4.1126  Proposed findings of fact and conclusions of law.
4.1127  Initial orders and decisions.
4.1128  Effect of initial order or decision.
4.1129  Certification of record.

                                Discovery

4.1130  Discovery methods.
4.1131  Time for discovery.
4.1132  Scope of discovery.
4.1133  Sequence and timing of discovery.
4.1134  Supplementation of responses.
4.1135  Motion to compel discovery.
4.1136  Failure to comply with orders compelling discovery.
4.1137  Depositions upon oral examination or upon written questions.
4.1138  Use of depositions.
4.1139  Written interrogatories to parties.
4.1140  Production of documents and things and entry upon land for 
          inspection and other purposes.
4.1141  Admissions.

     Petitions for Review of Proposed Assessments of Civil Penalties

4.1150  Who may file.
4.1151  Time for filing.
4.1152  Contents of petition; payment required.
4.1153  Answer.
4.1154  Review of waiver determination.
4.1155  Burdens of proof in civil penalty proceedings.
4.1156  Summary disposition.
4.1157  Determination by administrative law judge.
4.1158  Appeals.

   Review of Section 521 Notices of Violation and Orders of Cessation

4.1160  Scope.
4.1161  Who may file.
4.1162  Time for filing.
4.1163  Effect of failure to file.
4.1164  Contents of application.
4.1165  Answer.
4.1166  Contents of answer.
4.1167  Notice of hearing.
4.1168  Amendments to pleadings.
4.1169  Failure to state a claim.
4.1170  Related notices or orders.
4.1171  Burden of proof in review of section 521 notices or orders.

 Expedited Review of Section 521(a)(2) or 521(a)(3) Orders of Cessation

4.1180  Purpose.
4.1181  Who may file.
4.1182  Where to file.
4.1183  Time for filing.
4.1184  Contents of application.
4.1185  Computation of time for decision.
4.1186  Waiver of the 30-day decision requirement.
4.1187  Procedure if 30-day decision requirement is not waived.

   Proceedings for Suspension or Revocation of Permits Under Section 
                          521(a)(4) of the Act

4.1190  Initiation of proceedings.
4.1191  Answer.
4.1192  Contents of answer.
4.1193  Notice of hearing.
4.1194  Burden of proof in suspension or revocation proceedings.
4.1195  Determination by the administrative law judge.
4.1196  Summary disposition.
4.1197  Appeals.

Applications for Review of Alleged Discriminatory Acts Under Section 703 
                               of the Act

4.1200  Filing of the application for review with the Office of Hearings 
          and Appeals.
4.1201  Request for scheduling of a hearing.
4.1202  Response to request for the scheduling of a hearing.
4.1203  Application for temporary relief from alleged discriminatory 
          acts.
4.1204  Determination by administrative law judge.
4.1205  Appeals.

[[Page 46]]

                    Applications for Temporary Relief

4.1260  Scope.
4.1261  When to file.
4.1262  Where to file.
4.1263  Contents of application.
4.1264  Response to application.
4.1265  Determination on application concerning a notice of violation 
          issued pursuant to section 521(a)(3) of the Act.
4.1266  Determination on application concerning an order of cessation.
4.1267  Appeals.

  Appeals to the Board From Decisions or Orders of Administrative Law 
                                 Judges

4.1270  Petition for discretionary review of a proposed civil penalty.
4.1271  Notice of appeal.
4.1272  Interlocutory appeals.
4.1273  Briefs.
4.1274  Remand.
4.1275  Final decisions.
4.1276  Reconsideration.

   Appeals to the Board From Decisions of the Office of Surface Mining

4.1280  Scope.
4.1281  Who may appeal.
4.1282  Appeals; how taken.
4.1283  Service.
4.1284  Answer.
4.1285  Summary dismissal.
4.1286  Request for hearings.

 Petitions for Award of Costs and Expenses Under Section 525(e) of the 
                                   Act

4.1290  Who may file.
4.1291  Where to file; time for filing.
4.1292  Contents of petition.
4.1293  Answer.
4.1294  Who may receive an award.
4.1295  Awards.
4.1296  Appeals.

 Petitions for Review of Proposed Individual Civil Penalty Assessments 
                     Under Section 518(f) of the Act

4.1300  Scope.
4.1301  Who may file.
4.1302  Time for filing.
4.1303  Contents and service of petition.
4.1304  Answer, motion, or statement of OSM.
4.1305  Amendment of petition.
4.1306  Notice of hearing.
4.1307  Elements; burdens of proof.
4.1308  Decision by administrative law judge.
4.1309  Petition for discretionary review.

 Request for Hearing on a Preliminary Finding Concerning a Demonstrated 
Pattern of Willful Violations Under Section 510(c) of the Act, 30 U.S.C. 
  1260(c) (Federal Program; Federal Lands Program; Federal Program for 
                              Indian Lands)

4.1350  Scope.
4.1351  Preliminary finding by OSM.
4.1352  Who may file; where to file; when to file.
4.1353  Contents of request.
4.1354  Determination by the administrative law judge.
4.1355  Burden of proof.
4.1356  Appeals.

 Request for Review of Approval or Disapproval of Applications for New 
Permits, Permit Revisions, Permit Renewals, the Transfer, Assignment or 
  Sale of Rights Granted Under Permit (Federal Program; Federal Lands 
  Program; Federal Program for Indian Lands) and for Coal Exploration 
                        Permits (Federal Program)

4.1360  Scope.
4.1361  Who may file.
4.1362  Where to file; when to file.
4.1363  Contents of request; amendment of request; responses.
4.1364  Time for hearing; notice of hearing; extension of time for 
          hearing.
4.1365  Status of decision pending administrative review.
4.1366  Burdens of proof.
4.1367  Request for temporary relief.
4.1368  Determination by the Administrative Law Judge.
4.1369  Petition for discretionary review; judicial review.

Review of OSM Decisions Proposing To Suspend or Rescind or Suspending or 
                 Rescinding Improvidently Issued Permits

4.1370  Scope.
4.1371  Who may file, where to file, when to file.
4.1372  Contents of request for review, response to request, amendment 
          of request.
4.1373  Hearing.
4.1374  Burdens of proof.
4.1375  Time for initial decision.
4.1376  Petition for temporary relief from notice of proposed suspension 
          or rescission or notice of suspension or rescission; appeals 
          from decisions granting or denying temporary relief.
4.1377  Petition for discretionary review of initial decision.

[[Page 47]]

    Review of Office of Surface Mining Written Decisions Concerning 
                     Ownership or Control Challenges

4.1380  Scope.
4.1381  Who may file; when to file; where to file.
4.1382  Contents of request for review; response to request; amendment 
          of request.
4.1383  Hearing.
4.1384  Burdens of proof.
4.1385  Time for initial decision.
4.1386  Petition for temporary relief from decision; appeals from 
          decisions granting or denying temporary relief.
4.1387  Petition for discretionary review of initial decisions.

Request for Review of OSM Determinations of Issues Under 30 CFR Part 761 
  (Federal Program; Federal Lands Program; Federal Program for Indian 
                                 Lands)

4.1390  Scope.
4.1391  Who may file; where to file; when to file; filing of 
          administrative record.
4.1392  Contents of request; amendment of request; responses.
4.1393  Status of decision pending administrative review.
4.1394  Burden of proof.

 Subpart M--Special Procedural Rules Applicable to Appeals of Decisions 
                      Made Under OMB Circular A-76

4.1600  Purpose and nature of the appeal process.
4.1601  Basis for appeal.
4.1602  Who may appeal under this procedure.
4.1603  Appeal period.
4.1604  Method of filing an appeal.
4.1605  Action by the Office of Hearings and Appeals.
4.1606  Department representation.
4.1607  Processing the appeal.
4.1608  Oral presentations.
4.1609  Multiple appeals.
4.1610  Decision of the appeals official.

    Authority: R.S. 2478, as amended, 43 U.S.C. sec. 1201, unless 
otherwise noted.

    Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.



           Subpart A--General; Office of Hearings and Appeals



Sec. 4.1  Scope of authority; applicable regulations.

    The Office of Hearings and Appeals, headed by a Director, is an 
authorized representative of the Secretary for the purpose of hearing, 
considering and determining, as fully and finally as might the 
Secretary, matters within the jurisdiction of the Department involving 
hearings, and appeals and other review functions of the Secretary. 
Principal components of the Office include:
    (a) A Hearings Division comprised of administrative law judges who 
are authorized to conduct hearings in cases required by law to be 
conducted pursuant to 5 U.S.C. 554, and hearings in other cases arising 
under statutes and regulations of the Department, including rule making 
hearings, and
    (b) Appeals Boards, shown below, with administrative jurisdiction 
and special procedural rules as indicated. General rules applicable to 
all types of proceedings are set forth in subpart B of this part. 
Therefore, for information as to applicable rules, reference should be 
made to the special rules in the subpart relating to the particular type 
of proceeding, as indicated, and to the general 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 Contract Appeals. The Board considers and decides 
finally for the Department appeals to the head of the Department from 
findings of fact or decisions by contracting officers of any bureau or 
office of the Department, wherever situated, or any field installation 
thereof, and orders and conducts hearings as necessary. Special 
regulations applicable to proceedings before the Board are contained in 
subpart C of this part.
    (2) 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 Sec. 4.330 of this part, and

[[Page 48]]

    (ii) Orders and decisions of Administrative Law 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.
    (3) 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.
    (4) Ad Hoc Board of Appeals. Appeals to the head of the Department 
which do not lie within the appellate review jursidiction 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.

(Sec. 525, Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 
1275, and sec. 301, Administrative Procedure Act, 5 U.S.C. 301)

[36 FR 7186, Apr. 15, 1971, as amended at 40 FR 33172, Aug. 6, 1975; 47 
FR 26392, June 18, 1982; 49 FR 7565, Mar. 1, 1984; 54 FR 6485, Feb. 10, 
1989; 61 FR 47434, Sept. 9, 1996; 61 FR 49976, Sept. 24, 1996]



Sec. 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.

[39 FR 7931, Mar. 1, 1974]



Sec. 4.3  Representation before appeals boards.

    (a) Appearances generally. Representation of parties in proceedings 
before

[[Page 49]]

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.



Sec. 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. It includes 
a list of the field offices of the Office of Hearings and Appeals and 
their locations.



Sec. 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 him 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, except a case before 
the Board of Contract Appeals which is subject to the Contract Disputes 
Act of 1978, 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, except a decision by the Board of Contract 
Appeals which is subject to the Contract Disputes Act of 1978.
    (b) The Director. Except for cases or decisions subject to the 
Contract Disputes Act of 1978, the Director, pursuant to his delegated 
authority from the Secretary, 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.
    (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.

[50 FR 43705, Oct. 29, 1985, as amended at 52 FR 46355, Dec. 7, 1987; 52 
FR 47097, Dec. 11, 1987]



      Subpart B--General Rules Relating to Procedures and Practice



Sec. 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.



Sec. 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

[[Page 50]]

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;
    (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.

[36 FR 7186, Apr. 15, 1971, as amended at 58 FR 4942, Jan. 19, 1993]



Sec. 4.22  Documents.

    (a) Filing of documents. A document is filed in the Office where the 
filing is required only when the document is received in that office 
during the office hours when filing is permitted and the document is 
received by a person authorized to receive it.
    (b) Service generally. A copy of each document filed in a proceeding 
before the Office of Hearings and Appeals must be served by the filing 
party on the other party or parties in the case, except as otherwise 
provided by Sec. 4.31. In all cases where a party is represented by an 
attorney, such attorney

[[Page 51]]

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, papers, 
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 Sec. 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.

[36 FR 7186, Apr. 15, 1971, as amended at 53 FR 49660, Dec. 9, 1988]



Sec. 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.

[[Page 52]]



Sec. 4.24  Basis of decision.

    (a) Record. (1) The record of a hearing shall consist of the 
transcript of testimony or summary of testimony and exhibits together 
with all papers and requests filed in the hearing.
    (2) If a hearing has been held on an appeal pursuant to instructions 
of an Appeals Board, this record shall be the sole basis for decision 
insofar as the referred issues of fact are involved except to the extent 
that official notice may be taken of a fact as provided in paragraph (b) 
of this section.
    (3) Where a hearing has been held in other proceedings, the record 
made shall be the sole basis for decision except to the extent that 
official notice may be taken of a fact as provided in paragraph (b) of 
this section.
    (4) In any case, no decision 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 
Sec. 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.

[36 FR 7186, Apr. 15, 1971, as amended at 53 FR 49660, Dec. 9, 1988]



Sec. 4.25  Oral argument.

    The Director or an Appeals Board may, in their discretion, grant an 
opportunity for oral argument.



Sec. 4.26  Subpoena power and witness provisions generally.

    (a) Compulsory attendance of witnesses. The administrative law 
judge, on his own motion, or on written application of a party, is 
authorized to issue subpoenas requiring the attendance of witnesses at 
hearings to be held before him or at the taking of depositions to be 
held before himself or other officers. Subpoenas will be issued on a 
form approved by the Director. A subpoena may be served by any person 
who is not a party and is not less than 18 years of age, and the 
original subpoena bearing a certificate of service shall be filed with 
the administrative law judge. A witness may be required to attend a 
deposition or hearing at a place not more than 100 miles from the place 
of service.
    (b) Application for subpoena. Where the file has not yet been 
transmitted to the administrative law judge, the application for a 
subpoena may be filed in the office of the officer who made the decision 
appealed from, or in the office of the Bureau of Land Management in 
which the complaint was filed, in which cases such offices will forward 
the application to the examiner.
    (c) Fees payable to witnesses. (1) Witnesses subpoenaed by any party 
shall be paid the same fees and mileage as are paid for like service in 
the District Courts of the United States. The witness fees and mileage 
shall be paid by the party at whose instance the witness appears.
    (2) Any witness who 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.



Sec. 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) Prohi-
bition. 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

[[Page 53]]

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. An administrative law judge or Board member 
shall withdraw from a case if he deems himself disqualified under the 
recognized canons of judicial ethics. If, prior to a decision of an 
administrative law judge or an Appeals Board, there is filed in good 
faith by a party an affidavit of personal bias or disqualification with 
substantiating facts, and the administrative law judge or Board member 
concerned does not withdraw, the Board or the Director, as appropriate, 
shall determine the matter of disqualification.

[36 FR 7186, Apr. 15, 1971, as amended at 50 FR 43705, Oct. 29, 1985; 53 
FR 49660, Dec. 9, 1988]



Sec. 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.



Sec. 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.



Sec. 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 which he considers to be 
necessary for the effective administration of that regulation.



Sec. 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

[[Page 54]]

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) To return all 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.

[[Page 55]]

    (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.

[53 FR 49661, Dec. 9, 1988]



   Subpart C--Special Rules of Practice Before the Interior Board of 
                            Contract Appeals

    Authority: 5 U.S.C. 301 and the Contract Disputes Act of 1978 (Pub. 
L. 95-563, Nov. 1, 1978 (41 U.S.C. 601-613)).

    Source: 46 FR 57499, Nov. 24, 1981, unless otherwise noted.



Sec. 4.100  General rules and guidelines.

    (a) Effective date and applicability--(1) Effective date and general 
applicability. These rules shall be in effect on and after March 1, 
1979, and except as qualified by the provisions of paragraphs (a)(2) and 
(3) of this section, shall apply to all appeals brought before the 
Interior Board of Contract Appeals.
    (2) Special applicability. The rule set forth in Sec. 4.102(a) 
provides for alternative applicability, depending upon whether the 
appeal involved is subject to the Contract Disputes Act of 1978, Public 
Law 95-563 (41 U.S.C. 601-613). The rules set forth in Secs. 4.102 (c), 
(d), and (e), 4.113, and 4.120 shall apply exclusively to appeals which 
are subject to the Contract Disputes Act of 1978.
    (3) When an appeal is subject to the Contract Disputes Act of 1978. 
An appeal shall be subject to the Contract Disputes Act of 1978 if it 
involves a contract entered into on or after March 1, 1979; or, at the 
election of the appellant, if the appeal involves a contract entered 
into before March 1, 1979, and the contracting officer's decision from 
which the appeal is taken is dated March 1, 1979, or thereafter.
    (b) Jurisdiction for considering appeals. The Interior Board of 
Contract Appeals (referred to herein as the ``Board'') shall consider 
and determine appeals from decisions of contracting officers relating to 
contracts made by (i) the Department of the Interior or (ii) any other 
executive agency when such agency or the Administrator of the Office of 
Federal Procurement Policy has duly designated the Board to decide the 
appeal.
    (c) Location and organization of the Board. (1) The Board's address 
is 801 North Quincy Street, Arlington, Virginia 22203. Its telephone 
number is (703) 235-3813.
    (2) The Board consists of a Chairman, Vice Chairman, and other 
members all of whom are attorneys at law duly licensed by a State, 
Commonwealth, Territory, or the District of Columbia. In general, the 
appeals are assigned to a panel of at least two members who decide the 
cases. However, in cases of disagreement, or unusual circumstances, a 
panel of three members will be assigned to decide by a majority vote. 
Board members are designated Administrative Judges.
    (d) Time extensions and computations. (1) Where possible, procedural 
actions should be taken in less time than the maximum time allowed. 
Where appropriate and justified, however, extensions of time will be 
granted. All requests for extensions of time shall be in writing.
    (2) In computing any period of time, the day of the event from which 
the designated period of time begins to run shall not be included, but 
the last day of the period shall be included unless it is a Saturday, 
Sunday, or a legal holiday, in which event the period shall run to the 
end of the next business day.
    (e) General guidelines--(1) Place of filings. Unless the Board 
otherwise directs, all notices of appeal, pleadings, and other 
communications shall be filed with the Board at the address indicated 
herein. Communications to the Board shall be addressed to Interior Board 
of Contract Appeals, 801 North Quincy Street, Arlington, Virginia 22203.
    (2) Representation of parties. Whenever in these rules reference is 
made to contractor, appellant, contracting officer, respondent, or 
parties, this shall include respective counsel for the parties, as soon 
as appropriate notices of appearances have been filed with the

[[Page 56]]

Board. In those cases where an executive agency, other than the 
Department of the Interior, has designated the Board to adjudicate its 
contract appeals, the term, ``Department Counsel,'' shall mean 
Government Counsel assigned to represent such agency.
    (3) Interpretation of these rules. These rules will be interpreted 
so as to secure a just and inexpensive determination of appeals without 
unnecessary delay.
    (4) Decisions on questions of law. When an appeal is taken pursuant 
to a disputes clause in a contract which limits appeals to disputes 
concerning questions of fact, the Board will, nevertheless, consider and 
decide all questions of law necessary for the complete adjudication of 
the issues.
    (f) Ex parte communications. No member of the Board or of the 
Board's staff shall entertain, nor shall any person directly or 
indirectly involved in an appeal submit to the Board or the Board's 
staff, off the record, any evidence, explanation, analysis, or advice, 
whether written or oral, without the knowledge and consent of the 
adverse party, regarding any matter at issue in that appeal. This 
provision does not apply to consultation among Board members or to ex 
parte communications concerning the Board's administrative functions or 
procedures.
    (g) Sanctions. If any party fails or refuses to obey an order issued 
by the Board, the Board may make such order in regard to the failure as 
it considers necessary to the just and expeditious conduct of the 
appeal.

[46 FR 57499, Nov. 24, 1981, as amended at 50 FR 8325, Mar. 1, 1985; 67 
FR 4368, Jan. 30, 2002]

                       Prehearing Procedure Rules



Sec. 4.101  Who may appeal.

    Any contractor may appeal to the Board from decisions of contracting 
officers of any bureau or office of the Department of the Interior, or 
of any other agency with respect to which the Board exercises contract 
appeals jurisdiction, on disputed questions under contract provisions 
requiring the determination of such appeals by the head of the agency or 
his duly authorized representative or Board.



Sec. 4.102  Appeals--how taken.

    (a) Notice of appeal. Notice of an appeal must be in writing (a 
suggested form of notice appears as appendix I to subpart C herein 
following Sec. 4.128). The original, together with two copies, may be 
filed with the Board or the contracting officer from whose decision the 
appeal is taken. The notice of appeal must be mailed or otherwise filed 
within 90 days from the date of receipt of the contracting officer's 
decision, if the appeal is subject to the Contract Disputes Act of 1978; 
otherwise, within the time specified therefor in the contract.
    (b) Contents of notice of appeal. A notice of appeal should indicate 
that an appeal is thereby intended, and should identify the contract (by 
number), the Department's bureau or office involved in the dispute, and 
the decision from which the appeal is taken. The notice of appeal should 
be signed personally by the appellant (the contractor making the 
appeal), or by an authorized officer of the appellant corporation or 
member of the appellant firm, or by the contractor's duly authorized 
representative or attorney. The complaint referred to in Sec. 4.107 may 
be filed with the notice of appeal, or the contractor may designate the 
notice of appeal as a complaint, if it otherwise fulfills the 
requirements of a complaint.
    (c) Failure of CO to issue decision on claims of $50,000 or less. 
Where the contractor has submitted a claim of $50,000 or less to the 
contracting officer and has requested a written decision within 60 days 
from receipt of the request, and the contracting officer has not 
complied, the contractor may file a notice of appeal as provided in 
paragraph (a) of this section, citing the failure of the contracting 
officer to issue a decision. (See Sec. 4.100(a)(2).)
    (d) Failure of CO to issue decision on claims in excess of $50,000. 
Where the contractor has submitted a claim in excess of $50,000 to the 
contracting officer and the contracting officer has failed to issue a 
decision within a reasonable time, the contractor may file a notice of 
appeal as provided in paragraph (a) of this section, citing the failure 
to issue a decision. (See Sec. 4.100(a)(2).)
    (e) Optional stay of proceeding. Upon docketing of appeals filed 
pursuant to

[[Page 57]]

paragraphs (c) or (d) of this section, the Board may at its option, stay 
further proceedings pending issuance of a final decision by the 
contracting officer within such period of time as is determined by the 
Board. (See Sec. 4.100(a)(2).)



Sec. 4.103  Forwarding and docketing of appeals.

    (a) Forwarding of appeal. When a notice of appeal in any form has 
been received by the contracting officer, he shall endorse thereon the 
date of mailing (or the date of receipt, if the notice was otherwise 
conveyed) and within 5 days shall forward said notice of appeal to the 
Board by certified mail. He shall also promptly notify the Department's 
Office of the Solicitor, in accordance with instructions of the 
Solicitor, that the appeal has been received in order that a Department 
counsel may be appointed.
    (b) Docketing of appeals. When a notice of appeal in any form has 
been received by the Board, it shall be docketed promptly. Notice in 
writing of the fact of docketing, together with a copy of these rules, 
shall be mailed promptly by certified mail to the appellant. Also, a 
copy of such notice, together with a copy of the notice of appeal if not 
originally filed with the contracting officer, shall be mailed promptly 
by certified mail to the contacting officer. Such notice shall 
acknowledge receipt of the appeal and advise appellant of the appeal 
number assigned to the appeal.



Sec. 4.104  Preparation, organization, transmittal, and status of appeal file.

    (a) Preparation and transmittal of appeal file. Following receipt of 
a notice of appeal, or advice that an appeal has been docketed, the 
contracting officer shall promptly, and in any event within 30 days, 
compile and transmit to the Board the appeal file which shall consist of 
copies of all documents pertinent to the appeal. Within the same time 
period the contracting officer shall also prepare and transmit a copy of 
the appeal file to the Department counsel and a copy to the appellant or 
appellant's counsel. (However, the obligations of this subparagraph are 
subject to the provisions of paragraph (e) of this section.)
    (b) Composition of appeal file. The appeal file shall include the 
following:
    (1) The findings of fact and decision from which the appeal is 
taken, and the letter or letters or other documents of claim in response 
to which the decision was issued;
    (2) The contract, and pertinent plans, drawings, specifications, 
amendments, and change orders;
    (3) All correspondence between the parties pertinent to the appeal; 
and
    (4) Such additional information as may be considered pertinent and 
material.
    (c) Organization of appeal file. Documents in the appeal file may be 
originals, legible facsimiles, or authenticated copies thereof, and 
shall be arranged in chronological order where practicable, numbered 
sequentially, tabbed, and indexed to indentify the contents of the file, 
and bound. Any single document consisting of three or more pages shall 
be numbered sequentially for convenient reference at the hearing and in 
the preparation of briefs.
    (d) Opportunity for appellant to supplement appeal file. The 
appellant shall be afforded the opportunity of supplementing the appeal 
file with such documentation as may be deemed pertinent to the appeal. 
The appellant shall be obligated, however, to furnish to Department 
counsel a copy of any document by which the appeal file is supplemented.
    (e) Burdensome documents. The Board may waive the requirement of 
furnishing to the other party copies of bulky, lengthy, or out-of-size 
documents in the appeal file if a party has shown that doing so would 
impose an undue burden. At the time a party files with the Board a 
document as to which such a waiver has been granted, he shall notify the 
other party that the same or a copy is available for inspection at the 
offices of the Board or of the party filing the same.

[[Page 58]]



Sec. 4.105  Dismissal for lack of jurisdiction.

    Any motion challenging the jurisdiction of the Board shall be filed 
promptly. Hearing on the motion shall be afforded on application of 
either party, unless the Board determines that its decision on the 
motion will be deferred pending hearing on both the merits and the 
motion. The Board has authority to raise at any time and on its own 
motion the issue of its jurisdiction to conduct a proceeding and may 
afford the parties an opportunity to be heard thereon.



Sec. 4.106  Representation and appearances.

    (a) The Appellant. An individual appellant may appear before the 
Board in person, a corporation by one if its officers; and a partnership 
or joint venture by one of its members; or any of these by an attorney 
at law duly licensed in any state, commonwealth, territory, the District 
of Columbia, or in a foreign country. An attorney representing an 
appellant shall file a written notice of appearance with the Board.
    (b) The Government. Department or Government counsel may, in 
accordance with their authority, represent the interest of the 
Government before the Board. They shall file notices of appearance with 
the Board, and notice thereof will be given appellant or appellant's 
attorney.



Sec. 4.107  Pleadings.

    (a) Complaint. Within 30 days after receipt of notice of docketing 
of the appeal, the appellant shall file with the Board an original and 
one copy of a complaint setting forth simple, concise, and direct 
statements of each claim, alleging the basis with appropriate reference 
to contract provisions for each claim, and the dollar amount claimed. 
This pleading shall fulfill the generally recognized requirements of a 
complaint, although no particular form or formality is required. Letter 
size paper should be used for the complaint and for all other papers 
filed with the Board. Where the appeal arises out of a contract made 
with the Department of the Interior, a copy of the complaint shall be 
served by appellant upon the Department counsel if known, otherwise, 
upon the Solicitor, U.S. Department of the Interior, C Street, between 
18th and 19th Streets, NW., Washington, DC 20240. Where the appeal 
arises out of a contract made with an agency other than the Department 
of the Interior, a copy of the complaint shall be served by appellant 
upon the General Counsel for that agency. All such service shall be made 
in accordance with Sec. 4.117. Should the complaint not be received 
within 30 days, appellant's claim and appeal documents may, if in the 
opinion of the Board the issues before the Board are sufficiently 
defined, be deemed to set forth a complaint and the Department counsel 
will be so notified.
    (b) Answer. Within 30 days from receipt of said complaint, or the 
aforesaid notice from the Board, the Department counsel shall prepare 
and file with the Board an original and one copy of an answer thereto, 
setting forth simple, concise, and direct statements of the Government's 
defenses to each claim asserted by appellant. This pleading shall 
fulfill the generally recognized requirements of an answer, and shall 
set forth any affirmative defenses or counterclaims, as appropriate. One 
copy of the answer will be served by the Department counsel upon the 
appellant in accordance with Sec. 4.117. Should the answer not be 
received within 30 days, the Board, may, in its discretion enter a 
general denial on behalf of the Government, and the appellant shall be 
so notified.



Sec. 4.108  Amendments of pleadings or record.

    (a) The Board may, in its discretion, upon its own initiative or 
upon application by a party, order a party to make a more definite 
statement of the complaint or answer, or to reply to an answer.
    (b) The Board may, in its discretion, and within the proper scope of 
the appeal, permit either party to amend his pleading upon conditions 
just to both parties. When issues within the proper scope of the appeal, 
but not raised by the pleadings or the appeal file, are tried by express 
or implied consent of the parties, or by permission of the

[[Page 59]]

Board, they shall be treated in all respects as if they had been raised 
therein. In such circumstances motions to amend the pleadings to conform 
to the proof may be entered, but are not required. If evidence is 
objected to at a hearing on the ground that is is not within the issues 
raised by the pleadings or said appeal file (which shall be deemed part 
of the pleadings for this purpose), it may be admitted within the proper 
scope of the appeal: Provided, however, That the objecting party may be 
granted a continuance if necessary to enable him to meet such evidence.



Sec. 4.109  Hearing--election.

    Within 15 days after the Government's answer has been served upon 
the appellant, or within 20 days of the date upon which the Board enters 
a general denial on behalf of the Government, notification as to whether 
one or both of the parties desire an oral hearing on the appeal should 
be given to the Board. In the event either party requests an oral 
hearing, the Board will schedule the same as hereinafter provided. In 
the event both parties waive an oral hearing, the Board, unless it 
directs an oral hearing, will decide the appeal on the record before it, 
supplemented as it may permit or direct. A party failing to elect an 
oral hearing within the time limitations specified in this section may 
be deemed to have submitted its case on the record.



Sec. 4.110  Prehearing briefs.

    Based on an examination of the appeal file, the pleadings, and a 
determination of whether the arguments and authorities addressed to the 
issues are adequately set forth therein, the Board may, in its 
discretion, require the parties to submit prehearing briefs in any case 
in which a hearing has been elected pursuant to Sec. 4.109. In the 
absence of a Board requirement therefore, either party may, in its 
discretion, and upon appropriate and sufficient notice to the other 
party, furnish a prehearing brief to the Board. In any case where a 
prehearing brief is submitted, it shall be furnished so as to be 
received by the Board at least 15 days prior to the date set for 
hearing, and a copy shall be furnished simultaneously to the other 
party.



Sec. 4.111  Prehearing or presubmission conference.

    Whether the case is to be submitted without a hearing, or heard 
pursuant to Secs. 4.118 through 4.123, the Board may upon its own 
initiative or upon the application of either party, call upon the 
parties to appear before a member or hearing officer of the Board for a 
conference to consider:
    (a) The simplification or clarification of the issues;
    (b) The possibility of obtaining stipulations, admissions, 
agreements on documents, understandings on matters already of record, or 
similar agreements which will avoid unnecessary proof;
    (c) The limitation of the number of expert witnesses, or avoidance 
of similar cumulative evidence, if the case is to be heard;
    (d) The possibility of agreement disposing of all or any of the 
issues in dispute; and
    (e) Such other matters as may aid in the disposition of the appeal.

Any conference results that are not reflected in a transcript shall be 
reduced to writing by the Board member or the hearing officer. This 
writing shall thereafter constitute part of the record.



Sec. 4.112  Submission without a hearing.

    Either party may elect to waive a hearing and to submit his case 
upon the Board record, as settled pursuant to Sec. 4.114. Such waiver 
shall not affect the other party's rights under Sec. 4.109. In the event 
of such election (see the time limitations for election in Sec. 4.109), 
the submission may be supplemented by oral argument (transcribed if 
requested) and by briefs.



Sec. 4.113  Optional small claims (expedited) and accelerated procedures. (See Sec. 4.100(a)(2).)

    (a) The procedures set forth in this rule are available solely at 
the election of the appellant.
    (b) Elections to utilize small claims (expedited) and accelerated 
procedure. (1) In appeals where the amount in dispute is $10,000 or 
less, the appellant may elect

[[Page 60]]

to have the appeal processed under a SMALL CLAIMS (EXPEDITED) procedure 
requiring a decision of the appeal, whenever possible, within 120 days 
after the Board receives written notice of the appellant's election to 
utilize this procedure. The details of this procedure appear in 
paragraph (c) of this section. An appellant may elect the ACCELERATED 
procedure rather than the SMALL CLAIMS (EXPEDITED) procedure for any 
appeal eligible for the SMALL CLAIMS (EXPEDITED) procedure.
    (2) In appeals where the amount in dispute is $50,000 or less, the 
appellant may elect to have the appeal processed under an ACCELERATED 
procedure requiring decision of the appeal, whenever possible, within 
180 days after the Board receives written notice of the appellant's 
election to utilize this procedure. The details of this procedure appear 
in paragraph (d) of this section.
    (3) The appellant's election of either the SMALL CLAIMS (EXPEDITED) 
procedure or the ACCELERATED procedure may be made either in the notice 
of appeal or by other written notice at any time thereafter.
    (4) In deciding whether the SMALL CLAIMS (EXPEDITED) procedure or 
the ACCELERATED procedure is applicable to a given appeal the Board 
shall determine the amount in dispute by adding the amount claimed by 
the appellant against the respondent to the amount claimed by respondent 
against the appellant. If either party making a claim against the other 
party does not otherwise state in writing the amount of its claim, the 
amount claimed by such party shall be the maximum amount which such 
party represents in writing to the Board that it can reasonably expect 
to recover against the other.
    (c) The SMALL CLAIMS (EXPEDITED) procedure. (1) This procedure shall 
apply only to appeals where the amount in dispute is $10,000 or less as 
to which the appellant has elected the SMALL CLAIMS (EXPEDITED) 
procedure.
    (2) In cases proceeding under the SMALL CLAIMS (EXPEDITED) 
procedure, the following time periods shall apply (i) within 10 days 
from the respondent's first receipt from either the appellant or the 
Board of a copy of the appellant's notice of election of the SMALL 
CLAIMS (EXPEDITED) procedure, the respondent shall send the Board a copy 
of the contract, the contracting officer's final decision, and the 
appellant's claim letter or letters, if any; (ii) within 15 days after 
the Board has acknowledged receipt of the notice of election, either 
party desiring an oral hearing shall so inform the Board. If either 
party requests an oral hearing, the Board shall promptly schedule such a 
hearing for a mutually convenient time consistent with administrative 
due process and the 120-day limit for a decision, at a place determined 
under Sec. 4.118. If a hearing is not requested by either party within 
the time prescribed by this Rule, the appeal shall be deemed to have 
been submitted under Sec. 4.112 without a hearing.
    (3) In cases proceeding under the SMALL CLAIMS (EXPEDITED) 
procedure, pleadings, discovery, and other prehearing activity will be 
allowed only as consistent with the requirement to conduct the hearing 
on the date scheduled or, if no hearing is scheduled, to close the 
record on a date that will allow decision within the 120-day limit. The 
Board, in its discretion, may shorten time periods prescribed elsewhere 
in these Rules as necessary to enable the Board to decide the appeal 
within 120 days after the Board has received the appellant's notice of 
elections of the SMALL CLAIMS (EXPEDITED) procedure. In so doing the 
Board may reserve whatever time up to 30 days it considers necessary for 
preparation of the decision.
    (4) Written decision by the Board in cases processed under the SMALL 
CLAIMS (EXPEDITED) procedure will be short and contain only summary 
findings of fact and conclusions. Decisions will be rendered for the 
Board by a single Administrative Judge. If there has been a hearing, the 
Administrative Judge presiding at the hearing may, in his discretion, at 
the conclusion of the hearing and after entertaining such oral arguments 
as he deems appropriate, render on the record oral summary findings of 
fact, conclusions, and a decision of the Appeal. Whenever such an oral 
decision is rendered, the

[[Page 61]]

Board will subsequently furnish the parties a typed copy of such oral 
decision for the record and payment purposes and to establish the date 
of commencement of the period for filing a motion for reconsideration 
under Sec. 4.126.
    (5) Decisions of the Board under the SMALL CLAIMS (EXPEDITED) 
procedure will not be published, will have no value as precedents, and 
in the absence of fraud, cannot be appealed.
    (d) The ACCELERATED procedure. (1) This procedure shall apply only 
to appeals where the amount in dispute is $50,000 or less as to which 
the appellant has made the requisite election.
    (2) In cases proceeding under the ACCELERATED procedure, the parties 
are encouraged, to the extent possible consistent with adequate 
presentation of their factual and legal positions, to waive pleadings, 
discovery, and briefs. The Board, in its discretion, may shorten time 
periods prescribed elsewhere in these Rules as necessaray to enable the 
Board to decide the appeal within 180 days after the Board has received 
the appellant's notice of election of the ACCELERATED procedure, and may 
reserve 30 days for the preparation of the decision.
    (3) Written decisions by the Board in cases processed under the 
ACCELERATED procedure will normally be short and contain only summary 
findings of fact and conclusions. Decisions will be rendered for the 
Board by a single Administrative Judge with the concurrence of the 
Chairman or Vice Chairman or other designated Administrative Judge, or 
by a majority among these two and an additional designated member in 
case of disagreement. Alternatively, in cases where the amount in 
dispute is $10,000 or less as to which the ACCELERATED procedure has 
been elected and in which there has been a hearing, the single 
Administrative Judge presiding at the hearing may, with the concurrence 
of both parties, at the conclusion of the hearing and after entertaining 
such oral agruments as he deems appropriate, render on the record oral 
summary findings of fact, conclusions, and a decision of the appeal. 
Whenever such an oral decision is rendered, the Board will subsequently 
furnish the parties a typed copy of such oral decision for record and 
payment purposes and to establish the date of commencement of the period 
for filing a motion for reconsideration under Sec. 4.126.
    (e) Motions for reconsideration in cases arising under Sec. 4.113. 
Motions for reconsideration of cases decided aunder either the SMALL 
CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure need not be 
decided within the time period prescribed by this Sec. 4.113 for the 
initial decision of the appeal, but all such motions shall be processed 
and decided rapidly so as to fulfill the intent of this rule.



Sec. 4.114  Settling of the record.

    (a) A case submitted on the record pursuant to Sec. 4.112 shall be 
ready for decision when the parties are so notified by the Board. A case 
which is heard shall be ready for decision upon receipt of transcript, 
or upon receipt of briefs when briefs are to be submitted. At any time 
prior to the date that a case is ready for decision, either party, upon 
notice to the other, may supplement the record with documents and 
exhibits deemed relevant and material by the Board. The Board upon its 
own initiative may call upon either party, with appropriate notice to 
the other, for evidence deemed by it to be relevant and material. The 
weight to be attached to any evidence of record will rest within the 
sound discretion of the Board. Either party at any stage of the 
proceeding, on notice to the other party, may object to the relevancy or 
materiality of documents in the record or offered into the record.
    (b) The Board record shall consist of the appeal file described in 
Sec. 4.104(b) and any additional material, pleadings, prehearing briefs, 
record of prehearing, or presubmission conferences, depositions, 
interrogatories, admissions, transcripts of hearing, hearing exhibits, 
and posthearing briefs, as may thereafter be developed pursuant to these 
rules. In deciding appeals the Board, in addition to considering the 
Board record, may take official notice of facts within general 
knowledge.
    (c) This record will at all times be available for inspection by the 
parties at an appropriate time and place. In

[[Page 62]]

the interest of convenience, prior arrangements for inspection of the 
file should be made with the Recorder of the Board. Copies of material 
in the record may be furnished to appellant as provided in part 2 of 
this subtitle.



Sec. 4.115  Discovery--depositions.

    (a) General policy and protective orders. The parties are encouraged 
to engage in voluntary discovery procedures. In connection with any 
deposition or other discovery procedure, the board may make any order 
which justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, and those orders 
may include limitations on the scope, method, time and place for 
discovery, and provisions for protecting the secrecy of confidential 
information or documents.
    (b) When depositions permitted. After an appeal has been docketed, 
the parties may mutually agree to, or the Board may, upon application of 
either party and for good cause shown, order the taking of testimony of 
any person by deposition upon oral examination or written 
interrogatories before any officer authorized to administer oaths at the 
place of examination, for use as evidence or for purpose of discovery. 
The application for such an order shall specify whether the purpose of 
the depositon is discovery or for use as evidence.
    (c) Orders on depositions. The time, place, and manner of taking 
depositions shall be, as mutually agreed by the parties, or, failing 
such agreement, governed by order of the Board.
    (d) Use as evidence. No testimony taken by depositions shall be 
considered as part of the evidence in the hearing of an appeal unless 
and until such testimony is offered and received in evidence at such 
hearing. It will not ordinarily be received in evidence if the deponent 
is present and can testify personally at the hearing. In such instances, 
however, the depositions may be used to contradict or impeach the 
testimony of the witness given at the hearing. In cases submitted on the 
record, the Board may in its discretion receive depositions as evidence 
in supplementation of that record.
    (e) Expenses. Each party shall bear its own expenses associated with 
the taking of any deposition.



Sec. 4.116  Interrogatories to parties; inspection of documents; admission of facts.

    Under appropriate circumstances, but not as a matter of course, the 
Board will entertain applications for permission to serve written 
interrogatories upon the opposing party, applications for an order to 
produce and permit the inspection of designated documents, and 
applications for permission to serve upon the opposing party a request 
for the admission of specified facts. Such applications shall be 
reviewed and approved only to the extent and upon such terms as the 
Board in its discretion considers to be consistent with the objective of 
securing just and inexpensive determination of appeals without 
unnecessary delay, and essential to the proper pursuit of that objective 
in the particular case.



Sec. 4.117  Service of papers.

    A copy of all pleadings, briefs, motions, letters, or other papers 
filed with the Board, shall be served upon the other party at the time 
of filing. Service of papers may be made personally or by mailing in a 
sealed envelope addressed to the other party. Any paper filed with the 
Board shall show on its face, or in the letter transmitting the same, 
that a copy thereof has been served upon the other party. When the other 
party is represented by counsel, such service shall be made upon him, 
and service upon counsel shall be deemed to be service upon the party he 
represents.

                         Hearing Procedure Rules



Sec. 4.118  Hearings--where and when held.

    Hearings may be held in Arlington, Virginia, or upon timely request 
and for good cause shown, the Board may in its discretion set the 
hearing on an appeal at a location other than Arlington, Virginia. 
Hearins will be scheduled at the discretion of the Board with due 
consideration to the regular order of appeals and other pertinent 
factors. However, where it is apparent that no

[[Page 63]]

issue of fact is presented in an appeal proceeding, the Board may deny a 
request for hearing. On request or motion by either party and for good 
cause shown, the Board may in its discretion adjust the date of a 
hearing.



Sec. 4.119  Notice of hearings.

    The parties shall be given at least 15 days' notice of the time and 
place set for hearings. In scheduling hearings, the Board will give due 
regard to the desires of the parties, and to the requirement for just 
and prompt determination of appeals. Receipt of a notice of hearing 
shall be promptly acknowledged by the parties. A party failing to 
acknowledge a notice of hearing shall be deemed to have consented to the 
indicated time and place of hearing.



Sec. 4.120  Subpoenas. (See Sec. 4.100(a)(2).)

    (a) General. Upon written request of either party filed with the 
docket clerk or on his own initiative, the Administrative Judge to whom 
a case is assigned or who is otherwise designated by the Chairman may 
issue a subpoena requiring:
    (1) Testimony at a deposition-- the deposing of a witness, in the 
city or county where he resides or is employed or transacts his business 
in person, or at another location convenient for him that is 
specifically determined by the Board;
    (2) Testimony at a hearing-- the attendance of a witness for the 
purpose of taking testimony at a hearing; and
    (3) Production of books and papers-- in addition to paragraphs (a) 
(1) and (2) of this section, the production by the witness at the 
deposition or hearing of books and papers designated in the subpoena.
    (b) Voluntary cooperation. Each party is expected (1) to cooperate 
and make available witnesses and evidence under its control as requested 
by the other party, without issuance of a subpoena, and (2) to secure 
voluntary attendance of desired third-party books, papers, documents, or 
tangible things whenever possible.
    (c) Requests for subpoenas. (1) A request for a subpoena shall 
normally be filed at least:
    (i) 15 days before a scheduled deposition where the attendance of a 
witness at a deposition is sought;
    (ii) 30 days before a scheduled hearing where the attendance of a 
witness at a hearing is sought.

In its discretion the Board may honor requests for subpoenas not made 
within these time limitations.
    (2) A request for a subpoena shall state the reasonable scope and 
general relevance to the case of the testimony and of any books and 
papers sought.
    (d) Request to quash or modify. Upon written request by the person 
subpoenaed or by a party, made within 10 days after service but in any 
event not later than the time specified in the subpoena for compliance, 
the Board may (1) quash or modify the subpoena if it is unreasonable and 
oppressive or for other good cause shown, or (2) require the person in 
whose behalf the subpoena was issued to advance the reasonable cost of 
producing subpoenaed books and papers. Where circumstances require, the 
Board may act upon such a request at any time after a copy has been 
served upon the opposing party.
    (e) Forms--issuance. (1) Every subpoena shall state the name of the 
Board and the title of the appeal and shall command each person to whom 
it is directed to attend and give testimony, and if appropriate, to 
produce specified books and papers at a time and place therein 
specified. In issuing a subpoena to a requesting party, the 
Administrative Judge shall sign the subpoena and may in his discretion, 
enter the name of the witness and otherwise leave it blank. The party to 
whom the subpoena is issued shall complete the subpoena before service.
    (2) Where the witness is located in a foreign country, a letter 
rogatory or subpoena may be issued and served under the circumstances 
and in the manner provided in 28 U.S.C. 1781-1784.
    (f) Service. (1) The party requesting issuance of subpoena shall 
arrange for service.
    (2) A subpoena requiring the attendance of a witness at a deposition 
or hearing may be served at any place. A subpoena may be served by a 
U.S. marshal or deputy marshal, or by any other person who is not a 
party and not less than 18 years of age. Service of a

[[Page 64]]

subpoena upon a person named therein shall be made by personally 
delivering a copy to that person and tendering the fees for 1 day's 
attendance and the mileage provided by 28 U.S.C. 1821 or other 
applicable law.
    (3) The party at whose instance a subpoena is issued shall be 
responsible for the payment of fees and mileage of the witness and of 
the officer who serves the subpoena. The failure to make payment of such 
charges on demand may be deemed by the Board as a sufficient ground for 
striking the testimony of the witness and the evidence the witness has 
produced.
    (g) Contumacy or refusal to obey a subpoena. In a case of contumacy 
or refusal to obey a subpoena by a person who resides, is found, or 
transacts business within the jurisdiction of a U.S. District Court, the 
Board will apply to the Court through the Attorney General of the United 
States for an order requiring the person to appear before the Board or a 
member thereof to give testimony or produce evidence or both. Any 
failure of any such person to obey the order of the Court may be 
punished by the Court as a contempt thereof.



Sec. 4.121  Unexcused absence of a party.

    The unexcused absence of a party at the time and place set for 
hearing will not be occasion for delay. In the event of such absence, 
the hearing will proceed and the case will be regarded as submitted by 
the absent party as provided in Sec. 4.112. The Board shall advise the 
absent party of the content of the proceedings had and that he has 5 
days from the receipt of such notice within which to show cause why the 
appeal should not be decided on the record made.



Sec. 4.122  Nature of hearings.

    Hearings shall be as informal as may be reasonable and appropriate 
in the circumstances. Appellant and respondent may offer at a hearing on 
the merits of such relevant evidence as they deem appropriate and as 
would be admissible under the generally accepted rules of evidence 
applied in the courts of the United States in nonjury trials, subject, 
however, to the sound discretion of the presiding member or hearing 
officer in supervising the extent and manner of presentation of such 
evidence. In general, admissibility will hinge on relevancy and 
materiality. Letters or copies thereof, affidavits, or other evidence 
not ordinarily admissible under the generally accepted rules of 
evidence, may be admitted in the discretion of the presiding member or 
hearing officer. The weight to be attached to evidence presented in any 
particular form will be within the discretion of the Board, taking into 
consideration all the circumstances of the particular case. Stipulations 
of fact agreed upon by the parties may be regarded and used as evidence 
at the hearing. The parties may stipulate the testimony that would be 
given by a witness if the witness were present. The Board may in any 
case require evidence in addition to that offered by the parties.



Sec. 4.123  Examination of witnesses.

    Witnesses before the Board will be examined orally under oath or 
affirmation, unless the facts are stipulated, or the presiding Board 
member or hearing officer shall otherwise order.



Sec. 4.124  Submission of briefs.

    Posthearing briefs may be submitted upon such terms as may be agreed 
upon by the parties and the presiding Board member or hearing officer at 
the conclusion of the hearing.

                       posthearing procedure rules



Sec. 4.125  Decisions.

    Decisions of the Board will be made upon the record, as described in 
Sec. 4.114(b). Copies thereof will be forwarded simultaneously to both 
parties by certified mail.



Sec. 4.126  Motions for reconsideration.

    A motion for reconsideration, if filed by either party, shall set 
forth specifically the ground or grounds relied upon in support of the 
motion, and shall be filed within 30 days from the date of the receipt 
of a copy of the Board's decision by the party filing the motion. 
Reconsideration of a decision, which may include a hearing or rehearing, 
may be granted if, in the judgment of the Board, sufficient reason 
therefor appears.

[[Page 65]]



Sec. 4.127  Dismissals.

    (a) Dismissal without prejudice. In certain cases, appeals docketed 
before the Board are required to be placed in a suspense status and the 
Board is unable to proceed with the disposition thereof for reasons not 
within the control of the Board. Where the suspension has continued, or 
may continue, for an inordinate length of time, the board may, in its 
discretion, dismiss such an appeal from the docket without prejudice to 
its reinstatement when the cause of suspension has been removed. Unless 
either party or the Board acts within 3 years to reinstate any appeal 
dismissed without prejudice, the dismissal shall be deemed to have been 
made with prejudice.
    (b) Dismissal for failure to prosecute or defend. Whenever a record 
discloses the failure of either party to file documents required by 
these rules, respond to notices or correspondence from the Board, comply 
with orders of the Board, or otherwise indicates an intention not to 
continue the prosecution or defense of an appeal, the Board may issue an 
order requiring the offending party to show cause why the appeal should 
not be either dismissed or granted, as appropriate. If no cause is 
shown, the Board may take appropriate action.



Sec. 4.128  Remands from courts.

    Whenever any matter is remanded to the Board from any court for 
further proceedings, each of the parties, shall, within 20 days of such 
remand, submit a report to the Board, recommending procedures to be 
followed in order to comply with the court's order. The Board will 
review the reports and issue the appropriate special orders.

  Appendix I to Subpart C of Part 4--Suggested Form of Notice of Appeal

Interior Board of Contract Appeals, 801 North Quincy Street, Arlington, 
VA 22203
(Date)__________________________________________________________________
(Name of Contractor)____________________________________________________
(Address)_______________________________________________________________
Contract No.____________________________________________________________
(Invitation No.)________________________________________________________
Specifications No.______________________________________________________
(Name and Location of Project)__________________________________________
(Name of Bureau or Office)______________________________________________
    The undersigned contractor appeals to the Board of Contract Appeals 
from decision or findings of fact dated --------, by:
(Name of Contracting Officer)___________________________________________
    The decision or findings of fact is erroneous because: (State 
specific facts and circumstances and the contractual provisions 
involved.)
(Signature)_____________________________________________________________
(Title)_________________________________________________________________

[46 FR 57499, Nov. 24, 1981, as amended at 67 FR 4368, Jan. 30, 2002]



   Subpart D--Rules Applicable in Indian Affairs Hearings and Appeals

    Authority: Secs. 1, 2, 36 Stat. 855, as amended, 856, as amended, 
sec. 1, 38 Stat. 586, 42 Stat. 1185, as amended, secs. 1, 2, 56 Stat. 
1021, 1022; R.S. 463, 465; 5 U.S.C. 301; 25 U.S.C. secs. 2, 9, 372, 373, 
374, 373a, 373b, 410, 100 Stat, 61, as amended by 101 Stat. 886 and 101 
Stat. 1433, 25 U.S.C. 331 note.

    Cross Reference: See 25 CFR part 15 for rules setting forth the 
responsibilities and practices of the Bureau of Indian Affairs in the 
probate of Indian estates. See subpart A of this part for the authority, 
jurisdiction, and membership of the Board of Indian Appeals within the 
Office of Hearings and Appeals. For general rules applicable to 
proceeding before the Hearings Division, Board of Indian Appeals, and 
other Appeals Boards of the Office of Hearings and Appeals, see subpart 
B of this part.

 Determinations of Heirs and Approval of Wills, Except as to Members of 
    the Five Civilized Tribes and Osage Indians; Tribal Purchases of 
                    Interests Under Special Statutes

  Scope of Regulations; Definitions; General Authority of OHA Deciding 
                                Officials

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.200  Scope of regulations.

    Included in Secs. 4.200 through 4.202 are general rules applicable 
to all proceedings in subpart D of this part. Included in Secs. 4.203 
through 4.282 and Secs. 4.310 through 4.323 are procedural rules 
applicable to the settlement of trust estates of deceased Indians who

[[Page 66]]

die possessed of trust property; however, these rules do not apply to 
the restricted property of deceased Indians of the Five Civilized 
Tribes, deceased Osage Indians, and members of any tribe organized under 
25 U.S.C. 476, to the extent that the constitution, by-laws or charter 
of each tribe may be inconsistent with this subpart. Included within 
Secs. 4.300 through 4.308 are supplemental procedural rules applicable 
to determinations as to tribal purchase of certain property interests of 
decedents under special laws applicable to particular tribes. Included 
within Secs. 4.330 through 4.340 are procedural rules applicable to 
appeals to the Board of Indian Appeals from administrative actions or 
decisions issued by the Bureau of Indian Affairs as set forth in 
Sec. 4.330. Except as limited by the provisions herein, the rules in 
subparts A and B of this part apply to these proceedings.



Sec. 4.201  Definitions.

    As used in this subpart:
    Agency means the agency office or any other designated office in BIA 
having jurisdiction over trust or restricted property and money. This 
term also means any office of a tribe which has contracted or compacted 
the BIA probate function under 25 U.S.C. 450f or 458cc.
    Attorney decision maker means an attorney with BIA who reviews a 
probate package, determines heirs, approves wills and beneficiaries of 
the will, determines creditors' claims, and issues a written decision to 
the extent authorized by 25 CFR part 15.
    Beneficiary means any individual who receives trust or restricted 
property or money in a decedent's will.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    BIA deciding official means the official with the delegated 
authority to make a decision on a probate matter pursuant to 25 CFR part 
15, and may include a BIA regional director, agency superintendent, 
field representative, or attorney decision maker.
    Board means the Board of Indian Appeals in the Office of Hearings 
and Appeals, Office of the Secretary, authorized by the Secretary to 
hear, consider, and determine finally for the Department appeals taken 
by aggrieved parties from actions by OHA deciding officials on petitions 
for rehearing or reopening, and allowance of attorney fees, and from 
actions of BIA officials as provided in Sec. 4.1(b)(2).
    Child or children includes an adopted child or children.
    Commissioner includes the Deputy Commissioner of Indian Affairs and 
his or her authorized representatives.
    Day means a calendar day, unless otherwise stated.
    Decedent means a person who is deceased.
    Department means the Department of the Interior.
    Estate means the trust cash assets and restricted or trust property 
owned by the decedent at the time of his or her death.
    Heir means any individual who receives trust or restricted property 
or money from a decedent in an intestate proceeding.
    IIM account means funds held in an individual Indian monies account 
by OTFM or a tribe performing this function under a contract or compact.
    Intestate means the decedent died without a will.
    Minor means an individual who has not reached the age of majority as 
defined by the applicable tribal or state law.
    OHA deciding official means an employee of the Office of Hearings 
and Appeals with the authority to make a decision on a probate matter 
pursuant to this subpart. The OHA deciding official may be either an 
administrative law judge appointed pursuant to the Administrative 
Procedure Act, 5 U.S.C. 3105, or an Indian probate judge.
    OTFM means the Office of Trust Funds Management within the Office of 
the Special Trustee for American Indians, Department of the Interior, or 
its authorized representative.
    Party in interest means any presumptive or actual heir, any 
beneficiary under a will, any party asserting a claim against a deceased 
Indian's estate, and any Tribe having a statutory option to purchase 
interests of a decedent.
    Probate means the legal process by which applicable tribal law, 
state law,

[[Page 67]]

or federal law that affects the distribution of the decedent's estate is 
applied to:
    (1) Determine the heirs,
    (2) Approve wills and determine beneficiaries, and
    (3) Transfer any funds or property held in trust by the Secretary 
for a decedent, or any restricted property of the decedent, to the 
heirs, beneficiaries, or other persons or entities.
    Probate specialist means a BIA or tribal employee who is trained in 
Indian probate matters.
    Restricted property means real or personal property held by an 
Indian which he or she cannot alienate or encumber without the consent 
of the Secretary or his or her authorized representative. In this 
subpart, restricted property is treated as if it were trust property. 
Except with respect to Sec. 4.200, the term ``restricted property'' as 
used in this subpart does not include the restricted lands of the Five 
Civilized Tribes or Osage Tribe of Indians.
    Secretary means the Secretary of the Interior or his or her 
authorized representative.
    Solicitor means the Solicitor of the Department of the Interior or 
his or her authorized representative.
    Superintendent means the BIA Superintendent or other BIA officer 
having jurisdiction over an estate, including area field representatives 
or one holding equivalent authority.
    Testate means the decedent executed a will before his or her death.
    Trust property means real or personal property, or an interest 
therein, which the United States holds in trust for the benefit of an 
individual Indian.
    Will or last will and testament means a written testamentary 
document, including any properly executed written changes, called 
codicils, which was signed by the decedent and was attested by two 
disinterested adult witnesses, that states who will receive the 
decedent's trust or restricted property.



Sec. 4.202  General authority of OHA deciding officials.

    An OHA deciding official will, except as otherwise provided in 
Sec. 4.205(b) and 25 CFR 15.203 and 15.206, determine the heirs of any 
Indian who dies intestate possessed of trust property; approve or 
disapprove the will of a deceased Indian disposing of trust property; 
accept or reject any full or partial renunciation of interest in both 
testate and intestate proceedings; allow or disallow creditors' claims 
against the estate of a deceased Indian; and decree the distribution of 
trust property to heirs and devisees, including the partial distribution 
to known heirs or devisees where one or more potential heirs or devisees 
are missing but not presumed dead, after attributing to and setting 
aside for such missing person or persons the share or shares such person 
or persons would be entitled to if living. An OHA deciding official will 
determine the right of a tribe to take any inherited interest and the 
fair market value of the interest taken in appropriate cases as provided 
by statute. He or she will review each case de novo, hold hearings as 
necessary or appropriate, and issue decisions in matters appealed from 
decisions of BIA deciding officials. Administrative law judges will also 
hold hearings and issue recommended decisions in matters referred to 
them by the Board in the Board's consideration of appeals from 
administrative actions of BIA officials.

 Determination of Heirs; Approval of Wills; Settlement of Indian Trust 
                                 Estates

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.203  Determination as to nonexistent persons and other irregularities of allotments.

    (a) An OHA deciding official will hear and determine whether trust 
patents covering allotments of land were issued to nonexistent persons, 
and whether more than one trust patent covering allotments of land had 
been issued to the same person under different names and numbers or 
through other errors in identification.
    (b) If an OHA deciding official determines under paragraph (a) of 
this section that a trust patent issued to an existing person and/or 
that separate persons received the allotments under consideration and 
any one of them is deceased, without having had his or her estate 
probated, the OHA deciding official must proceed as provided in 
Sec. 4.202.

[[Page 68]]

    (c) If an OHA deciding official determines under paragraph (a) of 
this section that a person did not exist or that more than one allotment 
was issued to the same person, the OHA deciding official must issue a 
decision to that effect, giving notice thereof to parties in interest as 
provided in Sec. 4.240(b).



Sec. 4.204  Presumption of death.

    (a) An OHA deciding official will receive evidence on and determine 
the issue of whether any person, by reason of unexplained absence, is to 
be presumed dead.
    (b) If an OHA deciding official determines that an Indian person 
possessed of trust property is to be presumed dead, the OHA deciding 
official must proceed as provided in Sec. 4.202.



Sec. 4.205  Escheat.

    An OHA deciding official will determine whether any Indian holder of 
trust property died intestate without heirs and--
    (a) With respect to trust property other than on the public domain, 
order the escheat of such property in accordance with 25 U.S.C. 373a.
    (b) With respect to trust property on the public domain, submit to 
the Board of Indian Appeals the records thereon, together with 
recommendations as to the disposition of said property under 25 U.S.C. 
373b.



Sec. 4.206  Determinations of nationality or citizenship and status affecting character of land titles.

    In cases where the right and duty of the Government to hold property 
in trust depends thereon, an OHA deciding official will determine the 
nationality or citizenship, or the Indian or non-Indian status, of heirs 
or devisees, or whether Indian heirs or devisees of U.S. citizenship are 
of a class as to whose property the Government's supervision and 
trusteeship have been terminated in current probate proceedings or in 
completed estates after reopening such estates under, but without regard 
to the 3-year limit set forth in Sec. 4.242.



Sec. 4.207  Compromise settlement.

    (a) If during the course of the probate of an estate it develops 
that an issue between contending parties is of such nature as to be 
substantial, and it further appears that such issue may be settled by 
agreement preferably in writing by the parties in interest to their 
advantage and to the advantage of the United States, such an agreement 
may be approved by the OHA deciding official upon findings that:
    (1) All parties to the compromise are fully advised as to all 
material facts;
    (2) All parties to the compromise are fully cognizant of the effect 
of the compromise upon their rights; and
    (3) It is in the best interest of the parties to settle rather than 
to continue litigation.
    (b) In considering the proposed settlement, the OHA deciding 
official may take and receive evidence as to the respective values of 
specific items of property. Superintendents and irrigation project 
engineers must supply all necessary information concerning any liability 
or lien for payment of irrigation construction and of irrigation 
operation and maintenance charges.
    (c) Upon an affirmative determination as to all three points 
specified, the OHA deciding official will issue such final order of 
distribution in the settlement of the estate as is necessary to approve 
the same and to accomplish the purpose and spirit of the settlement. 
Such order will be construed as any other order of distribution 
establishing title in heirs and devisees and will not be construed as a 
partition or sale transaction within the provisions of 25 CFR part 152. 
If land titles are to be transferred, the necessary deeds must be 
prepared and executed at the earliest possible date. Upon failure or 
refusal of any party in interest to execute and deliver any deed 
necessary to accomplish the settlement, the OHA deciding official will 
settle the issues and enter an order as if no agreement had been 
attempted.
    (d) OHA deciding officials are authorized to approve all deeds or 
conveyances necessary to accomplish a settlement under this section.



Sec. 4.208  Renunciation of interest.

    Any person 21 years or older, whether of Indian descent or not, may 
renounce intestate succession or devise of trust

[[Page 69]]

or restricted property, wholly or partially (including the retention of 
a life estate), by filing a signed and acknowledged declaration of such 
renunciation with the OHA deciding official prior to entry of the final 
order by the OHA deciding official. No interest in the property so 
renounced is considered to have vested in the heir or devisee and the 
renunciation is not considered a transfer by gift of the property 
renounced, but the property so renounced passes as if the person 
renouncing the interest has predeceased the decedent. A renunciation 
filed in accordance herewith will be considered accepted when 
implemented in an order by an OHA deciding official and will be 
irrevocable thereafter. All disclaimers or renunciations heretofore 
filed with and implemented in an order by an OHA deciding official are 
hereby ratified as valid and effective.

                   Commencement of Probate Proceedings

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.210  Commencement of probate.

    The probate of a trust estate before an OHA deciding official will 
commence when the probate specialist or BIA deciding official files with 
the OHA deciding official all information shown in the records relative 
to the family of the deceased and his or her property. The information 
must include the complete probate package described in 25 CFR 15.104 and 
15.202 and any other relevant information. The agency or BIA deciding 
official must promptly transmit to the OHA deciding official any 
creditor's or other claims that are received after the case is 
transmitted to the OHA deciding official, for a determination of their 
timeliness, validity, priority, and allowance under Secs. 4.250 and 
4.251.



Sec. 4.211  Notice.

    (a) An OHA deciding official may receive and hear evidence at a 
hearing to determine the heirs of a deceased Indian or probate his or 
her will only after the OHA deciding official has caused notice of the 
time and place of the hearing to be posted at least 20 days prior to the 
hearing date in five or more conspicuous places in the vicinity of the 
designated place of hearing, and the OHA deciding official may cause 
postings in such other places and reservations as he or she deems 
appropriate. A certificate showing the date and place of posting must be 
signed by the person or official who performs the act.
    (b) The OHA deciding official must serve or cause to be served a 
copy of the notice on each party in interest known to the OHA deciding 
official and on each attesting witness if a will is offered:
    (1) By personal service in sufficient time in advance of the date of 
the hearing to enable the person served to attend the hearing; or
    (2) By mail, addressed to the person at his or her last known 
address, in sufficient time in advance of the date of the hearing to 
enable the addressee served to attend the hearing. The OHA deciding 
official must cause a certificate, as to the date and manner of such 
mailing, to be made on the record copy of the notice.
    (c) All parties in interest, known and unknown, including creditors, 
will be bound by the decision based on such hearing if they lived within 
the vicinity of any place of posting during the posting period, whether 
they had actual notice of the hearing or not. As to those not within the 
vicinity of the place of posting, a rebuttable presumption of actual 
notice will arise upon the mailing of such notice at a reasonable time 
prior to the hearing, unless the said notice is returned by the postal 
service to the office of the OHA deciding official unclaimed by the 
addressee.
    (d) Tribes to be charged with notice of death and probate. When a 
record reveals that a Tribe has a statutory option to purchase interests 
of a decedent, such Tribe must be notified of the pendency of a 
proceeding by the the OHA deciding official having probate jurisdiction 
in such proceeding, and the certificate of mailing of notice of probate 
hearing or of a final decision in probate to the Tribe at its record 
address will be conclusive evidence for all purposes that the Tribe had 
notice of

[[Page 70]]

decedent's death and notice of the pendency of the probate proceedings.



Sec. 4.212  Contents of notice.

    (a) In the notice of hearing, the OHA deciding official must specify 
that at the stated time and place the OHA deciding official will take 
testimony to determine the heirs of the deceased person (naming him or 
her) and, if a will is offered for probate, testimony as to the validity 
of the will describing it by date. The notice must name all known 
presumptive heirs of the decedent, and, if a will is offered for 
probate, the beneficiaries under such will and the attesting witnesses 
to the will. The notice must cite this subpart as the authority and 
jurisdiction for holding the hearing, and must inform all persons having 
an interest in the estate of the decedent, including persons having 
claims or accounts against the estate, to be present at the hearing or 
their rights may be lost by default.
    (b) The notice must state further that the hearing may be continued 
to another time and place. A continuance may be announced either at the 
original hearing by the OHA deciding official or by an appropriate 
notice posted at the announced place of hearing on or prior to the 
announced hearing date and hour.

            Depositions, Discovery, and Prehearing Conference

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.220  Production of documents for inspection and copying.

    (a) At any stage of the proceeding prior to the conclusion of the 
hearing, a party in interest may make a written demand, a copy to be 
filed with the OHA deciding official, upon any other party to the 
proceeding or upon a custodian of records on Indians or their trust 
property, to produce for inspection and copying or photographing, any 
documents, papers, records, letters, photographs, or other tangible 
things not privileged, relevant to the issues which are in the other 
party's or custodian's possession, custody, or control. Upon failure of 
prompt compliance, the OHA deciding official may issue an appropriate 
order upon a petition filed by the requesting party. At any time prior 
to closing the record, the OHA deciding official upon his or her own 
motion, after notice to all parties, may issue an order to any party in 
interest or custodian of records for the production of material or 
information not privileged, and relevant to the issues.
    (b) Custodians of official records will furnish and reproduce 
documents, or permit their reproduction, in accordance with the rules 
governing the custody and control thereof.



Sec. 4.221  Depositions.

    (a) Stipulation. Depositions may be taken upon stipulation of the 
parties. Failing an agreement therefor, depositions may be ordered under 
paragraphs (b) and (c) of this section.
    (b) Application for taking deposition. When a party in interest 
files a written application, the OHA deciding official may at any time 
thereafter order the taking of the sworn testimony of any person by 
deposition upon oral examination for the purpose of discovery or for use 
as evidence at a hearing. The application must be in writing and must 
set forth:
    (1) The name and address of the proposed deponent;
    (2) The name and address of that person, qualified under paragraph 
(d) of this section to take depositions, before whom the proposed 
examination is to be made;
    (3) The proposed time and place of the examination, which must be at 
least 20 days after the date of the filing of the application; and
    (4) The reasons why such deposition should be taken.
    (c) Order for taking deposition. If after examination of the 
application the OHA deciding official determines that the deposition 
should be taken, he or she will order its taking. The order must be 
served upon all parties in interest and must state:
    (1) The name of the deponent;
    (2) The time and place of the examination which must not be less 
than 15 days after the date of the order except as stipulated otherwise; 
and
    (3) The name and address of the officer before whom the examination 
is to

[[Page 71]]

be made. The officer and the time and place need not be the same as 
those requested in the application.
    (d) Qualifications of officer. The deponent must appear before the 
OHA deciding official or before an officer authorized to administer 
oaths by the law of the United States or by the law of the place of the 
examination.
    (e) Procedure on examination. The deponent must be examined under 
oath or affirmation and must be subject to cross-examination. The 
testimony of the deponent must be recorded by the officer or someone in 
the officer's presence. An applicant who requests the taking of a 
person's deposition must make his or her own arrangements for payment of 
any costs incurred.
    (f) Submission to witness; changes; signing. When the testimony is 
fully transcribed, the deposition must be submitted to the deponent for 
examination and must be read to or by him or her, unless such 
examination and reading are waived by the deponent or by all other 
parties in interest. Any changes in form or substance which the deponent 
desires to make must be entered upon the deposition by the officer with 
a statement of the reasons given by the deponent for making them. The 
deposition must then be signed by the deponent, unless the parties in 
interest by stipulation waive the signing, or the witness is ill or 
cannot be found or refuses to sign. If the deposition is not signed by 
the deponent, the officer must sign it and state on the record the fact 
of the waiver, or of the illness or absence of the deponent or the fact 
of the refusal to sign together with the reason, if any, given therefor; 
the deposition may then be used as fully as though signed, unless the 
OHA deciding official holds that the reason given for refusal to sign 
requires rejection of the deposition in whole or in part.
    (g) Certificates by officer. The officer must certify on the 
deposition that the deponent was duly sworn by the officer and that the 
deposition is a true record of the deponent's testimony. The officer 
must then securely seal the deposition, together with two copies 
thereof, in an envelope and must personally deliver or mail the same by 
certified or registered mail to the OHA deciding official.
    (h) Use of depositions. A deposition ordered and taken in accord 
with the provisions of this section may be used in a hearing if the OHA 
deciding official finds that the witness is absent and that his or her 
presence cannot be readily obtained, that the evidence is otherwise 
admissible, and that circumstances exist that make it desirable in the 
interest of fairness to allow the deposition to be used. If a deposition 
has been taken, and the party in interest on whose application it was 
taken refuses to offer the deposition, or any part thereof, in evidence, 
any other party in interest or the OHA deciding official may introduce 
the deposition or any portion thereof on which he or she wishes to rely.



Sec. 4.222  Written interrogatories; admission of facts and documents.

    At any time prior to a hearing and in sufficient time to permit 
answers to be filed before the hearing, a party in interest may serve 
upon any other party in interest written interrogatories and requests 
for admission of facts and documents. A copy of such interrogatories and 
requests must be filed with the OHA deciding official. Such 
interrogatories and requests for admission must be drawn with the 
purpose of defining the issues in dispute between the parties and 
facilitating the presentation of evidence at the hearing. Answers must 
be served upon the party propounding the written interrogatories or 
requesting the admission of facts and documents within 30 days from the 
date of service of such interrogatories or requests, or within such 
other period of time as may be agreed upon by the parties or prescribed 
by the OHA deciding official. A copy of the answer must be filed with 
the OHA deciding official. Within 10 days after written interrogatories 
are served upon a party, that party may serve cross-interrogatories for 
answer by the witness to be interrogated.



Sec. 4.223  Objections to and limitations on production of documents, depositions, and interrogatories.

    The OHA deciding official, upon motion timely made by any party in 
interest, proper notice, and good cause shown, may direct that 
proceedings

[[Page 72]]

under Secs. 4.220, 4.221, and 4.222 may be conducted only under, and in 
accordance with, such limitation as he or she deems necessary and 
appropriate as to documents, time, place, and scope. The OHA deciding 
official may act on his or her own motion only if undue delay, dilatory 
tactics, and unreasonable demands are made so as to delay the orderly 
progress of the proceeding or cause unacceptable hardship upon a party 
or witness.



Sec. 4.224  Failure to comply with orders.

    In the event of the failure of a party to comply with a request for 
the production of a document under Sec. 4.220; or on the failure of a 
party to appear for examination under Sec. 4.221 or on the failure of a 
party to respond to interrogatories or requests for admissions under 
Sec. 4.222; or on the failure of a party to comply with an order of the 
OHA deciding official issued under Sec. 4.223 without, in any of such 
events, showing an excuse or explanation satisfactory to the OHA 
deciding official for such failure, the OHA deciding official may:
    (a) Decide the fact or issue relating to the material requested to 
be produced, or the subject matter of the probable testimony, in 
accordance with the claims of the other party in interest or in 
accordance with other evidence available to the OHA deciding official; 
or
    (b) Make such other ruling as the OHA deciding official determines 
just and proper.



Sec. 4.225  Prehearing conference.

    The OHA deciding official may, upon his or her own motion or upon 
the request of any party in interest, call upon the parties to appear 
for a conference to:
    (a) Simplify or clarify the issues;
    (b) Obtain stipulations, admissions, agreements on documents, 
understandings on matters already of record, or similar agreements which 
will avoid unnecessary proof;
    (c) Limit the number of expert or other witnesses in avoidance of 
excessively cumulative evidence;
    (d) Effect possible agreement disposing of all or any of the issues 
in dispute; and
    (e) Resolve such other matters as may simplify and shorten the 
hearing.

                                Hearings

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.230  Authority and duties of the OHA deciding official.

    The authority of the OHA deciding official in all hearings in estate 
proceedings includes, but is not limited to authority:
    (a) To administer oaths and affirmations;
    (b) To issue subpoenas under the provisions of 25 U.S.C. 374 upon 
his or her own initiative or within his or her discretion upon the 
request of any party in interest, to any person whose testimony he or 
she believes to be material to a hearing. Upon the failure or refusal of 
any person upon whom a subpoena has been served to appear at a hearing 
or to testify, the OHA deciding official may file a petition in the 
appropriate U.S. District Court for the issuance of an order requiring 
the appearance and testimony of the witness:
    (c) To permit any party in interest to cross-examine any witness;
    (d) To appoint a guardian ad litem to represent any minor or 
incompetent party in interest at hearings;
    (e) To rule upon offers of proof and receive evidence;
    (f) To take and cause depositions to be taken and to determine their 
scope; and
    (g) To otherwise regulate the course of the hearing and the conduct 
of witnesses, parties in interest, and attorneys at law appearing 
therein.



Sec. 4.231  Hearings.

    (a) All testimony in Indian probate hearings must be under oath and 
must be taken in public except in those circumstances which in the 
opinion of the OHA deciding official justify all but parties in interest 
to be excluded from the hearing.
    (b) The proceedings of hearings must be recorded verbatim.
    (c) The record must include a showing of the names of all parties in 
interest and of attorneys who attended such hearing.

[[Page 73]]



Sec. 4.232  Evidence; form and admissibility.

    (a) Parties in interest may offer at a hearing such relevant 
evidence as they deem appropriate under the generally accepted rules of 
evidence of the State in which the evidence is taken, subject to the OHA 
deciding official's supervision as to the extent and manner of 
presentation of such evidence.
    (b) The OHA deciding official may admit letters or copies thereof, 
affidavits, or other evidence not ordinarily admissible under the 
generally accepted rules of evidence, the weight to be attached to 
evidence presented in any particular form being within the discretion of 
the OHA deciding official, taking into consideration all the 
circumstances of the particular case.
    (c) Stipulations of fact and stipulations of testimony that would be 
given by witnesses were such witnesses present, agreed upon by the 
parties in interest, may be used as evidence at the hearing.
    (d) The OHA deciding official may in any case require evidence in 
addition to that offered by the parties in interest.



Sec. 4.233  Proof of wills, codicils, and revocations.

    (a) Self-proved wills. A will executed as provided in Sec. 4.260 
may, at the time of its execution, be made self-proved, and testimony of 
the witnesses in the probate thereof may be made unnecessary by the 
affidavits of the testator and attesting witnesses, made before an 
officer authorized to administer oaths, such affidavits to be attached 
to such will and to be in form and contents substantially as follows:

State of ------------ County of ------------ ss. I, ------------, being 
first duly sworn, on oath, depose and say: That I am an ---- (enrolled 
or unenrolled) member of the ------------ Tribe of Indians in the State 
of ------------; that on the ---- day of ------, 19----, I requested --
---------- to prepare a will for me; that the attached will was prepared 
and I requested ------------ and ------------ to act as witnesses 
thereto; that I declared to said witnesses that said instrument was my 
last will and testament; that I signed said will in the presence of both 
witnesses and they signed the same as witnesses in my presence and in 
the presence of each other; that said will was read and explained to me 
(or read by me), after being prepared and before I signed it and it 
clearly and accurately expresses my wishes; and that I willingly made 
and executed said will as my free and voluntary act and deed for the 
purposes therein expressed.

                           Testator/Testatrix

We, -------------- and--------------, each being first duly sworn, on 
oath, depose and state: That on the ----day of ------, 19----, -------- 
a member of the -------- Tribe of Indians of the State of --------, 
published and declared the attached instrument to be his/her last will 
and testament, signed the same in the presence of both of us and 
requested both of us to sign the same as witnesses; that we, in 
compliance with his/her request, signed the same as witnesses in his/her 
presence and in the presence of each other; that said testator/testatrix 
was not acting under duress, menace, fraud, or undue influence of any 
person, so far as we could ascertain, and in our opinion was mentally 
capable of disposing of all his/her estate by will.
________________________________________________________________________
Witness

________________________________________________________________________
Witness

Subscribed and sworn to before me this------ day of------, 19----,by --
--------testator/testatrix, and by ----------and ----------; attesting 
witnesses.

________________________________________________________________________
________________________________________________________________________
(Title)
If uncontested, a self-proved will may be approved and distribution 
ordered thereunder with or without the testimony of any attesting 
witness.

    (b) Self-proved codicils and revocations. A codicil to, or a 
revocation of, a will may be made self-proved in the same manner as 
provided in paragraph (a) of this section with respect to a will.
    (c) Will contest. If the approval of a will, codicil thereto, or 
revocation thereof is contested, the attesting witnesses who are in the 
reasonable vicinity of the place of hearing and who are of sound mind 
must be produced and examined. If none of the attesting witnesses 
resides in the reasonable vicinity of the place of hearing at the time 
appointed for proving the will, the OHA deciding official may admit the 
testimony of other witnesses to prove the testamentary capacity of the 
testator and the execution of the will and, as evidence of the 
execution, the OHA deciding official may admit proof of the handwriting 
of the testator and of the

[[Page 74]]

attesting witnesses, or of any of them. The provisions of Sec. 4.232 are 
applicable with respect to remaining issues.



Sec. 4.234  Witnesses, interpreters, and fees.

    Parties in interest who desire a witness to testify or an 
interpreter to serve at a hearing must make their own financial and 
other arrangements therefor, and subpoenas will be issued where 
necessary and proper. The OHA deciding official may call witness and 
interpreters and order payment out of the estate assets of per diem, 
mileage, and subsistence at a rate not to exceed that allowed to 
witnesses called in the U.S. District Courts. In hardship situations, 
the OHA deciding official may order payment of per diem and mileage for 
indispensable witnesses and interpreters called for the parties. In the 
order for payment he or she must specify whether such costs are to be 
allocated and charged against the interest of the party calling the 
witness or against the estate generally. Costs of administration so 
allowed will have a priority for payment greater than that for any 
creditor claims allowed. Upon receipt of such order, the Superintendent 
must immediately initiate payment of such sums from the estate account, 
or if such funds are insufficient, then out of funds as they are 
received in such account prior to closure of the estate, with the 
proviso that such costs must be paid in full with a later allocation 
against the interest of a party, if the OHA deciding official has so 
ordered.



Sec. 4.235  Supplemental hearings.

    After the matter has been submitted but prior to the time the OHA 
deciding official has rendered his or her decision, the OHA deciding 
official may upon his or her own motion or upon motion of any party in 
interest schedule a supplemental hearing if he or she deems it 
necessary. The notice must set forth the purpose of the supplemental 
hearing and must be served upon all parties in interest in the manner 
provided in Sec. 4.211. Where the need for such supplemental hearing 
becomes apparent during any hearing, the OHA deciding official may 
announce the time and place for such supplemental hearing to all those 
present and no further notice need be given. In that event the records 
must clearly show who was present at the time of the announcement.



Sec. 4.236  Record.

    (a) After the completion of the hearing, the OHA deciding official 
will make up the official record containing:
    (1) A copy of the posted public notice of hearing showing the 
posting certifications;
    (2) A copy of each notice served on interested parties with proof of 
mailing;
    (3) The record of the evidence received at the hearing, including 
any transcript made of the testimony;
    (4) Claims filed against the estate;
    (5) Will and codicils, if any;
    (6) Inventories and valuations of the estate;
    (7) Pleadings and briefs filed;
    (8) Special or interim orders;
    (9) Data for heirship finding and family history;
    (10) The decision and the notices thereof; and
    (11) Any other material or documents deemed material by the OHA 
deciding official.
    (b) The OHA deciding official must lodge the original record with 
the designated Land Titles and Records Office in accordance with 25 CFR 
part 150. A duplicate copy must be lodged with the Superintendent 
originating the probate. A partial record may also be furnished to the 
Superintendents of other affected agencies. In those cases in which a 
hearing transcript has not been prepared, the verbatim recording of the 
hearing must be retained in the office of the OHA deciding official 
issuing the decision until the time allowed for rehearing or appeal has 
expired. In cases in which a transcript is not prepared, the original 
record returned to the Land Titles and Records Office must contain a 
statement indicating no transcript was prepared.

                                Decisions

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.

[[Page 75]]



Sec. 4.240  Decision of the OHA deciding official and notice thereof.

    (a) The OHA deciding official must decide the issues of fact and law 
involved in the proceedings and must incorporate the following in his or 
her decision:
    (1) In all cases, the names, birth dates, relationships to the 
decedent, and shares of heirs with citations to the law of descent and 
distribution in accordance with which the decision is made; or the fact 
that the decedent died leaving no legal heirs.
    (2) In testate cases, (i) approval or disapproval of the will with 
construction of its provisions, (ii) the names and relationship to the 
testator of all beneficiaries and a description of the property which 
each is to receive;
    (3) Allowance or disallowance of claims against the estate;
    (4) Whether heirs or devisees are non-Indian, exclusively alien 
Indians, or Indians whose property is not subject to Federal 
supervision.
    (5) A determination of any rights of dower, curtesy or homestead 
which may constitute a burden upon the interest of the heirs.
    (b) When the OHA deciding official issues a decision, he or she must 
issue a notice thereof to all parties who have or claim any interest in 
the estate and must mail a copy of said notice, together with a copy of 
the decision to the Superintendent and to each party in interest 
simultaneously. The decision will not become final and no distribution 
may be made thereunder until the expiration of the 60 days allowed for 
the filing of a petition for rehearing by aggrieved parties as provided 
in Sec. 4.241.



Sec. 4.241  Rehearing.

    (a) Any person aggrieved by the decision of the OHA deciding 
official may, within 60 days after the date on which notice of the 
decision is mailed to the interested parties, file with the OHA deciding 
official a written petition for rehearing. Such petition must be under 
oath and must state specifically and concisely the grounds upon which it 
is based. If the petition is based on newly-discovered evidence, it must 
be accompanied by affidavits or declarations of witnesses stating fully 
what the new testimony is to be. It must also state justifiable reasons 
for the failure to discover and present that evidence, tendered as new, 
at the hearings held prior to the issuance of the decision. The OHA 
deciding official, upon receiving a petition for rehearing, must 
promptly forward a copy to the Superintendent. The Superintendent must 
not initiate payment of claims or distribute the estate while such 
petition is pending, unless otherwise directed by the OHA deciding 
official.
    (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 OHA 
deciding official will issue an order denying the petition and must set 
forth therein his or her reasons therefor. The OHA deciding official 
must furnish copies of such order to the petitioner, the Superintendent, 
and the parties in interest.
    (c) If the petition appears to show merit, the OHA deciding official 
must cause copies of the petition and supporting papers to be served on 
those persons whose interest in the estate might be adversely affected 
by the granting of the petition. The OHA deciding official must allow 
all persons served a reasonable, specified time in which to submit 
answers or legal briefs in opposition to the petition. The OHA deciding 
official will then reconsider, with or without hearing as he or she may 
determine, the issues raised in the petition; he or she may adhere to 
the former decision, modify or vacate it, or make such further order as 
is warranted.
    (d) Upon entry of a final order the OHA deciding official must lodge 
the complete record relating to the petition with the title plant 
designated under Sec. 4.236(b), and furnish a duplicate record thereof 
to the Superintendent.
    (e) Successive petitions for rehearing are not permitted, and except 
for the issuance of necessary orders nunc pro tunc to correct clerical 
errors in the decision, the jurisdiction of the OHA deciding official 
terminates upon the issuance of a decision finally disposing of a 
petition for rehearing. Nothing herein will be construed as a bar to the 
remand of a case by the Board for further hearing or rehearing after 
appeal.

[[Page 76]]

    (f) At the time the final decision is entered following the filing 
of a petition for rehearing, the OHA deciding official must direct a 
notice of such action with a copy of the decision to the Superintendent 
and to the parties in interest and must mail the same by regular mail to 
the said parties at their addresses of record.
    (g) No distribution may be made under such order for a period of 60 
days following the mailing of a notice of decision pending the filing of 
a notice of appeal by an aggrieved party as herein provided.



Sec. 4.242  Reopening.

    (a) Within a period of 3 years from the date of a final decision 
issued by an OHA deciding official or by the Board but not thereafter 
except as provided in Secs. 4.203 and 4.206, any person claiming an 
interest in the estate who had no actual notice of the original 
proceedings and who was not on the reservation or otherwise in the 
vicinity at any time while the public notices of the hearing were posted 
may file a petition in writing for reopening of the case. Any such 
petition must be addressed to the OHA deciding official and filed at his 
or her office. A copy of such petition must be furnished also by the 
petitioner to the Superintendent. All grounds for the reopening must be 
set forth fully. If based on alleged errors of fact, all such 
allegations must be under oath and supported by affidavits.
    (b) If the OHA deciding official finds that proper grounds are not 
shown, he or she will issue an order denying the petition and setting 
forth the reasons for such denial. Copies of the OHA deciding official's 
decision must be mailed to the petitioner, the Superintendent, and to 
those persons who share in the estate.
    (c) If the petition appears to show merit, the OHA deciding official 
must cause copies of the petition and all papers filed by the petitioner 
to be served on those persons whose interest in the estate might be 
adversely affected by the granting of the petition. Such persons may 
resist such petition by filing answers, cross-petitions, or briefs. Such 
filings must be made within such reasonable time periods as the OHA 
deciding official specifies. The OHA deciding official will then 
reconsider, with or without hearing as he or she may determine, prior 
actions taken in the case and may either adhere to, modify, or vacate 
the original decision. Copies of the OHA deciding official's decision 
must be mailed to the petitioner, to all persons who received copies of 
the petition, and to the Superintendent.
    (d) To prevent manifest error an OHA deciding official may reopen a 
case within a period of 3 years from the date of the final decision, 
after due notice on his or her own motion, or on petition of a BIA 
officer. Copies of the OHA deciding official's decision must be mailed 
to all parties in interest and to the Superintendent.
    (e) The OHA deciding official may suspend distribution of the estate 
or the income therefrom during the pendency of reopening proceedings by 
order directed to the Superintendent.
    (f) The OHA deciding official must lodge the record made in 
disposing of a reopening petition with the title plant designated under 
Sec. 4.236(b) and must furnish a duplicate record thereof to the 
Superintendent.
    (g) No distribution may be made under a decision issued pursuant to 
paragraph (b), (c), or (d) of this section for a period of 60 days 
following the mailing of the copy of the decision as therein provided, 
pending the filing of a notice of appeal by an aggrieved party.
    (h) If a petition for reopening is filed more than 3 years after the 
entry of a final decision in a probate, it will be allowed only upon a 
showing that a manifest injustice will occur; that a reasonable 
possibility exists for correction of the error; that the petitioner had 
no actual notice of the original proceedings; and that petitioner was 
not on the reservation or otherwise in the vicinity at any time while 
the public notices were posted. A denial of such petition may be made by 
the OHA deciding official on the basis of the petition and available BIA 
records. No such petition will be granted, however, unless the OHA 
deciding official has caused copies of the petition and all other papers 
filed by the petitioner to

[[Page 77]]

be served on those persons whose interest in the estate might be 
adversely affected by the granting of the petition, and after allowing 
such persons an opportunity to resist such petition by filing answers, 
cross petitions or briefs as provided in paragraph (c) of this section.

            Appeals From Decisions of BIA Deciding Officials



Sec. 4.243  Appeals from BIA.

    Any appeal filed pursuant to 25 CFR part 15, subpart E, will be 
referred to an OHA deciding official pursuant to Sec. 4.210. The OHA 
deciding official will review the merits of the case de novo and conduct 
a hearing as necessary or appropriate pursuant to the regulations in 
this subpart. The BIA deciding official must forward to the OHA deciding 
official all documents and other evidence upon which the BIA deciding 
official's decision was based.

                                 Claims

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.250  Filing and proof of creditor claims; limitations.

    (a) All claims against the estate of a deceased Indian must be filed 
with the agency
    (i) Within 60 days from the date BIA receives a certified copy of 
the death certificate or other verification of the decedent's death 
under 25 CFR 15.101 or
    (ii) Within 20 days from the date the creditor is chargeable with 
notice of the decedent's death, whichever of these dates is later.
    (b) No claim will be paid from trust or restricted assets when the 
OHA deciding official is aware that the decedent's non-trust estate may 
be available to pay the claim.
    (c) All claims must be filed in triplicate, itemized in detail as to 
dates and amounts of charges for purchases or services and dates and 
amounts of payments on account. Such claims must show the names and 
addresses of all parties in addition to the decedent from whom payment 
might be sought. Each claim must be supplemented by an affidavit, in 
triplicate, of the claimant or someone in his or her behalf that the 
amount claimed is justly due from the decedent, that no payments have 
been made on the account which are not credited thereon as shown by the 
itemized statement, and that there are no offsets to the knowledge of 
the claimant.
    (d) Claims for care may not be allowed except upon clear and 
convincing evidence that the care was given on a promise of compensation 
and that compensation was expected.
    (e) A claim based on a written or oral contract, express or implied, 
where the claim for relief has existed for such a period as to be barred 
by the State laws at date of decedent's death, cannot be allowed.
    (f) Claims sounding in tort not reduced to judgment in a court of 
competent jurisdiction, and other unliquidated claims not properly 
within the jurisdiction of a probate forum, may be barred from 
consideration by an interim order from the OHA deciding official.
    (g) Claims of a State or any of its political subdivisions on 
account of social security or old-age assistance payments will not be 
allowed.



Sec. 4.251  Priority of claims.

    (a) Upon motion of the Superintendent or a party in interest, the 
OHA deciding official may authorize payment of the costs of 
administering the estate as they arise and prior to the allowance of any 
claims against the estate.
    (b) After the costs of administration, the OHA deciding official may 
authorize payment of priority claims as follows:
    (1) Claims for funeral expenses (including the cemetery marker);
    (2) Claims for medical expenses for the last illness;
    (3) Claims for nursing home or other care facility expenses;
    (4) Claims of an Indian tribe; and
    (5) Claims reduced to judgment by a court of competent jurisdiction.
    (c) After the priority claims, the OHA deciding official may 
authorize payment of all remaining claims, referred to as general 
claims.
    (d) The OHA deciding official has the discretion to decide that part 
or all of

[[Page 78]]

an otherwise valid claim is unreasonable, reduce the claim to a 
reasonable amount, or disallow the claim in its entirety.
    (1) If a claim is reduced, the OHA deciding official will order 
payment only of the reduced amount.
    (2) An OHA deciding official may reduce or disallow both priority 
claims and general claims.
    (e) If, as of the date of the hearing, there is not enough money in 
the IIM account to pay all claims, the OHA deciding official will order 
payment of allowed priority claims first, either in the order identified 
in paragraph (b) of this section or on a pro rata (reduced) basis.
    (f) If, as of the date of the hearing, less than $1,000 remains in 
the IIM account after payment of priority claims is ordered, the general 
claims may be ordered paid on a pro rata basis or disallowed in their 
entirety.
    (g) The unpaid balance of any claims will not be enforceable against 
the estate after the estate is closed.
    (h) Interest or penalties charged against either priority or general 
claims after the date of death will not be paid.



Sec. 4.252  Property subject to claims.

    Claims are payable from income from the lands remaining in trust. 
Further, except as prohibited by law, all trust moneys of the deceased 
on hand or accrued at time of death, including bonds, unpaid judgments, 
and accounts receivable, may be used for the payment of claims, whether 
the right, title, or interest that is taken by an heir, devisee, or 
legatee remains in or passes out of trust.

                                  Wills

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.260  Making of a will; review as to form; revocation.

    (a) An Indian 18 years of age or over and of testamentary capacity, 
who has any right, title, or interest in trust property, may dispose of 
such property by a will executed in writing and attested by two 
disinterested adult witnesses.
    (b) When an Indian executes a will and submits the same to the 
Superintendent, the Superintendent must forward it to the Office of the 
Solicitor for examination as to adequacy of form, and for submission by 
the Office of the Solicitor to the Superintendent of any appropriate 
comments. The will, codicil, or any replacement or copy thereof, may be 
retained by the Superintendent at the request of the testator or 
testatrix for safekeeping. A will must be held in absolute confidence, 
and no person other than the testator may admit its existence or divulge 
its contents prior to the death of the testator.
    (c) The testator may, at any time during his or her lifetime, revoke 
his or her will by a subsequent will or other writing executed with the 
same formalities as are required in the case of the execution of a will, 
or by physically destroying the will with the intention of revoking it. 
No will that is subject to the regulations of this subpart will be 
deemed to be revoked by operation of the law of any State.



Sec. 4.261  Anti-lapse provisions.

    When an Indian testator devises or bequeaths trust property to any 
of his or her grandparents or to the lineal descendant of a grandparent, 
and the devisee or legatee dies before the testator leaving lineal 
descendants, such descendants will take the right, title, or interest so 
given by the will per stirpes. Relationship by adoption is equivalent to 
relationship by blood.



Sec. 4.262  Felonious taking of testator's life.

    No person who has been finally convicted of feloniously causing the 
death or taking the life of, or procuring another person to take the 
life of, the testator, may take directly or indirectly any devise or 
legacy under deceased's will. All right, title, and interest existing in 
such a situation will vest and be determined as if the person convicted 
never existed, notwithstanding Sec. 4.261.

                   Custody and Distribution of Estates

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.

[[Page 79]]



Sec. 4.270  Custody and control of trust estates.

    The Superintendent may assume custody or control of all tangible 
trust personal property of a deceased Indian, and the Superintendent may 
take such action, including sale thereof, as in his or her judgment is 
necessary for the benefit of the estate, the heirs, legatees, and 
devisees, pending entry of the decision provided for in 25 CFR 15.311 or 
in Secs. 4.240, 4.241, or 4.312. All expenses, including expenses of 
roundup, branding, care, and feeding of livestock, are chargeable 
against the estate and may be paid from those funds of the deceased that 
are under the Department's control, or from the proceeds of a sale of 
the property or a part thereof. If an OHA deciding official or BIA 
deciding official has been assigned to adjudicate the estate, his or her 
approval is required prior to such payment.



Sec. 4.271  Omitted property.

    (a) When, subsequent to the issuance of a decision under Sec. 4.240 
or Sec. 4.312, it is found that trust property or interest therein 
belonging to a decedent has not been included in the inventory, the 
inventory can be modified to include such omitted property for 
distribution pursuant to the original decision. Such modification may be 
made either administratively by the Commissioner or by a modification 
order prepared by him or her for the approval and signature of the OHA 
deciding official. Copies of such modifications must be furnished to the 
Superintendent and to all those persons who share in the estate.
    (b) When the property to be included takes a different line of 
descent from that shown in the original decision, the Commissioner must 
notify the OHA deciding official who will proceed to hold a hearing if 
necessary and will issue a decision under Sec. 4.240. The record of any 
such proceeding must be lodged with the title plant designated under 
Sec. 4.236(b).



Sec. 4.272  Improperly included property.

    (a) When, subsequent to a decision under Sec. 4.240 or Sec. 4.312, 
it is found that property has been improperly included in the inventory 
of an estate, the inventory must be modified to eliminate such property. 
A petition for modification may be filed by the Superintendent of the 
Agency where the property is located, or by any party in interest.
    (b) The OHA deciding official will review the record of the title 
upon which the modification is to be based, and enter an appropriate 
decision. If the decision is entered without a hearing, the OHA deciding 
official must give notice of his or her action to all parties whose 
rights are adversely affected allowing them 60 days in which to show 
cause why the decision should not then become final.
    (c) Where appropriate the OHA deciding official may conduct a 
hearing at any stage of the modification proceeding. Any such hearing 
must be scheduled and conducted in accordance with the rules of this 
subpart. The OHA deciding official will enter a final decision based on 
his or her findings, modifying or refusing to modify the property 
inventory, and his or her decision will become final at the end of 60 
days from the date it is mailed unless a notice of appeal is filed by an 
aggrieved party within such period. Notice of entry of the decision must 
be given in accordance with Sec. 4.240(b).
    (d) A party aggrieved by the OHA deciding official's decision may 
appeal to the Board pursuant to the procedures in Secs. 4.310 through 
4.323.
    (e) The record of all proceedings must be lodged with the title 
plant designated under Sec. 4.236(b).



Sec. 4.273  Distribution of estates.

    (a) Seventy-five days after a final order has been issued, unless 
the Superintendent has received a copy of a petition for rehearing filed 
pursuant to the requirements of Sec. 4.241(a) or a copy of a notice of 
appeal filed pursuant to the requirements of Sec. 4.320(b), he or she 
must initiate payment of allowed claims, distribution of the estate, and 
all other actions required by the OHA deciding official's final order.
    (b) The Superintendent must not initiate the payment of claims or 
distribution of the estate during the pendency of proceedings under 
Sec. 4.241 or Sec. 4.242, unless the OHA deciding official orders 
otherwise in writing. The Board may, at any time, authorize the OHA

[[Page 80]]

deciding official to issue interim orders for payment of claims or for 
partial distribution during the pendency of proceedings on appeal.

                              Miscellaneous

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.281  Claims for attorney fees.

    (a) Attorneys representing Indians in proceedings under these 
regulations may be allowed fees therefor by the OHA deciding official. 
At the discretion of the OHA deciding official, such fees may be 
chargeable against the interests of the party thus represented, or where 
appropriate, they may be taxed as a cost of administration. Petitions 
for allowance of fees must be filed prior to the close of the last 
hearing and must be supported by such proof as is required by the OHA 
deciding official. In determining attorney fees, consideration must be 
given to the fact that the property of the decedent is restricted or 
held in trust and that it is the duty of the Department to protect the 
rights of all parties in interest.
    (b) Nothing herein prevents an attorney from petitioning for 
additional fees to be considered at the disposition of a petition for 
rehearing and again after an appeal on the merits. An order allowing an 
attorney's fees is subject to a petition for rehearing and to an appeal.



Sec. 4.282  Guardians for incompetents.

    Minors and other legal incompetents who are parties in interest must 
be represented at all hearings by legally appointed guardians, or by 
guardians ad litem appointed by the OHA deciding official.

           Tribal Purchase of Interests Under Special Statutes

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.300  Authority and scope.

    (a) The rules and procedures set forth in Secs. 4.300 through 4.308 
apply only to proceedings in Indian probate which relate to the tribal 
purchase of a decedent's interests in trust and restricted land as 
provided by:
    (1) The Act of December 31, 1970 (Pub. L. 91-627; 84 Stat. 1874; 25 
U.S.C. 607 (1976)), amending section 7 of the Act of August 9, 1946 (60 
Stat. 968), with respect to trust or restricted land within the Yakima 
Reservation or within the area ceded by the Treaty of June 9, 1855 (12 
Stat. 1951);
    (2) The Act of August 10, 1972 (Pub. L. 92-377; 86 Stat. 530), with 
respect to trust or restricted land within the Warm Springs Reservation 
or within the area ceded by the Treaty of June 25, 1855 (12 Stat. 37); 
and
    (3) The Act of September 29, 1972 (Pub. L. 92-443; 86 Stat. 744), 
with respect to trust or restricted land within the Nez Perce Indian 
Reservation or within the area ceded by the Treaty of June 11, 1855 (12 
Stat. 957).
    (b)(1) In the exercise of probate authority, an OHA deciding 
official will determine:
    (i) The entitlement of a tribe to purchase a decedent's interests in 
trust or restricted land under the statutes;
    (ii) The entitlement of a surviving spouse to reserve a life estate 
in one-half of the surviving spouse's interests which have been 
purchased by a tribe; and
    (iii) The fair market value of such interests, including the value 
of any life estate reserved by a surviving spouse.
    (2) In the determination under paragraph (b)(1) of this section of 
the entitlement of a tribe to purchase the interests of an heir or 
devisee, the issues of
    (i) Enrollment or refusal of the tribe to enroll a specific 
individual and
    (ii) Specification of blood quantum, where pertinent, will be 
determined by the official tribal roll which is binding upon the OHA 
deciding official. For good cause shown, the OHA deciding official may 
stay the probate proceeding to permit an aggrieved party to pursue an 
enrollment application, grievance, or appeal through the established 
procedures applicable to the tribe.



Sec. 4.301  Valuation report.

    (a) In all probates, at the earliest possible stage of the 
proceeding before issuance of a probate decision, the BIA

[[Page 81]]

must furnish a valuation of the decedent's interests when the record 
reveals to the Superintendent:
    (1) That the decedent owned interests in land located on one or more 
of those reservations designated in Sec. 4.300 and
    (2) That any one or more of the probable heirs or devisees, who may 
become a distributee of such interests upon completion of the probate 
proceeding, is not enrolled in or does not have the required blood 
quantum in the tribe of the reservation where the land is located to 
hold such interests against a claim thereto made by the tribe. If there 
is a surviving spouse whose interests may be subject to the tribal 
option, the valuation must include the value of a life estate based on 
the life of the surviving spouse in one half of such interests. The 
valuation must be made on the basis of the fair market value of the 
property, including fixed improvements, as of the date of decedent's 
death.
    (b) BIA must submit the valuation report in the probate package 
submitted to the OHA deciding official. Interested parties may examine 
and copy, at their expense, the valuation report at the office of the 
Superintendent or the OHA deciding official.



Sec. 4.302  Conclusion of probate and tribal exercise of statutory option.

    (a) Conclusion of probate; findings in the probate decision. When a 
decedent is shown to have owned land interests in any one or more of the 
reservations mentioned in the statutes enumerated in Sec. 4.300, the 
probate proceeding relative to the determination of heirs, approval or 
disapproval of a will, and the claims of creditors will first be 
concluded as final for the Department in accordance with Secs. 4.200 
through 4.282 and Secs. 4.310 through 4.323. This decision will be 
referred to herein as the ``probate decision.'' At the probate hearing a 
finding must be made on the record showing those interests in land, if 
any, which are subject to the tribal option. The finding must be reduced 
to writing in the probate decision setting forth the apparent rights of 
the tribe as against affected heirs or devisees and the right of a 
surviving spouse whose interests are subject to the tribal option to 
reserve a life estate in one-half of such interests. If the finding is 
that there are no interests subject to the tribal option, the decision 
must so state. A copy of the probate decision, to which must be attached 
a copy of the valuation report, must be distributed to all parties in 
interest in accordance with Secs. 4.201 and 4.240.
    (b) Tribal exercise of statutory option. A tribe may purchase all or 
a part of the available interests specified in the probate decision 
within 60 days from the date of the probate decision unless a petition 
for rehearing or a demand for hearing has been filed in accordance with 
Sec. 4.304 or 4.305. If a petition for rehearing or a demand for hearing 
has been filed, a tribe may purchase all or a part of the available 
interests specified in the probate decision within 20 days from the date 
of the decision on rehearing or hearing, whichever is applicable. A 
tribe may not, however, claim an interest less than the decedent's total 
interest in any one individual tract. The tribe must file a written 
notice of purchase with the Superintendent, together with the tribe's 
certification that copies thereof have been mailed on the same date to 
the OHA deciding official and to the affected heirs or devisees. Upon 
failure to timely file a notice of purchase, the right to distribution 
of all unclaimed interests will accrue to the heirs or devisees.



Sec. 4.303  Notice by surviving spouse to reserve a life estate.

    When the heir or devisee whose interests are subject to the tribal 
option is a surviving spouse, the spouse may reserve a life estate in 
one-half of such interests. The spouse must file a written notice to 
reserve with the Superintendent within 30 days after the tribe has 
exercised its option to purchase the interest in question, together with 
a certification that copies thereof have been mailed on the same date to 
the OHA deciding official and the tribe. Failure to timely file a notice 
to reserve a life estate will constitute a waiver thereof.



Sec. 4.304  Rehearing.

    Any party in interest aggrieved by the probate decision may, within 
60

[[Page 82]]

days from the date of the probate decision, file with the OHA deciding 
official a written petition for rehearing in accordance with Sec. 4.241.



Sec. 4.305  Hearing.

    (a) Demand for hearing. Any party in interest aggrieved by the 
exercise of the tribal option to purchase the interests in question or 
the valuation of the interests as set forth in the valuation report may, 
within 60 days from the date of the probate decision or 60 days from the 
date of the decision on rehearing, whichever is applicable, file with 
the OHA deciding official a written demand for hearing, together with a 
certification that copies thereof have been mailed on the same date to 
the Superintendent and to each party in interest; provided, however, 
that an aggrieved party will have at least 20 days from the date the 
tribe exercises its option to purchase available interests to file such 
a demand. The demand must state specifically and concisely the grounds 
upon which it is based.
    (b) Notice; burden of proof. The OHA deciding official will, upon 
receipt of a demand for hearing, set a time and place therefor and must 
mail notice thereof to all parties in interest not less than 30 days in 
advance; provided, however, that such date must be set after the 
expiration of the 60-day period fixed for the filing of the demand for 
hearing as provided in Sec. 4.305(a). At the hearing, each party 
challenging the tribe's claim to purchase the interests in question or 
the valuation of the interests as set forth in the valuation report will 
have the burden of proving his or her position.
    (c) Decision after hearing; appeal. Upon conclusion of the hearing, 
the OHA deciding official will issue a decision which determines all of 
the issues including, but not limited to, a judgment establishing the 
fair market value of the interests purchased by the tribe, including any 
adjustment thereof made necessary by the surviving spouse's decision to 
reserve a life estate in one-half of the interests. The decision must 
specify the right of appeal to the Board of Indian Appeals within 60 
days from the date of the decision in accordance with Secs. 4.310 
through 4.323. The OHA deciding official must lodge the complete record 
relating to the demand for hearing with the title plant as provided in 
Sec. 4.236(b), furnish a duplicate record thereof to the Superintendent, 
and mail a notice of such action together with a copy of the decision to 
each party in interest.



Sec. 4.306  Time for payment.

    A tribe must pay the full fair market value of the interests 
purchased, as set forth in the valuation report or as determined after 
hearing in accordance with Sec. 4.305, whichever is applicable, within 2 
years from the date of decedent's death or within 1 year from the date 
of notice of purchase, whichever comes later.



Sec. 4.307  Title.

    Upon payment by the tribe of the interests purchased, the 
Superintendent must issue a certificate to the OHA deciding official 
that this has been done and file therewith such documents in support 
thereof as the OHA deciding official may require. The OHA deciding 
official will then issue an order that the United States holds title to 
such interests in trust for the tribe, lodge the complete record, 
including the decision, with the title plant as provided in 
Sec. 4.236(b), furnish a duplicate record thereof to the Superintendent, 
and mail a notice of such action together with a copy of the decision to 
each party in interest.



Sec. 4.308  Disposition of income.

    During the pendency of the probate and up to the date of transfer of 
title to the United States in trust for the tribe in accordance with 
Sec. 4.307, all income received or accrued from the land interests 
purchased by the tribe will be credited to the estate.

    Cross Reference: See 25 CFR part 2 for procedures for appeals to 
Area Directors and to the Commissioner of the Bureau of Indian Affairs.

 General Rules Applicable to Proceedings on Appeal Before the Interior 
                         Board of Indian Appeals

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.

[[Page 83]]



Sec. 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 the date 
of mailing or the date of personal delivery, except that a motion for 
the Board to assume jurisdiction over an appeal under 25 CFR 2.20(e) 
will be effective the date it is received by the Board.
    (b) Service. Notices of appeal and pleadings must be served on all 
parties in interest in any proceeding before the Interior Board of 
Indian Appeals by the party filing the notice or pleading with the 
Board. Service must be accomplished upon personal delivery or mailing. 
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. Where a party is 
represented by more than one attorney, service on any one attorney is 
sufficient. 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, 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. 
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 
are excluded in the computation.
    (d) Extensions of time. (1) The time for filing or serving any 
document except a notice of appeal may be extended by the Board.
    (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.



Sec. 4.311  Briefs on appeal.

    (a) The appellant may file an opening brief within 30 days after 
receipt of the notice of docketing. 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 receipt of 
appellant's brief to file answer briefs, copies of which must be served 
upon the appellant or counsel and all other parties in interest. A 
certificate showing service of the answer brief upon all parties or 
counsel must be attached to the answer filed with the Board.
    (b) 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) The BIA is considered an interested party in any proceeding 
before the Board. The Board may request that the 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.

[[Page 84]]



Sec. 4.312  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 a BIA 
official or an OHA deciding 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.



Sec. 4.313  Amicus Curiae; intervention; joinder motions.

    (a) Any interested person or Indian tribe desiring to intervene or 
to join other parties or 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. Permission to intervene, to 
join parties, to appear, or for other relief, may be granted for 
purposes and subject to limitations established by the Board. 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.



Sec. 4.314  Exhaustion of administrative remedies.

    (a) No decision of an OHA deciding official or a BIA official, which 
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 made effective pending 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.



Sec. 4.315  Reconsideration.

    (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.



Sec. 4.316  Remands from courts.

    Whenever any matter is remanded from any federal court to the Board 
for further proceedings, the Board will either remand the matter to an 
OHA deciding official or to the BIA, or to the extent the court's 
directive and time limitations will 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.



Sec. 4.317  Standards of conduct.

    (a) Inquiries about cases. All inquiries with respect to 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 such action appropriate. If, prior to 
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 Director of the Office of Hearings and 
Appeals will determine the matter of disqualification.



Sec. 4.318  Scope of review.

    An appeal will be limited to those issues which were before the OHA 
deciding official 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

[[Page 85]]

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

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.320  Who may appeal.

    (a) A party in interest has a right to appeal to the Board from an 
order of an OHA deciding official on a petition for rehearing, a 
petition for reopening, or regarding tribal purchase of interests in a 
deceased Indian's trust estate.
    (b) Notice of appeal. Within 60 days from the date of the decision, 
an appellant must file a written notice of appeal signed by appellant, 
appellant's attorney, or other qualified representative as provided in 
43 CFR 1.3, with the Board of Indian Appeals, Office of Hearings and 
Appeals, U.S. Department of the Interior, 801 North Quincy Street, 
Arlington, Virginia 22203. A statement of the errors of fact and law 
upon which the appeal is based must be included in either the notice of 
appeal or in any brief filed. The notice of appeal must include the 
names and addresses of parties served. A notice of appeal not timely 
filed will be dismissed for lack of jurisdiction.
    (c) Service of copies of notice of appeal. The appellant must 
personally deliver or mail the original notice of appeal to the Board of 
Indian Appeals. A copy must be served upon the OHA deciding official 
whose decision is appealed as well as all interested parties. The notice 
of appeal filed with the Board must include a certification that service 
was made as required by this section.
    (d) Action by the OHA deciding official; record inspection. The OHA 
deciding official, upon receiving a copy of the notice of appeal, must 
notify the Superintendent concerned to return the duplicate record filed 
under Secs. 4.236(b) and 4.241(d), or under Sec. 4.242(f) of this part, 
to the Land Titles and Records Office designated under Sec. 4.236(b) of 
this part. The duplicate record must be conformed to the original by the 
Land Titles and Records Office and will thereafter be available for 
inspection either at the Land Titles and Records Office or at the office 
of the Superintendent. In those cases in which a transcript of the 
hearing was not prepared, the OHA deciding official will have a 
transcript prepared which must be forwarded to the Board within 30 days 
from receipt of a copy of the notice of appeal.

[66 FR 67656, Dec. 31, 2001, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.321  Notice of transmittal of record on appeal.

    The original record on appeal must be forwarded by the Land Titles 
and Records Office to the Board by certified mail. Any objection to the 
record as constituted must be filed with the Board within 15 days of 
receipt of the notice of docketing issued under Sec. 4.332 of this part.



Sec. 4.322  Docketing.

    The appeal will be docketed by the Board upon receipt of the 
administrative record from the Land Titles and Records Office. All 
interested parties as shown by the record on appeal must be notified of 
the docketing. The docketing notice must specify the time within which 
briefs may be filed and must cite the procedural regulations governing 
the appeal.



Sec. 4.323  Disposition of the record.

    Subsequent to a decision of the Board, other than remands, the 
record filed with the Board and all documents added during the appeal 
proceedings, including any transcripts prepared because of the appeal 
and the Board's decision, must be forwarded by the Board to the Land 
Titles and Records Office designated under Sec. 4.236(b) of this part. 
Upon receipt of the record by the Land Titles and Records Office, the 
duplicate record required by Sec. 4.320(c) of this part must be 
conformed to the original and forwarded to the Superintendent concerned.

[[Page 86]]

 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

    Source: 54 FR 6487, Feb. 10, 1989, unless otherwise noted.



Sec. 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).



Sec. 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.



Sec. 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 Sec. 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

[[Page 87]]

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.

[54 FR 6487, Feb. 10, 1989, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 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.



Sec. 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 Sec. 4.332 of this part, may not 
be extended.



Sec. 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.



Sec. 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.



Sec. 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

[[Page 88]]

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 Sec. 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.



Sec. 4.338  Submission by administrative law judge of proposed findings, conclusions and recommended decision.

    (a) When an evidentiary hearing pursuant to Sec. 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 Sec. 4.339 of this part.



Sec. 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.



Sec. 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

    Source: 56 FR 61383, Dec. 3, 1991, unless otherwise noted.



Sec. 4.350  Authority and scope.

    (a) The rules and procedures set forth in Secs. 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 adminstrative judge means an administrative judge or an

[[Page 89]]

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.

[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991, as amended at 64 
FR 13363, Mar. 18, 1999]



Sec. 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.

[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991]



Sec. 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

[[Page 90]]

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 White Earth Band, Box 418, White Earth, Minnesota 56591
The Minnesota Chippewa Tribe, Box 217, Cass Lake, Minnesota 56633
Minnesota Agency, Bureau of Indian Affairs, Room 418, Federal Building, 
522 Minnesota Avenue, NW, Bemidji, Minnesota 56601-3062


and in such other sites as may be deemed appropriate by the Project 
Director. Such other sites may include, but not be limited to:

Elbow Lake Community Center, R.R. 2, Waubun, Minnesota 56589
Postmaster, Callaway, Minnesota 56521
Community Center, Route 2, Bagley, Minnesota 56621
Community Center, Star Route, Mahnomen, Minnesota 56557
Postmaster, Mahnomen, Minnesota 56557
Rice Lake Community Center, Route 2, Bagley, Minnesota 56621
Postmaster, Ogema, Minnesota 56569
Pine Point Community Center, Ponsford, Minnesota 56575
Postmaster, White Earth, Minnesota 56591
White Earth IHS, White Earth, Minnesota 56591
Postmaster, Ponsford, Minnesota 56575
American Indian Center, 1113 West Broadway, Minneapolis, Minnesota 55411
American Indian Center, 1530 East Franklin Avenue, Minneapolis, 
Minnesota 55404
American Indian Center, 341 University Avenue, St. Paul, Minnesota 55103
Little Earth of United Tribes Community Services, 2501 Cedar Avenue 
South, Minneapolis, Minnesota 55404
Naytahwaush Community Center, Naytahwaush, Minnesota 56566

    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.

[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991; 57 FR 2319, Jan. 
21, 1992, as amended at 64 FR 13363, Mar. 18, 1999]



Sec. 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.

[[Page 91]]

    (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.



Sec. 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.



Sec. 4.355  Omitted compensation.

    When, subsequent to the issuance of a final order determining heirs 
under Sec. 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.



Sec. 4.356  Appeals.

    (a) A party aggrieved by a final order of an administrative judge 
under Sec. 4.352, or by a final order upon reconsideration of an 
administrative judge under Sec. 4.354, may appeal to the Board (address: 
Board of Indian Appeals, Office of Hearings and Appeals, 801 North 
Quincy Street, Arlington, Virginia 22203). 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

[[Page 92]]

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.

[56 FR 61383, Dec. 3, 1991, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 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.c



 Subpart E--Special Rules Applicable to Public Land Hearings and Appeals

    Authority: Sections 4.470 to 4.478 also issued under authority of 
sec. 2, 48 Stat. 1270; 43 U.S.C. 315a.

    Cross Reference: 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--Table of Contents






Sec. 4.400  Definitions.

    As used in this subpart:
    (a) Secretary means the Secretary of the Interior or his authorized 
representatives.
    (b) Bureau means Bureau of Land Management.
    (c) Board means the Board of Land Appeals in the Office of Hearings 
and Appeals, Office of the Secretary. The terms office or officer as 
used in this subpart include Board where the context requires.
    (d) Administrative law judge means an administrative law judge in 
the Office of Hearings and Appeals, Office of the Secretary, appointed 
under section 3105 of title 5 of the United States Code.



Sec. 4.401  Documents.

    (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

[[Page 93]]

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) Wherever the regulations in this 
subpart require that a copy of a document be served upon a person, 
service may be made by delivering the copy personally to him or by 
sending the document by registered or certified mail, return receipt 
requested, to his address of record in the Bureau.
    (2) In any case service may be proved by an acknowledgment of 
service signed by the person to be served. Personal service may be 
proved by a written statement of the person who made such service. 
Service by registered or certified mail may be proved by a post-office 
return receipt showing that the document was delivered at the person's 
record address or showing that the document could not be delivered to 
such person at his record address because he had moved therefrom without 
leaving a forwarding address or because delivery was refused at that 
address or because no such address exists. Proof of service of a copy of 
a document should be filed in the same office in which the document is 
filed except that proof of service of a notice of appeal should be filed 
in the office of the officer to whom the appeal is made, if the proof of 
service is filed later than the notice of appeal.
    (3) A document will be considered to have been served at the time of 
personal service, of delivery of a registered or certified letter, or of 
the return by post office of an undelivered registered or certified 
letter.

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971]



Sec. 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 Sec. 4.412(b) is not 
filed with the Board or is not served upon adverse parties within the 
time required.

[36 FR 7186, Apr. 15, 1971, as amended at 47 FR 26392, June 18, 1982]



Sec. 4.403  Finality of decision; reconsideration.

    A decision of the Board shall constitute final agency action and be 
effective upon the date of issuance, unless the decision itself provides 
othewise. The Board may reconsider a decision in extraordinary 
circumstances for sufficient reason. A petition for reconsideration 
shall be filed within 60 days after the date of a decision. The petition 
shall, at the time of filing, state with particularity the error claimed 
and include all arguments and supporting documents. The petition may 
include a request that the Board stay the effectiveness of the decision 
for which reconsideration is sought. No answer to a petition for 
reconsideration is required unless so ordered by the Board. The filing, 
pendency, or denial of a petition for reconsideration shall not operate 
to stay the effectiveness or affect the finality of the decision 
involved unless so ordered by the Board. A petition for reconsideration 
need not be filed to exhaust administrative remedies.

[52 FR 21308, June 5, 1987]

                  appeals to the board of land appeals



Sec. 4.410  Who may appeal.

    (a) Any party to a case who is adversely affected by a decision of 
an officer of the Bureau of Land Management or of an administrative law 
judge shall have a 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 
Sec. 4.470 and part 4100 of this title,
    (3) Where a decision has been approved by the Secretary, and

[[Page 94]]

    (4) As provided in paragraph (b) of this section.
    (b) 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.

[47 FR 26392, June 18, 1982]



Sec. 4.411  Appeal; how taken, mandatory time limit.

    (a) A person who wishes to appeal to the Board must file in the 
office of the officer who made the decision (not the Board) a notice 
that he wishes to appeal. A person served with the decision being 
appealed must transmit the notice of appeal in time for it to be filed 
in the office where it is required to be filed within 30 days after the 
date of service. If a decision is published in the Federal Register, a 
person not served with the decision must transmit a notice of appeal in 
time for it to be filed within 30 days after the date of publication.
    (b) The notice of appeal must give the serial number or other 
identification of the case and may include a statement of reasons for 
the appeal, a statement of standing if required by Sec. 4.412(b), and 
any arguments the appellant wishes to make.
    (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 Sec. 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 Sec. 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.

(R.S. 2478, as amended, 43 U.S.C. 1201; sec. 25, Alaska Native Claims 
Settlement Act, as amended, 43 U.S.C. 1601-1628; and the Administrative 
Procedure Act, 5 U.S.C. 551, et seq.)

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 49 
FR 6373, Feb. 21, 1984]



Sec. 4.412  Statement of reasons, statement of standing, written arguments, briefs.

    (a) If the notice of appeal did not include a statement of the 
reasons for the appeal, the appellant shall file such a statement with 
the Board (address: Board of Land Appeals, Office of Hearings and 
Appeals, 801 North Quincy Street, Arlington, VA 22203) within 30 days 
after the notice of appeal was filed. In any case, the Board will permit 
the appellant to file additional statements of reasons and written 
arguments or briefs within the 30-day period after the notice of appeal 
was filed.
    (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 Sec. 4.410(b) within 30 days after 
filing of the notice of appeal. The statement may be included with the 
notice of appeal filed pursuant to Sec. 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 Sec. 4.402, unless the delay in filing is 
waived as provided in Sec. 4.401(a).

[47 FR 26392, June 18, 1982, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.413  Service of notice of appeal and of other documents.

    (a) The appellant shall serve a copy of the notice of appeal and of 
any statement of reasons, written arguments, or briefs on each adverse 
party named in the decision from which the appeal is taken and on the 
Office of the Solicitor as identified in paragraph (c) of this section. 
Service must be accomplished in the manner prescribed in Sec. 4.401(c) 
of this title not later than 15 days after filing the document.
    (b) Failure to serve within the time required will subject the 
appeal to summary dismissal as provided in Sec. 4.402 of this title.
    (c)(1)(i) If the appeal is taken from a decision of the Director, 
Minerals Management Service, the appellant will

[[Page 95]]

serve the Associate Solicitor, Division of Mineral Resources, Office of 
the Solicitor, U.S. Department of the Interior, Washington, D.C. 20240.
    (ii) If the appeal is taken from a decision of the Director, Bureau 
of Land Management, the appellant will serve:
    (A) The Associate Solicitor, Division of Land and Water Resources, 
Office of the Solicitor, U.S. Department of the Interior, Washington, 
D.C. 20240, if the decision concerns the use and disposition of public 
lands, including land selections under the Alaska Native Claims 
Settlement Act, as amended;
    (B) The Associate Solicitor, Division of Mineral Resources, Office 
of the Solicitor, U.S. Department of the Interior, Washington, D.C. 
20240, if the decision concerns the use and disposition of mineral 
resources.
    (c)(2) If the appeal is taken from a decision of other Bureau of 
Land Management (BLM) offices listed below (see Sec. 1821.2-1(d) of this 
title), the appellant shall serve the appropriate official of the Office 
of the Solicitor as identified:
    (i) BLM Alaska State Office, including all District and Area Offices 
within its area of jurisdiction:

Regional Solicitor, Alaska Region, U.S. Department of the Interior, 4230 
University Drive, Suite 300, Anchorage, AK 99508-4626;

    (ii) BLM Arizona State Office, including all District and Area 
Offices within its area of jurisdiction:

Field Solicitor, U.S. Department of the Interior, One Renaissance 
Square, Two North Central, Suite 1130, Phoenix, AZ 85004-2383;

    (iii) BLM California State Office, including all District and Area 
Offices within its area of jurisdiction:

Regional Solicitor, Pacific Southwest Region, U.S. Department of the 
Interior, 2800 Cottage Way, Room E-2753, Sacramento, CA 95825-1890;

    (iv) BLM Colorado State Office, including all District and Area 
Offices within its area of jurisdiction:

Regional Solicitor, Rocky Mountain Region, U.S. Department of the 
Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215;

    (v) BLM Eastern States Office, including all District and Area 
Offices within its area of jurisdiction:
    (A) The Associate Solicitor, Division of Land and Water Resources, 
Office of the Solicitor, U.S. Department of the Interior, Washington, 
D.C. 20240, if the decision concerns the use and disposition of public 
lands, including land selections under the Alaska Native Claims 
Settlement Act, as amended;
    (B) The Associate Solicitor, Division of Mineral Resources, Office 
of the Solicitor, U.S. Department of the Interior, Washington, D.C. 
20240, if the decision concerns the use and disposition of mineral 
resources.
    (vi) BLM Idaho State Office, including all District and Area Offices 
within its area of jurisdiction:

Field Solicitor, U.S. Department of the Interior, Federal Building & 
U.S. Courthouse, 550 West Fort Street, MSC 020, Boise, ID 83724;

    (vii) BLM Montana State Office, including all District and Area 
Offices within its area of jurisdiction:

Regular U.S. Mail: Field Solicitor, U.S. Department of the Interior, 
P.O. Box 31394, Billings, MT 59107-1394;
Other Delivery Services: Field Solicitor, U.S. Department of the 
Interior, 316 North 26th Street, Room 3004, Billings, MT 59101;

    (viii) BLM Nevada State Office, including all District and Area 
Offices within its area of jurisdiction:

Regional Solicitor, Pacific Southwest Region, U.S. Department of the 
Interior, 2800 Cottage Way, Room E-2753, Sacramento, CA 95825-1890;

    (ix) BLM New Mexico State Office, including all District and Area 
Offices within its area of jurisdiction:

Regular U.S. Mail: Field Solicitor, U.S. Department of the Interior, 
P.O. Box 1042, Santa Fe, NM 87504-1042;
Other Delivery Services: Field Solicitor, U.S. Department of the 
Interior, 150 Washington Avenue 207, Santa Fe, NM 87501;

    (x) BLM Oregon State Office, including all District and Area Offices 
within its area of jurisdiction:

Regional Solicitor, Pacific Northwest Region, U.S. Department of the 
Interior, Lloyd 500 Building, Suite 607, 500 N.E. Multnomah Street, 
Portland, OR 97232;

    (xi) BLM Utah State Office, including all District and Area Offices 
within its area of jurisdiction:

Field Solicitor, U.S. Department of the Interior, 6201 Federal Building, 
125 South State Street, Salt Lake City, UT 84138-1180;


[[Page 96]]


    (xii) BLM Wyoming State Office, including all District and Area 
Offices within its area of jurisdiction:

Regular U.S. Mail: Regional Solicitor, Rocky Mountain Region, U.S. 
Department of the Interior, P.O. Box 25007 (D-105), Denver Federal 
Center, Denver, CO 80225;
Other Delivery Services: Regional Solicitor, Rocky Mountain Region, U.S. 
Department of the Interior, 755 Parfet Street, Suite 151, Lakewood, CO 
80215;

    (3) If the appeal is taken from the decision of an administrative 
law judge, the appellant shall serve the attorney from the Office of the 
Solicitor who represented the Bureau of Land Management or the Minerals 
Management Service at the hearing or, in the absence of a hearing, who 
was served with a copy of the decision by the administrative law judge. 
If the hearing involved a mining claim on national forest land, the 
appellant shall serve the attorney from the Office of General Counsel, 
U.S. Department of Agriculture, who represented the U.S. Forest Service 
at the hearing or, in the absence of a hearing, who was served with a 
copy of the decision by the administrative law judge.
    (4) Parties shall serve the Office of the Solicitor as identified in 
this paragraph until such time that a particular attorney of the Office 
of the Solicitor files and serves a Notice of Appearance or Substitution 
of Counsel. Thereafter, parties shall serve the Office of the Solicitor 
as indicated by the Notice of Appearance or Substitution of Counsel.
    (d) Proof of such service as required by Sec. 4.401(c) must be filed 
with the Board (address: Board of Land Appeals, Office of Hearings and 
Appeals, 801 North Quincy Street, Arlington, VA 22203), within 15 days 
after service unless filed with the notice of appeal.

[53 FR 13267, Apr. 22, 1988, as amended at 60 FR 58242, Nov. 27, 1995; 
61 FR 40348, Aug. 2, 1996; 67 FR 4368, Jan. 30, 2002]



Sec. 4.414  Answers.

    If any party served with a notice of appeal wishes to participate in 
the proceedings on appeal, he must file an answer within 30 days after 
service on him of the notice of appeal or statement of reasons where 
such statement was not included in the notice of appeal. If additional 
reasons, written arguments, or briefs are filed by the appellant, the 
adverse party shall have 30 days after service thereof on him within 
which to answer them. The answer must state the reasons why the answerer 
thinks the appeal should not be sustained. Answers must be filed with 
the Board (address: Board of Land Appeals, Office of Hearings and 
Appeals, 801 North Quincy Street, Arlington, VA 22203) and must be 
served on the appellant, in the manner prescribed in Sec. 4.401(c), not 
later than 15 days thereafter. Proof of such service as required by 
Sec. 4.401(c), must be filed with the Board (see address above) within 
15 days after service. Failure to answer will not result in a default. 
If an answer is not filed and served within the time required, it may be 
disregarded in deciding the appeal, unless the delay in filing is waived 
as provided in Sec. 4.401(a).

[36 FR 7186, Apr. 15 1971, as amended at 67 FR 4368, Jan. 30, 2002]

                    actions by board of land appeals



Sec. 4.415  Request for hearings on appeals involving questions of fact.

    Either an appellant or an adverse party may, if he desires a hearing 
to present evidence on an issue of fact, request that the case be 
assigned to an administrative law judge for such a hearing. Such a 
request must be made in writing and filed with the Board within 30 days 
after answer is due and a copy of the request should be served on the 
opposing party in the case. The allowance of a request for hearing is 
within the discretion of the Board, and the Board may, on its own 
motion, refer any case to an administrative law judge for a hearing on 
an issue of fact. If a hearing is ordered, the Board will specify the 
issues upon which the hearing is to be held and the hearing will be held 
in accordance with Secs. 4.430 to 4.439, and the general rules in 
subpart B of this part.

                           Hearings Procedures



hearings procedures; general--Table of Contents






Sec. 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

[[Page 97]]

and Appeals in subpart B of this part are also applicable to hearings, 
procedures.



Sec. 4.421  Definitions.

    As used in this subpart:
    (a) Secretary means the Secretary of the Interior or his authorized 
representatives.
    (b) Director means the Director of the Bureau of Land Management, 
the Associate Director or an Assistant Director.
    (c) Bureau means Bureau of Land Management.
    (d) Board means the Board of Land Appeals in the Office of Hearings 
and Appeals, Office of the Secretary. The terms ``office'' or 
``officer'' as used in this subpart include ``Board'' where the context 
requires.
    (e) Administrative law judge means an administrative law judge in 
the Office of Hearings and Appeals, Office of the Secretary, appointed 
under section 3105 of title 5 of the United States Code.
    (f) State Director means the supervising Bureau of Land Management 
officer for the State in which the particular range lies, or his 
authorized agent.
    (g) District manager means the supervising Bureau of Land Management 
officer of the grazing district in which the particular range lies, or 
his authorized agent.

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971]



Sec. 4.422  Documents.

    (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 Secs. 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) Wherever the regulations in this 
subpart require that a copy of a document be served upon a person, 
service may be made by delivering the copy personally to him or by 
sending the document by registered or certified mail, return receipt 
requested, to his address of record in the Bureau.
    (2) In any case service may be proved by an acknowledgement of 
service signed by the person to be served. Personal service may be 
proved by a written statement of the person who made such service. 
Service by registered or certified mail may be proved by a post-office 
return receipt showing that the document was delivered at the person's 
record address or showing that the document could not be delivered to 
such person at his record address because he had moved therefrom without 
leaving a forwarding address or because delivery was refused at that 
address or because no such address exists. Proof of service of a copy of 
a document should be filed in the same office in which the document is 
filed.
    (3) A document will be considered to have been served at the time of 
personal service, of delivery of a registered or certified letter, or of 
the return by the post office of an undelivered registered or certified 
letter.
    (d) Extensions of time. The Manager or the administrative law judge, 
as the case may be, may extend the time for

[[Page 98]]

filing or serving any document in a contest.

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971]



Sec. 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



Sec. 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 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.



Sec. 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. 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.

[47 FR 26392, June 18, 1982]



Sec. 4.432  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 examiner 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.



Sec. 4.433  Authority of the 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

[[Page 99]]

depositions to be taken for the purpose of taking testimony but not for 
discovery in accordance with the Act of January 31, 1903 (32 Stat. 790; 
43 U.S.C. 102 through 106), to administer oaths, to call and question 
witnesses, to make proposed findings of fact and to take such other 
actions in connection with the hearing as may be prescribed by the Board 
in referring the case for hearing. The issuance of subpoenas, the 
attendance of witnesses, and the taking of depositions shall be governed 
by Secs. 4.423 and 4.26 of the general rules of subpart B of this part.



Sec. 4.434  Conduct of hearing.

    So far as not inconsistent with the prehearing order, the examiner 
may seek to obtain stipulations as to material facts. Unless the 
administrative law judge directs otherwise, the appellant will present 
his evidence on the facts at issue following which the other parties and 
the Bureau of Land Management will present their evidence on such 
issues.



Sec. 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.



Sec. 4.436  Reporter's fees.

    Reporter's fees shall be borne by the Bureau.



Sec. 4.437  Copies of transcript.

    Each party shall pay for any copies of the transcript obtained by 
him. Unless a summary of the evidence is stipulated to, the Government 
will file the original copy of the transcript with the case record.



Sec. 4.438  Summary of evidence.

    The parties and the Bureau may, with the consent of the 
administrative law judge, agree that a summary of the evidence approved 
by the examiner may be filed in the case in lieu of a transcript. In 
such case the administrative law judge will prepare the summary or have 
it prepared and upon agreement of the parties make it a part of the case 
record.



Sec. 4.439  Action by administrative law judge.

    Upon completion of the hearing and the incorporation of the summary 
or transcript in the record, the administrative law judge will send the 
record and proposed findings of fact on the issues presented at the 
hearing to the Board. The proposed findings of fact will not be served 
upon the parties; however, the parties and the Bureau may, within 15 
days after the completion of the transcript or the summary of the 
evidence, file with the Board such briefs or statements as they may wish 
respecting the facts developed at the hearing.

                     contest and protest proceedings



Sec. 4.450  Private contests and protests.



Sec. 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.

[[Page 100]]



Sec. 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.



Sec. 4.450-3  Initiation of contest.

    Any person desiring to initiate a private contest must file a 
complaint in the proper land office (see Sec. 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 Sec. 4.422(c), in the office 
where the complaint was filed within 30 days after service.



Sec. 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 papers 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.



Sec. 4.450-5  Service.

    The complaint must be served upon every contestee. If the contestee 
is of record in the land office, service may be made and proved as 
provided in Sec. 4.422 (c). If the person to be served is not of record 
in the land office, proof of service may be shown by a written statement 
of the person who made personal service, by post office return receipt 
showing personal delivery, or by an acknowledgment of service. In 
certain circumstances, service may be made by publication as provided in 
paragraph (b)(1) of this section. When

[[Page 101]]

the contest is against the heirs of a deceased entryman, the notice 
shall be served on each heir. If the person to be personally served is 
an infant or a person who has been legally adjudged of unsound mind, 
service of notice shall be made by delivering a copy of the notice to 
the legal guardian or committee, if there be one, of such infant or 
person of unsound mind; if there be none, then by delivering a copy of 
the notice to the person having the infant or person of unsound mind in 
charge.
    (a) Summary dismissal; waiver of defect in service. If a complaint 
when filed does not meet all the requirements of Sec. 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.



Sec. 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

[[Page 102]]

as provided in Sec. 4.450-5(b)(3). The answer shall contain or be 
accompanied by the address to which all notices or other papers shall be 
sent for service upon contestee.



Sec. 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.



Sec. 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.



Sec. 4.451  Government contests.



Sec. 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.



Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Sec. 4.450-5(c)(3) need not be filed.
    (j) The provisions of paragraph (e) of Sec. 4.450-4(e) shall be 
inapplicable.



Sec. 4.452  Proceedings before the administrative law judge.



Sec. 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

[[Page 103]]

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.



Sec. 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.

[47 FR 26392, June 18, 1982]



Sec. 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.



Sec. 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 Secs. 4.423 and 4.26 of the 
general rules in subpart B of this part.



Sec. 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.



Sec. 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

[[Page 104]]

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.



Sec. 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.



Sec. 4.452-8  Findings and conclusions; decision by administrative law judge; submission to Board for decision.

    (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.
    (c) The Board may require, in any designated case, that the 
administrative law judge make only a recommended decision and that the 
decision and the record be submitted to the Board for consideration. The 
recommended decision shall meet all the requirements for a decision set 
forth in paragraph (b) of this section. The Board shall then make the 
initial decision in the case. This decision shall include such 
additional findings and conclusions as do not appear in the recommended 
decision and the record shall include such rulings on proposed

[[Page 105]]

findings and conclusions submitted by the parties as have not been made 
by the administrative law judge.



Sec. 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 Sec. 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)

    Source: 44 FR 41790, July 18, 1979, unless otherwise noted.



Sec. 4.470  Appeal to administrative law judge; motion to dismiss.

    (a) Any applicant, permittee, lessee, or any other person whose 
interest is adversely affected by a final decision of the authorized 
officer may appeal to an administrative law judge by filing his appeal 
in the office of the authorized officer within 30 days after receipt of 
the decision. The appeal shall state the reasons, clearly and concisely, 
why the appellant thinks the final decision of the authorized officer is 
in error. All grounds of error not stated shall be considered as waived, 
and no such waived ground of error may be presented at the hearing 
unless ordered or permitted by the administrative law judge.
    (b) Any applicant, permittee, lessee, or any other person who, after 
proper notification, fails to appeal a final decision of the authorized 
officer within the period prescribed in the decision, shall be barred 
thereafter from challenging the matters adjudicated in that final 
decision.
    (c) When separate appeals are filed and the issue or issues involved 
are common to two or more appeals, they may be consolidated for purposes 
of hearing and decision.
    (d) The authorized officer shall promptly forward the appeal to the 
State Director. Within 30 days after his receipt of the appeal the State 
Director may file on behalf of the authorized officer a written motion, 
serving a copy thereof upon the appellant, requesting that the appeal be 
dismissed for the reason that it is frivolous, the appeal was filed 
late, the errors are not clearly and concisely stated, the issues are 
immaterial, the issue or issues were included in a prior final decision 
from which no timely appeal was made, or all issues involved therein 
have been previously adjudicated in an appeal involving the same 
preference, the same parties or their predecessors in interest. The 
appellant may file a written answer within 20 days after service of the 
motion upon him with the State Director. The appeal, motion, the proofs 
of service (see Sec. 4.401(c)), and the answers will be transmitted to 
the Hearings Division, Office of Hearings and Appeals, Salt Lake City, 
Utah. An administrative law judge, shall rule on the motion, and, if the 
motion is sustained, dismiss the appeal by written order.



Sec. 4.471  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.



Sec. 4.472  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.

[[Page 106]]

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 
Sec. 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 Sec. 4.452-3.



Sec. 4.473  Service.

    Service of notice or other documents required under this subpart 
shall be governed by Secs. 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.



Sec. 4.474  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

[[Page 107]]

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 shall be borne by the Government. Each party 
shall pay for any copies of the transcript obtained by him. Unless the 
parties stipulate to a summary of the evidence, the Government will file 
the original copy of the transcript with the case record.



Sec. 4.475  Findings of fact and decision by administrative law judge: Notice; submission to Board of Land Appeals for decision.

    (a) 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, and shall render a decision upon all material issues of fact 
and law presented on the record. In doing so he 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 
decisions made shall be stated, and along with the findings, 
conclusions, and decision, shall become a part of the record in any 
further appeal. A copy of the decision shall be sent by certified mail 
to the appellant and all intervenors, or their attorneys of record.
    (b) The Board of Land Appeals may require, in any designated case, 
that the administrative law judge make only a recommended decision and 
that such decision and the record be submitted to the Board for 
consideration. The recommended decision shall meet all the requirements 
for a decision set forth in paragraph (a) of this section. The Board 
shall then make the decision in the case. This decision shall include 
such additional findings and conclusions as do not appear in the 
recommended decision and the record shall include such rulings on 
proposed findings and conclusions submitted by the parties as have not 
been made by the administrative law judge.



Sec. 4.476  Appeals to the Board of Land Appeals.

    Any party affected by the administrative law judge's decision, 
including the State Director, has the right to appeal to the Board of 
Land Appeals, in accordance with the procedures and rules set forth in 
this part 4.



Sec. 4.477  Effect of decision suspended during appeal.

    Notwithstanding the provisions of Sec. 4.21(a) of this part 
pertaining to the period during which a final decision will not be in 
effect, and consistent with the provisions of Sec. 4160.3 of this title, 
the authorized officer may provide in his decision that it shall be in 
full force and effect pending decision on an appeal therefrom. Any 
action taken by the authorized officer pursuant to a decision shall be 
subject to modification or revocation by the administrative law judge or 
the Board upon an appeal from the decision. In order to insure the 
exhaustion of administrative remedies before resort to court action, a 
decision which at the time of its rendition is subject to appeal to a 
superior authority in the Department shall not be considered final so as 
to be agency action subject to judicial review under 5 U.S.C. 704, 
unless it has been made effective pending a decision on appeal in the 
manner provided in this paragraph.

[44 FR 41790, July 18, 1979, as amended at 60 FR 9958, Feb. 22, 1995]



Sec. 4.478  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 papers and requests

[[Page 108]]

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

    Authority: Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C. 
504(c)(1)).

    Source: 48 FR 17596, Apr. 25, 1983, unless otherwise noted.

                           General Provisions



Sec. 4.601  Purpose of these rules.

    These rules are adopted by the Department of the Interior pursuant 
to section 504 of title 5, United States Code, as amended by section 
203(a)(1) of the Equal Access to Justice Act, Pub. L. 96-481. Under the 
Act, an eligible party may receive an award for attorney fees and other 
expenses when it prevails over the Department in an adversary 
adjudication under 5 U.S.C. 554 before the Office of Hearings and 
Appeals, unless the Department's position as a party to the proceeding 
was substantially justified or special circumstances make an award 
unjust. The purpose of these rules is to establish procedures for the 
submission and consideration of applications for awards against the 
Department.



Sec. 4.602  Definitions.

    As used in this part:
    (a) The Act means section 504 of title 5, United States Code, as 
amended by section 203(a)(1) of the Equal Access to Justice Act, Pub. L. 
96-481.
    (b) Adversary adjudication means an adjudication under 5 U.S.C. 554 
in which the position of the United States is represented by counsel or 
otherwise, but excludes an adjudication for the purpose of establishing 
or fixing a rate or for the purpose of granting or renewing a license.
    (c) Adjudicative officer means the official who presided at the 
adversary adjudication.
    (d) Department refers to the Department of the Interior or the 
relevant department component which is a party to the adversary 
adjudication (e.g., Office of Surface Mining Reclamation and Enforcement 
or Bureau of Land Management).
    (e) Proceeding means an adversary adjudication as defined in 
Sec. 4.602(b).
    (f) Party includes a person or agency named or admitted as a party, 
or properly seeking and entitled as of right to be admitted as a party, 
in an agency proceeding, and a person or agency admitted by an agency as 
a party for limited purposes.



Sec. 4.603  Proceedings covered.

    (a) These rules apply to adversary adjudications required by statute 
to be conducted by the Secretary under 5 U.S.C. 554. Specifically, these 
rules apply to adjudications conducted by the Office of Hearings and 
Appeals under 5 U.S.C. 554 which are required by statute to be 
determined on the record after opportunity for an agency hearing. These 
rules do not apply where adjudications on the record are not required by 
statute even though hearings are conducted using procedures comparable 
to those set forth in 5 U.S.C. 554.
    (b) If a proceeding includes both matters covered by the Act and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered matters.



Sec. 4.604  Applicability to Department of the Interior proceedings.

    The Act applies to any adversary adjudication pending before the 
Office of Hearings and Appeals of the Department of the Interior at any 
time between October 1, 1981, and September 30, 1984. This includes 
proceedings begun before October 1, 1981, if final Departmental action 
has not been taken before that date, and proceedings pending on 
September 30, 1984.



Sec. 4.605  Eligibility of applicants.

    (a) To be eligible for an award of attorney fees and other expenses 
under

[[Page 109]]

the Act, the applicant must be a party prevailing over the Department in 
the adversary adjudication for which it seeks an award. The applicant 
must show that it meets all pertinent conditions of eligibility set out 
in these regulations.
    (b) The types of eligible applicants are as follows:
    (1) An individual with a net worth of not more than $1 million;
    (2) The sole owner of an unincorporated business which has a net 
worth of not more than $5 million, and not more than 500 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 not more than 500 employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees; and
    (5) Any other partnership, corporation, association, or public or 
private organization with a net worth of not more than $5 million and 
not more than 500 employees. A unit of state or local government is not 
a public organization within the meaning of this provision.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
adversary adjudication was initiated.
    (d) An applicant who owns an unincorporated business will be 
considered as an ``individual'' rather than a ``sole owner of an 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (e) The employees of an applicant include all persons who regularly 
perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be 
included.
    (f) The net worth and the number of employees of the applicant and 
all of its affiliates shall be aggregated to determine eligibility. Any 
individual or group of individuals, corporation, or other entity that 
directly or indirectly controls or owns a majority of the voting shares 
of another business, or controls in any manner the election of a 
majority of that business' board of directors, trustees, or other 
persons exercising similar functions shall be considered an affiliate of 
that business for purposes of this part. In addition, the adjudicative 
officer may determine that financial relationships of the applicant 
other than those described in the paragraph constitute special 
circumstances that would make an award unjust.
    (g) An applicant is not eligible if it has participated in the 
proceeding solely on behalf of other persons or entities that are 
ineligible.



Sec. 4.606  Standards for awards.

    (a) A prevailing applicant may receive an award for fees and 
expenses incurred in connection with a proceeding unless (1) the 
position of the Department as a party to the proceeding was 
substantially justified, or (2) special circumstances make the award 
sought unjust. No presumption arises that the Department's position was 
not substantially justified simply because the Department did not 
prevail.
    (b) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding.



Sec. 4.607  Allowable fees and expenses.

    (a) The following fees and other expenses are allowable under the 
Act:
    (1) Reasonable expenses of expert witnesses;
    (2) Reasonable cost of any study, analysis, engineering report, 
test, or project which is found necessary for the preparation of the 
party's case; and
    (3) Reasonable attorney or agent fees.
    (b) The amount of fees awarded will be based upon the prevailing 
market rates for the kind and quality of services furnished, except 
that--
    (1) Compensation for an expert witness will not exceed the highest 
rate at which the Department pays expert witnesses; and
    (2) Attorney or agent fees will not exceed $75 per hour.
    (c) In determining the reasonableness of the fee sought, the 
adjudicative officer shall consider the following:
    (1) The prevailing rate for similar services in the community in 
which the

[[Page 110]]

attorney, agent, or witness has performed the service;
    (2) The time actually spent in the representation of the applicant;
    (3) The difficulty or complexity of the issues in the proceeding;
    (4) Any necessary and reasonable expenses incurred; and
    (5) Such other factors as may bear on the value of the services 
performed.

                  Information Required From Applicants

    Note: Information Collection. The information collection requirement 
contained in Secs. 4.608 through 4.610, requiring an application for 
fees and expenses in an adversary adjudication under the Equal Access to 
Justice Act, has been approved by the Office of Management and Budget 
under the Paperwork Reduction Act, 44 U.S.C. 3507, and has been assigned 
clearance members 1084-0011. The information is required to seek an 
award of fees and expenses.



Sec. 4.608  Contents of application.

    (a) An application for an award of fees and expenses under the Act 
shall identify the applicant and the proceeding for which an award is 
sought. Two copies of the application shall be filed with the 
adjudicative officer. The application shall show that the applicant has 
prevailed and identify the position of the Department in the proceeding 
that the applicant alleges was not substantially justified.
    (b) The application shall include a statement that the applicant's 
net worth at the time the proceeding was initiated did not exceed $1 
million if the applicant is an individual (other than a sole owner of an 
unincorporated business seeking an award in that capacity) or $5 million 
in the case of all other applicants. An applicant may omit this 
statement if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3) and is exempt 
from taxation under section 501(a) of the Code or in the case of an 
organization not required to obtain a ruling from the Internal Revenue 
Service on its exempt status, a statement that describes the basis for 
the applicant's belief that it qualifies under section 501(c)(3) of the 
Code; or
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
    (c) If the applicant is a partnership, corporation, association, or 
public or private organization (including charitable or other tax exempt 
organizations or cooperative associations) or a sole owner of an 
unincorporated business, the application shall state that it did not 
have more than 500 employees at the time the proceeding was initiated, 
giving the number of its employees and describing briefly the type and 
purpose of its organization or business.
    (d) The application shall itemize the amount of fees and expenses 
for which an award is sought.
    (e) The application may include any other matters that the applicant 
believes should be considered in determining whether and in what amount 
an award should be made.
    (f) The application shall be signed by the applicant or an 
authorized officer of the applicant. The application shall contain or be 
accompanied by a written verification under oath or affirmation under 
penalty of perjury that the information provided in the application and 
all accompanying material is true and complete to the best of the 
signer's information and belief.



Sec. 4.609  Net worth exhibit.

    (a) Each application except a qualified tax-exempt organization or a 
qualified cooperative association must submit with its application a 
detailed exhibit showing its net worth at the time the proceeding was 
initiated. If any individual, corporation, or other entity directly or 
indirectly controls or owns a majority of the voting shares or other 
interest of the applicant, or if the applicant directly or indirectly 
owns or controls a majority of the voting shares or other interest of 
any corporation or other entity, the exhibit must include a showing of 
the net worth of all such affiliates or of the applicant including the 
affiliates. The exhibit may be in any form convenient to the applicant, 
provided that it makes full disclosure of the applicant's and all 
affiliates' assets and liabilities and is sufficient to determine 
whether the applicant qualifies under the standards

[[Page 111]]

of 5 U.S.C. 504(b)(1)(B)(i). The adjudicative officer may require an 
applicant to file additional information to determine the applicant's 
eligibility for an award.
    (b) The net worth exhibit shall describe any transfers of assets 
from, or obligations incurred by, the applicant or any affiliate, 
occurring in the one-year period to the date on which the proceeding was 
initiated, that reduced the net worth of the applicant and its 
affiliates below the applicable net worth ceiling. If there were no such 
transactions, the exhibit shall so state.
    (c) Ordinarily, the net worth exhibit shall be included in the 
public record of the proceeding. However, an applicant that objects to 
public disclosure of information in any portion of the exhibit and 
believes there are legal grounds for withholding it from disclosure 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. The motion shall describe the information sought to be 
withheld and explain, in detail, why it falls within one or more of the 
specific exemptions from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552, and whether it is covered by the Trade 
Secrets Act, 18 U.S.C. 1905, or other applicable statutes; why public 
disclosure of the information would adversely affect the applicant; and 
why disclosure is not required in the public interest. The material in 
question shall also be served on counsel representing the agency against 
which the applicant seeks an award, but need not be served on any other 
party to the proceeding. If the adjudicative officer finds that the 
information should not be withheld from disclosure, it shall be placed 
in the public record of the proceeding. Otherwise, any request to 
inspect or copy the exhibit shall be disposed of in accordance with the 
Department's established procedures under the Freedom of Information 
Act, 43 CFR 2.11 et. seq.



Sec. 4.610  Documentation of fees and expenses.

    (a) The application shall be accompanied by full documentation of 
the fees and expenses, including the cost of any study, analysis, 
engineering report, test, or project, for which an award is sought.
    (b) The documentation shall include an affidavit from each 
professional firm or individual whose services are covered by the 
application, stating the actual time expended and the rate at which fees 
and other expenses were computed and/or charged and describing the 
specific services performed.
    (1) The affidavit shall itemize in detail the services performed by 
the date, number of hours per date, and the services performed during 
those hours. In order to establish the hourly rate, the affidavit shall 
state the hourly rate billed to and paid by the majority of clients 
during the relevant time periods.
    (2) If no hourly rate is paid by the majority of clients because, 
for instance, the attorney or agent represents most clients on a 
contingency basis, the attorney or agent shall provide affidavits from 
two attorneys or agents with similar experience, who perform similar 
work in the same or similar geographic location, stating the hourly rate 
which they bill and are paid by the majority of their clients during a 
comparable time period.
    (c) The documentation shall also include a description of any 
expenses for which reimbursement is sought and a statement of the 
amounts paid and payable by the applicant or by any other person or 
entity for the services provided.
    (d) The adjudicative officer may require the applicant to provide 
vouchers, receipts, or other substantiation for any expenses claimed.



Sec. 4.611  Time for submission of application.

    (a) An application must be filed no later than 30 days after final 
disposition of the proceeding. Action on an application for an award of 
fees or

[[Page 112]]

other expenses filed prior to final disposition of the proceeding shall 
be stayed pending such final disposition.
    (b) Final disposition means the later of (1) the date on which the 
final Department decision is issued; or (2) the date of the order which 
finally resolves the proceeding, such as an order approving settlement 
or voluntary dismissal.

                 Procedures for Considering Applications



Sec. 4.612  Filing and service of documents.

    Any application for an award and any other pleading or document 
related to an application shall be filed with the adjudicative officer 
and serve on all parties to the proceeding in the same manner as other 
pleadings in the proceeding, except as provided in Sec. 4.609(c) for 
confidential financial information.



Sec. 4.613  Answer to application.

    (a) Within 30 calendar days after service of an application, the 
Department shall file an answer. If the Department fails to answer or 
otherwise fails to contest or settle the application, the adjudicative 
officer may, upon a satisfactory showing of entitlement by the 
applicant, make an award for the applicant's fees and other expenses 
under 5 U.S.C. 504 in accordance with Sec. 4.616.
    (b) If the Department and the applicant believe that they can reach 
a settlement concerning the award, the Department and the applicant may 
jointly file a statement of their intent to negotiate. The filing of 
such a statement shall extend the time for filing an answer for an 
additional 30 days from the date of filing of the statement. Further 
extensions may be granted by the adjudicative officer upon the joint 
request of the Department and the applicant.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on to support the objection. If 
the answer is based on any alleged facts not already reflected in the 
record of the proceeding, the Department shall include with the answer 
either a supporting affidavit or a request for further proceedings.



Sec. 4.614  Settlement.

    An applicant and the Department may agree on a proposed settlement 
of an award before final action on the application, either in connection 
with a settlement of the underlying proceeding, or after the underlying 
proceeding has been concluded. If the applicant and the Department agree 
on a proposed settlement of an award before an applicant has been filed, 
the application shall be filed with the proposed settlement.



Sec. 4.615  Extensions of time and further proceedings.

    (a) The adjudicative officer may on motion and for good cause shown 
grant extensions of time other than for filing an application for fees 
and expenses after final disposition in the adversary adjudication.
    (b) Ordinarily, the determination of an award will be made on the 
basis of the written record of the underlying proceeding and the filings 
required or permitted by the foregoing sections of these rules. However, 
the adjudicative officer may, sua sponte, or on motion of any party to 
the proceedings require or permit further proceedings, such as informal 
conferences, oral argument, additional written submissions or an 
evidentiary hearing. Such further proceedings shall be held only when 
necessary for full and fair resolution of the issues arising from the 
application and shall be conducted as promptly as possible. A motion for 
further proceedings shall specifically identify the information sought 
on the disputed issues and shall explain why the further proceedings are 
necessary to resolve the issues.



Sec. 4.616  Decision on application.

    The adjudicative officer shall promptly issue a decision on the 
application which shall include proposed written findings and 
conclusions, and the reasons or basis therefore, on such of the 
following as are relevant to the decision:
    (a) The applicant's status as a prevailing party;

[[Page 113]]

    (b) The applicant's qualification as a ``party'' under 5 U.S.C. 
504(b)(1)(B);
    (c) Whether the Department's position as a party to the proceeding 
was substantially justified;
    (d) Whether special circumstances make an award unjust;
    (e) Whether the applicant during the course of the proceedings 
engaged in conduct that unduly and unreasonably protracted the final 
resolution of the matter in controversy; and
    (f) The amounts, if any, awarded for fees and other expenses, with 
reasons for any difference between the amount requested and the amount 
awarded. If neither the applicant nor the Department appeals within 30 
days from receipt of the adjudicative officer's decision, this decision 
will be the final Departmental decision.



Sec. 4.617  Appeals Board review.

    If review is sought by the applicant or the Department, the decision 
of the adjudicative officer will be reviewed by the appropriate appeals 
board in accordance with the Department's procedures for the type of 
underlying proceeding involved. The appeals board will then issue the 
final Departmental decision on the application.



Sec. 4.618  Judicial review.

    Judicial review of final Departmental decisions on awards may be 
sought as provided in 5 U.S.C. 504(c)(2).



Sec. 4.619  Payment of award.

    An applicant seeking payment of an award shall submit a copy of the 
final decision granting the award to the Assistant Secretary for Policy, 
Budget and Administration, U.S. Department of the Interior, Washington, 
DC 20240. A statement that review of the underlying decision is not 
being sought in the United States courts, or that the process for 
seeking review of the award has been completed, must also be included.



    Subpart G--Special Rules Applicable to Other Appeals and Hearings

    Authority: 5 U.S.C. 301.



Sec. 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.

[36 FR 7186, Apr. 15, 1971; 36 FR 7588, Apr. 22, 1971]



Sec. 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 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.



Sec. 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.

[[Page 114]]



Sec. 4.703  Pleadings.

    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.

[36 FR 7186, Apr. 15, 1971; 36 FR 7588, Apr. 22, 1971]



Sec. 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.

[36 FR 7186, Apr. 15, 1971, as amended at 39 FR 2366, Jan. 21, 1974]

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

    Authority: 43 CFR 17.8 and 5 U.S.C. 301.

    Source: 38 FR 21162, Aug. 6, 1973, unless otherwise noted.

    Cross Reference: 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



Sec. 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.

[[Page 115]]



Sec. 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.



Sec. 4.802  Definitions.

    (a) The definitions set forth in Sec. 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 
Sec. 4.808.



Sec. 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.



Sec. 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.



Sec. 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



Sec. 4.806  Designation.

    Hearings shall be held before an administrative law judge designated 
by the Office of Hearings and Appeals.



Sec. 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.

[[Page 116]]

                         Appearance and Practice



Sec. 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.



Sec. 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 Sec. 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.



Sec. 4.810  Complainants not parties.

    A person submitting a complaint pursuant to Sec. 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.



Sec. 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

[[Page 117]]

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



Sec. 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.



Sec. 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.



Sec. 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



Sec. 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 Sec. 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.



Sec. 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

[[Page 118]]

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.



Sec. 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.



Sec. 4.818  Answer.

    In any case covered by Sec. 4.816 or Sec. 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 Sec. 4.816 shall be 
filed within 20 days from the date of service of the notice of hearing. 
The answer under Sec. 4.817 shall be filed within 20 days of service of 
the notice of opportunity to request a hearing.



Sec. 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.



Sec. 4.820  Consolidated or joint hearings.

    As provided in Sec. 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.



Sec. 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.



Sec. 4.822  Disposition of motions.

    The administrative law judge may not grant a written motion or 
petition

[[Page 119]]

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.



Sec. 4.823  Interlocutory appeals.

    Except as provided in Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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.

[[Page 120]]



Sec. 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.



Sec. 4.828  Use of depositions at hearing.

    (a) Any part or all of a deposition so far as admissible under 
Sec. 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.

[[Page 121]]

    (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.



Sec. 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 
Sec. 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.



Sec. 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 Sec. 4.831 with respect to any 
objection to or other failure to respond.



Sec. 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 Sec. 4.827(c), or a corporation or other entity fails to make a 
designation under Sec. 4.827(b)(3), or a party fails to answer an 
interrogatory submitted under Sec. 4.829, or if a party, under 
Sec. 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.

[[Page 122]]

    (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 Sec. 4.829 or (3) to serve 
a written response to a request for inspection, submitted under 
Sec. 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.



Sec. 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.

[38 FR 21162, Aug. 6, 1973, as amended at 50 FR 43706, Oct. 29, 1985]

                               Prehearing



Sec. 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



Sec. 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 
Sec. 4.823.



Sec. 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.



Sec. 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

[[Page 123]]

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.



Sec. 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.



Sec. 4.838  Objections.

    Objections to evidence shall be timely, and the party making them 
shall briefly state the ground relied upon.



Sec. 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.



Sec. 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.



Sec. 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



Sec. 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.



Sec. 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.



Sec. 4.844  Notification of right to file exceptions.

    The provisions of Sec. 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 Sec. 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.

[[Page 124]]



Sec. 4.845  Final review by Secretary.

    Paragraph (f) of Sec. 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

    Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396 et seq., 396a et 
seq., 2101 et seq.; 30 U.S.C. 181 et seq., 351 et seq., 1001 et seq., 
1701 et seq.; 31 U.S.C 9701; 43 U.S.C. 1301 et seq., 1331 et seq., and 
1801 et seq.

    Source: 64 FR 26259, May 13, 1999, unless otherwise noted.



Sec. 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.



Sec. 4.902  What appeals are subject to this subpart?

    (a) This subpart applies to appeals 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 290 subpart B, and 43 
CFR part 4, subpart E, of Minerals Management Service (MMS) 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.



Sec. 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 MMS has delegated authority 
to perform royalty management functions under an agreement or agreements 
under 30 CFR part 227.
    Designee means the person designated by a lessee under 30 CFR 218.52 
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 MMS or a delegated 
State denying a lessee's, designee's, or payor's written request for the 
payment, refund, offset, or credit.

[[Page 125]]

To determine the amount of any monetary obligation, for purposes of the 
default rule of decision in Sec. 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 MMS or a delegated State 
issues to a lessee that informs the lessee that MMS 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.
    Order means any document or portion of a document issued by the MMS 
Director, MMS RMP, 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 but is not limited to the following:
    (i) An order to pay;
    (ii) A MMS 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 MMS 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 241, 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.
    Party means MMS, 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 
290 subpart B, or 43 CFR part 4, subpart E, and any person who files a 
Notice of Joinder in an appeal under 30 CFR part 290, subpart B.
    Payor means any person responsible for reporting and paying 
royalties for Federal oil and gas leases for production before September 
1, 1996.



Sec. 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 Sec. 4.906:
    (a) If you filed your Notice of Appeal and initial Statement of 
Reasons with MMS before August 13, 1996, your appeal commenced on August 
13, 1996;
    (b) If you filed your Notice of Appeal or initial Statement of 
Reasons with

[[Page 126]]

MMS after August 13, 1996, 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, your appeal commenced on the date MMS received your 
Notice of Appeal, or if later, the date MMS received your initial 
Statement of Reasons;
    (c) If you filed your Notice of Appeal under 30 CFR part 290, 
subpart B, your appeal commenced on the date MMS received your Notice of 
Appeal.
    (d) Your appeal ends on the same day of the month of the 33rd 
calendar month after your appeal commenced under paragraph (a), (b), or 
(c) of this section, plus the number of days of any applicable time 
extensions under Sec. 4.909 or 30 CFR 290.109. 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.



Sec. 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.



Sec. 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 Sec. 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 MMS 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 MMS 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 MMS Director issues a decision in your appeal, and if you 
did not appeal the Director's decision to IBLA within the time required 
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 (for 
appeals filed before May 13, 1999 or 30 CFR part 290 subpart B (for 
appeals filed on or after May 13, 1999 and 43 CFR part 4, subpart E, 
then the MMS Director's 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 MMS Director's decision and 
must be computed to comply with the order or MMS Director's decision, 
then the principal amount referred to in paragraph (a) of this section 
means the principal amount MMS 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.



Sec. 4.907  What if an IBLA decision requires MMS or a delegated State to recalculate royalties or other payments?

    (a) An IBLA decision modifying an order or an MMS Director's 
decision and requiring MMS 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).

[[Page 127]]

    (b) MMS 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 MMS'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.



Sec. 4.908  What is the administrative record for my appeal if it is deemed decided?

    If your appeal is deemed decided under Sec. 4.906, the record for 
your appeal consists of:
    (a) The record established in an appeal before the MMS Director;
    (b) Any additional correspondence or submissions to the MMS 
Director;
    (c) The MMS Director's decision in an appeal;
    (d) Any pleadings or submissions to the IBLA; and
    (e) Any IBLA orders and decisions.



Sec. 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, 801 North Quincy Street, Arlington, Virginia 22203, using 
the U.S. Postal Service, a private delivery or courier service, hand 
delivery or telefax to (703) 235-8349;
    (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 Sec. 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 
Sec. 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.

[64 FR 26259, May 13, 1999, as amended at 67 FR 4368, Jan. 30, 2002]

Subpart K [Reserved]



Subpart L--Special Rules Applicable to Surface Coal Mining Hearings and 
                                 Appeals

    Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272, 1275, 
1293; 5 U.S.C. 301.

    Source: 43 FR 34386, Aug. 3, 1978, unless otherwise noted.

                           General Provisions



Sec. 4.1100  Definitions.

    As used in the regulations in this subpart, the term--
    (a) Act means the Surface Mining Control and Reclamation Act of 
1977, 91 Stat. 445 et seq., 30 U.S.C. 1201 et seq..
    (b) 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).
    (c) Board means the Board of Land Appeals in the Office of Hearings 
and Appeals.
    (d) OHA means the Office of Hearings and Appeals, Department of the 
Interior.

[[Page 128]]

    (e) OSM and OSMRE mean the Office of Surface Mining Reclamation and 
Enforcement, Department of the Interior.

[43 FR 34386, Aug. 3, 1978, as amended at 49 FR 7565, Mar. 1, 1984; 59 
FR 1488, Jan. 11, 1994; 67 FR 61509, Oct. 1, 2002]



Sec. 4.1101  Jurisdiction of the Board.

    (a) The jurisdiction of the Board, as set forth in Sec. 4.1(b)(3), 
and subject to Secs. 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.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61509, Oct. 1, 2002]



Sec. 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.



Sec. 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.



Sec. 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.



Sec. 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 Sec. 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 Secs. 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

[[Page 129]]

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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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.

[43 FR 34386, Aug. 3, 1978, as amended at 56 FR 2142, Jan. 22, 1991; 59 
FR 1488, Jan. 11, 1994; 59 FR 54362, Oct. 28, 1994]



Sec. 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 witnessess.



Sec. 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, by hand or by mail, with the Hearings Division, Office of 
Hearings and Appeals, Department of the Interior, 801 North Quincy 
Street, Arlington, Va. 22203.
    (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, by hand or by mail, with the Board of Land Appeals, Office of 
Hearings and Appeals, 801 North Quincy Street, Arlington, Va. 22203.
    (d) Any person filing initial pleadings with the Hearings Division 
or a notice of appeal with the Board shall furnish an original and one 
copy. Any person filing other documents with OHA 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

[[Page 130]]

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.
    (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, 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. The burden of establishing the date of mailing 
shall be on the person filing the document.

[43 FR 34386, Aug. 3, 1978, as amended at 45 FR 50753, July 31, 1980; 46 
FR 6942, Jan. 22, 1981; 49 FR 7565, Mar. 1, 1984; 67 FR 4368, Jan. 30, 
2002]



Sec. 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.



Sec. 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 Sec. 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:
    (i) For mining operations in Alabama, Arkansas, Georgia, Illinois, 
Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, North 
Carolina, Oklahoma, Tennessee, Texas, and Virginia: Field Solicitor, 
U.S. Department of the Interior, 530 S. Gay Street, Room 308, Knoxville, 
Tennessee 37902; Telephone: (865) 545-4294; FAX: (865) 545-4314.
    (ii) For mining operations in Maryland, Massachusetts, Michigan, 
Ohio, Pennsylvania, Rhode Island, and West Virginia: Field Solicitor, 
U.S. Department of the Interior, Three Parkway Center, Suite 385, 
Pittsburgh, Pennsylvania 15220; Telephone: (412) 937-4000; FAX: (412) 
937-4003.
    (iii) For mining operations in Alaska, Colorado, Idaho, Montana, 
North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming, 
including mining operations located on Indian lands within those states: 
Regional Solicitor, Rocky Mountain Region, U.S. Department of the 
Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215; Telephone: 
(303) 231-5353; FAX: (303) 231-5363 or 231-5360.
    (iv) For mining operations in Arizona, California, and New Mexico, 
including mining operations located on Indian lands within those states 
except

[[Page 131]]

for the challenge of permitting decisions affecting mining operations 
located on Indian lands in those states: Regional Solicitor, Southwest 
Region, U.S. Department of the Interior, 505 Marquette Avenue, NW., 
Suite 1800, Albuquerque, NM 87102; Telephone: (505) 248-5600; FAX: (505) 
248-5623.
    (v) For the challenge of permitting decisions affecting mining 
operations located on Indian lands within Arizona, California, and New 
Mexico: Regional Solicitor, Rocky Mountain Region, U.S. Department of 
the Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215; 
Telephone: (303) 231-5353; FAX: (303) 231-5363 or 231-5360.
    (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. All subsequent documents shall 
be served personally or by first class mail.
    (c) Service of copies of all documents is complete at the time of 
personal service or, if service is made by mail, upon receipt.
    (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.

[43 FR 34386, Aug. 3, 1978, as amended at 45 FR 50753, July 31, 1980; 52 
FR 39526, Oct. 22, 1987; 56 FR 2142, Jan. 22, 1991; 56 FR 5061, Feb. 7, 
1991; 59 FR 1488, Jan. 11, 1994; 59 FR 42774, Aug. 19, 1994; 60 FR 
58243, Nov. 27, 1995; 61 FR 40348, Aug. 2, 1996; 67 FR 61510, Oct. 1, 
2002]



Sec. 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.



Sec. 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.



Sec. 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.

[[Page 132]]

    (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.



Sec. 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.



Sec. 4.1114  Advancement of proceedings.

    (a) Except in expedited review proceedings under Sec. 4.1180, or in 
temporary relief proceedings under Sec. 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 by telephonic or telegraphic communication followed 
by mail. Service is complete upon mailing.
    (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.



Sec. 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.



Sec. 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.

                          Evidentiary Hearings



Sec. 4.1120  Presiding officers.

    An adminstrative 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).



Sec. 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;

[[Page 133]]

    (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.



Sec. 4.1122  Conduct of administrative law judges.

    Administrative law judges shall adhere to the ``Code of Judicial 
Conduct.''



Sec. 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.



Sec. 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 controling question of law 
and an immediate appeal would materially advance ultimate disposition by 
the judge.



Sec. 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.



Sec. 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.

[[Page 134]]



Sec. 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.



Sec. 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 Sec. 4.1270 or 
Sec. 4.1271.



Sec. 4.1129  Certification of record.

    Except in expedited review proceedings under Sec. 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, Arlington, Va.

                                Discovery



Sec. 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.



Sec. 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.



Sec. 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

[[Page 135]]

or be disclosed only in a designated way.



Sec. 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.



Sec. 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.



Sec. 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 Sec. 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 Sec. 4.1132(d).



Sec. 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.



Sec. 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

[[Page 136]]

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.



Sec. 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

[[Page 137]]

    (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.



Sec. 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 partes 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 Sec. 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.



Sec. 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 Sec. 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 
Sec. 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.



Sec. 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

[[Page 138]]

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



Sec. 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.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 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.

[43 FR 34386, Aug. 3, 1978, as amended at 51 FR 16321, May 2, 1986; 59 
FR 1488, Jan. 11, 1994]



Sec. 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

[[Page 139]]

    (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 Sec. 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.

[43 FR 34386, Aug. 3, 1978, as amended at 51 FR 16321, May 2, 1986; 59 
FR 1488, Jan. 11, 1994]



Sec. 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.



Sec. 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 Sec. 4.1157.

[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1488, Jan. 11, 1994]



Sec. 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.

[53 FR 47694, Nov. 25, 1988]



Sec. 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--

[[Page 140]]

    (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.



Sec. 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 his decision is not filed with the Board or the 
Board refuses to grant such a petition, the Department of the Interior 
shall have 30 days from the expiration of the date for filing a petition 
with the Board if no petition is filed, or 30 days from the date the 
Board refuses to grant such a petition, within which to remit the 
appropriate amount to the person who made the payment, with interest at 
the rate of 6 percent, or at the prevailing Department of the Treasury 
rate, whichever is greater.
    (d) If the administrative law judge increases the amount of the 
civil penalty above that of the proposed assessment, the administrative 
law judge shall order payment of the appropriate amount within 30 days 
of receipt of the decision.

[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1488, Jan. 11, 1994]



Sec. 4.1158  Appeals.

    Any party may petition the Board to review the decision of an 
administrative law judge concerning an assessment according to the 
procedures set forth in Sec. 4.1270.

   Review of Section 521 Notices of Violation and Orders of Cessation



Sec. 4.1160  Scope.

    These regulations govern applications for review of--
    (a) Notices of violation or the modification, vacation, or 
termination of a notice of violation under section 521(a)(3) of the Act; 
and
    (b) Orders of cessation which are not subject to expedited review 
under Sec. 4.1180 or the modification, vacation, or termination of such 
an order of cessation under section 521(a)(2) or section 521(a)(3).



Sec. 4.1161  Who may file.

    A permittee issued a notice or order by the Secretary pursuant to 
the provisions of section 521(a)(2) or section 521(a)(3) of the Act or 
any person having an interest which is or may be adversely affected by a 
notice or order subject to review under Sec. 4.1160 may file an 
application for review with the

[[Page 141]]

Hearings Division, OHA, 801 North Quincy Street, Arlington, Va. 22203.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1162  Time for filing.

    (a) Any person filing an application for review under Sec. 4.1160 et 
seq. shall file that application within 30 days of the receipt of a 
notice or order or within 30 days of receipt of notice of modification, 
vacation, or termination of such a notice or order. Any person not 
served with a copy of the document shall file the application for review 
within 40 days of the date of issuance of the document.
    (b) No extension of time will be granted for filing an application 
for review as provided by paragraph (a) of this section. If an 
application for review is not filed within the time period provided in 
paragraph (a) of this section, the application shall be dismissed.

[51 FR 16321, May 2, 1986]



Sec. 4.1163  Effect of failure to file.

    Failure to file an application for review of a notice of violation 
or order of cessation shall not preclude challenging the fact of 
violation during a civil penalty proceeding.



Sec. 4.1164  Contents of application.

    Any person filing an application for review shall incorporate in 
that application regarding each claim for relief--
    (a) A statement of facts entitling that person to administrative 
relief;
    (b) A request for specific relief;
    (c) A copy of any notice or order sought to be reviewed;
    (d) A statement as to whether the person requests or waives the 
opportunity for an evidentiary hearing; and
    (e) Any other relevant information.



Sec. 4.1165  Answer.

    (a) Where an application for review is filed by a permittee, OSM as 
well as any other person granted leave to intervene pursuant to 
Sec. 4.1110 shall file an answer within 20 days of service of a copy of 
such application.
    (b) Where an application for review is filed by a person other than 
a permittee, the following shall file an answer within 20 days of 
service of a copy of such application--
    (1) OSM;
    (2) The permittee; or
    (3) Any other person granted leave to intervene pursuant to 
Sec. 4.1110.



Sec. 4.1166  Contents of answer.

    An answer to an application for review shall incorporate--
    (a) A statement specifically admitting or denying the alleged facts 
stated by the applicant;
    (b) A statement of any other relevant facts;
    (c) A statement whether an evidentiary hearing is requested or 
waived; and
    (d) Any other relevant information.



Sec. 4.1167  Notice of hearing.

    Pursuant to section 525(a)(2) of the act, the applicant and other 
interested persons shall be given written notice of the time and place 
of the hearing at least 5 working days prior thereto.



Sec. 4.1168  Amendments to pleadings.

    (a) An application for review may be amended once as a matter of 
right prior to the filing of an answer and thereafter by leave of the 
administrative law judge upon proper motion.
    (b) Upon receipt of an initial or amended application for review or 
subsequent to granting leave to amend, the administrative law judge 
shall issue an order setting a time for filing an amended answer if the 
judge determines that such an answer is appropriate.



Sec. 4.1169  Failure to state a claim.

    Upon proper motion or after the issuance of an order to show cause 
by the administrative law judge, an administrative law judge may dismiss 
at any time an application for review which fails to state a claim upon 
which administrative relief may be granted.



Sec. 4.1170  Related notices or orders.

    (a) An applicant for review shall file a copy of any subsequent 
notice or order which modifies, vacates, or terminates the notice or 
order sought to be reviewed within 10 days of receipt.

[[Page 142]]

    (b) An applicant for review of a notice shall file a copy of an 
order of cessation for failure timely to abate the violation which is 
the subject of the notice under review within 10 days of receipt of such 
order.
    (c) If an applicant for review desires to challenge any subsequent 
notice or order, the applicant must file a separate application for 
review.
    (d) Applications for review of related notices or orders are subject 
to consolidation.



Sec. 4.1171  Burden of proof in review of section 521 notices or orders.

    (a) In review of section 521 notices of violation or orders of 
cessation or the modification, vacation, or termination thereof, 
including expedited review under Sec. 4.1180, OSM shall have the burden 
of going forward to establish a prima facie case as to the validity of 
the notice, order, or modification, vacation, or termination thereof.
    (b) The ultimate burden of persuasion shall rest with the applicant 
for review.

 Expedited Review of Section 521(a)(2) or 521(a)(3) Orders of Cessation



Sec. 4.1180  Purpose.

    The purpose of Secs. 4.1180--4.1187 is to govern applications filed 
under section 525(b) of the act for expedited review of orders of 
cessation for which temporary relief has not been granted under section 
525(c) or section 526(c) of the act. If a person is qualified to receive 
a 30-day decision under these regulations, he may waive that right and 
file an application under Sec. 4.1164, and the procedures in Sec. 4.1160 
et seq. shall apply. If there is a waiver as set forth in Sec. 4.1186, 
the final administrative decision shall be issued within 120 days of the 
filing of the application.



Sec. 4.1181  Who may file.

    (a) An application for review of an order of cessation may be filed 
under this section, whenever temporary relief has not been granted under 
section 525(c) or section 526(c) of the act, by--
    (1) A permittee who has been issued an order of cessation under 
section 521(a)(2) or section 521(a)(3) of the act; or
    (2) Any person having an interest which is or may be adversely 
affected by the issuance of an order of cessation under section 
521(a)(2) or section 521(a)(3) of the act.
    (b) A permittee or any person having an interest which is or may be 
adversely affected by a section 521(a)(2) or section 521(a)(3) order of 
cessation waives his right to expedited review upon being granted 
temporary relief pursuant to section 525(c) or section 526(c) of the 
act.



Sec. 4.1182  Where to file.

    The application shall be filed in the Hearings Division, 801 North 
Quincy Street, OHA, Arlington, Va. 22203.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1183  Time for filing.

    (a) Any person intending to file an application for expedited review 
under section 525(b) of the act shall notify the field solicitor, 
Department of the Interior, for the region in which the mine site is 
located, within 15 days of receipt of the order. Any person not served 
with a copy of the order shall file notice of intention to file an 
application for review within 20 days of the date of issuance of the 
order.
    (b) Any person filing an application for review under Sec. 4.1184 
shall file the application within 30 days of receipt of the order. Any 
person not served with a copy of the order shall file an application for 
review within 40 days of the date of issuance of the order.



Sec. 4.1184  Contents of application.

    (a) Any person filing an application for expedited review under 
section 525(b) of the act shall incorporate in that application 
regarding each claim for relief--
    (1) A statement of facts entitling that person to administrative 
relief;
    (2) A request for specific relief;
    (3) A specific statement which delineates each issue to be addressed 
by the applicant during the expedited proceeding;
    (4) A copy of the order sought to be reviewed;
    (5) A list identifying each of applicant's witnesses by name, 
address, and place of employment, including expert

[[Page 143]]

witnesses and the area of expertise to which they will address 
themselves at the hearing, and a detailed summary of their testimony;
    (6) Copies of all exhibits and other documentary evidence that the 
applicant intends to introduce as evidence at the hearing and 
descriptions of all physical exhibits and evidence which is not capable 
of being copied or attached; and
    (7) Any other relevant information.
    (b) If any applicant fails to comply with all the requirements of 
Sec. 4.1184(a), the administrative law judge may find that the applicant 
has waived the 30-day decision requirement or the administrative law 
judge shall order that the application be perfected and the application 
shall not be considered filed for purposes of the 30-day decision until 
perfected. Failure to timely comply with the administrative law judge's 
order shall constitute a waiver of the 30-day decision.



Sec. 4.1185  Computation of time for decision.

    In computing the 30-day time period for administrative decision, 
intermediate Saturdays, Sundays, Federal legal holidays, and other 
nonbusiness days shall be excluded in the computation.



Sec. 4.1186  Waiver of the 30-day decision requirement.

    (a) Any person qualified to receive a 30-day decision may waive that 
right--
    (1) By filing an application pursuant to Sec. 4.1160-71;
    (2) By failing to comply with all the requirements of 
Sec. 4.1184(a); or
    (3) In accordance with Sec. 4.1187(j).
    (b) Any person qualified to receive a 30-day decision shall waive 
that right--
    (1) By obtaining temporary relief pursuant to section 525(c) or 
section 526(c) of the act;
    (2) By failing to perfect an application pursuant to Sec. 4.1184(b); 
or
    (3) In accordance with Sec. 4.1187(i).



Sec. 4.1187  Procedure if 30-day decision requirement is not waived.

    If the applicant does not waive the 30-day decision requirement of 
section 525(b) of the act, the following special rules shall apply--
    (a) The applicant shall serve all known parties with a copy of the 
application simultaneously with the filing of the application with OHA. 
If service is accomplished by mail, the applicant shall inform all known 
parties by telephone at the time of mailing that an application is being 
filed and shall inform the administrative law judge by telephone that 
such notice has been given. However, no ex parte communication as to the 
merits of the proceeding may be conducted with the administrative law 
judge.
    (b) Any party desiring to file a response to the application for 
review shall file a written response within 5 working days of service of 
the application.
    (c) If the applicant has requested a hearing, the administrative law 
judge shall act immediately upon receipt of the application to notify 
the parties of the time and place of the hearing at least 5 working days 
prior to the hearing date.
    (d) The administrative law judge may require the parties to submit 
proposed findings of fact and conclusions of law at the hearing which 
may be orally supplemented on the record at the hearing or, where 
proposed findings of fact and conclusions of law have not been submitted 
at the hearing, they may be orally presented for the record at the 
hearing.
    (e) The administrative law judge shall make an initial decision. He 
shall either rule from the bench on the application, orally stating the 
reasons for his decision or he shall issue a written decision. If the 
administrative law judge makes an oral ruling, his approval of the 
record of the hearing shall constitute his written decision. The 
decision of the administrative law judge must be issued within 15 days 
of the filing of the perfected application under Sec. 4.1184.
    (f) If any party desires to appeal to the Board, such party shall--
    (1) If the administrative law judge makes an oral ruling, make an 
oral statement, within a time period as directed by the administrative 
law judge, that the decision is being appealed and request that the 
administrative law judge certify the record to the Board; or

[[Page 144]]

    (2) If the administrative law judge issues a written decision after 
the close of the hearing, file a notice of appeal with the 
administrative law judge and with the Board within 2 working days of 
receipt of the administrative law judge's decision.
    (g) If the decision of the administrative law judge is appealed, the 
Board shall act immediately to issue an expedited briefing schedule, and 
the Board shall act expeditiously to review the record and issue its 
decision. The decision of the Board must be issued within 30 days of the 
date the perfected application is filed with OHA pursuant to 
Sec. 4.1184.
    (h) If all parties waive the opportunity for a hearing and the 
administrative law judge determines that a hearing is not necessary, but 
the applicant does not waive the 30-day decision requirement, the 
administrative law judge shall issue an initial decision on the 
application within 15 days of receipt of the application. The decision 
shall contain findings of fact and an order disposing of the 
application. The decision shall be served upon all the parties and the 
parties shall have 2 working days from receipt of such decision within 
which to appeal to the Board. The Board shall issue its decision within 
30 days of the date the perfected application is filed with OHA pursuant 
to Sec. 4.1184.
    (i) If at any time after the initiation of this expedited procedure, 
the applicant requests a delay or acts in a manner so as to frustrate 
the expeditious nature of this proceeding or fails to comply with any 
requirement of Sec. 4.1187(a), such action shall constitute a waiver of 
the 30-day requirement of section 525(b) of the act.
    (j) If the applicant seeks to offer witnesses, exhibits, or 
testimony at the hearing in addition to those identified, submitted, 
described, or summarized in the application for expedited review 
perfected in accordance with the requirements of Sec. 4.1184, upon 
objection by an opposing party to such offer, the administrative law 
judge may allow such objecting party additional time in order to prepare 
for cross-examination of unidentified witnesses or to identify and 
prepare rebuttal evidence or otherwise uncover any additional prejudice 
which may result to such party. The administrative law judge may rule 
that the running of the 30-day time for decision is stayed for the 
period of any additional time allowed pursuant to this subsection or may 
determine that the applicant has waived his right to the 30-day 
decision.

   Proceedings for Suspension or Revocation of Permits Under Section 
                          521(a)(4) of the Act



Sec. 4.1190  Initiation of proceedings.

    (a) A proceeding on a show cause order issued by the Director of OSM 
pursuant to section 521(a)(4) of the Act shall be initiated by the 
Director of OSM filing a copy of such an order with the Hearings 
Division, OHA, 801 N. Quincy Street, Suite 300, Arlington, VA 22203, 
promptly after the order is issued to the permittee.
    (b) A show cause order filed with OHA shall set forth--
    (1) A list of the unwarranted or willful violations which contribute 
to a pattern of violations;
    (2) A copy of each order or notice which contains one or more of the 
violations listed as contributing to a pattern of violations;
    (3) The basis for determining the existence of a pattern or 
violations; and
    (4) Recommendations whether the permit should be suspended or 
revoked, including the length and terms of a suspension.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 67 
FR 61510, Oct. 1, 2002]



Sec. 4.1191  Answer.

    The permittee shall have 30 days from receipt of the order within 
which to file an answer with the Hearings Division, OHA, Arlington, Va.



Sec. 4.1192  Contents of answer.

    The permittee's answer to a show cause order shall contain a 
statement setting forth--
    (a) The reasons in detail why a pattern of violations does not exist 
or has not existed, including all reasons for contesting--
    (1) The fact of any of the violations alleged by OSM as constituting 
a pattern of violations;

[[Page 145]]

    (2) The willfulness of such violations; or
    (3) Whether such violations were caused by the unwarranted failure 
of the permittee;
    (b) All mitigating factors the permittee believes exist in 
determining the terms of the revocation or the length and terms of the 
suspension;
    (c) Any other alleged relevant facts; and
    (d) Whether a hearing on the show cause order is desired.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61510, Oct. 1, 2002]



Sec. 4.1193  Notice of hearing.

    If a hearing on the show cause order is requested, or if no hearing 
is requested but the administrative law judge determines that a hearing 
is necessary, the administrative law judge shall give thirty days 
written notice of the date, time, and place of the hearing to the 
Director, the permittee, the State regulatory authority, if any, and any 
intervenor.

[67 FR 61510, Oct. 1, 2002]



Sec. 4.1194  Burden of proof in suspension or revocation proceedings.

    In proceedings to suspend or revoke a permit, OSM shall have the 
burden of going forward to establish a prima facie case for suspension 
or revocation of the permit. The ultimate burden of persuasion that the 
permit should not be suspended or revoked shall rest with the permittee.

[43 FR 34386, Aug. 3, 1978. Redesignated at 67 FR 61510, Oct. 1, 2002]



Sec. 4.1195  Determination by the administrative law judge.

    (a) Upon a determination by the administrative law judge that a 
pattern of violations exists or has existed, the administrative law 
judge shall order the permit either suspended or revoked. In making such 
a determination, the administrative law judge need not find that all the 
violations listed in the show cause order occurred, but only that 
sufficient violations occurred to establish a pattern.
    (b) If the permit is suspended, the minimum suspension period shall 
be 3 working days unless the administrative law judge finds that 
imposition of the minimum suspension period would result in manifest 
injustice and would not further the purposes of the act. Also, the 
administrative law judge may impose preconditions to be satisfied prior 
to the suspension being lifted.
    (c) The decision of the administrative law judge shall be issued 
within 20 days following the date the hearing record is closed by the 
administrative law judge or within 20 days of receipt of the answer, if 
no hearing is requested by any party and the administrative law judge 
determines that no hearing is necessary.
    (d) At any stage of a suspension or revocation proceeding being 
conducted by an administrative law judge, the parties may enter into a 
settlement, subject to the approval of the administrative law judge.

[43 FR 34386, Aug. 3, 1978. Redesignated and amended at 67 FR 61510, 
Oct. 1, 2002]



Sec. 4.1196  Summary disposition.

    (a) In a proceeding under this section where the permittee fails to 
appear at a hearing, the permittee shall be deemed to have waived his 
right to a hearing and the administrative law judge may assume for 
purposes of the proceeding that--
    (1) Each violation listed in the order occurred;
    (2) Such violations were caused by the permittee's unwarranted 
failure or were willfully caused; and
    (3) A pattern of violations exists.
    (b) In order to issue an initial decision concerning suspension or 
revocation of the permit when the permittee fails to appear at the 
hearing, the administrative law judge shall either conduct an ex parte 
hearing or require OSM to furnish proposed findings of fact and 
conclusions of law.

[43 FR 34386, Aug. 3, 1978. Redesignated at 67 FR 61510, Oct. 1, 2002]



Sec. 4.1197  Appeals.

    Any party desiring to appeal the decision of the administrative law 
judge shall have 5 days from receipt of the administrative law judge's 
decision within which to file a notice of appeal with the Board. The 
Board shall act immediately to issue an expedited

[[Page 146]]

briefing schedule. The decision of the Board shall be issued within 60 
days of the date the hearing record is closed by the administrative law 
judge or, if no hearing is held, within 60 days of the date the answer 
is filed.

[43 FR 34386, Aug. 3, 1978. Redesignated at 67 FR 61510, Oct. 1, 2002]

Applications for Review of Alleged Discriminatory Acts Under Section 703 
                               of the Act



Sec. 4.1200  Filing of the application for review with the Office of Hearings and Appeals.

    (a) Pursuant to 30 CFR 865.13, within 7 days of receipt of an 
application for review of alleged discriminatory acts, OSM shall file a 
copy of the application in the Hearings Division, OHA, 801 N. Quincy 
Street, Suite 300, Arlington, VA 22203. OSM shall also file in the 
Hearings Division, OHA, Arlington, VA, a copy of any answer submitted in 
response to the application for review.
    (b) The application for review, as filed in the Hearings Division, 
OHA, shall be held in suspense until one of the following takes place--
    (1) A request for temporary relief is filed pursuant to Sec. 4.1203;
    (2) A request is made by OSM for the scheduling of a hearing 
pursuant to 30 CFR 865.14(a);
    (3) A request is made by the applicant for the scheduling of a 
hearing pursuant to 30 CFR 865.14(a);
    (4) A request is made by the applicant for the scheduling of a 
hearing pursuant to 30 CFR 865.14(b);
    (5) A request is made by OSM that OHA close the case because OSM, 
the applicant, and the alleged discriminating person have entered into 
an agreement in resolution of the discrimina- tory acts and there has 
been compliance with such agreement.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 67 
FR 61510, Oct. 1, 2002]



Sec. 4.1201  Request for scheduling of a hearing.

    (a) If OSM determines that a violation of section 703(a) of the act 
has probably occurred and was not resolved at the informal conference, 
it shall file with the Hearings Division, OHA, a request on behalf of 
the applicant that a hearing be scheduled. The request shall be filed 
within 10 days of the completion of the informal conference, or where no 
conference is held, within 10 days following the scheduled conference. 
Where OSM makes such a request, it shall represent the applicant in the 
administrative proceedings, unless the applicant desires to be 
represented by private counsel.
    (b) If OSM declines to request that a hearing be scheduled and to 
represent the applicant, it shall within 10 days of the completion of 
the informal conference, or where no conference is held, within 10 days 
following the scheduled conference, notify the applicant of his right to 
request the scheduling of a hearing on his own behalf. An applicant 
shall file a request for the scheduling of a hearing in the Hearings 
Division, OHA, within 30 days of service of such notice from OSM.
    (c) If no request for the scheduling of a hearing has been made 
pursuant to paragraph (a) or (b) of this section and 60 days have 
elapsed from the filing of the application for review with OSM, the 
applicant may file on his own behalf a request for the scheduling of a 
hearing with the main office of OHA. Where such a request is made, the 
applicant shall proceed on his own behalf, but OSM may intervene 
pursuant to Sec. 4.1110.



Sec. 4.1202  Response to request for the scheduling of a hearing.

    (a) Any person served with a copy of the request for the scheduling 
of a hearing shall file a response with the Hearings Division, OHA, 
Arlington, Va., within 20 days of service of such request.
    (b) If the alleged discriminating person has not filed an answer to 
the application, such person shall include with the response to the 
request for the scheduling of a hearing, a statement specifically 
admitting or denying the alleged facts set forth in the application.



Sec. 4.1203  Application for temporary relief from alleged discriminatory acts.

    (a) On or after 10 days from the filing of an application for review 
under this

[[Page 147]]

part, any party may file an application for temporary relief from 
alleged discriminatory acts.
    (b) The application shall be filed in the Hearings Division, OHA, 
Arlington, Va.
    (c) The application shall include--
    (1) A detailed written statement setting forth the reasons why 
relief should be granted;
    (2) A showing that the complaint of discrimination was not 
frivolously brought;
    (3) A description of any exigent circumstances justifying temporary 
relief; and
    (4) A statement of the specific relief requested.
    (d) All parties to the proceeding to which the application relates 
shall have 5 days from receipt of the application to file a written 
response.
    (e) The administrative law judge may convene a hearing on any issue 
raised by the application if he deems it appropriate.
    (f) The administrative law judge shall expeditiously issue an order 
or decision granting or denying such relief.
    (g) If all parties consent, before or after the commencement of any 
hearing on the application for temporary relief, the administrative law 
judge may order the hearing on the application for review of alleged 
discrimina- tory acts to be advanced and consolidated with the hearing 
on the application for temporary relief.



Sec. 4.1204  Determination by administrative law judge.

    Upon a finding of a violation of section 703 of the act or 30 CFR 
865.11, the administrative law judge shall order the appropriate 
affirmative relief, including but not limited to--
    (a) The rehiring or reinstatement of the applicant to his former 
position with full rights and privileges, full backpay, and any special 
damages sustained as a result of the discrimination; and
    (b) All other relief which the administrative law judge deems 
apropriate to abate the violation or to prevent recurrence of 
discrimination.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61510, Oct. 1, 2002]



Sec. 4.1205  Appeals.

    Any party aggrieved by a decision of an administrative law judge 
concerning an application for review of alleged discriminatory acts may 
appeal to the Board under procedures set forth in Sec. 4.1271 et seq.

                    Applications for Temporary Relief



Sec. 4.1260  Scope.

    These regulations contain the procedures for seeking temporary 
relief in section 525 review proceedings under the act. The special 
procedures for seeking temporary relief from an order of cessation are 
set forth in Sec. 4.1266. Procedures for seeking temporary relief from 
alleged discrimina- tory acts are covered in Sec. 4.1203.



Sec. 4.1261  When to file.

    An application for temporary relief may be filed by any party to a 
proceeding at any time prior to decision by an administrative law judge.



Sec. 4.1262  Where to file.

    The application shall be filed with the administrative law judge to 
whom the case has been assigned. If no assignment has been made, the 
application shall be filed in the Hearings Division, OHA, 801 North 
Quincy Street, Arlington, Va. 22203.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1263  Contents of application.

    The application shall include--
    (a) A detailed written statement setting forth the reasons why 
relief should be granted;
    (b) A showing that there is a substantial likelihood that the 
findings and decision of the administrative law judge in the matters to 
which the application relates will be favorable to the applicant;
    (c) A statement that the relief sought will not adversely affect the 
health or safety of the public or cause significant, imminent 
environmental harm to land, air, or water resources;
    (d) If the application relates to an order of cessation issued 
pursuant to section 521(a)(2) or section 521(a)(3) of

[[Page 148]]

the act, a statement of whether the requirement of section 525(c) of the 
act for decision on the application within 5 days is waived; and
    (e) A statement of the specific relief requested.



Sec. 4.1264  Response to application.

    (a) Except as provided in Sec. 4.1266(b), all parties to the 
proceeding to which the application relates shall have 5 days from the 
date of receipt of the application to file a written response.
    (b) Except as provided in Sec. 4.1266(b), the administrative law 
judge may hold a hearing on any issue raised by the application if he 
deems it appropriate.



Sec. 4.1265  Determination on application concerning a notice of violation issued pursuant to section 521(a)(3) of the act.

    Where an application has been filed requesting temporary relief from 
a notice of violation issued under section 521(a)(3) of the act, the 
administrative law judge shall expeditiously issue an order or decision 
granting or denying such relief.



Sec. 4.1266  Determination on application concerning an order of cessation.

    (a) If the 5-day requirement of section 525(c) of the act is waived, 
the administrative law judge shall expeditiously conduct a hearing and 
render a decision on the application.
    (b) If there is no waiver of the 5-day requirement of section 525(c) 
of the act, the following special rules shall apply--
    (1) The 5-day time for decision shall not begin to run until the 
application is filed pursuant to Sec. 4.1262 or a copy of the 
application is received by the field solicitor for the region in which 
the mine site subject to the order is located, whichever occurs at a 
later date (see Sec. 4.1109 for addresses);
    (2) The application shall include an affidavit stating that 
telephone notice has been given to the field office of OSM serving the 
state in which the minesite subject to the order is located. The 
telephone notice shall identify the mine, the mine operator, the date 
and number of the order from which relief is requested, the name of the 
OSM inspector involved, and the name and telephone number of the 
applicant. OSM's field offices and their numbers follow:

Albuquerque Field Office (serving Arizona, California, and New Mexico) 
    (505) 248-5070.
Big Stone Gap Field Office (serving Virginia) (276) 523-4303.
Birmingham Field Office (serving Alabama and Mississippi) (205) 290-7282 
    (ext. 16).
Casper Field Office (serving Idaho, Montana, North Dakota, South Dakota, 
    and Wyoming) (307) 261-6550.
Charleston Field Office (serving West Virginia) (304) 347-7158.
Columbus Team Office (serving Maryland, Michigan, and Ohio) (412) 937-
    2153.
Harrisburg Field Office (serving Massachusetts, Pennsylvania, and Rhode 
    Island) (717) 782-4036.
Knoxville Field Office (serving Georgia, Tennessee, and North Carolina) 
    (865) 545-4103 (ext. 186).
Lexington Field Office (serving Kentucky) (859) 260-8402.
Mid-Continent Regional Coordinating Center (serving Iowa, Kansas, and 
    Missouri) (618) 463-6460.
Olympia Office (serving Washington) (360) 753-9538.
Tulsa Field Office (serving Arkansas, Louisiana, Oklahoma, and Texas) 
    (918) 581-6431 (ext. 23).
Western Regional Coordinating Center (serving Alaska, Colorado, Oregon, 
    and Utah) (303) 844-1400 (ext. 1424).
    (3) Prior to or at the hearing, the applicant shall file with OHA an 
affidavit stating the date upon which the copy of the application was 
delivered to the office of the field solicitor or the applicant may make 
an oral statement at the hearing setting forth that information. For 
purposes of the affidavit or statement the applicant may rely upon 
telephone confirmation by the office of the field solicitor that the 
application was received.
    (4) In addition to the service requirements of Sec. 4.1266(b) (1) 
and (2), the applicant shall serve any other parties with a copy of the 
application simultaneously with the filing of the application. If 
service is accomplished by mail, the applicant shall inform such other 
parties by telephone at the time of mailing that an application is being

[[Page 149]]

filed, the contents of the application, and with whom the application 
was filed.
    (5) The field solicitor and all other parties may indicate their 
objection to the application by communicating such objection to the 
administrative law judge and the applicant by telephone. However, no ex 
parte communication as to the merits of the proceeding may be conducted 
with the administrative law judge. The field solicitor and all other 
parties shall simultaneously reduce their objections to writing. The 
written objections must be immediately filed with the administrative law 
judge and immediately served upon the applicant.
    (6) Upon receipt of communication that there is an objection to the 
request, the administrative law judge shall immediately order a 
location, time, and date for the hearing by communicating such 
information to the field solicitor, all other parties, and the applicant 
by telephone. The administrative law judge shall reduce such 
communications to writing in the form of a memorandum to the file.
    (7) If a hearing is held--
    (i) The administrative law judge may require the parties to submit 
proposed findings of fact and conclusions of law at the hearing which 
may be orally supplemented on the record at the hearing or where written 
proposed findings of fact and conclusions of law have not been submitted 
at the hearing, they may be orally presented for the record at the 
hearing.
    (ii) The administrative law judge shall either rule from the bench 
on the application, orally stating the reasons for his decision or he 
shall within 24 hours of completion of the hearing issue a written 
decision. If the administrative law judge makes an oral ruling, his 
approval of the record of the hearing shall constitute his written 
decision.
    (8) The order or decision of the administrative law judge shall be 
issued within 5 working days of the receipt of the application for 
temporary relief.
    (9) If at any time after the initiation of this expedited procedure, 
the applicant requests a delay or acts in a manner so as to frustrate 
the expeditious nature of this proceeding or fails to supply the 
information required by Sec. 4.1263 such action shall constitute a 
waiver of the 5-day requirement of section 525(c) of the act.

[43 FR 34386, Aug. 3, 1978, as amended at 49 FR 7565, Mar. 1, 1984; 59 
FR 1489, Jan. 11, 1994; 67 FR 61510, Oct. 1, 2002]



Sec. 4.1267  Appeals.

    (a) Any party desiring to appeal a decision of an administrative law 
judge granting temporary relief may appeal to the Board.
    (b) Any party desiring to appeal a decision of an administrative law 
judge denying temporary relief may appeal to the Board or, in the 
alternative, may seek judicial review pursuant to section 526(a) of the 
act.
    (c) The Board shall issue an expedited briefing schedule and shall 
issue a decision on the appeal expeditiously.

[43 FR 34386, Aug. 3, 1978, as amended at 45 FR 50753, July 31, 1980]

  Appeals to the Board From Decisions or Orders of Administrative Law 
                                 Judges



Sec. 4.1270  Petition for discretionary review of a proposed civil penalty.

    (a) Any party may petition the Board to review an order or decision 
by an administrative law judge disposing of a civil penalty proceeding 
under Sec. 4.1150.
    (b) A petition under this section shall be filed on or before 30 
days from the date of receipt of the order or decision sought to be 
reviewed and the time for filing may not be extended.
    (c) A petitioner under this section shall list the alleged errors of 
the administrative law judge and shall attach a copy of the order or 
decision sought to be reviewed.
    (d) Any party may file with the Board a response to the petition for 
review within 10 days of receipt of a copy of such petition.
    (e) Not later than 30 days from the filing of a petition under this 
section, the Board shall grant or deny the petition in whole or in part.
    (f) If the petition is granted, the rules in Secs. 4.1273 through 
4.1277 are applicable and the Board shall use the point system and 
conversion table contained in 30 CFR part 723 or 845 in recalculating 
assessments; however, the Board shall

[[Page 150]]

have the same authority to waive the civil penalty formula as that 
granted to administrative law judges in Sec. 4.1157(b)(1). If the 
petition is denied, the decision of the administrative law judge shall 
be final for the Department, subject to Sec. 4.5.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61511, Oct. 1, 2002]



Sec. 4.1271  Notice of appeal.

    (a) Any aggrieved party may file a notice of appeal from an order or 
decision of an administrative law judge disposing of a proceeding under 
Secs. 4.1160 through 4.1171, 4.1200 through 4.1205, 4.1260 through 
4.1267, 4.1290 through 4.1296, and 4.1350 through 4.1356.
    (b) Except in an expedited review proceeding under Sec. 4.1180, or 
in a suspension or revocation proceeding under Sec. 4.1190, a notice of 
appeal shall be filed with the Board on or before 30 days from the date 
of receipt of the order or decision sought to be reviewed and the time 
for filing may not be extended.

[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1489, Jan. 11, 1994]



Sec. 4.1272  Interlocutory appeals.

    (a) If a party has sought certification under Sec. 4.1124, that 
party may petition the Board for permission to appeal from an 
interlocutory ruling by an administrative law judge.
    (b) A petition under this section shall be in writing and not exceed 
10 pages in length.
    (c) If the correctness of the ruling sought to be reviewed involves 
a controlling issue of law the resolution of which will materially 
advance final disposition of the case, the Board may grant the petition.
    (d) Upon granting a petition under this section, the Board may 
dispense with briefing or issue a briefing schedule.
    (e) Unless the Board or the administrative law judge orders 
otherwise, an interlocutory appeal shall not operate as a stay of 
further proceedings before the judge.
    (f) In deciding an interlocutory appeal, the Board shall confine 
itself to the issue presented on appeal.
    (g) The Board shall promptly decide appeals under this section.
    (h) Upon affirmance, reversal or modification of the administrative 
law judge's interlocutory ruling or order, the jurisdiction of the Board 
shall terminate, and the case shall be remanded promptly to the 
administrative law judge for further proceedings.



Sec. 4.1273  Briefs.

    (a) Unless the Board orders otherwise, an appellant's brief is due 
on or before 30 days from the date of receipt of notice by the appellant 
that the Board has agreed to exercise discretionary review authority 
pursuant to Sec. 4.1270 or a notice of appeal is filed.
    (b) If any appellant fails to file a timely brief, an appeal under 
this part may be subject to summary dismissal.
    (c) An appellant shall state specifically the rulings to which there 
is an objection, the reasons for such objections, and the relief 
requested. The failure to specify a ruling as objectionable may be 
deemed by the Board as a waiver of objection.
    (d) Unless the Board orders otherwise, within 20 days after service 
of appellant's brief, any other party to the proceeding may file a 
brief.
    (e) If any argument is based upon the evidence of record and there 
is a failure to include specific record citations, when available, the 
Board need not consider the arguments.
    (f) Further briefing may take place by permission of the Board.
    (g) Unless the Board provides otherwise, appellant's brief shall not 
exceed 50 typed pages and an appellee's brief shall not exceed 25 typed 
pages.



Sec. 4.1274  Remand.

    The Board may remand cases if further proceedings are required.



Sec. 4.1275  Final decisions.

    The Board may adopt, affirm, modify, set aside, or reverse any 
finding of fact, conclusion of law, or order of the administrative law 
judge.



Sec. 4.1276  Reconsideration.

    (a) A party may move for reconsideration under Sec. 4.21(d); 
however, the motion shall be filed with the Board within 30 days of the 
date of the decision.
    (b) The filing of a petition for reconsideration shall not stay the 
effect of

[[Page 151]]

any decision or order and shall not affect the finality of any decision 
or order for purposes of judicial review.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61511, Oct. 1, 2002]

   Appeals to the Board From Decisions of the Office of Surface Mining



Sec. 4.1280  Scope.

    This section is applicable to appeals from decisions of the Director 
of OSM concerning small operator exemptions under 30 CFR 710.12(h) and 
to other appeals which are not required by the Act to be determined by 
formal adjudication under the procedures set forth in 5 U.S.C. 554.



Sec. 4.1281  Who may appeal.

    Any person who is or may be adversely affected by a written decision 
of the Director of OSM or his delegate may appeal to the Board where the 
decision specifically grants such right of appeal.



Sec. 4.1282  Appeals; how taken.

    (a) A person appealing under this section shall file a written 
notice of appeal with the office of the OSM official whose decision is 
being appealed and at the same time shall send a copy of the notice to 
the Board of Land Appeals, 801 North Quincy Street, Arlington, Va. 
22203.
    (b) The notice of appeal shall be filed within 20 days from the date 
of receipt of the decision. If the person appealing has not been served 
with a copy of the decision, such appeal must be filed within 30 days of 
the date of the decision.
    (c) The notice of appeal shall indicate that an appeal is intended 
and must identify the decision being appealed. The notice should include 
the serial number or other identification of the case and the date of 
the decision. The notice of appeal may include a statement of reasons 
for the appeal and any arguments the appellant desires to make.
    (d) If the notice of appeal did not include a statement of reasons 
for the appeal, such a statement shall be filed with the Board within 20 
days after the notice of appeal was filed. In any case, the appellant 
shall be permitted to file with the Board additional statements of 
reasons and written arguments or briefs within the 20-day period after 
filing the notice of appeal.

[43 FR 34386, Aug. 3, 1978, as amended at 49 FR 7565, Mar. 1, 1984; 67 
FR 4368, Jan. 30, 2002]



Sec. 4.1283  Service.

    (a) The appellant shall serve personally or by certified mail, 
return receipt requested, a copy of the notice of appeal and a copy of 
any statement of reasons, written arguments, or other documents on each 
party within 15 days after filing the document. Proof of service shall 
be filed with the Board within 15 days after service.
    (b) Failure to serve may subject the appeal to summary dismissal 
pursuant to Sec. 4.1285.



Sec. 4.1284  Answer.

    (a) Any party served with a notice of appeal who wishes to 
participate in the proceedings on appeal shall file an answer with the 
Board within 20 days after service of the notice of appeal or statement 
of reasons where such statement was not included in the notice of 
appeal.
    (b) If additional reasons, written arguments or other documents are 
filed by the appellant, a party shall have 20 days after service thereof 
within which to answer. The answer shall state the reasons the party 
opposes or supports the appeal.



Sec. 4.1285  Summary dismissal.

    An appeal shall be subject to summary dismissal, in the discretion 
of the Board, for failure to file or serve, upon all persons required to 
be served, a notice of appeal or a statement of reasons for appeal.



Sec. 4.1286  Request for hearings.

    (a) Any party may request the Board to order a hearing before an 
administrative law judge in order to present evidence on an issue of 
fact. Such a request shall be made in writing and filed with the Board 
within 20 days after the answer is due. Copies of the request shall be 
served in accordance with Sec. 4.1283.
    (b) The allowance of a request for a hearing is within the 
discretion of the

[[Page 152]]

Board, and the Board may, on its own motion, refer any case to an 
administrative law judge for a hearing on an issue of fact. If a hearing 
is ordered, the Board shall specify the issues upon which the hearing is 
to be held.

 Petitions for Award of Costs and Expenses Under Section 525(e) of the 
                                   Act



Sec. 4.1290  Who may file.

    (a) Any person may file a petition for award of costs and expenses 
including attorneys' fees reasonably incurred as a result of that 
person's participation in any administrative proceeding under the Act 
which results in--
    (1) A final order being issued by an administrative law judge; or
    (2) A final order being issued by the Board.
    (b) [Reserved]



Sec. 4.1291  Where to file; time for filing.

    The petition for an award of costs and expenses including attorneys' 
fees must be filed with the administrative law judge who issued the 
final order, or if the final order was issued by the Board, with the 
Board, within 45 days of receipt of such order. Failure to make a timely 
filing of the petition may constitute a waiver of the right to such an 
award.



Sec. 4.1292  Contents of petition.

    (a) A petition filed under this section shall include the name of 
the person from whom costs and expenses are sought and the following 
shall be submitted in support of the petition--
    (1) An affidavit setting forth in detail all costs and expenses 
including attorneys' fees reasonably incurred for, or in connection 
with, the person's participation in the proceeding;
    (2) Receipts or other evidence of such costs and expenses; and
    (3) Where attorneys' fees are claimed, evidence concerning the hours 
expended on the case, the customary commercial rate of payment for such 
services in the area, and the experience, reputation and ability of the 
individual or individuals performing the services.
    (b) [Reserved]



Sec. 4.1293  Answer.

    Any person served with a copy of the petition shall have 30 days 
from service of the petition within which to file an answer to such 
petition.



Sec. 4.1294  Who may receive an award.

    Appropriate costs and expenses including attorneys' fees may be 
awarded--
    (a) To any person from the permittee, if--
    (1) The person initiates or participates in any administrative 
proceeding reviewing enforcement actions upon a finding that a violation 
of the Act, regulations, or permit has occurred, or that an imminent 
hazard existed, and the administrative law judge or Board determines 
that the person made a substantial contribution to the full and fair 
determination of the issues, except that a contribution of a person who 
did not initiate a proceeding must be separate and distinct from the 
contribution made by a person initiating the proceeding; or
    (2) The person initiates an application for review of alleged 
discrimina- tory acts, pursuant to 30 CFR part 830, upon a finding of 
discriminatory discharge or other acts of discrimination.
    (b) From OSM to any person, other than a permittee or his 
representative, who initiates or participates in any proceeding under 
the Act, and who prevails in whole or in part, achieving at least some 
degree of success on the merits, upon a finding that such person made a 
substantial contribution to a full and fair determination of the issues.
    (c) To a permittee from OSM when the permittee demonstrates that OSM 
issued an order of cessation, a notice of violation or an order to show 
cause why a permit should not be suspended or revoked, in bad faith and 
for the purpose of harassing or embarrassing the permittee; or
    (d) To a permittee from any person where the permittee demonstrates 
that the person initiated a proceeding under section 525 of the Act or 
participated in such a proceeding in bad faith for the purpose of 
harassing or embarrassing the permittee.

[[Page 153]]

    (e) To OSM where it demonstrates that any person applied for review 
pursuant to section 525 of the Act or that any party participated in 
such a proceeding in bad faith and for the purpose of harassing or 
embarrassing the Government.

[43 FR 34386, Aug. 3, 1978, as amended at 50 FR 47224, Nov. 15, 1985]



Sec. 4.1295  Awards.

    An award under these sections may include--
    (a) All costs and expenses, including attorneys' fees and expert 
witness fees, reasonably incurred as a result of initiation and/or 
participation in a proceeding under the Act; and
    (b) All costs and expenses, including attorneys' fees and expert 
witness fees, reasonably incurred in seeking the award in OHA.



Sec. 4.1296  Appeals.

    Any person aggrieved by a decision concerning the award of costs and 
expenses in an administrative proceeding under this Act may appeal such 
award to the Board under procedures set forth in Sec. 4.1271 et seq., 
unless the Board has made the initial decision concerning such an award.

 Petitions for Review of Proposed Individual Civil Penalty Assessments 
                     Under Section 518(f) of the Act

    Source: 53 FR 8754, Mar. 17, 1988, unless otherwise noted.



Sec. 4.1300  Scope.

    These regulations govern administrative review of proposed 
individual civil penalty assessments under section 518(f) of the Act 
against a director, officer, or agent of a corporation.



Sec. 4.1301  Who may file.

    Any individual served a notice of proposed individual civil penalty 
assessment may file a petition for review with the Hearings Division, 
Office of Hearings and Appeals, U.S. Department of the Interior, 801 
North Quincy Street, Arlington, VA 22203. Phone: 703-235-3800.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1302  Time for filing.

    (a) A petition for review of a notice of proposed individual civil 
penalty assessment must be filed within 30 days of its service on the 
individual.
    (b) No extension of time will be granted for filing a petition for 
review of a notice of proposed individual civil penalty assessment. 
Failure to file a petition for review within the time period provided in 
paragraph (a) shall be deemed an admission of liability by the 
individual, whereupon the notice of proposed assessment shall become a 
final order of the Secretary and any tardy petition shall be dismissed.



Sec. 4.1303  Contents and service of petition.

    (a) An individual filing a petition for review of a notice of 
proposed individual civil penalty assessment shall provide--
    (1) A concise statement of the facts entitling the individual to 
relief;
    (2) A copy of the notice of proposed assessment;
    (3) A copy of the notice(s) of violation, order(s) or final 
decision(s) the corporate permittee is charged with failing or refusing 
to comply with that have been served on the individual by OSM; and
    (4) A statement whether the individual requests or waives the 
opportunity for an evidentiary hearing.
    (b) Copies of the petition shall be served in accordance with 
Sec. 4.1109 (a) and (b) of this part.

[53 FR 8754, Mar. 17, 1988; 53 FR 10036, Mar. 28, 1988]



Sec. 4.1304  Answer, motion, or statement of OSM.

    Within 30 days from receipt of a copy of a petition, OSM shall file 
with the Hearings Division an answer or motion, or a statement that it 
will not file an answer or motion, in response to the petition.

[[Page 154]]



Sec. 4.1305  Amendment of petition.

    (a) An individual filing a petition may amend it once as a matter of 
right before receipt by the individual of an answer, motion, or 
statement of OSM made in accordance with Sec. 4.1304 of this part. 
Thereafter, a motion for leave to amend the petition shall be filed with 
the administrative law judge.
    (b) OSM shall have 30 days from receipt of a petition amended as a 
matter of right to file an answer, motion, or statement in accordance 
with Sec. 4.1304 of this part. If the administrative law judge grants a 
motion to amend a petition, the time for OSM to file an answer, motion, 
or statement shall be set forth in the order granting the motion to 
amend.



Sec. 4.1306  Notice of hearing.

    The administrative law judge shall give notice of the time and place 
of the hearing to all interested parties. The hearing shall be of record 
and governed by 5 U.S.C. 554.



Sec. 4.1307  Elements; burdens of proof.

    (a) OSM shall have the burden of going forward with evidence to 
establish a prima facie case that:
    (1) A corporate permittee either violated a condition of a permit or 
failed or refused to comply with an order issued under section 521 of 
the Act or an order incorporated in a final decision by the Secretary 
under the Act (except an order incorporated in a decision issued under 
sections 518(b) or 703 of the Act or implementing regulations), unless 
the fact of violation or failure or refusal to comply with an order has 
been upheld in a final decision in a proceeding under Sec. 4.1150 
through 4.1158, Sec. 4.1160 through 4.1171, or Sec. 4.1180 through 
4.1187, and Sec. 4.1270 or Sec. 4.1271 of this part, and the individual 
is one against whom the doctrine of collateral estoppel may be applied 
to preclude relitigation of fact issues;
    (2) The individual, at the time of the violation, failure or 
refusal, was a director, officer, or agent of the corporation; and
    (3) The individual willfully and knowingly authorized, ordered, or 
carried out the corporate permittee's violation or failure or refusal to 
comply.
    (b) The individual shall have the ultimate burden of persuasion by a 
preponderance of the evidence as to the elements set forth in paragraph 
(a)(1) of this section and as to whether he was a director or officer of 
the corporation at the time of the violation or refusal.
    (c) OSM shall have the ultimate burden of persuasion by a 
preponderance of the evidence as to whether the individual was an agent 
of the corporation, as to paragraph (a)(3) of this section, and as to 
the amount of the individual civil penalty.



Sec. 4.1308  Decision by administrative law judge.

    (a) The administrative law judge shall issue a written decision 
containing findings of fact and conclusions of law on each of the 
elements set forth in Sec. 4.1307 of this part.
    (b) If the administrative law judge concludes that the individual is 
liable for an individual civil penalty, he shall order that it be paid 
in accordance with 30 CFR 724.18 or 846.18, absent the filing of a 
petition for discretionary review in accordance with Sec. 4.1309 of this 
part.



Sec. 4.1309  Petition for discretionary review.

    (a) Any party may petition the Board to review an order or decision 
by an administrative law judge disposing of an individual civil penalty 
proceeding under Sec. 4.1308 of this part.
    (b) A petition under this section shall be filed on or before 30 
days from the date of receipt of the order or decision sought to be 
reviewed, and the time for filing shall not be extended.
    (c) A petitioner under this section shall list the alleged errors of 
the administrative law judge and shall attach a copy of the order or 
decision sought to be reviewed.
    (d) Any party may file with the Board a response to the petition for 
review within 10 days of receipt of a copy of such petition.
    (e) Not later than 30 days from the filing of a petition for review 
under this section, the Board shall grant or deny the petition in whole 
or in part.
    (f) If the petition for review is granted the rules in Secs. 4.1273-
4.1276 of this part are applicable. If the petition is

[[Page 155]]

denied, the decision of the administrative law judge is final for the 
Department, subject to Sec. 4.5 of this part.
    (g) Payment of a penalty is due in accordance with 30 CFR 724.18 or 
846.18.

 Request for Hearing on a Preliminary Finding Concerning a Demonstrated 
Pattern of Willful Violations Under Section 510(c) of the Act, 30 U.S.C. 
  1260(c) (Federal Program; Federal Lands Program; Federal Program for 
                              Indian Lands)

    Source: 52 FR 39526, Oct. 22, 1987, unless otherwise noted.



Sec. 4.1350  Scope.

    These rules set forth the procedures for obtaining review of a 
preliminary finding by OSM under section 510(c) of the Act and 30 CFR 
774.11(c) of an applicant's or operator's permanent permit 
ineligibility.

[67 FR 61511, Oct. 1, 2002]



Sec. 4.1351  Preliminary finding by OSM.

    (a) If OSM determines that an applicant or operator controls or has 
controlled surface coal mining and reclamation operations with a 
demonstrated pattern of willful violations and the violations are of 
such nature and duration with such resulting irreparable damage to the 
environment as to indicate an intent not to comply with the Act, its 
implementing regulations, the regulatory program, or the permit, OSM 
must serve a preliminary finding of permanent permit ineligibility on 
the applicant or operator.
    (b) OSM must serve the preliminary finding by certified mail, or by 
overnight delivery service if the applicant or operator has agreed to 
bear the expense for this service. The preliminary finding must 
specifically state the violations upon which it is based.

[67 FR 61511, Oct. 1, 2002]



Sec. 4.1352  Who may file; where to file; when to file.

    (a) The applicant or operator may file a request for hearing on 
OSM's preliminary finding of permanent permit ineligibility.
    (b) The request for hearing must be filed with the Hearings 
Division, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203 
(telephone 703-235-3800), within 30 days of receipt of the preliminary 
finding by the applicant or operator.
    (c) Failure to file a timely request constitutes a waiver of the 
opportunity for a hearing before OSM makes its final finding concerning 
permanent permit ineligibility. Any untimely request will be denied.

[67 FR 61511, Oct. 1, 2002]



Sec. 4.1353  Contents of request.

    The request for hearing shall include--
    (a) A clear statement of the facts entitling the one requesting the 
hearing to administrative relief;
    (b) An explanation of the alleged errors in OSM's preliminary 
finding; and
    (c) Any other relevant information.



Sec. 4.1354  Determination by the administrative law judge.

    The administrative law judge shall promptly set a time and place for 
and give notice of the hearing to the applicant or operator and shall 
issue a decision within 60 days of the filing of a request for hearing. 
The hearing shall be of record and governed by 5 U.S.C. 554.



Sec. 4.1355  Burden of proof.

    OSM shall have the burden of going forward to establish a prima 
facie case and the ultimate burden of persuasion as to the existence of 
a demonstrated pattern of willful violations of such nature and duration 
with such resulting irreparable damage to the environment as to indicate 
an intent not to comply with the Act, its implementing regulations, the 
regulatory program, or the permit.

[67 FR 61511, Oct. 1, 2002]



Sec. 4.1356  Appeals.

    (a) Any party aggrieved by the decision of the administrative law 
judge may appeal to the Board under procedures set forth in Sec. 4.1271 
et seq. of this subpart, except that the notice of appeal must be filed 
within 20 days of receipt of the administrative law judge's decision.

[[Page 156]]

    (b) The Board shall order an expedited briefing schedule and shall 
issue a decision within 45 days of the filing of the appeal.

 Request for Review of Approval or Disapproval of Applications for New 
Permits, Permit Revisions, Permit Renewals, the Transfer, Assignment or 
  Sale of Rights Granted Under Permit (Federal Program; Federal Lands 
  Program; Federal Program for Indian Lands) and for Coal Exploration 
                        Permits (Federal Program)

    Source: 56 FR 2143, Jan. 22, 1991, unless otherwise noted.



Sec. 4.1360  Scope.

    These rules set forth the exclusive procedures for administrative 
review of decisions by OSMRE concerning--
    (a) Applications for new permits, including applications under 30 
CFR part 785, and the terms and conditions imposed or not imposed in 
permits by those decisions. They do not apply to decisions on 
applications to mine on Federal lands in states where the terms of a 
cooperative agreement provide for the applicability of alternative 
administrative procedures (see 30 CFR 775.11(c)), but they do apply to 
OSMRE decisions on applications for Federal lands in states with 
cooperative agreements where OSMRE as well as the state issue Federal 
lands permits;
    (b) Applications for permit revisions, permit renewals, and the 
transfer, assignment, or sale of rights granted under permit;
    (c) Permit revisions ordered by OSMRE;
    (d) Applications for coal exploration permits; and
    (e) Ineligibility for a permit under section 510(c) of the Act and 
30 CFR 773.12.

[56 FR 2143, Jan. 22, 1991; 56 FR 5061, Feb. 7, 1991, as amended at 67 
FR 61511, Oct. 1, 2002]



Sec. 4.1361  Who may file.

    The applicant, permittee, or any person having an interest which is 
or may be adversely affected by a decision of OSMRE set forth in 
Sec. 4.1360 may file a request for review of that decision.



Sec. 4.1362  Where to file; when to file.

    (a) The request for review shall be filed with the Hearings 
Division, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 North Quincy Street, Arlington, Virginia 22203 (phone 703-
235-3800), within 30 days after the applicant or permittee is notified 
by OSMRE of the written decision by certified mail or by overnight 
delivery service if the applicant or permittee has agreed to bear the 
expense for this service.
    (b) Failure to file a request for review within the time specified 
in paragraph (a) of this section shall constitute a waiver of a hearing 
and the request shall be dismissed.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1363  Contents of request; amendment of request; responses.

    (a) The request for review shall include--
    (1) A clear statment of the facts entitling the one requesting 
review to administrative relief;
    (2) An explanation of each specific alleged error in OSMRE's 
decision, including reference to the statutory and regulatory provisions 
allegedly violated;
    (3) A request for specific relief;
    (4) A statement whether the person requests or waives the 
opportunity for an evidentiary hearing; and
    (5) Any other relevant information.
    (b) All interested parties shall file an answer or motion in 
response to a request for review, or a statement that no answer or 
motion will be filed, within 15 days of receipt of the request 
specifically admitting or denying facts or alleged errors stated in the 
request and setting forth any other matters to be considered on review.
    (c) A request for review may be amended once as a matter of right 
prior to filing of an answer or motion or statement filed in accordance 
with paragraph (b) of this section. Thereafter, a motion for leave to 
amend the request shall be filed with the Administrative Law Judge. An 
Administrative Law Judge may not grant a motion for leave to amend 
unless all parties agree

[[Page 157]]

to an extension of the date of commencement of the hearing under 
Sec. 4.1364. A request for review may not be amended after a hearing 
commences.
    (d) An interested party shall have 10 days from filing of a request 
for review that is amended as a matter of right or the time remaining 
for response to the original request, whichever is longer, to file an 
answer, motion, or statement in accordance with paragraph (b) of this 
section. If the Administrative Law Judge grants a motion to amend a 
request for review, the time for an interested party to file an answer, 
motion, or statement shall be set forth in the order granting it.
    (e) Failure of any party to comply with the requirements of 
paragraph (a) or (b) of this section may be regarded by an 
Administrative Law Judge as a waiver by that party of the right to 
commencement of a hearing within 30 days of the filing of a request for 
review if the Administrative Law Judge concludes that the failure was 
substantial and that another party was prejudiced as a result.

[56 FR 2143, Jan. 22, 1991; 56 FR 5061, Feb. 7, 1991]



Sec. 4.1364  Time for hearing; notice of hearing; extension of time for hearing.

    Unless all parties agree in writing to an extension or waiver, the 
Administrative Law Judge shall commence a hearing within 30 days of the 
date of the filing of the request for review or amended request for 
review and shall simultaneously notify the applicant or permittee and 
all interested parties of the time and place of such hearing before the 
hearing commences. The hearing shall be of record and governed by 5 
U.S.C. 554. An agreement to waive the time limit for commencement of a 
hearing may specify the length of the extension agreed to.



Sec. 4.1365  Status of decision pending administrative review.

    The filing of a request for review shall not stay the effectiveness 
of the OSMRE decision pending completion of administrative review.



Sec. 4.1366  Burdens of proof.

    (a) In a proceeding to review a decision on an application for a new 
permit--
    (1) If the permit applicant is seeking review, OSMRE shall have the 
burden of going forward to establish a prima facie case as to failure to 
comply with the applicable requirements of the Act or the regulations or 
as to the appropriateness of the permit terms and conditions, and the 
permit applicant shall have the ultimate burden of persuasion as to 
entitlement to the permit or as to the inappropriateness of the permit 
terms and conditions.
    (2) If any other person is seeking review, that person shall have 
the burden of going forward to establish a prima facie case and the 
ultimate burden of persuasion that the permit application fails in some 
manner to comply with the applicable requirements of the Act or the 
regulations, or that OSMRE should have imposed certain terms and 
conditions that were not imposed.
    (b) In a proceeding to review a permit revision ordered by OSMRE, 
OSMRE shall have the burden of going forward to establish a prima facie 
case that the permit should be revised and the permittee shall have the 
ultimate burden of persuasion.
    (c) In a proceeding to review the approval or disapproval of an 
application for a permit renewal, those parties opposing renewal shall 
have the burden of going forward to establish a prima facie case and the 
ultimate burden of persuasion that the renewal application should be 
disapproved.
    (d) In a proceeding to review the approval or disapproval of an 
application for a permit revision or an application for the transfer, 
assignment, or sale of rights granted under a permit--
    (1) If the applicant is seeking review, OSMRE shall have the burden 
of going forward to establish a prima facie case as to failure to comply 
with applicable requirements of the Act or the regulations, and the 
applicant requesting review shall have the ultimate burden of persuasion 
as to entitlement to approval of the application; and
    (2) If any other person is seeking review, that person shall have 
the burden of going forward to establish a prima facie case and the 
ultimate burden of

[[Page 158]]

persuasion that the application fails in some manner to comply with the 
applicable requirements of the Act and the regulations.
    (e) In a proceeding to review a decision on an application for a 
coal exploration permit--
    (1) If the coal exploration permit applicant is seeking review, 
OSMRE shall have the burden of going forward to establish a prima facie 
case as to failure to comply with the applicable requirements of the Act 
or the regulations, and the permit applicant shall have the ultimate 
burden of persuasion as to entitlement to the approval.
    (2) If any other person is seeking review, that person shall have 
the burden of going forward to establish a prima facie case and the 
ultimate burden of persuasion that the application fails in some manner 
to comply with the applicable requirements of the Act or the 
regulations.



Sec. 4.1367  Request for temporary relief.

    (a) Where review is requested pursuant to Sec. 4.1362, any party may 
file a request for temporary relief at any time prior to a decision by 
an Administrative Law Judge, so long as the relief sought is not the 
issuance of a permit where a permit application has been disapproved in 
whole or in part.
    (b) The request shall be filed with the Administrative Law Judge to 
whom the case has been assigned. If no assignment has been made, the 
application shall be filed in the Hearings Division, Office of Hearings 
and Appeals, U.S. Department of the Interior, 801 North Quincy Street, 
Arlington, Virginia 22203 (phone 703-235-3800).
    (c) The application shall include--
    (1) A detailed written statement setting forth the reasons why 
relief should be granted;
    (2) A statement of the specific relief requested;
    (3) A showing that there is a substantial likelihood that the person 
seeking relief will prevail on the merits of the final determination of 
the proceeding; and
    (4) A showing that the relief sought will not adversely affect the 
public health or safety or cause significant, imminent environmental 
harm to land, air, or water resources.
    (d) The Administrative Law Judge may hold a hearing on any issue 
raised by the application.
    (e) The Administrative Law Judge shall issue expeditiously an order 
or decision granting or denying such temporary relief. Temporary relief 
may be granted only if--
    (1) All parties to the proceeding have been notified and given an 
opportunity to be heard on a request for temporary relief;
    (2) The person requesting such relief shows a substantial likelihood 
of prevailing on the merits of the final determination of the 
proceeding; and
    (3) Such relief will not adversely affect the public health or 
safety or cause significant, imminent environmental harm to land, air, 
or water resources.
    (f) Appeals of temporary relief decisions.
    (1) Any party desiring to appeal the decision of the Administrative 
Law Judge granting or denying temporary relief may appeal to the Board, 
or, in the alternative, may seek judicial review pursuant to section 
526(a), 30 U.S.C. 1276(a), of the Act.
    (2) The Board shall issue an expedited briefing schedule and shall 
issue a decision on the appeal expeditiously.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1368  Determination by the Administrative Law Judge.

    Unless all parties agree in writing to an extension or waiver, the 
Administrative Law Judge shall issue a written decision in accordance 
with Sec. 4.1127 within 30 days of the date the hearing record is closed 
by the Administrative Law Judge. An agreement to waive the time limit 
for issuing a decision may specify the length of the extension agreed 
to.



Sec. 4.1369  Petition for discretionary review; judicial review.

    (a) Any party aggrieved by a decision of an Administrative Law Judge 
may file a petition for discretionary review with the Board within 30 
days of receipt of the decision or, in the alternative, may seek 
judicial review in accordance with 30 U.S.C. 1276(a)(2) (1982). A copy 
of the petition shall be served

[[Page 159]]

simultaneously on the Administrative Law Judge who issued the decision, 
who shall forthwith forward the record to the Board, and on all other 
parties to the proceeding.
    (b) The petition shall set forth specifically the alleged errors in 
the decision, with supporting argument, and shall attach a copy of the 
decision.
    (c) Any party may file a response to a petition for discretionary 
review within 20 days of receipt of the petition.
    (d) The Board shall issue a decision denying the petition or 
granting the petition and deciding the merits within 60 days of the 
deadline for filing responses.

Review of OSM Decisions Proposing To Suspend or Rescind or Suspending or 
                 Rescinding Improvidently Issued Permits

    Source: 59 FR 54326, Oct. 28, 1994, unless otherwise noted.



Sec. 4.1370  Scope.

    Sections 4.1370 through 4.1377 govern the procedures for review of a 
written notice of proposed suspension or rescission of an improvidently 
issued permit issued by OSM under 30 CFR 773.22 and of a written notice 
of suspension or rescission of an improvidently issued permit issued by 
OSM under 30 CFR 773.23.

[67 FR 61511, Oct. 1, 2002]



Sec. 4.1371  Who may file, where to file, when to file.

    (a) A permittee that is served with a notice of proposed suspension 
or rescission under 30 CFR 773.22 or a notice of suspension or 
rescission under 30 CFR 773.23 may file a request for review with the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203 
(telephone 703-235-3800) within 30 days of service of the notice.
    (b) Failure to file a request for review within 30 days of service 
of the notice shall constitute a waiver of review of the notice. An 
untimely request for review shall be dismissed.
    (c) Where appropriate under the Administrative Dispute Resolution 
Act, 5 U.S.C. Secs. 571-583, the Hearings Division may use a dispute 
resolution proceeding, if the parties agree to such proceeding, before 
the procedures set forth in Secs. 4.1373 through 4.1377.

[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 67 
FR 61511, Oct. 1, 2002]



Sec. 4.1372  Contents of request for review, response to request, amendment of request.

    (a) The request for review shall include:
    (1) A copy of the notice of proposed suspension or rescission or the 
notice of suspension or rescission;
    (2) Documentary proof, or, where appropriate, offers of proof, 
concerning the matters in 30 CFR 773.21(a) and (b) or 30 CFR 773.14(c) 
for a notice of proposed suspension or rescission, or 30 CFR 
773.23(a)(1) through (a)(6) for a notice of suspension or rescission, 
showing that the person requesting review is entitled to administrative 
relief;
    (3) A statement whether the person requesting review wishes an 
evidentiary hearing or waives the opportunity for such a hearing;
    (4) A request for specific relief; and
    (5) Any other relevant information.
    (b) Within 20 days of service of the request for review by the 
permittee in accordance with 43 CFR 4.1109, OSM and all interested 
parties shall file an answer to the request for review or a motion in 
response to the request or a statement that no answer or motion will be 
filed. OSM or any interested party may request an evidentiary hearing 
even if the person requesting review has waived the opportunity for such 
a hearing.
    (c) The permittee may amend the request for review once as a matter 
of right before a response in accordance with paragraph (b) of this 
section is required to be filed. After the period for filing such a 
response, the permittee may file a motion for leave to amend the request 
for review with the administrative law judge. If the administrative law 
judge grants a motion for leave to amend, he shall provide OSM and any 
other party that filed a response in accordance with paragraph

[[Page 160]]

(b) not less than 10 days to file an amended response.

[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 61511, Oct. 1, 2002]



Sec. 4.1373  Hearing.

    (a) If a hearing is requested, the administrative law judge shall 
convene the hearing within 90 days of receipt of the responses under 
Sec. 4.1372(b). The 90-day deadline for convening the hearing may be 
waived for a definite time by the written agreement of all parties, 
filed with the administrative law judge, or may be extended by the 
administrative law judge, in response to a motion setting forth good 
cause to do so, if no other party is prejudiced by the extension.
    (b) The administrative law judge shall give notice of the hearing at 
least 10 days in advance of the date of the hearing.

[59 FR 54362, Oct. 28, 1994; 59 FR 56573, Nov. 14, 1994]



Sec. 4.1374  Burdens of proof.

    (a) OSM shall have the burden of going forward to present a prima 
facie case of the validity of the notice of proposed suspension or 
rescission or the notice of suspension or rescission.
    (b) The permittee shall have the ultimate burden of persuasion by a 
preponderance of the evidence that the notice is invalid.

[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 61512, Oct. 1, 2002]



Sec. 4.1375  Time for initial decision.

    The administrative law judge shall issue an initial decision within 
30 days of the date the record of the hearing is closed, or, if no 
hearing is held, within 30 days of the deadline for filing responses 
under Sec. 4.1372(b).



Sec. 4.1376  Petition for temporary relief from notice of proposed suspension or rescission or notice of suspension or rescission; appeals from decisions 
          granting or denying temporary relief.

    (a) Any party may file a petition for temporary relief from the 
notice of proposed suspension or rescission or the notice of suspension 
or rescission in conjunction with the filing of the request for review 
or at any time before an initial decision is issued by the 
administrative law judge.
    (b) The petition for temporary relief shall be filed with the 
administrative law judge to whom the request for review has been 
assigned. If none has been assigned, the petition shall be filed with 
the Hearings Division, Office of Hearings and Appeals, U.S. Department 
of the Interior, 801 North Quincy Street, Arlington, Virginia 22203 
(Telephone 703-235-3800).
    (c) The petition for temporary relief shall include:
    (1) A statement of the specific relief requested;
    (2) A detailed statement of why temporary relief should be granted, 
including--
    (i) A showing that there is a substantial likelihood that petitioner 
will prevail on the merits, and
    (ii) A showing that the relief sought will not adversely affect the 
public health or safety or cause significant, imminent environmental 
harm to land, air or water resources;
    (3) A statement whether the petitioner requests an evidentiary 
hearing.
    (d) Any party may file a response to the petition no later than 5 
days after it was served and may request a hearing even if the 
petitioner has not done so.
    (e) The administrative law judge may hold a hearing on any issue 
raised by the petition within 10 days of the filing of responses to the 
petition, and shall do so if a hearing is requested by any party.
    (f) The administrative law judge shall issue an order or decision 
granting or denying the petition for temporary relief within 5 days of 
the date of a hearing on the petition or, if no hearing is held, of 
service of the responses to the petition on all parties.
    (g) The administrative law judge may only grant temporary relief if:
    (1) All parties to the proceeding have been notified of the petition 
and have had an opportunity to respond and a hearing has been held if 
requested;
    (2) The petitioner has demonstrated a substantial likelihood of 
prevailing on the merits; and
    (3) Temporary relief will not adversely affect public health or 
safety or

[[Page 161]]

cause significant, imminent harm to land, air or water resources.
    (h) Any party may file an appeal of an order or decision granting or 
denying temporary relief with the Board within 30 days of receipt of the 
order or decision or, in the alternative, may seek judicial review 
within 30 days in accordance with section 526(a) of the Act, 30 U.S.C. 
1276(a). If an appeal is filed with the Board, the Board shall issue an 
expedited briefing schedule and shall decide the appeal expeditiously.

[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 67 
FR 61512, Oct. 1, 2002]



Sec. 4.1377  Petition for discretionary review of initial decision.

    (a) Any party may file a petition for discretionary review of an 
initial decision of an administrative law judge issued under Sec. 4.1375 
with the Board within 30 days of receipt of the decision. An untimely 
petition shall be dismissed.
    (b) The petition for discretionary review shall set forth 
specifically the alleged errors in the initial decision, with supporting 
argument, and shall attach a copy of the decision.
    (c) Any party may file a response to the petition for discretionary 
review within 30 days of its service.
    (d) The Board shall issue a decision denying the petition or 
granting the petition and deciding the merits within 60 days of the 
deadline for filing responses.

    Review of Office of Surface Mining Written Decisions Concerning 
                     Ownership or Control Challenges

    Source: 59 FR 54363, Oct. 28, 1994, unless otherwise noted.



Sec. 4.1380  Scope.

    Sections 4.1380 through 4.1387 govern the procedures for review of a 
written decision issued by OSM under 30 CFR 773.28 on a challenge to a 
listing or finding of ownership or control.

[67 FR 61512, Oct. 1, 2002]



Sec. 4.1381  Who may file; when to file; where to file.

    (a) Any person who receives a written decision issued by OSM under 
30 CFR 773.28 on a challenge to an ownership or control listing or 
finding may file a request for review with the Hearings Division, Office 
of Hearings and Appeals, U.S. Department of the Interior, 801 N. Quincy 
Street, Suite 300, Arlington, Virginia 22203 (telephone 703-235-3800) 
within 30 days of service of the decision.
    (b) Failure to file a request for review within 30 days of service 
of the decision constitutes a waiver of review of the decision. An 
untimely request for review shall be dismissed.
    (c) Where appropriate under the Administrative Dispute Resolution 
Act, 5 U.S.C. Secs. 571-583, the Hearings Division may use a dispute 
resolution proceeding, if the parties agree to such proceeding, before 
the procedures set forth in Secs. 4.1383 through 4.1387.

[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1382  Contents of request for review; response to request; amendment of request.

    (a) The request for review shall include:
    (1) A copy of the decision of OSM;
    (2) A statement of the alleged errors in the decision and the facts 
that entitle the person requesting review to administrative relief;
    (3) A statement whether the person requesting review wishes an 
evidentiary hearing or waives the opportunity for such a hearing;
    (4) A request for specific relief; and
    (5) Any other relevant information.
    (b) Within 20 days of service of the request for review in 
accordance with 43 CFR 4.1109, OSM and all interested parties shall file 
an answer to the request for review or a motion in response to the 
request or a statement that no answer or motion will be filed. OSM or 
any interested party may request an evidentiary hearing even if the 
person requesting review has waived the opportunity for a hearing.
    (c) The person filing the request for review may amend it once as a 
matter of right before the response in accordance with paragraph (b) of 
this section

[[Page 162]]

is required to be filed. After the period for filing such a response, 
the person may file a motion for leave to amend the request with the 
administrative law judge. If the administrative law judge grants a 
motion for leave to amend, he shall provide OSM and any other party that 
filed a response in accordance with paragraph (b) not less than 10 days 
to file an amended response.



Sec. 4.1383  Hearing.

    (a) If a hearing is requested, the administrative law judge shall 
convene the hearing within 90 days of receipt of responses under 
Sec. 4.1382(b). The 90-day deadline for convening the hearing may be 
waived for a definite time by the written agreement of all parties, 
filed with the administrative law judge, or may be extended by the 
administrative law judge, in response to a motion setting forth good 
cause to do so, if no other party is prejudiced by the extension.
    (b) The administrative law judge shall give notice of the hearing at 
least 10 days in advance of the date of the hearing.



Sec. 4.1384  Burdens of proof.

    (a) OSM shall have the burden of going forward to present a prima 
facie case of the validity of the decision.
    (b) The person filing the request for review shall have the ultimate 
burden of persuasion by a preponderance of the evidence that the 
decision is in error.



Sec. 4.1385  Time for initial decision.

    The administrative law judge shall issue an initial decision within 
30 days of the date the record of the hearing is closed, or, if no 
hearing is held, within 30 days of the deadline for filing responses 
under Sec. 4.1382(b).



Sec. 4.1386  Petition for temporary relief from decision; appeals from decisions granting or denying temporary relief.

    (a) Any party may file a petition for temporary relief from the 
decision of OSM in conjunction with the filing of the request for review 
or at any time before an initial decision is issued by the 
administrative law judge.
    (b) The petition for temporary relief shall be filed with the 
administrative law judge to whom the request for review has been 
assigned. If none has been assigned, the petition shall be filed with 
the Hearings Division, Office of Hearings and Appeals, U.S. Department 
of the Interior, 801 North Quincy Street, Arlington, Virginia 22203 
(Telephone 703-235-3800).
    (c) The petition for temporary relief shall include:
    (1) A statement of the specific relief requested:
    (2) A detailed statement of why temporary relief should be granted, 
including:
    (i) A showing that there is a substantial likelihood that petitioner 
will prevail on the merits, and
    (ii) A showing that granting the relief requested will not adversely 
affect the public health or safety or cause significant, imminent 
environmental harm to land, air or water resources;
    (3) A statement whether the petitioner requests an evidentiary 
hearing.
    (d) Any party may file a response to the petition no later than 5 
days after it was served and may request a hearing even if the 
petitioner has not done so.
    (e) The administrative law judge may hold a hearing on any issue 
raised by the petition within 10 days of the filing of responses to the 
petition, and shall do so if a hearing is requested by any party.
    (f) The administrative law judge shall issue an order or decision 
granting or denying the petition for temporary relief within 5 days of 
the date of a hearing on the petition or, if no hearing is held, of 
service of the responses to the petition on all parties.
    (g) The administrative law judge may only grant temporary relief if:
    (1) All parties to the proceeding have been notified of the petition 
and have had an opportunity to respond and a hearing has been held if 
requested;
    (2) The petitioner has demonstrated a substantial likelihood of 
prevailing on the merits; and
    (3) Temporary relief will not adversely affect public health or 
safety or cause significant, imminent environmental harm to land, air or 
water resources.

[[Page 163]]

    (h) Any party may file an appeal of an order or decision granting or 
denying temporary relief with the Board within 30 days of receipt of the 
order or decision or, in the alternative, may seek judicial review 
within 30 days in accordance with section 526(a) of the Act, 30 U.S.C. 
1276(a). If an appeal is filed with the Board, the Board shall issue an 
expedited briefing schedule and shall decide the appeal expeditiously.

[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1387  Petition for discretionary review of initial decisions.

    (a) Any party may file a petition for discretionary review of an 
initial decision of an administrative law judge issued under Sec. 4.1385 
with the Board within 30 days of receipt of the decision. An untimely 
petition shall be dismissed.
    (b) The petition for discretionary review shall set forth 
specifically the alleged errors in the initial decision, with supporting 
argument, and shall attach a copy of the decision.
    (c) Any party may file a response to the petition for discretionary 
review within 30 days of its service.
    (d) The Board shall issue a decision denying the petition or 
granting the petition and deciding the merits within 60 days of the 
deadline for filing responses.

Request for Review of OSM Determinations of Issues Under 30 CFR Part 761 
  (Federal Program; Federal Lands Program; Federal Program for Indian 
                                 Lands)

    Source: 52 FR 39530, Oct. 22, 1987, unless otherwise noted.



Sec. 4.1390  Scope.

    Sections 4.1391 through 4.1394 set forth the procedures for 
obtaining review of an OSM determination under 30 CFR 761.16 that a 
person does or does not have valid existing rights.

[67 FR 61512, Oct. 1, 2002]



Sec. 4.1391  Who may file; where to file; when to file; filing of administrative record.

    (a) The person who requested a determination under 30 CFR 761.16 or 
any person with an interest that is or may be adversely affected by a 
determination that a person does or does not have valid existing rights 
may file a request for review of the determination with the office of 
the OSM official whose determination is being reviewed and at the same 
time shall send a copy of the request to the Interior Board of Land 
Appeals, U.S. Department of the Interior, 801 N. Quincy Street, Suite 
300, Arlington, VA 22203 (telephone 703-235-3750). OSM shall file the 
complete administrative record of the determination under review with 
the Board as soon as practicable.
    (b) OSM must provide notice of the valid existing rights 
determination to the person who requested that determination by 
certified mail, or by overnight delivery service if the person has 
agreed to bear the expense of this service.
    (1) When the determination is made independently of a decision on an 
application for a permit or for a permit boundary revision, a request 
for review shall be filed within 30 days of receipt of the determination 
by a person who has received a copy of it by certified mail or overnight 
delivery service. The request for review shall be filed within 30 days 
of the date of publication of the determination in a newspaper of 
general circulation or in the Federal Register, whichever is later, by 
any person who has not received a copy of it by certified mail or 
overnight delivery service.
    (2) When the determination is made in conjunction with a decision on 
an application for a permit or for a permit boundary revision, the 
request for review must be filed in accordance with Sec. 4.1362.
    (c) Failure to file a request for review within the time specified 
in paragraph (b) of this section shall constitute a waiver of the right 
to review and the request shall be dismissed.

[56 FR 2145, Jan. 22, 1991, as amended at 67 FR 4368, Jan. 30, 2002; 67 
FR 61512, Oct. 1, 2002]

[[Page 164]]



Sec. 4.1392  Contents of request; amendment of request; responses.

    (a) The request for review shall include--
    (1) A clear statement of the reasons for appeal;
    (2) A request for specific relief;
    (3) A copy of the decision appealed from; and
    (4) Any other relevant information.
    (b) All interested parties shall file an answer or motion in 
response to a request for review or a statement that no answer or motion 
will be filed within 15 days of receipt specifically admitting or 
denying facts or alleged errors stated in the request and setting forth 
any other matters to be considered on review.
    (c) A request for review may be amended once as a matter of right 
prior to receipt of an answer or motion or statement filed in accordance 
with paragraph (b) of this section. Thereafter, a motion for leave to 
amend the request shall be filed with the Board.
    (d) An interested party shall have 10 days from receipt of a request 
for review that is amended as a matter of right or the time remaining 
for response to the original request to file an answer, motion, or 
statement in accordance with paragraph (b) of this section, whichever is 
longer. If the Board grants a motion to amend a request for review, the 
time for an interested party to file an answer, motion, or statement 
shall be set forth in the order granting the motion.



Sec. 4.1393  Status of decision pending administrative review.

    43 CFR 4.21(a) applies to determinations of the Office of Surface 
Mining under 30 U.S.C. 1272(e).



Sec. 4.1394  Burden of proof.

    (a) If the person who requested the determination is seeking review, 
OSM shall have the burden of going forward to establish a prima facie 
case and the person who requested the determination shall have the 
ultimate burden of persuasion.
    (b) If any other person is seeking review, that person shall have 
the burden of going forward to establish a prima facie case and the 
ultimate burden of persuasion that the person who requested the 
determination does or does not have valid existing rights.

[67 FR 61512, Oct. 1, 2002]



 Subpart M--Special Procedural Rules Applicable to Appeals of Decisions 
                      Made Under OMB Circular A-76

    Authority: 5 U.S.C. 301.

    Source: 45 FR 75213, Nov. 14, 1980. Redesignated at 52 FR 39525, 
Oct. 22, 1987.



Sec. 4.1600  Purpose and nature of the appeal process.

    (a) This appeals procedure embodies an informal administrative 
review of agency decisions made under OMB Circular A-76, and is intended 
to assure that such decisions are fair, equitable, and in compliance 
with the provisions of the Circular. This procedure provides affected 
parties an opportunity to request that such decisions be objectively 
reviewed by a party independent of the A-76 decision process.
    (b) This appeals procedure is administrative rather than judicial in 
nature, and does not provide for a judicial review or for further levels 
of appeal. The decisions of the appeals official are final.
    (c) This procedure is intended to protect the rights of all affected 
parties and, therefore, neither the procedure nor agency determinations 
may be subject to negotiation, arbitration, or agreements with any one 
of the parties.



Sec. 4.1601  Basis for appeal.

    (a) An appeal may be based only on a specific alleged material 
deviation (or deviations) by the agency from the provisions of OMB 
Circular A-76 or Supplement No. 1 thereto, the ``Cost Comparison 
Handbook.'' Appeals may not be based on other factors, such as the 
economic impact of the agency's decision on a community, or other 
socioeconomic issues.
    (b) This appeals procedure shall be used only to resolve questions 
of the determination between contract and in-house performance of a 
commercial or industrial type requirement, and shall not apply to 
questions concerning

[[Page 165]]

award to one contractor in preference to another.



Sec. 4.1602  Who may appeal under this procedure.

    An appeal may be filed by any affected party, viz, employees of the 
Federal activity under review, authorized employee representative 
organizations, contractors, and potential contractors.



Sec. 4.1603  Appeal period.

    An appeal may be submitted at any time within 45 calendar days after 
announcement of an agency decision regarding the method of performance 
of a commercial or industrial type requirement.



Sec. 4.1604  Method of filing an appeal.

    An appeal must be in writing, and must be submitted to: Director, 
Office of Hearings and Appeals, U.S. Department of the Interior, 801 
North Quincy Street, Arlington, Virginia 22203.

[45 FR 75213, Nov. 14, 1980. Redesignated at 52 FR 39525, Oct. 22, 1987. 
And amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1605  Action by the Office of Hearings and Appeals.

    (a) Upon receipt of an appeal, the Director, Office of Hearings and 
Appeals shall designate an appeals official, who shall process the 
appeal.
    (b) The appeals official shall promptly docket the appeal and send 
copies of the docketing notice to the appellant, the director or other 
appropriate official of the bureau or office involved, and the Solicitor 
of the Department.



Sec. 4.1606  Department representation.

    (a) Upon receipt of the docketing notice, the Solicitor shall 
appoint counsel to represent the Department in the appeal action, and so 
notify the appellant and the appeals official.
    (b) Within seven calendar days of his designation the Department 
Counsel shall assemble and transmit to the appeals official a file 
containing the appealed agency decision and all documents relevant 
thereto, including the detailed analysis upon which the agency decision 
was based. At the same time, the Department Counsel shall send to the 
appellant a copy of the transmittal document, containing a table of 
contents of the file.



Sec. 4.1607  Processing the appeal.

    (a) The appeals official shall arrange such conferences with the 
concerned parties as are necessary, including (if requested by the 
appellant) an oral presentation.
    (b) The appeals official may require either party to submit any 
additional documents, oral or written testimony, or other items of 
evidence which he considers necessary for a complete review of the 
agency decision.
    (c) All documentary evidence submitted by one party to the appeal 
action shall be made available to the other party (or parties), except 
that availability of proprietary information may be restricted by the 
party holding the proprietary interest in such information.



Sec. 4.1608  Oral presentations.

    (a) Upon request of the appellant, an opportunity for an oral 
presentation to the appeals official shall be granted. The purpose of an 
oral presentation shall be to permit the appellant to discuss or explain 
factual evidence supporting his allegations, and/or to obtain oral 
explanations of pertinent evidence. The time and place of each oral 
presentation shall be determined by the appeals official, after 
consultation with the appropriate parties.
    (b) The appellant may, but is not required to, be represented by 
legal counsel at an oral presentation.
    (c) The Department Counsel and the bureau/office involved shall be 
invited to attend any oral presentation. The appeals official may 
require the attendance and participation of an official or employee of 
the Department, whether or not requested by the appellant, if, in the 
appeals official's judgment, such official or employee may possess 
knowledge or information pertinent to the agency decision being 
appealed, and if this knowledge or information is unobtainable 
elsewhere.
    (d) An oral presentation shall not constitute a judicial proceeding, 
and no such judicial proceeding or hearing shall be provided for in this 
appeals process. There shall be no requirement

[[Page 166]]

for legal briefs, sworn statements, interrogation under oath, official 
transcripts of testimony, etc., unless the appeals official determines 
such are necessary for effective disposition of the appeal.



Sec. 4.1609  Multiple appeals.

    If two or more appellants submit appeals of the same agency 
decision, which are based on the same or similar allegations, the 
appeals official may, at his discretion, consider all such appeals 
concurrently and issue a single written decision resolving all of the 
several appeals.



Sec. 4.1610  Decision of the appeals official.

    (a) Within 30 calendar days after receipt of an appeal by the Office 
of Hearings and Appeals, the appeals official shall issue a written 
decision, either affirming or denying the appeal. This decision shall be 
final, with no judicial review or further avenue of appeal.
    (b) If the appeals official affirms the appeal, his decision 
regarding further action by the agency shall be binding upon the agency.
    (c) If it proves impracticable to issue a decision within the 
prescribed 30 calendar days, the appeals official may extend this 
period, notifying all concerned parties of the anticipated decision 
date.



PART 5--MAKING PICTURES, TELEVISION PRODUCTIONS OR SOUND TRACKS ON CERTAIN AREAS UNDER THE JURISDICTION OF THE DEPARTMENT OF THE INTERIOR--Table of Contents




Sec.
5.1  Areas administered by U.S. Fish and Wildlife Service or National 
          Park Service.
5.2  Areas administered by the Bureau of Indian Affairs.

    Authority: R.S. 463, sec. 3, 39 Stat. 535, as amended, sec. 10, 45 
Stat. 1224, as amended; 5 U.S.C. 301, 25 U.S.C. 2, 16 U.S.C. 715i.



Sec. 5.1  Areas administered by U.S. Fish and Wildlife Service or National Park Service.

    (a) Permit required. No picture may be filmed, and no television 
production or sound track made on any area administered by the U.S. Fish 
and Wildlife Service or the National Park Service, of the Department of 
the Interior, by any person other than amateur or bona fide newsreel and 
news television photographers and soundmen, unless written permission 
has been obtained from the Service having jurisdiction over the area. 
Applications for permission should be submitted to the local official 
having administrative responsibility for the area involved.
    (b) Fees; bonds. (1) No fees will be charged for the making of 
motion pictures, television productions or sound tracks on areas 
administered by the U.S. Fish and Wildlife Service or the National Park 
Service. The regular general admission and other fees currently in 
effect in any area under the jurisdiction of the National Park Service 
are not affected by this paragraph.
    (2) A bond shall be furnished, or deposit made in cash or by 
certified check, in an amount to be set by the official in charge of the 
area to insure full compliance with all of the conditions prescribed in 
paragraph (d)(3) of this section.
    (c) Approval of application. Permission to make a motion picture, 
television production or sound track on areas administered by the U.S. 
Fish and Wildlife Service or the National Park Service will be granted 
by the head of the Service or his authorized representative in his 
discretion and on acceptance by the applicant of the conditions set 
forth in paragraph (d)(3) of this section.
    (d) Form of application. The following form is prescribed for an 
application for permission to make a motion picture, television 
production, or sound track on areas administered by the U.S. Fish and 
Wildlife Service or the National Park Service:
                                                   Date ----------------
To the head of the______________________________________________________
Service, Department of the Interior_____________________________________
                                                                  (Area)

[[Page 167]]

(1) Permission is requested to make, in the area mentioned above, a_____
    (2) The scope of the filming (or production or recording) and the 
manner and extent thereof will be as follows
Weather conditions permitting, work will commence on approximately -----
----- and will be completed on approximately____________________________
________________________________________________________________________
________________________________________________________________________
    (An additional sheet should be used if necessary.)
    (3) The undersigned accepts and will comply with the following 
conditions:
    (i) Utmost care will be exercised to see that no natural features 
are injured, and after completion of the work the area will, as required 
by the official in charge, either be cleaned up and restored to its 
prior condition or left, after clean-up, in a condition satisfactory to 
the official in charge.
    (ii) Credit will be given to the Department of the Interior and the 
Service involved through the use of an appropriate title or 
announcement, unless there is issued by the official in charge of the 
area a written statement that no such courtesy credit is desired.
    (iii) Pictures will be taken of wildlife only when such wildlife 
will be shown in its natural state or under approved management 
conditions if such wildlife is confined.
    (iv) [Reserved]
    (v) Any special instructions received from the official in charge of 
the area will be complied with.
    (vi) Any additional information relating to the privilege applied 
for by this application will be furnished upon request of the official 
in charge.
          ______________________________________________________________
                                                         (Applicant)    
                                           For--------------------------
                                                           (Company)    
Bond Requirement $______________________________________________________
       Approved:________________________________________________________
                                                            (Date)      
          ______________________________________________________________
                                                             (Title)    

[22 FR 1987, Mar. 26, 1957, as amended at 36 FR 2972, Feb. 13, 1971]



Sec. 5.2  Areas administered by the Bureau of Indian Affairs.

    (a) Individual Indians. Anyone who desires to go on the land of an 
Indian to make pictures, television productions or sound tracks is 
expected to observe the ordinary courtesy of first obtaining permission 
from the Indian and of observing any conditions attached to such 
permission.
    (b) Indian groups and communities. Anyone who desires to take 
pictures, including motion pictures, or to make a television production 
or a sound track of Indian communities, churches, kivas, plazas, or 
ceremonies performed in such places, must obtain prior permission from 
the proper officials of the place or community. Limitations which such 
officials may impose must be scrupulously observed.
    (c) Use of Indian lands. If the filming of pictures or the making of 
television productions or sound tracks requires the actual use of Indian 
lands, a lease or permit must be obtained pursuant to 25 CFR part 131.
    (d) Employment of Indians. Any motion picture or television producer 
who obtains a lease or permit for the use of Indian land pursuant to 25 
CFR part 131 shall be expected to pay a fair and reasonable wage to any 
Indians employed in connection with the production activities.

[22 FR 1987, Mar. 26, 1957]



PART 6--PATENT REGULATIONS--Table of Contents




                   Subpart A--Inventions by Employees

Sec.
6.1  Definitions.
6.2  Report of invention.
6.3  Action by supervisory officials.
6.4  Action by Solicitor.
6.5  Rights in inventions.
6.6  Appeals by employees.
6.7  Domestic patent protection.
6.8  Foreign filing.
6.9  Publication and public use of invention before patent application 
          is filed.
6.10  Publicity concerning the invention after patent application is 
          filed.
6.11  Condition of employment.

                           Subpart B--Licenses

6.51  Purpose.
6.52  Patents.
6.53  Unpatented inventions.
6.54  Use or manufacture by or for the Government.
6.55  Terms of licenses or sublicenses.
6.56  Issuance of licenses.
6.57  Evaluation Committee.

    Authority: 5 U.S.C. 301; sec. 2, Reorganization Plan No. 3 of 1950, 
15 FR 3174; E.O. 10096, 15 FR 389; and E.O. 10930, 26 FR 2583.

    Source: 29 FR 260, Jan. 10, 1964; 29 FR 6498, May 19, 1964, unless 
otherwise noted.

[[Page 168]]



                   Subpart A--Inventions by Employees



Sec. 6.1  Definitions.

    As used in this subpart:
    (a) The term Department means the Department of the Interior.
    (b) The term Secretary means the Secretary of the Interior.
    (c) The term Solicitor means the Solicitor of the Department of the 
Interior, or anyone authorized to act for him.
    (d) The term Commissioner means the Commissioner of Patents, or any 
Assistant Commissioner who may act for the Commissioner of Patents.
    (e) The term invention means any new and useful art, process, 
method, machine, manufacture, or composition of matter, or any new and 
useful improvement thereof, or any new variety of plant, or any new, 
original and ornamental design for an article of manufacture, which is 
or may be patentable under the laws of the United States.
    (f) The term employee as used in this part includes a part time 
consultant, a part time employee or a special employee (as defined in 18 
U.S.C. 202) of the Department insofar as inventions made during periods 
of official duty are concerned, except when special circumstances in a 
specific case require an exemption in order to meet the needs of the 
Department, each such exemption to be subject to the approval of the 
Commissioner.
    (g) The term governmental purpose means the right of the Government 
of the United States (including any agency thereof, state, or domestic 
municipal government) to practice and have practiced (made or have made, 
used or have used, sold or have sold) throughout the world by or on 
behalf of the Government of the United States.
    (h) The making of the invention means the conception or first actual 
reduction to practice of such invention.



Sec. 6.2  Report of invention.

    (a) Every invention made by an employee of the Department shall be 
reported by such employee through his supervisor and the head of the 
bureau or office to the Solicitor, unless the invention obviously is 
unpatentable. If the invention is the result of group work, the report 
shall be made by the supervisor and shall be signed by all employees 
participating in the making of the invention. The original and two 
copies of the invention report shall be furnished to the Solicitor. The 
Solicitor may prescribe the form of the report.
    (b) The report shall be made as promptly as possible, taking into 
consideration such factors as possible publication or public use, 
reduction to practice, and the necessity for protecting any rights of 
the Government in the invention. Although it is not necessary to 
withhold the report until the process or device is completely reduced to 
practice, reduction to practice assists in the preparation of a patent 
application and, if diligently pursued, protects the interests of the 
Government and of the inventor. If an invention is reduced to practice 
after the invention report is filed, the Solicitor must be notified 
forthwith.
    (c) For the protection of the rights of the Government and of the 
inventor, invention reports and memoranda or correspondence concerning 
them are to be considered as confidential documents.
    (d) An invention report shall include the following:
    (1) A brief but pertinently descriptive title of the invention;
    (2) The full name, residence, office address, bureau or office and 
division, position or title, and official working place of the inventor 
or inventors;
    (3) A statement of the evidence that is available as to the making 
of the invention, including information relative to conception, 
disclosures to others, and reduction to practice. Examples of such 
information are references to signed, witnessed and dated laboratory 
notebooks, or other authenticated records pertaining to the conception 
of the invention, operational data sheets, analysis and operation 
evaluation reports pertaining to a reduction to practice, and visitor 
log books, letters and other documents pertaining to disclosures to 
others. These need not be submitted with the report, only the 
identifying data is required, e.g., volume and page number in a 
laboratory notebook;

[[Page 169]]

    (4) Information concerning any past or prospective publication, oral 
presentation or public use of the invention;
    (5) The problem which led to the making of the invention;
    (6) The objects, advantages, and uses of the invention;
    (7) A detailed description of the invention;
    (8) Experimental data;
    (9) The prior art known to the inventor(s) and the manner in which 
the invention distinguishes thereover;
    (10) A statement that the employee:
    (i) Is willing to and does hereby assign to the Government:
    (a) The entire rights (foreign and domestic) in the invention;
    (b) The domestic rights only, but grants to the Government an option 
to file for patent protection in any foreign country, said option to 
expire as to any country when it is decided not to file thereon in the 
United States, or within six months after such filing;
    (ii) Requests, pursuant to Sec. 6.2(e), a determination of the 
respective rights of the Government and of the inventor.
    (e) If the inventor believes that he is not required by the 
regulations in this subpart to assign to the Government the entire 
domestic right, title, and interest in and to the invention, and if he 
is unwilling to make such an assignment to the Government, he shall, in 
his invention report, request that the Solicitor determine the 
respective rights of the Government and of the inventor in the 
invention, and he shall include in his invention report information on 
the following points, in addition to the data called for in paragraph 
(d) of this section:
    (1) The circumstances under which the invention was made (conceived, 
actually reduced to practice or constructed and tested);
    (2) The employee's official duties, as given on his job sheet or 
otherwise assigned, at the time of the making of the invention;
    (3) The extent to which the invention was made during the inventor's 
official working hours, the extent use was made of government 
facilities, equipment, funds, material or information, and the time or 
services of other government employees on official duty;
    (4) Whether the employee wishes a patent application to be 
prosecuted under the Act of March 3, 1883, as amended (35 U.S.C. 266), 
if it should be determined that he is not required to assign all 
domestic rights to the invention to the Government; and
    (5) Whether the employee would be willing, upon request, to 
voluntarily assign foreign rights in the invention to the Government if 
it should be determined that an assignment of the domestic rights to the 
Government is not required.



Sec. 6.3  Action by supervisory officials.

    (a) The preparation of an invention report and other official 
correspondence on patent matters is one of the regular duties of an 
employee who has made an invention and the supervisor of such employee 
shall see that he is allowed sufficient time from his other duties to 
prepare such documents. The supervisor shall ascertain that the 
invention report and other papers are prepared in conformity with the 
regulations of this part; and, before transmitting the invention report 
to the head of the bureau or office, shall check its accuracy and 
completeness, especially with respect to the circumstances in which the 
invention was developed, and shall add whatever comments he may deem to 
be necessary or desirable. The supervisor shall add to the file whatever 
information he may have concerning the governmental and commercial value 
of the invention.
    (b) The head of the bureau or office shall make certain that the 
invention report is as complete as circumstances permit. He shall report 
whatever information may be available in his agency concerning the 
governmental and commercial value of the invention, and the foreign 
countries in which it is likely that the invention would be most useful 
and would have the greatest commercial value.
    (c) If the employee inventor requests that the Solicitor determine 
his rights in the invention, the head of the bureau or office shall 
state his conclusions with respect to such rights.
    (d) The head of the bureau or office shall indicate whether, in his 
judgment, the invention is liable to be used in the public interest, and 
he shall set

[[Page 170]]

out the facts supporting his conclusion whenever the employee's 
invention report does not contain sufficient information on this point.



Sec. 6.4  Action by Solicitor.

    (a) If an employee inventor requests pursuant to Sec. 6.2(e), that 
such determination be made, the Solicitor shall determine the respective 
rights of the employee and of the Government in and to the invention. 
His determination shall be subject to review by the Commissioner in 
proper cases under Executive Orders 10096 and 10930 and the rules and 
regulations issued by the Commissioner with the approval of the 
President.
    (b) If the Government is entitled to obtain the entire domestic 
right, title and interest in and to an invention made by an employee of 
the Department, the Solicitor, subject to review by the Commissioner in 
proper cases, may take such action respecting the invention as he deems 
necessary or advisable to protect the interests of the United States.



Sec. 6.5  Rights in inventions.

    (a) The rules prescribed in this section shall be applied in 
determining the respective rights of the Government and of an employee 
of the Department in and to any invention made by the employee.
    (b)(1) Except as indicated in the succeeding paragraphs, (b) (1) 
through (4), of this section, the Government shall obtain the entire 
domestic right, title, and interest in and to any invention made by an 
employee of the Department
    (i) During working hours, or
    (ii) With a contribution by the Government of facilities, equipment, 
materials, funds, or information, or of time or services of other 
government employees on official duty, or
    (iii) Which bears a direct relation to or is made in consequence of 
the official duties of the inventor.
    (2) In any case where the contribution of the Government, as 
measured by any one or more of the criteria set forth in paragraph 
(b)(1) of this section, to the invention is insufficient equitably to 
justify a requirement of assignment to the Government of the entire 
domestic right, title, and interest in and to such invention, or in any 
case where the Government has insufficient interest in an invention to 
obtain the entire domestic right, title, and interest therein (although 
the Government could obtain same under paragraph (b)(1) of this 
section), the Solicitor, subject to the approval of the Commissioner, 
shall leave title to such invention in the employee, subject, however, 
to the reservation to the Government of a nonexclusive, irrevocable, 
royalty-free license in the invention with power to grant sublicenses 
for all governmental purposes, such reservation, in the terms thereof, 
to appear, where practicable, in any patent, domestic or foreign, which 
may issue on such invention.
    (3) In applying the provisions of paragraphs (b) (1) and (2) of this 
section to the facts and circumstances relating to the making of any 
particular invention, it shall be presumed that any invention made by an 
employee who is employed or assigned (i) to invent or improve or perfect 
any art, machine, manufacture, or composition of matter, or (ii) to 
conduct or perform research, development work, or both, or (iii) to 
supervise, direct, coordinate, or review Government financed or 
conducted research, development work, or both, or (iv) to act in a 
liaison capacity among governmental or nongovernmental agencies or 
individuals engaged in such work, falls within the provisions of 
paragraph (b)(1) of this section, and it shall be presumed that any 
invention made by any other employee falls within the provisions of 
paragraph (b)(2) of this section. Either presumption may be rebutted by 
a showing of the facts and circumstances in the case and shall not 
preclude a determination that these facts and circumstances justify 
leaving the entire right, title and interest in and to the invention in 
the government employee, subject to law.
    (4) In any case wherein the Government neither (i) obtains the 
entire domestic right, title, and interest in and to an invention 
pursuant to the provisions of paragraph (b)(1) of this section, nor (ii) 
reserves a nonexclusive, irrevocable, royalty-free license in the 
invention, with power to grant sublicenses for all governmental 
purposes,

[[Page 171]]

pursuant to the provisions of paragraph (b)(2) of this section, the 
Solicitor, subject to the approval of the Commissioner, shall leave the 
entire right, title, and interest in and to the invention in the 
employee, subject to law.
    (c) In the event that the Solicitor determines, pursuant to 
paragraph (b) (2) or (4) of this section, that title to an invention 
will be left with an employee, the Solicitor shall notify the employee 
of this determination and promptly prepare, and preserve in appropriate 
files, accessible to the Commissioner, a written signed, and dated 
statement concerning the invention including the following:
    (1) A description of the invention in sufficient detail to identify 
the invention and show the relationship to the employee's duties and 
work assignment;
    (2) The name of the employee and his employment status, including a 
detailed statement of his official duties and responsibilities at the 
time the invention was made; and
    (3) A statement of the Solicitor's determination and reasons 
therefor. The Solicitor shall, subject to considerations of national 
security, or public health, safety, or welfare, submit to the 
Commissioner a copy of this written statement. This submittal in a case 
falling within the provisions of paragraph (b) (2) of this section shall 
be made after the expiration of the period prescribed in Sec. 6.6 for 
the taking of an appeal, or it may be made prior to the expiration of 
such period if the employees acquiesces in the Solicitor's 
determination. The Commissioner thereupon shall review the determination 
of the Solicitor and the Commissioner's decision respecting the matter 
shall be final, subject to the right of the employee or the Solicitor to 
submit to the Commissioner within 30 days (or such longer period as the 
Commissioner may, for good cause, shown in writing, fix in any case) 
after receiving notice of such decision, a petition for the 
reconsideration of the decision. A copy of such petition must also be 
filed by the inventor with the Solicitor within the prescribed period.



Sec. 6.6  Appeals by employees.

    (a) Any employee who is aggrieved by a determination of the 
Solicitor pursuant to Sec. 6.5(b) (1) or (2) may obtain a review of the 
determination by filing, within 30 days (or such longer period as the 
Commissioner may for good cause shown in writing, fix in any case) after 
receiving notice of such determination, two copies of an appeal with the 
Commissioner. The Commissioner then shall forward one copy of the appeal 
to the Solicitor.
    (b) On receipt of a copy of an appeal filed pursuant to paragraph 
(a) of this section, the Solicitor shall, subject to considerations of 
national security, or public health, safety, or welfare, promptly 
furnish both the Commissioner and the inventor with a copy of a report 
containing the following information about the invention involved in the 
appeal:
    (1) A copy of a statement containing the information specified in 
Sec. 6.5(c), and
    (2) A detailed statement of the points of dispute or controversy, 
together with copies of any statements or written arguments that may 
have been filed, and of any other relevant evidence that the Solicitor 
considered in making his determination of Government interest. Within 25 
days (or such longer period as the Commissioner may, for good cause 
shown, fix in any case) after the transmission of a copy of the 
Solicitor's report to the employee, the employee may file a reply 
thereto with the Commissioner and file one copy thereof with the 
Solicitor.
    (c) After the time for the employee's reply to the Solicitor's 
report has expired and if the employee has so requested in his appeal, a 
date will be set for the hearing of oral arguments by the employee (or 
by an attorney whom he designates by written power of attorney filed 
before, or at the hearing) and the Solicitor. Unless it shall be 
otherwise ordered before the hearing begins, oral arguments will be 
limited to thirty minutes for each side. The employee need not retain an 
attorney or request an oral hearing to secure full consideration of the 
facts and his arguments. He may expedite such consideration by notifying 
the Commissioner when he does not intend to file a reply to the 
Solicitor's report.

[[Page 172]]

    (d) After a hearing on the appeal, if a hearing was requested, or 
after expiration of the period for the inventor's reply to the 
Solicitor's report, if no hearing is set, the Commissioner shall issue a 
decision on the matter, which decision shall be final after the period 
for asking reconsideration expires or on the date that a decision on a 
petition for reconsideration is finally disposed of. Any request for 
reconsideration or modification of the decision must be filed within 30 
days from the date of the original decision (or within such an extension 
thereof as may be set by the Commissioner before the original period 
expires). The Com- missioner's decision shall be made after 
consideration of the statements of fact in the employee's appeal, the 
Solicitor's report, and the employee's reply, but the Commissioner, at 
his discretion and with due respect to the rights and convenience of the 
inventor and the Solicitor, may call for further statements on specific 
questions of fact or may request additional evidence in the form of 
affidavits or depositions on specific facts in dispute.



Sec. 6.7  Domestic patent protection.

    (a) The Solicitor, upon determining that an invention coming within 
the scope of Sec. 6.5(b) (1) or (2) has been made, shall thereupon 
determine whether patent protection will be sought in the United States 
by the Department for such invention. A controversy over the respective 
rights of the Government and of the inventor in any case shall not delay 
the taking of the actions provided for in this section. In cases coming 
within the scope of Sec. 6.5(b)(2), action by the Department looking 
toward such patent protection shall be contingent upon the consent of 
the inventor.
    (b) Where there is a dispute as to whether paragraph (b) (1) or (2) 
of Sec. 6.5 applies in determining the respective rights of the 
Government and of an employee in and to any invention, the Solicitor 
will determine whether patent protection will be sought in the United 
States pending the Commissioner's decision on the dispute, and, if he 
determines that an application for patent should be filed, he will take 
such rights as are specified in Sec. 6.5(b)(2), but this shall be 
without prejudice to acquiring the rights specified in Sec. 6.5(b)(1) 
should the Commissioner so decide.
    (c) Where the Solicitor has determined to leave title to an 
invention with an employee under Sec. 6.5(b)(2), the Solicitor will, 
upon the filing of an application for patent and pending review of the 
determination by the Commissioner, take the rights specified in that 
paragraph, without prejudice to the subsequent acquisition by the 
Government of the rights specified in Sec. 6.5(b)(1) should the 
Commissioner so decide.
    (d) In the event that the Solicitor determines that an application 
for patent will not be filed on an invention made under the 
circumstances specified in Sec. 6.5(b)(1) giving the United States the 
right to title thereto, the Solicitor shall subject to considerations of 
national security, or public health, safety, or welfare, report to the 
Commissioner promptly upon making such determination, the following 
information concerning the invention:
    (1) Description of the invention in sufficient detail to permit a 
satisfactory review;
    (2) Name of the inventor and his employment status;
    (3) Statement of the Solicitor's determination and reasons therefor.

The Commissioner, may, if he determines that the interest of the 
Government so requires and subject to considerations of national 
security, or public health safety, or welfare, bring the invention to 
the attention of any Government agency to whose activities the invention 
may be pertinent, or cause the invention to be fully disclosed by 
publication thereof.



Sec. 6.8  Foreign filing.

    (a) By Government. (1) In every case where the employee has 
indicated pursuant to Sec. 6.2(d)(10), his willingness to assign the 
domestic patent rights in the invention to the Government, or where it 
has been determined pursuant to Sec. 6.5 that the Government shall 
obtain the entire domestic patent rights, the Government shall reserve 
an option to acquire assignment of all foreign rights including the 
rights to file foreign patent applications or otherwise to seek 
protection abroad on the invention.

[[Page 173]]

    (2) The Government's option shall lapse as regards any foreign 
country:
    (i) When the Solicitor determines after consultation with the agency 
most directly concerned, not to cause an application to be filed in said 
foreign country or otherwise to seek protection of the invention, as by 
publication;
    (ii) When the Solicitor fails to take action to seek protection of 
the invention in said foreign country (a) within six months of the 
filing of an application for a United States patent on the invention, or 
(b) within six months of declassification of an invention previously 
under a security classification, whichever is later.
    (b) By Employee. (1) No Department employee shall file or cause to 
be filed an application for patent in any foreign country on any 
invention in which the Government has acquired the entire (foreign and 
domestic) patent rights, or holds an unexpired option to acquire the 
patent rights in said foreign country, or take any steps which would 
preclude the filing of an application by or on behalf of the Government.
    (2) An employee may file in any foreign country where the Government 
has not exercised its option acquired pursuant to Sec. 6.2(d)(10), to do 
so, or determines not to do so.
    (3) The determination or failure to act as set forth in 
Sec. 6.8(a)(2) shall constitute a decision by the Government to leave 
the foreign patent rights to the invention in the employee, subject to a 
nonexclusive, irrevocable, royalty-free license to the Government in any 
patent which may issue thereon in any foreign country, including the 
power to issue sublicenses for governmental purposes or in furtherance 
of the foreign policies of the Government or both.



Sec. 6.9  Publication and public use of invention before patent application is filed.

    (a) Publication or public use of an invention constitutes a 
statutory bar to the granting of a patent for the invention unless a 
patent application is filed within one year of the date of such 
publication or public use. In order to preserve rights in unpatented 
inventions, it shall be the duty of the inventor, or of his supervisor 
if the inventor is not available to make such report, to report 
forthwith to the Solicitor any publication or use (other than 
experimental) of an invention, irrespective of whether an invention 
report has previously been filed. If an invention report has not been 
filed, such a report, including information concerning the public use or 
publication, shall be filed at once. If an invention is disclosed to any 
person who is not employed by the Department or working in cooperation 
with the Department upon that invention, a record shall be kept of the 
date and extent of the disclosure, the name and address of the person to 
whom the disclosure was made, and the purpose of the disclosure.
    (b) No description, specification, plan, or drawing of any 
unpatented invention upon which a patent application is likely to be 
filed shall be published, nor shall any written description, 
specification, plan, or drawing of such invention be furnished to anyone 
other than an employee of the Department or a person working in 
cooperation with the Department upon that invention, unless the 
Solicitor is of the opinion that the interests of the Government will 
not be prejudiced by such action. If any publication disclosing the 
invention, not previously approved by the Solicitor, comes to the 
attention of the inventor or his supervisor, it shall be the duty of 
such person to report such publication to the Solicitor.



Sec. 6.10  Publicity concerning the invention after patent application is filed.

    In order that the public may obtain the greatest possible benefit 
from inventions in which the Secretary has transferable interests, 
inventions assigned to the Secretary upon which patent applications have 
been filed shall be publicized as widely as possible, within limitations 
of authority, by the Department, by the originating agency, by the 
division in which the inventor is employed, and by the inventor himself 
in his contacts with industries in which the invention is or may be 
useful. Regular organs of publication shall be utilized to the greatest 
extent possible. In addition, it shall be the duty of the Solicitor, 
upon being

[[Page 174]]

advised of the issuance of any patent assigned to the Secretary, to take 
steps towards listing the patent as available for licensing, where 
feasible.



Sec. 6.11  Condition of employment.

    (a) The regulations in this subpart shall be a condition of 
employment of all employees of the Department and shall be effective as 
to all their inventions. These regulations shall be effective without 
regard to any existing or future contracts to the contrary entered into 
by any employee of the Department with any person other than the 
Government.
    (b) If a patent application is filed upon an invention which has 
been made by an employee of the Department under circumstances that 
entitle the Government to the entire domestic right, title and interest 
in and to the invention, but which has not been reported to the 
Solicitor pursuant to the regulations in this subpart, title to such 
invention shall immediately vest in the Government, as represented by 
the Secretary, and the contract of employment shall be considered an 
assignment of such rights.



                           Subpart B--Licenses



Sec. 6.51  Purpose.

    It is the purpose of the regulations in this subpart to secure for 
the people of the United States the full benefits of Government research 
and investigation in the Department of the Interior (a) by providing a 
simple procedure under which the public may obtain licenses to use 
patents and inventions in which the Secretary of the Interior has 
transferable interests and which are available for licensing; and (b) by 
providing adequate protection for the inventions until such time as they 
may be made available for licensing without undue risk of losing patent 
protection to which the public is entitled.

[31 FR 10796, Aug. 13, 1966]



Sec. 6.52  Patents.

    Patents in which the Secretary of the interior has transferable 
interests, and under which he may issue licenses or sublicenses, are 
classified as follows:
    (a) Class A. Patents, other than those referred to in paragraph (c) 
of this section, which are owned by the United States, as represented by 
the Secretary of the Interior, free from restrictions on licensing 
except such as are inherent in Government ownership;
    (b) Class B. Patents in which the interest of the United States, as 
represented by the Secretary of the Interior, is less than full 
ownership, or is subject to some express restriction upon licensing or 
sublicensing (including patents upon which the Secretary of the Interior 
holds a license, patents assigned to the Secretary of the Interior as 
trustee for the people of the United States, and patents assigned to the 
Secretary of the Interior upon such terms as to effect a dedication to 
the public);
    (c) Class C. Patents and patent rights acquired by the Secretary of 
the Interior pursuant to the Act of April 5, 1944 (58 Stat. 190; 30 
U.S.C. 321--325), and any amendments thereof.

[29 FR 260, Jan. 10, 1964, as amended at 31 FR 10796, Aug. 13, 1966]



Sec. 6.53  Unpatented inventions.

    The Secretary of the Interior may also have transferable interests 
in inventions which are not yet patented. In order to protect the patent 
rights of the Department, for the eventual benefit of the public, a 
license may be granted with respect to such an invention only if (a) a 
patent application has been filed thereon; (b) the invention has been 
assigned to the United States, as represented by the Secretary of the 
Interior, and the assignment has been recorded in the Patent Office; and 
(c) the Solicitor of the Department is of the opinion that the issuance 
of a license will not prejudice the interests of the Government in the 
invention. Such licenses shall be upon the same terms as licenses 
relating to patents of the same class, as described in Sec. 6.52.



Sec. 6.54  Use or manufacture by or for the Government.

    A license is not required with respect to the manufacture or use of 
any invention assigned or required to be assigned without restrictions 
or qualifications to the United States when such manufacture or use is 
by or for

[[Page 175]]

the Government for governmental purposes. A license or sublicense may be 
required, however, for such manufacture or use in the case of Class B 
patents or patent rights when the terms under which the Secretary of the 
Interior acquires interests therein necessitate the issuance of a 
license or sublicense in such circumstances.

[31 FR 10796, Aug. 13, 1966]



Sec. 6.55  Terms of licenses or sublicenses.

    (a) No license or sublicense shall be granted under any patent in 
which the Secretary of the Interior has transferable interests, except 
as set forth under these regulations, the terms and conditions of which 
shall be expressly stated in such license and sublicense. The terms of 
licenses and sublicenses issued under this subpart shall not be 
unreasonably restrictive.
    (b) To the extent that they do not conflict with any restrictions to 
which the licensing or sublicensing of Class B patents and unpatented 
inventions may be subject, all licenses and sublicenses relating to 
Class A and Class B patents and unpatented inventions shall be subject 
to the following terms and provisions, and to such other terms and 
conditions as the Solicitor may prescribe:
    (1) The acceptance of a license or sublicense shall not be construed 
as a waiver of the right to contest the validity of the patent. A 
license or sublicense shall be revocable only upon a finding by the 
Solicitor of the Department that the terms of the license or sublicense 
have been violated and that the revocation of the license or sublicense 
is in the public interest. Such finding shall be made only after 
reasonable notice and an opportunity to be heard.
    (2) Licenses and sublicenses shall be nontransferable. Upon a 
satisfactory showing that the Government or public will be benefited 
thereby, they may be granted to properly qualified applicants royalty-
free. If no such showing is made, they shall be granted only upon a 
reasonable royalty or other consideration, the amount or character of 
which is to be determined by the Solicitor. A cross-licensing agreement 
may be considered adequate consideration.
    (3) Licensees and sublicensees may be required to submit annual or 
more frequent technical or statistical reports concerning practical 
experience acquired through the exercise of the license or sublicense, 
the extent of the production under the license or sublicense, and other 
related subjects.
    (4) A licensee or sublicensee manufacturing a patented article 
pursuant to a license or sublicense shall give notice to the public that 
the article is patented by affixing thereon the word ``patent'', 
together with the number of the patent, or when, from the character of 
the article, this cannot be done, by fixing to it, or to the package in 
which it is enclosed, a label containing such notice.
    (c) Licenses and sublicenses relating to Class C patents and patent 
rights shall be granted upon such terms and conditions as may be 
prescribed pursuant to sections 3 and 5 of the Act of April 5 1944, and 
any amendments thereof.

[29 FR 260, Jan. 10, 1964, as amended at 31 FR 10796, Aug. 13, 1966]



Sec. 6.56  Issuance of licenses.

    (a) Any person desiring a license relating to an invention upon 
which the Secretary of the Interior holds a patent or patent rights may 
file with the Solicitor of the Department of the Interior an application 
for a license, stating:
    (1) The name, address, and citizenship of the applicant;
    (2) The nature of his business;
    (3) The patent or invention upon which he desires a license;
    (4) The purpose for which he desires a license;
    (5) His experience in the field of the desired license;
    (6) Any patents, licenses, or other patent rights which he may have 
in the field of the desired license; and
    (7) The benefits, if any, which the applicant expects the public to 
derive from his proposed use of the invention
    (b) It shall be the duty of the Solicitor, after consultation with 
the bureau most directly interested in the patent or invention involved 
in an application for a license, and with the Evaluation Committee if 
royalties are to be charged, to determine whether

[[Page 176]]

the license shall be granted. If he determines that a license is to be 
granted, he shall execute on behalf of the Secretary, an appropriate 
license.



Sec. 6.57  Evaluation Committee.

    At the request of the Solicitor, an Evaluation Committee will be 
appointed by the Secretary to recommend royalty rates with respect to 
any patents or inventions for which royalties may be charged.



PART 7--PROTECTION OF ARCHAEOLOGICAL RESOURCES--Table of Contents




                     Subpart A--Uniform Regulations

Sec.
7.1  Purpose.
7.2  Authority.
7.3  Definitions.
7.4  Prohibited acts and criminal penalties.
7.5  Permit requirements and exceptions.
7.6  Application for permits and information collection.
7.7  Notification to Indian tribes of possible harm to, or destruction 
          of, sites on public lands having religious or cultural 
          importance.
7.8  Issuance of permits.
7.9  Terms and conditions of permits.
7.10  Suspension and revocation of permits.
7.11  Appeals relating to permits.
7.12  Relationship to section 106 of the National Historic Preservation 
          Act.
7.13  Custody of archaeological resources.
7.14  Determination of archaeological or commercial value and cost of 
          restoration and repair.
7.15  Assessment of civil penalties.
7.16  Civil penalty amounts.
7.17  Other penalties and rewards.
7.18  Confidentiality of archaeological resource information.
7.19  Report.
7.20  Public awareness programs.
7.21  Surveys and schedules.

     Subpart B--Department of the Interior Supplemental Regulations

7.31  Scope and authority.
7.32  Supplemental definitions.
7.33  Determination of loss or absence of archaeological interest.
7.34  Procedural information for securing permits.
7.35  Permitting procedures for Indian lands.
7.36  Permit reviews and disputes.
7.37  Civil penalty hearings procedures.

    Authority: Pub. L. 96-95, 93 Stat. 721, as amended; 102 Stat. 2983 
(16 U.S.C. 470aa-mm) (Sec. 10(a). Related authority: Pub. L. 59-209, 34 
Stat. 225 (16 U.S.C. 432,433); Pub. L. 86-523; 74 Stat. 220, 221 (16 
U.S.C. 469), as amended; 88 Stat. 174 (1974); Pub. L. 89-665, 80 Stat. 
915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204 (1970), 87 Stat. 139 
(1973), 90 Stat. 1320 (1976), 92 Stat. 3467 (1978), 94 Stat. 2987 
(1980); Pub. L. 95-341, 92 Stat. 469 (42 U.S.C. 1996).



                     Subpart A--Uniform Regulations

    Source: 49 FR 1027, Jan. 6, 1984, unless otherwise noted.



Sec. 7.1  Purpose.

    (a) The regulations in this part implement provisions of the 
Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 
470aa-mm) by establishing the uniform definitions, standards, and 
procedures to be followed by all Federal land managers in providing 
protection for archaeological resources, located on public lands and 
Indian lands of the United States. These regulations enable Federal land 
managers to protect archaeological resources, taking into consideration 
provisions of the American Indian Religious Freedom Act (92 Stat. 469; 
42 U.S.C. 1996), through permits authorizing excavation and/or removal 
of archaeological resources, through civil penalties for unauthorized 
excavation and/or removal, through provisions for the preservation of 
archaeological resource collections and data, and through provisions for 
ensuring confidentiality of information about archaeological resources 
when disclosure would threaten the archaeological resources.
    (b) The regulations in this part do not impose any new restrictions 
on activities permitted under other laws, authorities, and regulations 
relating to mining, mineral leasing, reclamation, and other multiple 
uses of the public lands.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]



Sec. 7.2  Authority.

    (a) The regulations in this part are promulgated pursuant to section 
10(a) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470ii), which requires that the Secretaries of the Interior, Agriculture 
and Defense and the Chairman of the Board of the

[[Page 177]]

Tennessee Valley Authority jointly develop uniform rules and regulations 
for carrying out the purposes of the Act.
    (b) In addition to the regulations in this part, section 10(b) of 
the Act (16 U.S.C. 470ii) provides that each Federal land manager shall 
promulgate such rules and regulations, consistent with the uniform rules 
and regulations in this part, as may be necessary for carrying out the 
purposes of the Act.



Sec. 7.3  Definitions.

    As used for purposes of this part:
    (a) Archaeological resource means any material remains of human life 
or activities which are at least 100 years of age, and which are of 
archaeological interest.
    (1) Of archaeological interest means capable of providing scientific 
or humanistic understandings of past human behavior, cultural 
adaptation, and related topics through the application of scientific or 
scholarly techniques such as controlled observation, contextual 
measurement, controlled collection, analysis, interpretation and 
explanation.
    (2) Material remains means physical evidence of human habitation, 
occupation, use, or activity, including the site, location, or context 
in which such evidence is situated.
    (3) The followiing classes of material remains (and illustrative 
examples), if they are at least 100 years of age, are of archaeological 
interest and shall be considered archaeological resources unless 
determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this 
section:
    (i) Surface or subsurface structures, shelters, facilities, or 
features (including, but not limited to, domestic structures, storage 
structures, cooking structures, ceremonial structures, artificial 
mounds, earthworks, fortifications, canals, reservoirs, horticultural/
agricultural gardens or fields, bedrock mortars or grinding surfaces, 
rock alignments, cairns, trails, borrow pits, cooking pits, refuse pits, 
burial pits or graves, hearths, kilns, post molds, wall trenches, 
middens);
    (ii) Surface or subsurface artifact concentrations or scatters;
    (iii) Whole or fragmentary tools, implements, containers, weapons 
and weapon projectiles, clothing, and ornaments (including, but not 
limited to, pottery and other ceramics, cordage, basketry and other 
weaving, bottles and other glassware, bone, ivory, shell, metal, wood, 
hide, feathers, pigments, and flaked, ground, or pecked stone);
    (iv) By-products, waste products, or debris resulting from 
manufacture or use of human-made or natural materials;
    (v) Organic waste (including, but not limited to, vegetal and animal 
remains, coprolites);
    (vi) Human remains (including, but not limited to, bone, teeth, 
mummified flesh, burials, cremations);
    (vii) Rock carvings, rock paintings, intaglios and other works of 
artistic or symbolic representation;
    (viii) Rockshelters and caves or portions thereof containing any of 
the above material remains;
    (ix) All portions of shipwrecks (including, but not limited to, 
armaments, apparel, tackle, cargo);
    (x) Any portion or piece of any of the foregoing.
    (4) The following material remains shall not be considered of 
archaeological interest, and shall not be considered to be 
archaeological resources for purposes of the Act and this part, unless 
found in a direct physical relationship with archaeological resources as 
defined in this section:
    (i) Paleontological remains;
    (ii) Coins, bullets, and unworked minerals and rocks.
    (5) The Federal land manager may determine that certain material 
remains, in specified areas under the Federal land manager's 
jurisdiction, and under specified circumstances, are not or are no 
longer of archaeological interest and are not to be considered 
archaeological resources under this part. Any determination made 
pursuant to this subparagraph shall be documented. Such determination 
shall in no way affect the Federal land manager's obligations under 
other applicable laws or regulations.
    (6) For the disposition following lawful removal or excavations of 
Native American human remains and ``cultural items'', as defined by the 
Native American Graves Protection and Repatriation Act (NAGPRA; Pub. L. 
101-601;

[[Page 178]]

104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager is referred 
to NAGPRA and its implementing regulations.
    (b) Arrowhead means any projectile point which appears to have been 
designed for use with an arrow.
    (c) Federal land manager means:
    (1) With respect to any public lands, the secretary of the 
department, or the head of any other agency or instrumentality of the 
United States, having primary management authority over such lands, 
including persons to whom such management authority has been officially 
delegated;
    (2) In the case of Indian lands, or any public lands with respect to 
which no department, agency or instrumentality has primary management 
authority, such term means the Secretary of the Interior;
    (3) The Secretary of the Interior, when the head of any other agency 
or instrumentality has, pursuant to section 3(2) of the Act and with the 
consent of the Secretary of the Interior, delegated to the Secretary of 
the Interior the responsibilities (in whole or in part) in this part.
    (d) Public lands means:
    (1) Lands which are owned and administered by the United States as 
part of the national park system, the national wildlife refuge system, 
or the national forest system; and
    (2) All other lands the fee title to which is held by the United 
States, except lands on the Outer Continental Shelf, lands under the 
jurisdiction of the Smithsonian Institution, and Indian lands.
    (e) Indian lands means lands of Indian tribes, or Indian 
individuals, which are either held in trust by the United States or 
subject to a restriction against alienation imposed by the United 
States, except for subsurface interests not owned or controlled by an 
Indian tribe or Indian individual.
    (f) Indian tribe as defined in the Act means any Indian tribe, band, 
nation, or other organized group or community, including any Alaska 
village or regional or village corporation as defined in, or established 
pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 688). In 
order to clarify this statutory definition for purposes of this part, 
``Indian tribe'' means:
    (1) Any tribal entity which is included in the annual list of 
recognized tribes published in the Federal Register by the Secretary of 
the Interior pursuant to 25 CFR part 54;
    (2) Any other tribal entity acknowledged by the Secretary of the 
Interior pursuant to 25 CFR part 54 since the most recent publication of 
the annual list; and
    (3) Any Alaska Native village or regional or village corporation as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act (85 Stat. 688), and any Alaska Native village or tribe 
which is recognized by the Secretary of the Interior as eligible for 
services provided by the Bureau of Indian Affairs.
    (g) Person means an individual, corporation, partnership, trust, 
institution, association, or any other private entity, or any officer, 
employee, agent, department, or instrumentality of the United States, or 
of any Indian tribe, or of any State or political subdivision thereof.
    (h) State means any of the fifty states, the District of Columbia, 
Puerto Rico, Guam, and the Virgin Islands.
    (i) Act means the Archaeological Resources Protection Act of 1979 
(16 U.S.C. 470aa-mm).

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984, as amended at 60 
FR 5260, Jan. 26, 1995]



Sec. 7.4  Prohibited acts and criminal penalties.

    (a) Under section 6(a) of the Act, no person may excavate, remove, 
damage, or otherwise alter or deface, or attempt to excavate, remove, 
damage, or otherwise alter or deface any archaeological resource located 
on public lands or Indian lands unless such activity is pursuant to a 
permit issued under Sec. 7.8 or exempted by Sec. 7.5(b) of this part.
    (b) No person may sell, purchase, exchange, transport, or receive 
any archaeological resource, if such resource was excavated or removed 
in violation of:
    (1) The prohibitions contained in paragraph (a) of this section; or
    (2) Any provision, rule, regulation, ordinance, or permit in effect 
under any other provision of Federal law.

[[Page 179]]

    (c) Under section (d) of the Act, any person who knowingly violates 
or counsels, procures, solicits, or employs any other person to violate 
any prohibition contained in section 6 (a), (b), or (c) of the Act will, 
upon conviction, be fined not more than $10,000.00 or imprisoned not 
more than one year, or both: provided, however, that if the commercial 
or archaeological value of the archaeological resources involved and the 
cost of restoration and repair of such resources exceeds the sum of 
$500.00, such person will be fined not more than $20,000.00 or 
imprisoned not more than two years, or both. In the case of a second or 
subsequent such violation upon conviction such person will be fined not 
more than $100,000.00, or imprisoned not more than five years, or both.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]



Sec. 7.5  Permit requirements and exceptions.

    (a) Any person proposing to excavate and/or remove archaeological 
resources from public lands or Indian lands, and to carry out activities 
associated with such excavation and/or removal, shall apply to the 
Federal land manager for a permit for the proposed work, and shall not 
begin the proposed work until a permit has been issued. The Federal land 
manager may issue a permit to any qualified person, subject to 
appropriate terms and conditions, provided that the person applying for 
a permit meets conditions in Sec. 7.8(a) of this part.
    (b) Exceptions:
    (1) No permit shall be required under this part for any person 
conducting activities on the public lands under other permits, leases, 
licenses, or entitlements for use, when those activities are exclusively 
for purposes other than the excavation and/or removal of archaeological 
resources, even though those activities might incidentally result in the 
disturbance of archaeological resources. General earth-moving excavation 
conducted under a permit or other authorization shall not be construed 
to mean excavation and/or removal as used in this part. This exception 
does not, however, affect the Federal land manager's responsibility to 
comply with other authorities which protect archaeological resources 
prior to approving permits, leases, licenses, or entitlements for use; 
any excavation and/or removal of archaeological resources required for 
compliance with those authorities shall be conducted in accordance with 
the permit requirements of this part.
    (2) No permit shall be required under this part for any person 
collecting for private purposes any rock, coin, bullet, or mineral which 
is not an archaeological resource as defined in this part, provided that 
such collecting does not result in disturbance of any archaelogical 
resource.
    (3) No permit shall be required under this part or under section 3 
of the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or 
removal by any Indian tribe or member thereof of any archaeological 
resource located on Indian lands of such Indian tribe, except that in 
the absence of tribal law regulating the excavation or removal or 
archaeological resources on Indian lands, an individual tribal member 
shall be required to obtain a permit under this part;
    (4) No permit shall be required under this part for any person to 
carry out any archaeological activity authorized by a permit issued 
under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the 
enactment of the Archaeological Resources Protection Act of 1979. Such 
permit shall remain in effect according to its terms and conditions 
until expiration.
    (5) No permit shall be required under section 3 of the Act of June 
8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit 
is issued under this part.
    (c) Persons carrying out official agency duties under the Federal 
land manager's direction, associated with the management of 
archaeological resources, need not follow the permit application 
procedures of Sec. 7.6. However, the Federal land manager shall insure 
that provisions of Secs. 7.8 and 7.9 have been met by other documented 
means, and that any official duties which might result in harm to or 
destruction of any Indian tribal religious or cultural site, as 
determined by the Federal land manager, have been the subject of 
consideration under Sec. 7.7.

[[Page 180]]

    (d) Upon the written request of the Governor of any State, on behalf 
of the State or its educational institutions, the Federal land manager 
shall issue a permit, subject to the provisions of Secs. 7.5(b)(5), 7.7, 
7.8(a) (3), (4), (5), (6), and (7), 7.9, 7.10, 7.12, and 7.13(a) to such 
Governor or to such designee as the Governor deems qualified to carry 
out the intent of the Act, for purposes of conducting archaeological 
research, excavating and/or removing archaeological resources, and 
safeguarding and preserving any materials and data collected in a 
university, museum, or other scientific or educational institution 
approved by the Federal land manager.
    (e) Under other statutory, regulatory, or administrative authorities 
governing the use of public lands and Indian lands, authorizations may 
be required for activities which do not require a permit under this 
part. Any person wishing to conduct on public lands or Indian lands any 
activities related to but believed to fall outside the scope of this 
part should consult with the Federal land manager, for the purpose of 
determining whether any authorization is required, prior to beginning 
such activities.



Sec. 7.6  Application for permits and information collection.

    (a) Any person may apply to the appropriate Federal land manager for 
a permit to excavate and/or remove archaeological resources from public 
lands or Indian lands and to carry out activities associated with such 
excavation and/or removal.
    (b) Each application for a permit shall include:
    (1) The nature and extent of the work proposed, including how and 
why it is proposed to be conducted, proposed time of performance, 
locational maps, and proposed outlet for public written dissemination of 
the results.
    (2) The name and address of the individual(s) proposed to be 
responsible for conducting the work, institutional affiliation, if any, 
and evidence of education, training, and experience in accord with the 
minimal qualifications listed in Sec. 7.8(a).
    (3) The name and address of the individual(s), if different from the 
individual(s) named in paragraph (b)(2) of this section, proposed to be 
responsible for carrying out the terms and conditions of the permit.
    (4) Evidence of the applicant's ability to initiate, conduct, and 
complete the proposed work, including evidence of logistical support and 
laboratory facilities.
    (5) Where the application is for the excavation and/or removal of 
archaeological resources on public lands, the names of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store all collections, and copies of records, 
data, photographs, and other documents derived from the proposed work. 
Applicants shall submit written certification, signed by an authorized 
official of the institution, of willingness to assume curatorial 
responsibility for the collections, records, data, photographs and other 
documents and to safeguard and preserve these materials as property of 
the United States.
    (6) Where the application is for the excavation and/or removal of 
archaeological resources on Indian lands, the name of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store copies of records, data, photographs, and 
other documents derived from the proposed work, and all collections in 
the event the Indian owners do not wish to take custody or otherwise 
dispose of the archaeological resources. Applicants shall submit written 
certification, signed by an authorized official of the institution, or 
willingness to assume curatorial responsibility for the collections, if 
applicable, and/or the records, data, photographs, and other documents 
derived from the proposed work.
    (c) The Federal land manager may require additional information, 
pertinent to land management responsibilities, to be included in the 
application for permit and shall so inform the applicant.
    (d) Paperwork Reduction Act. The information collection requirement 
contained in Sec. 7.6 of these regulations has been approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number

[[Page 181]]

1024-0037. The purpose of the information collection is to meet 
statutory and administrative requirements in the public interest. The 
information will be used to assist Federal land managers in determining 
that applicants for permits are qualified, that the work proposed would 
further archaeological knowledge, that archaeological resources and 
associated records and data will be properly preserved, and that the 
permitted activity would not conflict with the management of the public 
lands involved. Response to the information requirement is necessary in 
order for an applicant to obtain a benefit.



Sec. 7.7  Notification to Indian tribes of possible harm to, or destruction of, sites on public lands having religious or cultural importance.

    (a) If the issuance of a permit under this part may result in harm 
to, or destruction of, any Indian tribal religious or cultural site on 
public lands, as determined by the Federal land manager, at least 30 
days before issuing such a permit the Federal land manager shall notify 
any Indian tribe which may consider the site as having religious or 
cultural importance. Such notice shall not be deemed a disclosure to the 
public for purposes of section 9 of the Act.
    (1) Notice by the Federal land manager to any Indian tribe shall be 
sent to the chief executive officer or other designated official of the 
tribe. Indian tribes are encouraged to designate a tribal official to be 
the focal point for any notification and discussion between the tribe 
and the Federal land manager.
    (2) The Federal land manager may provide notice to any other Native 
American group that is known by the Federal land manager to consider 
sites potentially affected as being of religious or cultural importance.
    (3) Upon request during the 30-day period, the Federal land manager 
may meet with official representatives of any Indian tribe or group to 
discuss their interests, including ways to avoid or mitigate potential 
harm or destruction such as excluding sites from the permit area. Any 
mitigation measures which are adopted shall be incorporated into the 
terms and conditions of the permit under Sec. 7.9.
    (4) When the Federal land manager detemines that a permit applied 
for under this part must be issued immediately because of an imminent 
threat of loss or destruction of an archaeological resource, the Federal 
land manager shall so notify the appropriate tribe.
    (b)(1) In order to identify sites of religious or cultural 
importance, the Federal land manager shall seek to identify all Indian 
tribes having aboriginal or historic ties to the lands under the Federal 
land manager's jurisdiction and seek to determine, from the chief 
executive officer or other designated official of any such tribe, the 
location and nature of specific sites of religious or cultural 
importance so that such information may be on file for land management 
purposes. Information on sites eligible for or included in the National 
Register of Historic Places may be withheld from public disclosure 
pursuant to section 304 of the Act of October 15, 1966, as amended (16 
U.S.C. 470w-3).
    (2) If the Federal land manager becomes aware of a Native American 
group that is not an Indian tribe as defined in this part but has 
aboriginal or historic ties to public lands under the Federal land 
manager's jurisdiction, the Federal land manager may seek to communicate 
with official representatives of that group to obtain information on 
sites they may consider to be of religious or cultural importance.
    (3) The Federal land manager may enter into agreement with any 
Indian tribe or other Native American group for determining locations 
for which such tribe or group wishes to receive notice under this 
section.
    (4) The Federal land manager should also seek to determine, in 
consultation with official representatives of Indian tribes or other 
Native American groups, what circumstances should be the subject of 
special notification to the tribe or group after a permit has been 
issued. Circumstances calling for notification might include the 
discovery of human remains. When circumstances for special notification 
have been determined by the Federal land manager, the Federal land 
manager will include a requirement in the

[[Page 182]]

terms and conditions of permits, under Sec. 7.9(c), for permittees to 
notify the Federal land manger immediately upon the occurrence of such 
circumstances. Following the permittee's notification, the Federal land 
manager will notify and consult with the tribe or group as appropriate. 
In cases involving Native American human remains and other ``cultural 
items'', as defined by NAGPRA, the Federal land manager is referred to 
NAGPRA and its implementing regulations.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 
1995]



Sec. 7.8  Issuance of permits.

    (a) The Federal land manager may issue a permit, for a specified 
period of time appropriate to the work to be conducted, upon determining 
that:
    (1) The applicant is appropriately qualified, as evidenced by 
training, education, and/or experience, and possesses demonstrable 
competence in archaeological theory and methods, and in collecting, 
handling, analyzing, evaluating, and reporting archaeological data, 
relative to the type and scope of the work proposed, and also meets the 
following minimum qualifications:
    (i) A graduate degree in anthropology or archaeology, or equivalent 
training and experience;
    (ii) The demonstrated ability to plan, equip, staff, organize, and 
supervise activity of the type and scope proposed;
    (iii) The demonstrated ability to carry research to completion, as 
evidenced by timely completion of theses, research reports, or similar 
documents;
    (iv) Completion of at least 16 months of professional experience 
and/or specialized training in archaeological field, laboratory, or 
library research, administration, or management, including at least 4 
months experience and/or specialized training in the kind of activity 
the individual proposes to conduct under authority of a permit; and
    (v) Applicants proposing to engage in historical archaeology should 
have had at least one year of experience in research concerning 
archaeological resources of the historic period. Applicants proposing to 
engage in prehistoric archaeology should have had at least one year of 
experience in research concerning archaeological resources of the 
prehistoric period.
    (2) The proposed work is to be undertaken for the purpose of 
furthering archaeological knowledge in the public interest, which may 
include but need not be limited to, scientific or scholarly research, 
and preservation of archaeological data;
    (3) The proposed work, including time, scope, location, and purpose, 
is not inconsistent with any management plan or established policy, 
objectives, or requirements applicable to the management of the public 
lands concerned;
    (4) Where the proposed work consists of archaelogical survey and/or 
data recovery undertaken in accordance with other approved uses of the 
public lands or Indian lands, and the proposed work has been agreed to 
in writing by the Federal land manager pursuant to section 106 of the 
National Historic Preservation Act (16 U.S.C. 470f), paragraphs (a)(2) 
and (a)(3) shall be deemed satisfied by the prior approval.
    (5) Written consent has been obtained, for work proposed on Indian 
lands, from the Indian landowner and the Indian tribe having 
jurisdiction over such lands;
    (6) Evidence is submitted to the Federal land manager that any 
university, museum, or other scientific or educational institution 
proposed in the application as the repository possesses adequate 
curatorial capability for safeguarding and preserving the archaeological 
resources and all associated records; and
    (7) The applicant has certified that, not later than 90 days after 
the date the final report is submitted to the Federal land manager, the 
following will be delivered to the appropriate official of the approved 
university, museum, or other scientific or educational institution, 
which shall be named in the permit:
    (i) All artifacts, samples, collections, and copies of records, 
data, photographs, and other documents resulting from work conducted 
under the requested permit where the permit is for the excavation and/or 
removal of archaeological resources from public lands.

[[Page 183]]

    (ii) All artifacts, samples and collections resulting from work 
under the requested permit for which the custody or disposition is not 
undertaken by the Indian owners, and copies of records, data, 
photographs, and other documents resulting from work conducted under the 
requested permit, where the permit is for the excavation and/or removal 
of archaeological resources from Indian lands.
    (b) When the area of the proposed work would cross jurisdictional 
boundaries, so that permit applications must be submitted to more than 
one Federal land manager, the Federal land managers shall coordinate the 
review and evaluation of applications and the issuance of permits.

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec. 7.9  Terms and conditions of permits.

    (a) In all permits issued, the Federal land manager shall specify:
    (1) The nature and extent of work allowed and required under the 
permit, including the time, duration, scope, location, and purpose of 
the work;
    (2) The name of the individual(s) responsible for conducting the 
work and, if different, the name of the individual(s) responsible for 
carrying out the terms and conditions of the permit;
    (3) The name of any university, museum, or other scientific or 
educational insitutions in which any collected materials and data shall 
be deposited; and
    (4) Reporting requirements.
    (b) The Federal land manager may specify such terms and conditions 
as deemed necessary, consistent with this part, to protect public safety 
and other values and/or resources, to secure work areas, to safeguard 
other legitimate land uses, and to limit activities incidental to work 
authorized under a permit.
    (c) The Federal land manager shall include in permits issued for 
archaeological work on Indian lands such terms and conditions as may be 
requested by the Indian landowner and the Indian tribe having 
jurisdiction over the lands, and for archaeological work on public lands 
shall include such terms and conditions as may have been developed 
pursuant to Sec. 7.7.
    (d) Initiation of work or other activities under the authority of a 
permit signifies the permittee's acceptance of the terms and conditions 
of the permit.
    (e) The permittee shall not be released from requirements of a 
permit until all outstanding obligations have been satisfied, whether or 
not the term of the permit has expired.
    (f) The permittee may request that the Federal land manager extend 
or modify a permit.
    (g) The permittee's performance under any permit issued for a period 
greater than 1 year shall be subject to review by the Federal land 
manager, at least annually.



Sec. 7.10  Suspension and revocation of permits.

    (a) Suspension or revocation for cause. (1) The Federal land manager 
may suspend a permit issued pursuant to this part upon determining that 
the permittee has failed to meet any of the terms and conditions of the 
permit or has violated any prohibition of the Act or Sec. 7.4. The 
Federal land manager shall provide written notice to the permittee of 
the suspension, the cause thereof, and the requirements which must be 
met before the suspension will be removed.
    (2) The Federal land manager may revoke a permit upon assessment of 
a civil penalty under Sec. 7.15 upon the permittee's conviction under 
section 6 of the Act, or upon determining that the permittee has failed 
after notice under this section to correct the situation which led to 
suspension of the permit.
    (b) Suspension or revocation for management purposes. The Federal 
land manager may suspend or revoke a permit, without liability to the 
United States, its agents, or employees, when continuation of work under 
the permit would be in conflict with management requirements not in 
effect when the permit was issued. The Federal land manager shall 
provide written notice to the permittee stating the nature of and basis 
for the suspension or revocation.

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]

[[Page 184]]



Sec. 7.11  Appeals relating to permits.

    Any affected person may appeal permit issuance, denial of permit 
issuance, suspension, revocation, and terms and conditions of a permit 
through existing administrative appeal procedures, or through procedures 
which may be established by the Federal land manager pursuant to section 
10(b) of the Act and this part.



Sec. 7.12  Relationship to section 106 of the National Historic Preservation Act.

    Issuance of a permit in accordance with the Act and this part does 
not constitute an undertaking requiring compliance with section 106 of 
the Act of October 15, 1966 (16 U.S.C. 470f). However, the mere issuance 
of such a permit does not excuse the Federal land manager from 
compliance with section 106 where otherwise required.



Sec. 7.13  Custody of archaeological resources.

    (a) Archaeological resources excavated or removed from the public 
lands remain the property of the United States.
    (b) Archaeological resources excavated or removed from Indian lands 
remain the property of the Indian or Indian tribe having rights of 
ownership over such resources.
    (c) The Secretary of the Interior may promulgate regulations 
providing for the exchange of archaeological resources among suitable 
universities, museums, or other scientific or educational institutions, 
for the ultimate disposition of archaeological resources, and for 
standards by which archaeological resources shall be preserved and 
maintained, when such resources have been excavated or removed from 
public lands and Indian lands.
    (d) In the absence of regulations referenced in paragraph (c) of 
this section, the Federal land manager may provide for the exchange of 
archaeological resources among suitable universities, museums, or other 
scientific or educational institutions, when such resources have been 
excavated or removed from public lands under the authority of a permit 
issued by the Federal land manager.
    (e) Notwithstanding the provisions of paragraphs (a) through (d) of 
this section, the Federal land manager will follow the procedures 
required by NAGPRA and its implementing regulations for determining the 
disposition of Native American human remains and other ``cultural 
items'', as defined by NAGPRA, that have been excavated, removed, or 
discovered on public lands.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 
1995]



Sec. 7.14  Determination of archaeological or commercial value and cost of restoration and repair.

    (a) Archaeological value. For purposes of this part, the 
archaeological value of any archaeological resource involved in a 
violation of the prohibitions in Sec. 7.4 of this part or conditions of 
a permit issued pursuant to this part shall be the value of the 
information associated with the archaeological resource. This value 
shall be appraised in terms of the costs of the retrieval of the 
scientific information which would have been obtainable prior to the 
violation. These costs may include, but need not be limited to, the cost 
of preparing a research design, conducting field work, carrying out 
laboratory analysis, and preparing reports as would be necessary to 
realize the information potential.
    (b) Commercial value. For purposes of this part, the commercial 
value of any archaeological resource involved in a violation of the 
prohibitions in Sec. 7.4 of this part or conditions of a permit issued 
pursuant to this part shall be its fair market value. Where the 
violation has resulted in damage to the archaeological resource, the 
fair market value should be determined using the condition of the 
archaeological resource prior to the violation, to the extent that its 
prior condition can be ascertained.
    (c) Cost of restoration and repair. For purposes of this part, the 
cost of restoration and repair of archaeological resources damaged as a 
result of a violation of prohibitions or conditions pursuant to this 
part, shall be the sum of the costs already incurred for emergency 
restoration or repair work, plus those costs projected to be necessary 
to complete restoration and repair, which

[[Page 185]]

may include, but need not be limited to, the costs of the following:
    (1) Reconstruction of the archaeological resource;
    (2) Stabilization of the archaeological resource;
    (3) Ground contour reconstruction and surface stabilization;
    (4) Research necessary to carry out reconstruction or stabilization;
    (5) Physical barriers or other protective devices, necessitated by 
the disturbance of the archaeological resource, to protect it from 
further disturbance;
    (6) Examination and analysis of the archaeological resource 
including recording remaining archaeological information, where 
necessitated by disturbance, in order to salvage remaining values which 
cannot be otherwise conserved;
    (7) Reinterment of human remains in accordance with religious custom 
and State, local, or tribal law, where appropriate, as determined by the 
Federal land manager.
    (8) Preparation of reports relating to any of the above activities.



Sec. 7.15  Assessment of civil penalties.

    (a) The Federal land manager may assess a civil penalty against any 
person who has violated any prohibition contained in Sec. 7.4 or who has 
violated any term or condition included in a permit issued in accordance 
with the Act and this part.
    (b) Notice of violation. The Federal land manager shall serve a 
notice of violation upon any person believed to be subject to a civil 
penalty, either in person or by registered or certified mail (return 
receipt requested). The Federal land manager shall include in the 
notice:
    (1) A concise statement of the facts believed to show a violation;
    (2) A specific reference to the provision(s) of this part or to a 
permit issued pursuant to this part allegedly violated;
    (3) The amount of penalty proposed to be assessed, including any 
initial proposal to mitigate or remit where appropriate, or a statement 
that notice of a proposed penalty amount will be served after the 
damages associated with the alleged violation have been ascertained;
    (4) Notification of the right to file a petition for relief pursuant 
to paragraph (d) of this section, or to await the Federal land manager's 
notice of assessment, and to request a hearing in accordance with 
paragraph (g) of this section. The notice shall also inform the person 
of the right to seek judicial review of any final administrative 
decision assessing a civil penalty.
    (c) The person served with a notice of violation shall have 45 
calendar days from the date of its service (or the date of service of a 
proposed penalty amount, if later) in which to respond. During this time 
the person may:
    (1) Seek informal discussions with the Federal land manager;
    (2) File a petition for relief in accordance with paragraph (d) of 
this section;
    (3) Take no action and await the Federal land manager's notice of 
assessment;
    (4) Accept in writing or by payment the proposed penalty, or any 
mitigation or remission offered in the notice. Acceptance of the 
proposed penalty or mitigation or remission shall be deemed a waiver of 
the notice of assessment and of the right to request a hearing under 
paragraph (g) of this section.
    (d) Petition for relief. The person served with a notice of 
violation may request that no penalty be assessed or that the amount be 
reduced, by filing a petition for relief with the Federal land manager 
within 45 calendar days of the date of service of the notice of 
violation (or of a proposed penalty amount, if later). The petition 
shall be in writing and signed by the person served with the notice of 
violation. If the person is a corporation, the petition must be signed 
by an officer authorized to sign such documents. The petition shall set 
forth in full the legal or factual basis for the requested relief.
    (e) Assessment of penalty. (1) The Federal land manager shall assess 
a civil penalty upon expiration of the period for filing a petition for 
relief, upon completion of review of any petition filed, or upon 
completion of informal discussions, whichever is later.
    (2) The Federal land manager shall take into consideration all 
available

[[Page 186]]

information, including information provided pursuant to paragraphs (c) 
and (d) of this section or furnished upon further request by the Federal 
land manager.
    (3) If the facts warrant a conclusion that no violation has 
occurred, the Federal land manager shall so notify the person served 
with a notice of violation, and no penalty shall be assessed.
    (4) Where the facts warrant a conclusion that a violation has 
occurred, the Federal land manager shall determine a penalty amount in 
accordance with Sec. 7.16.
    (f) Notice of assessment. The Federal land manager shall notify the 
person served with a notice of violation of the penalty amount assessed 
by serving a written notice of assessment, either in person or by 
registered or certified mail (return receipt requested). The Federal 
land manager shall include in the notice of assessment:
    (1) The facts and conclusions from which it was determined that a 
violation did occur;
    (2) The basis in Sec. 7.16 for determining the penalty amount 
assessed and/or any offer to mitigate or remit the penalty; and
    (3) Notification of the right to request a hearing, including the 
procedures to be followed, and to seek judicial review of any final 
administrative decision assessing a civil penalty.
    (g) Hearings. (1) Except where the right to request a hearing is 
deemed to have been waived as provided in paragraph (c)(4) of this 
section, the person served with a notice of assessment may file a 
written request for a hearing with the adjudicatory body specified in 
the notice. The person shall enclose with the request for hearing a copy 
of the notice of assessment, and shall deliver the request as specified 
in the notice of assessment, personally or by registered or certified 
mail (return receipt requested).
    (2) Failure to deliver a written request for a hearing within 45 
days of the date of service of the notice of assessment shall be deemed 
a waiver of the right to a hearing.
    (3) Any hearing conducted pursuant to this section shall be held in 
accordance with 5 U.S.C. 554. In any such hearing, the amount of civil 
penalty assessed shall be determined in accordance with this part, and 
shall not be limited by the amount assessed by the Federal land manager 
under paragraph (f) of this section or any offer of mitigation or 
remission made by the Federal land manager.
    (h) Final administrative decision. (1) Where the person served with 
a notice of violation has accepted the penalty pursuant to paragraph 
(c)(4) of this section, the notice of violation shall constitute the 
final administrative decision;
    (2) Where the person served with a notice of assessment has not 
filed a timely request for a hearing pursuant to paragraph (g)(1) of 
this section, the notice of assessment shall constitute the final 
administrative decision;
    (3) Where the person served with a notice of assessment has filed a 
timely request for a hearing pursuant to paragraph (g)(1) of this 
section, the decision resulting from the hearing or any applicable 
administrative appeal therefrom shall constitute the final 
administrative decision.
    (i) Payment of penalty. (1) The person assessed a civil penalty 
shall have 45 calendar days from the date of issuance of the final 
administrative decision in which to make full payment of the penalty 
assessed, unless a timely request for appeal has been filed with a U.S. 
District Court as provided in section 7(b)(1) of the Act.
    (2) Upon failure to pay the penalty, the Federal land manager may 
request the Attorney General to institute a civil action to collect the 
penalty in a U.S. District Court for any district in which the person 
assessed a civil penalty is found, resides, or transacts business. Where 
the Federal land manager is not represented by the Attorney General, a 
civil action may be initiated directly by the Federal land manager.
    (j) Other remedies not waived. Assessment of a penalty under this 
section shall not be deemed a waiver of the right to pursue other 
available legal or administrative remedies.



Sec. 7.16  Civil penalty amounts.

    (a) Maximum amount of penalty. (1) Where the person being assessed a 
civil

[[Page 187]]

penalty has not committed any previous violation of any prohibition in 
Sec. 7.4 or of any term or condition included in a permit issued 
pursuant to this part, the maximum amount of the penalty shall be the 
full cost of restoration and repair of archaeological resources damaged 
plus the archaeological or commercial value of archaeological resources 
destroyed or not recovered.
    (2) Where the person being assessed a civil penalty has committed 
any previous violation of any prohibition in Sec. 7.4 or of any term or 
condition included in a permit issued pursuant to this part, the maximum 
amount of the penalty shall be double the cost of restoration and repair 
plus double the archaeological or commercial value of archaeological 
resources destroyed or not recovered.
    (3) Violations limited to the removal of arrowheads located on the 
surface of the ground shall not be subject to the penalties prescribed 
in this section.
    (b) Determination of penalty amount, mitigation, and remission. The 
Federal land manager may assess a penalty amount less than the maximum 
amount of penalty and may offer to mitigate or remit the penalty.
    (1) Determination of the penalty amount and/or a proposal to 
mitigate or remit the penalty may be based upon any of the following 
factors:
    (i) Agreement by the person being assessed a civil penalty to return 
to the Federal land manager archaeological resources removed from public 
lands or Indian lands;
    (ii) Agreement by the person being assessed a civil penalty to 
assist the Federal land manager in activity to preserve, restore, or 
otherwise contribute to the protection and study of archaeological 
resources on public lands or Indian lands;
    (iii) Agreement by the person being assessed a civil penalty to 
provide information which will assist in the detection, prevention, or 
prosecution of violations of the Act or this part;
    (iv) Demonstration of hardship or inability to pay, provided that 
this factor shall only be considered when the person being assessed a 
civil penalty has not been found to have previously violated the 
regulations in this part;
    (v) Determination that the person being assessed a civil penalty did 
not willfully commit the violation;
    (vi) Determination that the proposed penalty would constitute 
excessive punishment under the circumstances;
    (vii) Determination of other mitigating circumstances appropriate to 
consideration in reaching a fair and expeditious assessment.
    (2) When the penalty is for a violation on Indian lands, the Federal 
land manager shall consult with and consider the interests of the Indian 
landowner and the Indian tribe having jurisdiction over the Indian lands 
prior to proposing to mitigate or remit the penalty.
    (3) When the penalty is for a violation which may have had an effect 
on a known Indian tribal religious or cultural site on public lands, the 
Federal land manager should consult with and consider the interests of 
the affected tribe(s) prior to proposing to mitigate or remit the 
penalty.

[49 FR 1027, Jan. 6, 1984, as amended at 52 FR 47721, Dec. 16, 1987]



Sec. 7.17  Other penalties and rewards.

    (a) Section 6 of the Act contains criminal prohibitions and 
provisions for criminal penalties. Section 8(b) of the Act provides that 
archaeological resources, vehicles, or equipment involved in a violation 
may be subject to forfeiture.
    (b) Section 8(a) of the Act provides for rewards to be made to 
persons who furnish information which leads to conviction for a criminal 
violation or to assessment of a civil penalty. The Federal land manager 
may certify to the Secretary of the Treasury that a person is eligible 
to receive payment. Officers and employees of Federal, State, or local 
government who furnish information or render service in the performance 
of their official duties, and persons who have provided information 
under Sec. 7.16(b)(1)(iii) shall not be certified eligible to receive 
payment of rewards.
    (c) In cases involving Indian lands, all civil penalty monies and 
any item forfeited under the provisions of this section shall be 
transferred to the appropriate Indian or Indian tribe.

[[Page 188]]



Sec. 7.18  Confidentiality of archaeological resource information.

    (a) The Federal land manager shall not make available to the public, 
under subchapter II of chapter 5 of title 5 of the United States Code or 
any other provision of law, information concerning the nature and 
location of any archaeological resource, with the following exceptions:
    (1) The Federal land manager may make information available, 
provided that the disclosure will further the purposes of the Act and 
this part, or the Act of June 27, 1960, as amended (16 U.S.C. 469 
through 469c), without risking harm to the archaeological resource or to 
the site in which it is located.
    (2) The Federal land manager shall make information available, when 
the Governor of any State has submitted to the Federal land manager a 
written request for information, concerning the archaeological resources 
within the requesting Governor's State, provided that the request 
includes:
    (i) The specific archaeological resource or area about which 
information is sought;
    (ii) The purpose for which the information is sought; and
    (iii) The Governor's written commitment to adequately protect the 
confidentiality of the information.
    (b) [Reserved]

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec. 7.19  Report.

    (a) Each Federal land manager, when requested by the Secretary of 
the Interior, will submit such information as is necessary to enable the 
Secretary to comply with section 13 of the Act and comprehensively 
report on activities carried out under provisions of the Act.
    (b) The Secretary of the Interior will include in the annual 
comprehensive report, submitted to the Committee on Interior and Insular 
Affairs of the United States House of Representatives and to the 
Committee on Energy and Natural Resources of the United States Senate 
under section 13 of the Act, information on public awareness programs 
submitted by each Federal land manager under Sec. 7.20(b). Such 
submittal will fulfill the Federal land manager's responsibility under 
section 10(c) of the Act to report on public awareness programs.
    (c) The comprehensive report by the Secretary of the Interior also 
will include information on the activities carried out under section 14 
of the Act. Each Federal land manager, when requested by the Secretary, 
will submit any available information on surveys and schedules and 
suspected violations in order to enable the Secretary to summarize in 
the comprehensive report actions taken pursuant to section 14 of the 
Act.

[60 FR 5260, 5261, Jan. 26, 1995]



Sec. 7.20  Public awareness programs.

    (a) Each Federal land manager will establish a program to increase 
public awareness of the need to protect important archaeological 
resources located on public and Indian lands. Educational activities 
required by section 10(c) of the Act should be incorporated into other 
current agency public education and interpretation programs where 
appropriate.
    (b) Each Federal land manager annually will submit to the Secretary 
of the Interior the relevant information on public awareness activities 
required by section 10(c) of the Act for inclusion in the comprehensive 
report on activities required by section 13 of the Act.

[60 FR 5260, 5261, Jan. 26, 1995]



Sec. 7.21  Surveys and schedules.

    (a) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Board of the Tennessee Valley Authority will develop 
plans for surveying lands under each agency's control to determine the 
nature and extent of archaeological resources pursuant to section 14(a) 
of the Act. Such activities should be consistent with Federal agency 
planning policies and other historic preservation program 
responsibilities required by 16 U.S.C. 470 et seq. Survey plans prepared 
under this section will be designed to comply with the purpose of the 
Act regarding the protection of archaeological resources.
    (b) The Secretaries of the Interior, Agriculture, and Defense and 
the

[[Page 189]]

Chairman of the Tennessee Valley Authority will prepare schedules for 
surveying lands under each agency's control that are likely to contain 
the most scientifically valuable archaeological resources pursuant to 
section 14(b) of the Act. Such schedules will be developed based on 
objectives and information identified in survey plans described in 
paragraph (a) of this section and implemented systematically to cover 
areas where the most scientifically valuable archaeological resources 
are likely to exist.
    (c) Guidance for the activities undertaken as part of paragraphs (a) 
through (b) of this section is provided by the Secretary of the 
Interior's Standards and Guidelines for Archeology and Historic 
Preservation.
    (d) Other Federal land managing agencies are encouraged to develop 
plans for surveying lands under their jurisdictions and prepare 
schedules for surveying to improve protection and management of 
archaeological resources.
    (e) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Tennessee Valley Authority will develop a system for 
documenting and reporting suspected violations of the various provisions 
of the Act. This system will reference a set of procedures for use by 
officers, employees, or agents of Federal agencies to assist them in 
recognizing violations, documenting relevant evidence, and reporting 
assembled information to the appropriate authorities. Methods employed 
to document and report such violations should be compatible with 
existing agency reporting systems for documenting violations of other 
appropriate Federal statutes and regulations. Summary information to be 
included in the Secretary's comprehensive report will be based upon the 
system developed by each Federal land manager for documenting suspected 
violations.

[60 FR 5260, 5261, Jan. 26, 1995]



     Subpart B--Department of the Interior Supplemental Regulations

    Source: 52 FR 9168, Mar. 23, 1987, unless otherwise noted.



Sec. 7.31  Scope and authority.

    The regulations in this subpart are promulgated pursuant to section 
10(b) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470ii), which requires agencies to develop rules and regulations for 
carrying out the purposes of the Act, consistent with the uniform 
regulations issued pursuant to section 10(a) of the Act (subpart A of 
this part).



Sec. 7.32  Supplemental definitions.

    For purposes of this subpart, the following definitions will be 
used:
    (a) Site of religious or cultural importance means, for purposes of 
Sec. 7.7 of this part, a location which has traditionally been 
considered important by an Indian tribe because of a religious event 
which happened there; because it contains specific natural products 
which are of religious or cultural importance; because it is believed to 
the be dwelling place of, the embodiment of, or a place conducive to 
communication with spiritual beings; because it contains elements of 
life-cycle rituals, such as burials and associated materials; or because 
it has other specific and continuing significance in Indian religion or 
culture.
    (b) Allotted lands means lands granted to Indian individuals by the 
United States and held in trust for those individuals by the United 
States.



Sec. 7.33  Determination of loss or absence of archaeological interest.

    (a) Under certain circumstances, a Federal land manager may 
determine, pursuant to Sec. 7.3(a)(5) of this part, that certain 
material remains are not or are no longer of archaeological interest, 
and therefore are not to be considered archaeological resources under 
this part.
    (b) The Federal land manager may make such a determination if he/she 
finds that the material remains are not capable of providing scientific 
or humanistic understandings of past human behavior, cultural 
adaptation, and related topics.
    (c) Prior to making a determination that material remains are not or 
are no longer archaeological resources, the Federal land manager shall 
ensure that

[[Page 190]]

the following procedures are completed:
    (1) A professional archaeological evaluation of material remains and 
similar materials within the area under consideration shall be 
completed, consistent with the Secretary of the Interior's Standards and 
Guidelines for Archeology and Historic Preservation (48 FR 44716, Sept. 
29, 1983) and with 36 CFR parts 60, 63, and 65.
    (2) The principal bureau archaeologist or, in the absence of a 
principal bureau archaeologist, the Department Consulting Archeologist, 
shall establish whether the material remains under consideration 
contribute to scientific or humanistic understandings of past human 
behavior, cultural adaptation and related topics. The principal bureau 
archaeologist or the Department Consulting Archeologist, as appropriate, 
shall make a recommendation to the Federal land manager concerning these 
material remains.
    (d) The Federal land manager shall make the determination based upon 
the facts established by and the recommendation of the principal bureau 
archaeologist or the Departmental Consulting Archeologist, as 
appropriate, and shall fully document the basis therefor, including 
consultation with Indian tribes for determinations regarding sites of 
religious or cultural importance.
    (e) The Federal land manager shall make public notice of the 
determination and its limitations, including any permitting requirements 
for activities associated with the materials determined not to be 
archaeological resources for purposes of this part.
    (f) Any interested individual may request in writing that the 
Departmental Consulting Archeologist review any final determination by 
the Federal land manager that certain remains, are not, or are no 
longer, archaeological resources. Two (2) copies of the request should 
be sent to the Departmental Consulting Archeologist, National Park 
Service, P.O. Box 37127, Washington, DC 20013-7127, and should document 
why the requestor disagrees with the determination of the Federal land 
manager. The Departmental Consulting Archeologist shall review the 
request, and, if appropriate, shall review the Federal land manager's 
determination and its supporting documentation. Based on this review, 
the Departmental Consulting Archeologist shall prepare a final 
professional recommendation, and shall transmit the recommendation and 
the basis therefor to the head of the bureau for further consideration 
within 60 days of the receipt of the request.
    (g) Any determination made pursuant to this section shall in no way 
affect the Federal land manager's obligations under other applicable 
laws or regulations.



Sec. 7.34  Procedural information for securing permits.

    Information about procedures to secure a permit to excavate or 
remove archaeological resources from public lands or Indian lands can be 
obtained from the appropriate Indian tribal authorities, the Federal 
land manager of the bureau that administers the specific area of the 
public lands or Indian lands for which a permit is desired, or from the 
state, regional, or national office of that bureau.



Sec. 7.35  Permitting procedures for Indian lands.

    (a) If the lands involved in a permit application are Indian lands, 
the consent of the appropriate Indian tribal authority or individual 
Indian landowner is required by the Act and these regulations.
    (b) When Indian tribal lands are involved in an application for a 
permit or a request for extension or modification of a permit, the 
consent of the Indian tribal government must be obtained. For Indian 
allotted lands outside reservation boundaries, consent from only the 
individual landowner is needed. When multiple-owner allotted lands are 
involved, consent by more than 50 percent of the ownership interest is 
sufficient. For Indian allotted lands within reservation boundaries, 
consent must be obtained from the Indian tribal government and the 
individual landowner(s).
    (c) The applicant should consult with the Bureau of Indian Affairs 
concerning procedures for obtaining consent from the appropriate Indian 
tribal

[[Page 191]]

authorities and submit the permit application to the area office of the 
Bureau of Indian Affairs that is responsible for the administration of 
the lands in question. The Bureau of Indian Affairs shall insure that 
consultation with the appropriate Indian tribal authority or individual 
Indian landowner regarding terms and conditions of the permit occurs 
prior to detailed evaluation of the application. Permits shall include 
terms and conditions requested by the Indian tribe or Indian landowner 
pursuant to Sec. 7.9 of this part.
    (d) The issuance of a permit under this part does not remove the 
requirement for any other permit required by Indian tribal law.



Sec. 7.36  Permit reviews and disputes.

    (a) Any affected person disputing the decision of a Federal land 
manager with respect to the issuance or denial of a permit, the 
inclusion of specific terms and conditions in a permit, or the 
modification, suspension, or revocation of a permit may request the 
Federal land manager to review the disputed decision and may request a 
conference to discuss the decision and its basis.
    (b) The disputant, if unsatisfied with the outcome of the review or 
conference, may request that the decision be reviewed by the head of the 
bureau involved.
    (c) Any disputant unsatisified with the higher level review, and 
desiring to appeal the decision, pursuant to Sec. 7.11 of this part, 
should consult with the appropriate Federal land manager regarding the 
existence of published bureau appeal procedures. In the absence of 
published bureau appeal procedures, the review by the head of the bureau 
involved will constitute the final decision.
    (d) Any affected person may request a review by the Departmental 
Consulting Archeologist of any professional issues involved in a bureau 
permitting decision, such as professional qualifications, research 
design, or other professional archaeological matters. The Departmental 
Consulting Archeologist shall make a final professional recommendation 
to the head of the bureau involved. The head of the bureau involved will 
consider the recommendation, but may reject it, in whole or in part, for 
good cause. This request should be in writing, and should state the 
reasons for the request. See Sec. 7.33(f) for the address of the 
Departmental Consulting Archeologist.



Sec. 7.37  Civil penalty hearings procedures.

    (a) Requests for hearings. Any person wishing to request a hearing 
on a notice of assessment of civil penalty, pursuant to Sec. 7.15(g) of 
this part, may file a written, dated request for a hearing with the 
Hearing Division, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 North Quincy Street, Arlington, Virginia 22203-1923. The 
respondent shall enclose a copy of the notice of violation and the 
notice of assessment. The request shall state the relief sought, the 
basis for challenging the facts used as the basis for charging the 
violation and fixing the assessment, and respondent's preference as to 
the place and date for a hearing. A copy of the request shall be served 
upon the Solicitor of the Department of the Interior personally or by 
registered or certified mail (return receipt requested), at the address 
specified in the notice of assessment. Hearings shall be conducted in 
accordance with 43 CFR part 4, subparts A and B.
    (b) Waiver of right to a hearing. Failure to file a written request 
for a hearing within 45 days of the date of service of a notice of 
assessment shall be deemed a waiver of the right to a hearing.
    (c) Commencement of hearing procedures. Upon receipt of a request 
for a hearing, the Hearing Division shall assign an administrative law 
judge to the case. Notice of assignment shall be given promptly to the 
parties, and thereafter, all pleadings, papers, and other documents in 
the proceeding shall be filed directly with the administrative law 
judge, with copies served on the opposing party.
    (d) Appearance and practice. (1) Subject to the provisions of 43 CFR 
1.3, the respondent may appear in person, by representative, or by 
counsel, and may participate fully in those proceedings. If respondent 
fails to appear and the administrative law judge determines such failure 
is without good cause, the

[[Page 192]]

administrative law judge may, in his/her discretion, determine that such 
failure shall constitute a waiver of the right to a hearing and consent 
to the making of a decision on the record made at the hearing.
    (2) Departmental counsel, designated by the Solicitor of the 
Department, shall represent the Federal land manager in the proceedings. 
Upon notice to the Federal land manager of the assignment of an 
administrative law judge to the case, said counsel shall enter his/her 
appearance on behalf of the Federal land manager and shall file all 
petitions and correspondence exchanges by the Federal land manager and 
the respondent pursuant to Sec. 7.15 of this part which shall become 
part of the hearing record. Thereafter, service upon the Federal land 
manager shall be made to his/her counsel.
    (e) Hearing administration. (1) The administrative law judge shall 
have all powers accorded by law and necessary to preside over the 
parties and the proceedings and to make decisions in accordance with 5 
U.S.C. 554-557.
    (2) The transcript of testimony, the exhibits, and all papers, 
documents and requests filed in the proceedings, shall constitute the 
record for decision. The administrative law judge shall render a written 
decision upon the record, which shall set forth his/her findings of fact 
and conclusions of law, and the reasons and basis therefor, and an 
assessment of a penalty, if any.
    (3) Unless a notice of appeal is filed in accordance with paragraph 
(f) of this section, the administrative law judge's decision shall 
constitute the final administrative determination of the Secretary in 
the matter and shall become effective 30 calendar days from the date of 
this decision.
    (4) In any such hearing, the amount of civil penalty assessed shall 
be determined in accordance with this part, and shall not be limited by 
the amount assessed by the Federal land manager under Sec. 7.15 of this 
part or any offer of mitigation or remission made by the Federal land 
manager.
    (f) Appeal. (1) Either the respondent or the Federal land manager 
may appeal the decision of an administrative law judge by the filing of 
a ``Notice of Appeal'' with the Director, Office of Hearings and 
Appeals, U.S. Department of the Interior, 801 North Quincy Street, 
Arlington, Virginia 22203-1923, within 30 calendar days of the date of 
the administrative law judge's decision. Such notice shall be 
accompanied by proof of service on the administrative law judge and the 
opposing party.
    (2) Upon receipt of such a notice, the Director, Office of Hearings 
and Appeals, shall appoint an ad hoc appeals board to hear and decide an 
appeal. To the extent they are not inconsistent herewith, the provision 
of the Department of Hearings and Appeals Procedures in 43 CFR part 4, 
subparts A, B, and G shall apply to appeal proceedings under this 
subpart. The decision of the board on the appeal shall be in writing and 
shall become effective as the final administrative determination of the 
Secretary in the proceeding on the date it is rendered, unless otherwise 
specified therein.
    (g) Report service. Copies of decisions in civil penalty proceedings 
instituted under the Act may be obtained by letter of request addressed 
to the Director, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 North Quincy Street, Arlington, Virginia 22203-1923. Fees 
for this service shall be as established by the Director of that Office.

[52 FR 9168, Mar. 23, 1987, as amended at 67 FR 4368, Jan. 30, 2002]



PART 8--JOINT POLICIES OF THE DEPARTMENTS OF THE INTERIOR AND OF THE ARMY RELATIVE TO RESERVOIR PROJECT LANDS--Table of Contents




Sec.
8.0  Acquisition of lands for reservoir projects.
8.1  Lands for reservoir construction and operation.
8.2  Additional lands for correlative purposes.
8.3  Easements.
8.4  Blocking out.
8.5  Mineral rights.
8.6  Buildings.

    Authority: Sec. 7, 32 Stat. 389, sec. 14, 53 Stat. 1197; 43 U.S.C. 
421, 389.

    Source: 31 FR 9108, July 2, 1966, unless otherwise noted.

[[Page 193]]



Sec. 8.0  Acquisition of lands for reservoir projects.

    In so far as permitted by law, it is the policy of the Departments 
of the Interior and of the Army to acquire, as a part of reservoir 
project construction, adequate interest in lands necessary for the 
realization of optimum values for all purposes including additional land 
areas to assure full realization of optimum present and future outdoor 
recreational and fish and wildlife potentials of each reservoir.



Sec. 8.1  Lands for reservoir construction and operation.

    The fee title will be acquired to the following:
    (a) Lands necessary for permanent structures.
    (b) Lands below the maximum flowage line of the reservoir including 
lands below a selected freeboard where necessary to safeguard against 
the effects of saturation, wave action, and bank erosion and the permit 
induced surcharge operation.
    (c) Lands needed to provide for public access to the maximum flowage 
line as described in paragraph (b) of this section, or for operation and 
maintenance of the project.



Sec. 8.2  Additional lands for correlative purposes.

    The fee title will be acquired for the following:
    (a) Such lands as are needed to meet present and future requirements 
for fish and wildlife as determined pursuant to the Fish and Wildlife 
Coordination Act.
    (b) Such lands as are needed to meet present and future public 
requirements for outdoor recreation, as may be authorized by Congress.



Sec. 8.3  Easements.

    Easements in lieu of fee title may be taken only for lands that meet 
all of the following conditions:
    (a) Lands lying above the storage pool.
    (b) Lands in remote portions of the project area.
    (c) Lands determined to be of no substantial value for protection or 
enhancement of fish and wildlife resources, or for public outdoor 
recreation.
    (d) It is to the financial advantage of the Government to take 
easements in lieu of fee title.



Sec. 8.4  Blocking out.

    Blocking out will be accomplished in accordance with sound real 
estate practices, for example, on minor sectional subdivision lines; and 
normally land will not be acquired to avoid severance damage if the 
owner will waive such damage.



Sec. 8.5  Mineral rights.

    Mineral, oil and gas rights will not be acquired except where the 
development thereof would interfere with project purposes, but mineral 
rights not acquired will be subordinated to the Government's right to 
regulate their development in a manner that will not interfere with the 
primary purposes of the project, including public access.



Sec. 8.6  Buildings.

    Buildings for human occupancy as well as other structures which 
would interfere with the operation of the project for any project 
purpose will be prohibited on reservoir project lands.



PART 9--INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF THE INTERIOR PROGRAMS AND ACTIVITIES--Table of Contents




Sec.
9.1  What is the purpose of these regulations?
9.2  What definitions apply to these regulations?
9.3  What programs and activities of the Department are subject to these 
          regulations?
9.4  [Reserved]
9.5  What is the Secretary's obligation with respect to Federal 
          interagency coordination?
9.6  What procedures apply to the selection of programs and activities 
          under these regulations?
9.7  How does the Secretary communicate with state and local officials 
          concerning the Department's programs and activities?
9.8  How does the Secretary provide states an opportunity to comment on 
          proposed federal financial assistance and direct federal 
          development?

[[Page 194]]

9.9  How does the Secretary receive and respond to comments?
9.10  How does the Secretary make efforts to accommodate 
          intergovernmental concerns?
9.11  What are the Secretary's obligations in interstate situations?
9.12  How may a state simplify, consolidate, or substitute federally 
          required state plans?
9.13  May the Secretary waive any provision of these regulations?

    Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended April 
8, 1983 (48 FR 15887); and sec. 401 of the Intergovernmental Cooperation 
Act of 1968 as amended (31 U.S.C. 6506).

    Source: 48 FR 29232, June 24, 1983, unless otherwise noted.



Sec. 9.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968.
    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened Federalism by relying on state processes 
and on state, areawide, regional and local coordination for review of 
proposed federal financial assistance and direct federal development.
    (c) These regulations are intended to aid the internal management of 
the Department, and are not intended to create any right or benefit 
enforceable at law by a party against the Department or its officers.



Sec. 9.2  What definitions apply to these regulations?

    Department means the U.S. Department of the Interior.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April 8, 1983 and titled ``Intergovernmental Review of Federal 
Programs.''
    Secretary means the Secretary of the U.S. Department of the Interior 
or an official or employee of the Department acting for the Secretary 
under a delegation of authority.
    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec. 9.3  What programs and activities of the Department are subject to these regulations?

    (a) The Secretary publishes in the Federal Register a list of the 
Department's programs and activities that are subject to these 
regulations and a list of programs and activities that have existing 
consultation processes.
    (b) With respect to programs and activities that a state chooses to 
cover, and that have existing consultation processes, the state must 
agree to adopt those existing processes.



Sec. 9.4  [Reserved]



Sec. 9.5  What is the Secretary's obligation with respect to Federal interagency coordination?

    The Secretary, to the extent practicable, consults with and seeks 
advice from all other substantially affected federal departments and 
agencies in an effort to assure full coordination between such agencies 
and the Department regarding programs and activities covered under these 
regulations.



Sec. 9.6  What procedures apply to the selection of programs and activities under these regulations?

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec. 9.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify the Secretary of 
the Department's programs and activities selected for that process.
    (c) A state may notify the Secretary of changes in its selections at 
any time. For each change, the state shall submit to the Secretary an 
assurance that the state has consulted with local elected officials 
regarding the change. The Department may establish deadlines by which 
states are required to inform the Secretary of changes in their program 
selections.

[[Page 195]]

    (d) The Secretary uses a state's process as soon as feasible, 
depending on individual programs and activities, after the Secretary is 
notified of its selections.



Sec. 9.7  How does the Secretary communicate with state and local officials concerning the Department's programs and activities?

    (a) For those programs and activities covered by a state process 
under Sec. 9.6, the Secretary, to the extent permitted by law:
    (1) Uses the state process to determine views of state and local 
elected officials; and,
    (2) Communicates with state and local elected officials, through the 
state process, as early in a program planning cycle as in reasonably 
feasible to explain specific plans and actions.
    (b) The Secretary provides notice to directly affected state, 
areawide, regional, and local entities in a state of proposed federal 
financial assistance or direct federal development if:
    (1) The state has not adopted a process under the Order; or
    (2) The assistance or development involves a program or activity not 
selected for the state process.

This notice may be made by publication in the Federal Register or other 
appropriate means, which the Department in its discretion deems 
appropriate.



Sec. 9.8  How does the Secretary provide states an opportunity to comment on proposed federal financial assistance and direct federal development?

    (a) Except in unusual circumstances, the Secretary gives state 
processes or directly affected state, areawide, regional and local 
officials and entities:
    (1) At least 30 days from the date established by the Secretary to 
comment on proposed federal financial assistance in the form of 
noncompeting continuation awards; and
    (2) At least 60 days from the date established by the Secretary to 
comment on proposed direct federal development or federal financial 
assistance other than noncompeting continuation awards.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Department have been 
delegated.



Sec. 9.9  How does the Secretary receive and respond to comments?

    (a) The Secretary follows the procedures in Sec. 9.10 if:
    (1) A state office or official is designated to act as a single 
point of contact between a state process and all federal agencies, and
    (2) That office or official transmits a state process recommendation 
for a program selected under Sec. 9.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from state, areawide, regional or local officials and entities 
where there is no state process recommendation.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from state, areawide, regional, and local 
officials and entities that differ from it must also be transmitted.
    (c) If a state has not established a process, or is unable to submit 
a state process recommendation, state, areawide, regional and local 
officials and entities may submit comments either to the applicant or to 
the Department.
    (d) If a program or activity is not selected for a state process, 
state, areawide, regional and local officials and entities may submit 
comments either to the applicant or to the Department. In addition, if a 
state process recommendation for a nonselected program or activity is 
transmitted to the Department by a single point of contact, the 
Secretary follows the procedures of Sec. 9.10 of this part.
    (e) The Secretary considers comments which do not constitute a state 
process recommendation submitted under these regulations and for which 
the Secretary is not required to apply the procedures of Sec. 9.10 of 
this part, when such comments are provided by a single point of contact, 
by the applicant, or directly to the Department by a commenting party.

[[Page 196]]



Sec. 9.10  How does the Secretary make efforts to accommodate intergovernmental concerns?

    (a) If a state process provides a state process recommendation to 
the Department through its single point of contact, the Secretary 
either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact with such written 
explanation of the decision, as the Secretary in his or her discretion 
deems appropriate. The Secretary may also supplement the written 
explanation by providing the explanation to the single point of contact 
by telephone, other telecommunication, or other means.
    (b) In any explanation under paragraph (a)(3) of the section, the 
Secretary informs the single point of contact that:
    (1) The Department will not implement its decision for at least ten 
days after the single point of contact receives the explanation; or
    (2) The Secretary has reviewed the decision and determined that, 
because of unusual circumstances, the waiting period of at least ten 
days is not feasible.
    (c) For purposes of computing the waiting period under paragraph 
(b)(1) of this section, a single point of contact is presumed to have 
received written notification 5 days after the date of mailing of such 
notification.



Sec. 9.11  What are the Secretary's obligations in interstate situations?

    (a) The Secretary is responsible for:
    (1) Identifying proposed federal financial assistance and direct 
Federal development that have an impact on interstate areas;
    (2) Notifying appropriate officials and entities in states which 
have adopted a process and which select the Department's program or 
activitiy;
    (3) Making efforts to identify and notify the affected state, 
areawide, regional, and local officials and entities in those states 
that have not adopted a process under the Order or do not select the 
Department's program or activity;
    (4) Responding pursuant to Sec. 9.10 of this part if the Secretary 
receives a recommendation from a designated areawide agency transmitted 
by a single point of contact, in cases in which the review, 
coordination, and communication with the Department have been delegated.
    (b) The Secretary uses the procedures in Sec. 9.10 if a state 
process provides a state process recommendation to the Department 
through a single point of contact.



Sec. 9.12  How may a state simplify, consolidate, or substitute federally required state plans?

    (a) As used in this section:
    (1) Simplify means that a state may develop its own format, choose 
its own submission date, and select the planning period for a state 
plan.
    (2) Consolidate means that a state may meet statutory and regulatory 
requirements by combining two or more plans into one document and that 
the state can select the format, submission date, and planning period 
for the consolidated plan.
    (3) Substitute means that a state may use a plan or other document 
that it has developed for its own purposes to meet Federal requirements.
    (b) If not inconsistent with law, a state may decide to try to 
simplify, consolidate, or substitute Federally required state plans 
without prior approval by the Secretary.
    (c) The Secretary reviews each state plan that a state has 
simplified, consolidated, or substituted and accepts the plan only if 
its contents meet Federal requirements.



Sec. 9.13  May the Secretary waive any provision of these regulations?

    In an emergency, the Secretary may waive any provision of these 
regulations.



PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS--Table of Contents




                         Subpart A--Introduction

Sec.
10.1  Purpose and applicability.

[[Page 197]]

10.2  Definitions

 Subpart B--Human Remains, Funerary Objects, Sacred Objects, or Objects 
           of Cultural Patrimony  From Federal or Tribal Lands

10.3  Intentional archaeological excavations.
10.4  Inadvertent discoveries.
10.5  Consultation.
10.6  Custody.
10.7  Disposition of unclaimed human remains, funerary objects, sacred 
          objects, or objects of cultural patrimony. [Reserved]

 Subpart C--Human Remains, Funerary Objects, Sacred Objects, or Objects 
        of Cultural Patrimony in Museums and Federal Collections

10.8  Summaries.
10.9  Inventories.
10.10  Repatriation.
10.11  Disposition of culturally unidentifiable human remains. 
          [Reserved]
10.12  Civil penalties.
10.13  Future applicability. [Reserved]

                           Subpart D--General

10.14  Lineal descent and cultural affiliation.
10.15  Limitations and remedies.
10.16  Review committee.
10.17  Dispute resolution.

Appendix A to Part 10--Sample Summary.
Appendix B to Part 10--Sample Notice of Inventory Completion.

    Authority: 25 U.S.C. 3001 et seq.

    Source: 60 FR 62158, Dec. 4, 1995, unless otherwise noted.



                         Subpart A--Introduction



Sec. 10.1  Purpose and applicability.

    (a) Purpose. These regulations carry out provisions of the Native 
American Graves Protection and Repatriation Act of 1990 (Pub.L. 101-601; 
25 U.S.C. 3001-3013;104 Stat. 3048-3058). These regulations develop a 
systematic process for determining the rights of lineal descendants and 
Indian tribes and Native Hawaiian organizations to certain Native 
American human remains, funerary objects, sacred objects, or objects of 
cultural patrimony with which they are affiliated.
    (b) Applicability. (1) These regulations pertain to the 
identification and appropriate disposition of human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that are:
    (i) In Federal possession or control; or
    (ii) In the possession or control of any institution or State or 
local government receiving Federal funds; or
    (iii) Excavated intentionally or discovered inadvertently on Federal 
or tribal lands.
    (2) These regulations apply to human remains, funerary objects, 
sacred objects, or objects of cultural patrimony which are indigenous to 
Alaska, Hawaii, and the continental United States, but not to 
territories of the United States.
    (3) Throughout these regulations are decision points which determine 
their applicability in particular circumstances, e.g., a decision as to 
whether a museum ``controls'' human remains and cultural objects within 
the meaning of the regulations, or, a decision as to whether an object 
is a ``human remain,'' ``funerary object,'' ``sacred object,'' or 
``object of cultural patrimony'' within the meaning of the regulations. 
Any final determination making the Act or these regulations inapplicable 
is subject to review pursuant to section 15 of the Act.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]



Sec. 10.2  Definitions.

    In addition to the term Act, which means the Native American Graves 
Protection and Repatriation Act as described above, definitions used in 
these regulations are grouped in seven classes: Parties required to 
comply with these regulations; Parties with standing to make claims 
under these regulations; Parties responsible for implementing these 
regulations; Objects covered by these regulations; Cultural affiliation; 
Types of land covered by these regulations; and Procedures required by 
these regulations.
    (a) Who must comply with these regulations? (1) Federal agency means 
any department, agency, or instrumentality of the United States. Such 
term does not include the Smithsonian Institution as specified in 
section 2 (4) of the Act.
    (2) Federal agency official means any individual authorized by 
delegation of

[[Page 198]]

authority within a Federal agency to perform the duties relating to 
these regulations.
    (3) Museum means any institution or State or local government agency 
(including any institution of higher learning) that has possession of, 
or control over, human remains, funerary objects, sacred objects, or 
objects of cultural patrimony and receives Federal funds.
    (i) The term ``possession'' means having physical custody of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony with a sufficient legal interest to lawfully treat the objects 
as part of its collection for purposes of these regulations. Generally, 
a museum or Federal agency would not be considered to have possession of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony on loan from another individual, museum, or Federal agency.
    (ii) The term ``control'' means having a legal interest in human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony sufficient to lawfully permit the museum or Federal agency to 
treat the objects as part of its collection for purposes of these 
regulations whether or not the human remains, funerary objects, sacred 
objects or objects of cultural patrimony are in the physical custody of 
the museum or Federal agency. Generally, a museum or Federal agency that 
has loaned human remains, funerary objects, sacred objects, or objects 
of cultural patrimony to another individual, museum, or Federal agency 
is considered to retain control of those human remains, funerary 
objects, sacred objects, or objects of cultural patrimony for purposes 
of these regulations.
    (iii) The phrase ``receives Federal funds'' means the receipt of 
funds by a museum after November 16, 1990, from a Federal agency through 
any grant, loan, contract (other than a procurement contract), or other 
arrangement by which a Federal agency makes or made available to a 
museum aid in the form of funds. Federal funds provided for any purpose 
that are received by a larger entity of which the museum is a part are 
considered Federal funds for the purposes of these regulations. For 
example, if a museum is a part of a State or local government or a 
private university and the State or local government or private 
university receives Federal funds for any purpose, the museum is 
considered to receive Federal funds for the purpose of these 
regulations.
    (4) Museum official means the individual within a museum designated 
as being responsible for matters relating to these regulations.
    (5) Person means an individual, partnership, corporation, trust, 
institution, association, or any other private entity, or, any official, 
employee, agent, department, or instrumentality of the United States, or 
of any Indian tribe or Native Hawaiian organization, or of any State or 
political subdivision thereof that discovers or discovered human 
remains, funerary objects, sacred objects or objects of cultural 
patrimony on Federal or tribal lands after November 16, 1990.
    (b) Who has standing to make a claim under these regulations? (1) 
Lineal descendant means an individual tracing his or her ancestry 
directly and without interruption by means of the traditional kinship 
system of the appropriate Indian tribe or Native Hawaiian organization 
or by the common law system of descendance to a known Native American 
individual whose remains, funerary objects, or sacred objects are being 
claimed under these regulations.
    (2) Indian tribe means any tribe, band, nation, or other organized 
Indian group or community of Indians, including any Alaska Native 
village or corporation as defined in or established by the Alaska Native 
Claims Settlement Act (43 U.S.C. 1601 et seq.), which is recognized as 
eligible for the special programs and services provided by the United 
States to Indians because of their status as Indians. The Secretary will 
distribute a list of Indian tribes for the purposes of carrying out this 
statute through the Departmental Consulting Archeologist.
    (3)(i) Native Hawaiian organization means any organization that:
    (A) Serves and represents the interests of Native Hawaiians;
    (B) Has as a primary and stated purpose the provision of services to 
Native Hawaiians; and

[[Page 199]]

    (C) Has expertise in Native Hawaiian affairs.
    (ii) The term Native Hawaiian means any individual who is a 
descendant of the aboriginal people who, prior to 1778, occupied and 
exercised sovereignty in the area that now constitutes the State of 
Hawaii. Such organizations must include the Office of Hawaiian Affairs 
and Hui Malama I Na Kupuna 'O Hawai'i Nei.
    (4) Indian tribe official means the principal leader of an Indian 
tribe or Native Hawaiian organization or the individual officially 
designated by the governing body of an Indian tribe or Native Hawaiian 
organization or as otherwise provided by tribal code, policy, or 
established procedure as responsible for matters relating to these 
regulations.
    (c) Who is responsible for carrying out these regulations? (1) 
Secretary means the Secretary of the Interior.
    (2) Review Committee means the advisory committee established 
pursuant to section 8 of the Act.
    (3) Departmental Consulting Archeologist means the official of the 
Department of the Interior designated by the Secretary as responsible 
for the administration of matters relating to these regulations. 
Communications to the Departmental Consulting Archeologist should be 
addressed to:
Departmental Consulting Archeologist
National Park Service,
PO Box 37127
Washington, DC 20013-7127.
    (d) What objects are covered by these regulations? The Act covers 
four types of Native American objects. The term Native American means 
of, or relating to, a tribe, people, or culture indigenous to the United 
States, including Alaska and Hawaii.
    (1) Human remains means the physical remains of the body of a person 
of Native American ancestry. The term does not include remains or 
portions of remains that may reasonably be determined to have been 
freely given or naturally shed by the individual from whose body they 
were obtained, such as hair made into ropes or nets. For the purposes of 
determining cultural affiliation, human remains incorporated into a 
funerary object, sacred object, or object of cultural patrimony, as 
defined below, must be considered as part of that item.
    (2) Funerary objects means items that, as part of the death rite or 
ceremony of a culture, are reasonably believed to have been placed 
intentionally at the time of death or later with or near individual 
human remains. Funerary objects must be identified by a preponderance of 
the evidence as having been removed from a specific burial site of an 
individual affiliated with a particular Indian tribe or Native Hawaiian 
organization or as being related to specific individuals or families or 
to known human remains. The term burial site means any natural or 
prepared physical location, whether originally below, on, or above the 
surface of the earth, into which, as part of the death rite or ceremony 
of a culture, individual human remains were deposited, and includes rock 
cairns or pyres which do not fall within the ordinary definition of 
gravesite. For purposes of completing the summary requirements in 
Sec. 10.8 and the inventory requirements of Sec. 10.9:
    (i) Associated funerary objects means those funerary objects for 
which the human remains with which they were placed intentionally are 
also in the possession or control of a museum or Federal agency. 
Associated funerary objects also means those funerary objects that were 
made exclusively for burial purposes or to contain human remains.
    (ii) Unassociated funerary objects means those funerary objects for 
which the human remains with which they were placed intentionally are 
not in the possession or control of a museum or Federal agency. Objects 
that were displayed with individual human remains as part of a death 
rite or ceremony of a culture and subsequently returned or distributed 
according to traditional custom to living descendants or other 
individuals are not considered unassociated funerary objects.
    (3) Sacred objects means items that are specific ceremonial objects 
needed by traditional Native American religious leaders for the practice 
of traditional Native American religions by their present-day adherents. 
While many items, from ancient pottery sherds to arrowheads, might be 
imbued

[[Page 200]]

with sacredness in the eyes of an individual, these regulations are 
specifically limited to objects that were devoted to a traditional 
Native American religious ceremony or ritual and which have religious 
significance or function in the continued observance or renewal of such 
ceremony. The term traditional religious leader means a person who is 
recognized by members of an Indian tribe or Native Hawaiian organization 
as:
    (i) Being responsible for performing cultural duties relating to the 
ceremonial or religious traditions of that Indian tribe or Native 
Hawaiian organization, or
    (ii) Exercising a leadership role in an Indian tribe or Native 
Hawaiian organization based on the tribe or organization's cultural, 
ceremonial, or religious practices.
    (4) Objects of cultural patrimony means items having ongoing 
historical, traditional, or cultural importance central to the Indian 
tribe or Native Hawaiian organization itself, rather than property owned 
by an individual tribal or organization member. These objects are of 
such central importance that they may not be alienated, appropriated, or 
conveyed by any individual tribal or organization member. Such objects 
must have been considered inalienable by the culturally affiliated 
Indian tribe or Native Hawaiian organization at the time the object was 
separated from the group. Objects of cultural patrimony include items 
such as Zuni War Gods, the Confederacy Wampum Belts of the Iroquois, and 
other objects of similar character and significance to the Indian tribe 
or Native Hawaiian organization as a whole.
    (e) What is cultural affiliation? Cultural affiliation means that 
there is a relationship of shared group identity which can reasonably be 
traced historically or prehistorically between members of a present-day 
Indian tribe or Native Hawaiian organization and an identifiable earlier 
group. Cultural affiliation is established when the preponderance of the 
evidence -- based on geographical, kinship, biological, archeological, 
linguistic, folklore, oral tradition, historical evidence, or other 
information or expert opinion -- reasonably leads to such a conclusion.
    (f) What types of lands do the excavation and discovery provisions 
of these regulations apply to? (1) Federal lands means any land other 
than tribal lands that are controlled or owned by the United States 
Government, including lands selected by but not yet conveyed to Alaska 
Native Corporations and groups organized pursuant to the Alaska Native 
Claims Settlement Act (43 U.S.C. 1601 et seq.). United States 
``control,'' as used in this definition, refers to those lands not owned 
by the United States but in which the United States has a legal interest 
sufficient to permit it to apply these regulations without abrogating 
the otherwise existing legal rights of a person.
    (2) Tribal lands means all lands which:
    (i) Are within the exterior boundaries of any Indian reservation 
including, but not limited to, allotments held in trust or subject to a 
restriction on alienation by the United States; or
    (ii) Comprise dependent Indian communities as recognized pursuant to 
18 U.S.C. 1151; or
    (iii) Are administered for the benefit of Native Hawaiians pursuant 
to the Hawaiian Homes Commission Act of 1920 and section 4 of the 
Hawaiian Statehood Admission Act (Pub.L. 86-3; 73 Stat. 6).
    (iv) Actions authorized or required under these regulations will not 
apply to tribal lands to the extent that any action would result in a 
taking of property without compensation within the meaning of the Fifth 
Amendment of the United States Constitution.
    (g) What procedures are required by these regulations? (1) Summary 
means the written description of collections that may contain 
unassociated funerary objects, sacred objects, and objects of cultural 
patrimony required by Sec. 10.8 of these regulations.
    (2) Inventory means the item-by-item description of human remains 
and associated funerary objects.
    (3) Intentional excavation means the planned archeological removal 
of human remains, funerary objects, sacred objects, or objects of 
cultural patrimony found under or on the surface of Federal or tribal 
lands pursuant to section 3 (c) of the Act.
    (4) Inadvertent discovery means the unanticipated encounter or 
detection

[[Page 201]]

of human remains, funerary objects, sacred objects, or objects of 
cultural patrimony found under or on the surface of Federal or tribal 
lands pursuant to section 3 (d) of the Act.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]



 Subpart B--Human Remains, Funerary Objects, Sacred Objects, or Objects 
           of Cultural Patrimony From Federal or Tribal Lands



Sec. 10.3  Intentional archaeological excavations.

    (a) General. This section carries out section 3 (c) of the Act 
regarding the custody of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony that are excavated 
intentionally from Federal or tribal lands after November 16, 1990.
    (b) Specific Requirements. These regulations permit the intentional 
excavation of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony from Federal or tribal lands only if:
    (1) The objects are excavated or removed following the requirements 
of the Archaeological Resources Protection Act (ARPA) (16 U.S.C. 470aa 
et seq.) and its implementing regulations. Regarding private lands 
within the exterior boundaries of any Indian reservation, the Bureau of 
Indian Affairs (BIA) will serve as the issuing agency for any permits 
required under the Act. For BIA procedures for obtaining such permits, 
see 25 CFR part 262 or contact the Deputy Commissioner of Indian 
Affairs, Department of the Interior, Washington, DC 20240. Regarding 
lands administered for the benefit of Native Hawaiians pursuant to the 
Hawaiian Homes Commission Act, 1920, and section 4 of Pub. L. 86-3, the 
Department of Hawaiian Home Lands will serve as the issuing agency for 
any permits required under the Act, with the Hawaii State Historic 
Preservation Division of the Department of Land and Natural Resources 
acting in an advisory capacity for such issuance. Procedures and 
requirements for issuing permits will be consistent with those required 
by the ARPA and its implementing regulations;
    (2) The objects are excavated after consultation with or, in the 
case of tribal lands, consent of, the appropriate Indian tribe or Native 
Hawaiian organization pursuant to Sec. 10.5;
    (3) The disposition of the objects is consistent with their custody 
as described in Sec. 10.6; and
    (4) Proof of the consultation or consent is shown to the Federal 
agency official or other agency official responsible for the issuance of 
the required permit.
    (c) Procedures. (1) The Federal agency official must take reasonable 
steps to determine whether a planned activity may result in the 
excavation of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony from Federal lands. Prior to issuing any 
approvals or permits for activities, the Federal agency official must 
notify in writing the Indian tribes or Native Hawaiian organizations 
that are likely to be culturally affiliated with any human remains, 
funerary objects, sacred objects, or objects of cultural patrimony that 
may be excavated. The Federal agency official must also notify any 
present-day Indian tribe which aboriginally occupied the area of the 
planned activity and any other Indian tribes or Native Hawaiian 
organizations that the Federal agency official reasonably believes are 
likely to have a cultural relationship to the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that are 
expected to be found. The notice must be in writing and describe the 
planned activity, its general location, the basis upon which it was 
determined that human remains, funerary objects, sacred objects, or 
objects of cultural patrimony may be excavated, and, the basis for 
determining likely custody pursuant to Sec. 10.6. The notice must also 
propose a time and place for meetings or consultations to further 
consider the activity, the Federal agency's proposed treatment of any 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony that may be excavated, and the proposed disposition of any 
excavated human remains, funerary objects, sacred objects,

[[Page 202]]

or objects of cultural patrimony. Written notification should be 
followed up by telephone contact if there is no response in 15 days. 
Consultation must be conducted pursuant to Sec. 10.5.
    (2) Following consultation, the Federal agency official must 
complete a written plan of action (described in Sec. 10.5(e)) and 
execute the actions called for in it.
    (3) If the planned activity is also subject to review under section 
106 of the National Historic Preservation Act (16 U.S.C. 470 et seq.), 
the Federal agency official should coordinate consultation and any 
subsequent agreement for compliance conducted under that Act with the 
requirements of Sec. 10.3 (c)(2) and Sec. 10.5. Compliance with these 
regulations does not relieve Federal agency officials of requirements to 
comply with section 106 of the National Historic Preservation Act (16 
U.S.C. 470 et seq.).
    (4) If an Indian tribe or Native Hawaiian organization receives 
notice of a planned activity or otherwise becomes aware of a planned 
activity that may result in the excavation of human remains, funerary 
objects, sacred objects, or objects of cultural patrimony on tribal 
lands, the Indian tribe or Native Hawaiian organization may take 
appropriate steps to:
    (i) Ensure that the human remains, funerary objects, sacred objects, 
or objects of cultural patrimony are excavated or removed following 
Sec. 10.3 (b), and
    (ii) Make certain that the disposition of any human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
excavated intentionally or discovered inadvertently as a result of the 
planned activity are carried out following Sec. 10.6.



Sec. 10.4  Inadvertent discoveries.

    (a) General. This section carries out section 3 (d) of the Act 
regarding the custody of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony that are discovered 
inadvertently on Federal or tribal lands after November 16, 1990.
    (b) Discovery. Any person who knows or has reason to know that he or 
she has discovered inadvertently human remains, funerary objects, sacred 
objects, or objects of cultural patrimony on Federal or tribal lands 
after November 16, 1990, must provide immediate telephone notification 
of the inadvertent discovery, with written confirmation, to the 
responsible Federal agency official with respect to Federal lands, and, 
with respect to tribal lands, to the responsible Indian tribe official. 
The requirements of these regulations regarding inadvertent discoveries 
apply whether or not an inadvertent discovery is duly reported. If 
written confirmation is provided by certified mail, the return receipt 
constitutes evidence of the receipt of the written notification by the 
Federal agency official or Indian tribe official.
    (c) Ceasing activity. If the inadvertent discovery occurred in 
connection with an on-going activity on Federal or tribal lands, the 
person, in addition to providing the notice described above, must stop 
the activity in the area of the inadvertent discovery and make a 
reasonable effort to protect the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony discovered inadvertently.
    (d) Federal lands. (1) As soon as possible, but no later than three 
(3) working days after receipt of the written confirmation of 
notification with respect to Federal lands described in Sec. 10.4 (b), 
the responsible Federal agency official must:
    (i) Certify receipt of the notification;
    (ii) Take immediate steps, if necessary, to further secure and 
protect inadvertently discovered human remains, funerary objects, sacred 
objects, or objects of cultural patrimony, including, as appropriate, 
stabilization or covering;
    (iii) Notify by telephone, with written confirmation, the Indian 
tribes or Native Hawaiian organizations likely to be culturally 
affiliated with the inadvertently discovered human remains, funerary 
objects, sacred objects, or objects of cultural patrimony, the Indian 
tribe or Native Hawaiian organization which aboriginally occupied the 
area, and any other Indian tribe or Native Hawaiian organization that is 
reasonably known to have a cultural relationship to the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony. This 
notification

[[Page 203]]

must include pertinent information as to kinds of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
discovered inadvertently, their condition, and the circumstances of 
their inadvertent discovery;
    (iv) Initiate consultation on the inadvertent discovery pursuant to 
Sec. 10.5;
    (v) If the human remains, funerary objects, sacred objects, or 
objects of cultural patrimony must be excavated or removed, follow the 
requirements and procedures in Sec. 10.3 (b) of these regulations; and
    (vi) Ensure that disposition of all inadvertently discovered human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony is carried out following Sec. 10.6.
    (2) Resumption of activity. The activity that resulted in the 
inadvertent discovery may resume thirty (30) days after certification by 
the notified Federal agency of receipt of the written confirmation of 
notification of inadvertent discovery if the resumption of the activity 
is otherwise lawful. The activity may also resume, if otherwise lawful, 
at any time that a written, binding agreement is executed between the 
Federal agency and the affiliated Indian tribes or Native Hawaiian 
organizations that adopt a recovery plan for the excavation or removal 
of the human remains, funerary objects, sacred objects, or objects of 
cultural patrimony following Sec. 10.3 (b)(1) of these regulations. The 
disposition of all human remains, funerary objects, sacred objects, or 
objects of cultural patrimony must be carried out following Sec. 10.6.
    (e) Tribal lands. (1) As soon as possible, but no later than three 
(3) working days after receipt of the written confirmation of 
notification with respect to Tribal lands described in Sec. 10.4 (b), 
the responsible Indian tribe official may:
    (i) Certify receipt of the notification;
    (ii) Take immediate steps, if necessary, to further secure and 
protect inadvertently discovered human remains, funerary objects, sacred 
objects, or objects of cultural patrimony, including, as appropriate, 
stabilization or covering;
    (iii) If the human remains, funerary objects, sacred objects, or 
objects of cultural patrimony must be excavated or removed, follow the 
requirements and procedures in Sec. 10.3 (b) of these regulations; and
    (iv) Ensure that disposition of all inadvertently discovered human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony is carried out following Sec. 10.6.
    (2) Resumption of Activity. The activity that resulted in the 
inadvertent discovery may resume if otherwise lawful after thirty (30) 
days of the certification of the receipt of notification by the Indian 
tribe or Native Hawaiian organization.
    (f) Federal agency officials. Federal agency officials should 
coordinate their responsibilities under this section with their 
emergency discovery responsibilities under section 106 of the National 
Historical Preservation Act (16 U.S.C. 470 (f) et seq.), 36 CFR 800.11 
or section 3 (a) of the Archeological and Historic Preservation Act (16 
U.S.C. 469 (a-c)). Compliance with these regulations does not relieve 
Federal agency officials of the requirement to comply with section 106 
of the National Historical Preservation Act (16 U.S.C. 470 (f) et seq.), 
36 CFR 800.11 or section 3 (a) of the Archeological and Historic 
Preservation Act (16 U.S.C. 469 (a-c)).
    (g) Notification requirement in authorizations. All Federal 
authorizations to carry out land use activities on Federal lands or 
tribal lands, including all leases and permits, must include a 
requirement for the holder of the authorization to notify the 
appropriate Federal or tribal official immediately upon the discovery of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony pursuant to Sec. 10.4 (b) of these regulations.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]



Sec. 10.5  Consultation.

    Consultation as part of the intentional excavation or inadvertent 
discovery of human remains, funerary objects, sacred objects, or objects 
of cultural patrimony on Federal lands must be conducted in accordance 
with the following requirements.

[[Page 204]]

    (a) Consulting parties. Federal agency officials must consult with 
known lineal descendants and Indian tribe officials:
    (1) From Indian tribes on whose aboriginal lands the planned 
activity will occur or where the inadvertent discovery has been made; 
and
    (2) From Indian tribes and Native Hawaiian organizations that are, 
or are likely to be, culturally affiliated with the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony; and
    (3) From Indian tribes and Native Hawaiian organizations that have a 
demonstrated cultural relationship with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony.
    (b) Initiation of consultation. (1) Upon receiving notice of, or 
otherwise becoming aware of, an inadvertent discovery or planned 
activity that has resulted or may result in the intentional excavation 
or inadvertent discovery of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony on Federal lands, the 
responsible Federal agency official must, as part of the procedures 
described in Sec. Sec. 10.3 and 10.4, take appropriate steps to identify 
the lineal descendant, Indian tribe, or Native Hawaiian organization 
entitled to custody of the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony pursuant to Sec. 10.6 and 
Sec. 10.14. The Federal agency official shall notify in writing:
    (i) Any known lineal descendants of the individual whose remains, 
funerary objects, sacred objects, or objects of cultural patrimony have 
been or are likely to be excavated intentionally or discovered 
inadvertently; and
    (ii) The Indian tribes or Native Hawaiian organizations that are 
likely to be culturally affiliated with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that have been 
or are likely to be excavated intentionally or discovered inadvertently; 
and
    (iii) The Indian tribes which aboriginally occupied the area in 
which the human remains, funerary objects, sacred objects, or objects of 
cultural patrimony have been or are likely to be excavated intentionally 
or discovered inadvertently; and
    (iv) The Indian tribes or Native Hawaiian organizations that have a 
demonstrated cultural relationship with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that have been 
or are likely to be excavated intentionally or discovered inadvertently.
    (2) The notice must propose a time and place for meetings or 
consultation to further consider the intentional excavation or 
inadvertent discovery, the Federal agency's proposed treatment of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony that may be excavated, and the proposed disposition of any 
intentionally excavated or inadvertently discovered human remains, 
funerary objects, sacred objects, or objects of cultural patrimony.
    (3) The consultation must seek to identify traditional religious 
leaders who should also be consulted and seek to identify, where 
applicable, lineal descendants and Indian tribes or Native Hawaiian 
organizations affiliated with the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony.
    (c) Provision of information. During the consultation process, as 
appropriate, the Federal agency official must provide the following 
information in writing to the lineal descendants and the officials of 
Indian tribes or Native Hawaiian organizations that are or are likely to 
be affiliated with the human remains, funerary objects, sacred objects, 
or objects of cultural patrimony excavated intentionally or discovered 
inadvertently on Federal lands:
    (1) A list of all lineal descendants and Indian tribes or Native 
Hawaiian organizations that are being, or have been, consulted regarding 
the particular human remains, funerary objects, sacred objects, or 
objects of cultural patrimony;
    (2) An indication that additional documentation used to identify 
affiliation will be supplied upon request.
    (d) Requests for information. During the consultation process, 
Federal agency officials must request, as appropriate, the following 
information from

[[Page 205]]

Indian tribes or Native Hawaiian organizations that are, or are likely 
to be, affiliated pursuant to Sec. 10.6 (a) with intentionally excavated 
or inadvertently discovered human remains, funerary objects, sacred 
objects, or objects of cultural patrimony:
    (1) Name and address of the Indian tribe official to act as 
representative in consultations related to particular human remains, 
funerary objects, sacred objects, or objects of cultural patrimony;
    (2) Names and appropriate methods to contact lineal descendants who 
should be contacted to participate in the consultation process;
    (3) Recommendations on how the consultation process should be 
conducted; and
    (4) Kinds of cultural items that the Indian tribe or Native Hawaiian 
organization considers likely to be unassociated funerary objects, 
sacred objects, or objects of cultural patrimony.
    (e) Written plan of action. Following consultation, the Federal 
agency official must prepare, approve, and sign a written plan of 
action. A copy of this plan of action must be provided to the lineal 
descendants, Indian tribes and Native Hawaiian organizations involved. 
Lineal descendants and Indian tribe official(s) may sign the written 
plan of action as appropriate. At a minimum, the plan of action must 
comply with Sec. 10.3 (b)(1) and document the following:
    (1) The kinds of objects to be considered as cultural items as 
defined in Sec. 10.2 (b);
    (2) The specific information used to determine custody pursuant to 
Sec. 10.6;
    (3) The planned treatment, care, and handling of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
recovered;
    (4) The planned archeological recording of the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
recovered;
    (5) The kinds of analysis planned for each kind of object;
    (6) Any steps to be followed to contact Indian tribe officials at 
the time of intentional excavation or inadvertent discovery of specific 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony;
    (7) The kind of traditional treatment, if any, to be afforded the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony by members of the Indian tribe or Native Hawaiian 
organization;
    (8) The nature of reports to be prepared; and
    (9) The planned disposition of human remains, funerary objects, 
sacred objects, or objects of cultural patrimony following Sec. 10.6.
    (f) Comprehensive agreements. Whenever possible, Federal Agencies 
should enter into comprehensive agreements with Indian tribes or Native 
Hawaiian organizations that are affiliated with human remains, funerary 
objects, sacred objects, or objects of cultural patrimony and have 
claimed, or are likely to claim, those human remains, funerary objects, 
sacred objects, or objects of cultural patrimony excavated intentionally 
or discovered inadvertently on Federal lands. These agreements should 
address all Federal agency land management activities that could result 
in the intentional excavation or inadvertent discovery of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony. 
Consultation should lead to the establishment of a process for 
effectively carrying out the requirements of these regulations regarding 
standard consultation procedures, the determination of custody 
consistent with procedures in this section and Sec. 10.6, and the 
treatment and disposition of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony. The signed agreements, or the 
correspondence related to the effort to reach agreements, must 
constitute proof of consultation as required by these regulations.
    (g) Traditional religious leaders. The Federal agency official must 
be cognizant that Indian tribe officials may need to confer with 
traditional religious leaders prior to making recommendations. Indian 
tribe officials are under no obligation to reveal the identity of 
traditional religious leaders.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]

[[Page 206]]



Sec. 10.6  Custody.

    (a) Priority of custody. This section carries out section 3 (a) of 
the Act, subject to the limitations of Sec. 10.15, regarding the custody 
of human remains, funerary objects, sacred objects, or objects of 
cultural patrimony excavated intentionally or discovered inadvertently 
in Federal or tribal lands after November 16, 1990. For the purposes of 
this section, custody means ownership or control of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
excavated intentionally or discovered inadvertently in Federal or tribal 
lands after November 16, 1990. Custody of these human remains, funerary 
objects, sacred objects, or objects of cultural patrimony is, with 
priority given in the order listed:
    (1) In the case of human remains and associated funerary objects, in 
the lineal descendant of the deceased individual as determined pursuant 
to Sec. 10.14 (b);
    (2) In cases where a lineal descendant cannot be ascertained or no 
claim is made, and with respect to unassociated funerary objects, sacred 
objects, and objects of cultural patrimony:
    (i) In the Indian tribe on whose tribal land the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony were 
excavated intentionally or discovered inadvertently;
    (ii) In the Indian tribe or Native Hawaiian organization that has 
the closest cultural affiliation with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony as determined 
pursuant to Sec. 10.14 (c); or
    (iii) In circumstances in which the cultural affiliation of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony cannot be ascertained and the objects were excavated 
intentionally or discovered inadvertently on Federal land that is 
recognized by a final judgment of the Indian Claims Commission or the 
United States Court of Claims as the aboriginal land of an Indian tribe:
    (A) In the Indian tribe aboriginally occupying the Federal land on 
which the human remains, funerary objects, sacred objects, or objects of 
cultural patrimony were excavated intentionally or discovered 
inadvertently, or
    (B) If it can be shown by a preponderance of the evidence that a 
different Indian tribe or Native Hawaiian organization has a stronger 
cultural relationship with the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony, in the Indian tribe or Native 
Hawaiian organization that has the strongest demonstrated relationship 
with the objects.
    (b) Custody of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony and other provisions of the Act apply to 
all intentional excavations and inadvertent discoveries made after 
November 16, 1990, including those made before the effective date of 
these regulations.
    (c) Final notice, claims and disposition with respect to Federal 
lands. Upon determination of the lineal descendant, Indian tribe, or 
Native Hawaiian organization that under these regulations appears to be 
entitled to custody of particular human remains, funerary objects, 
sacred objects, or objects of cultural patrimony excavated intentionally 
or discovered inadvertently on Federal lands, the responsible Federal 
agency official must, subject to the notice required herein and the 
limitations of Sec. 10.15, transfer custody of the objects to the lineal 
descendant, Indian tribe, or Native Hawaiian organization following 
appropriate procedures, which must respect traditional customs and 
practices of the affiliated Indian tribes or Native Hawaiian 
organizations in each instance. Prior to any such disposition by a 
Federal agency official, the Federal agency official must publish 
general notices of the proposed disposition in a newspaper of general 
circulation in the area in which the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony were excavated 
intentionally or discovered inadvertently and, if applicable, in a 
newspaper of general circulation in the area(s) in which affiliated 
Indian tribes or Native Hawaiian organizations members now reside. The 
notice must provide information as to the nature and affiliation of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony and solicit further claims to custody. The notice must be

[[Page 207]]

published at least two (2) times at least a week apart, and the transfer 
must not take place until at least thirty (30) days after the 
publication of the second notice to allow time for any additional 
claimants to come forward. If additional claimants do come forward and 
the Federal agency official cannot clearly determine which claimant is 
entitled to custody, the Federal agency must not transfer custody of the 
objects until such time as the proper recipient is determined pursuant 
to these regulations. The Federal agency official must send a copy of 
the notice and information on when and in what newspaper(s) the notice 
was published to the Departmental Consulting Archeologist.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]



Sec. 10.7  Disposition of unclaimed human remains, funerary objects, sacred objects, or objects of cultural patrimony. [Reserved]



 Subpart C--Human Remains, Funerary Objects, Sacred Objects, or Objects 
        of Cultural Patrimony in Museums and Federal Collections



Sec. 10.8  Summaries.

    (a) General. This section carries out section 6 of the Act. Under 
section 6 of the Act, each museum or Federal agency that has possession 
or control over collections which may contain unassociated funerary 
objects, sacred objects, or objects of cultural patrimony must complete 
a summary of these collections based upon available information held by 
the museum or Federal agency. The purpose of the summary is to provide 
information about the collections to lineal descendants and culturally 
affiliated Indian tribes or Native Hawaiian organizations that may wish 
to request repatriation of such objects. The summary serves in lieu of 
an object-by-object inventory of these collections, although, if an 
inventory is available, it may be substituted. Federal agencies are 
responsible for ensuring that these requirements are met for all 
collections from their lands or generated by their actions whether the 
collections are held by the Federal agency or by a non-Federal 
institution.
    (b) Contents of summaries. For each collection or portion of a 
collection, the summary must include: an estimate of the number of 
objects in the collection or portion of the collection; a description of 
the kinds of objects included; reference to the means, date(s), and 
location(s) in which the collection or portion of the collection was 
acquired, where readily ascertainable; and information relevant to 
identifying lineal descendants, if available, and cultural affiliation.
    (c) Completion. Summaries must be completed not later than November 
16, 1993.
    (d) Consultation. (1) Consulting parties. Museum and Federal agency 
officials must consult with Indian tribe officials and traditional 
religious leaders:
    (i) From whose tribal lands unassociated funerary objects, sacred 
objects, or objects of cultural patrimony originated;
    (ii) That are, or are likely to be, culturally affiliated with 
unassociated funerary objects, sacred objects, or objects of cultural 
patrimony; and
    (iii) From whose aboriginal lands unassociated funerary objects, 
sacred objects, or objects of cultural patrimony originated.
    (2) Initiation of consultation. Museum and Federal agency officials 
must begin summary consultation no later than the completion of the 
summary process. Consultation may be initiated with a letter, but should 
be followed up by telephone or face-to-face dialogue with the 
appropriate Indian tribe official.
    (3) Provision of information. During summary consultation, museum 
and Federal agency officials must provide copies of the summary to 
lineal descendants, when known, and to officials and traditional 
religious leaders representing Indian tribes or Native Hawaiian 
organizations that are, or are likely to be, culturally affiliated with 
the cultural items. A copy of the summary must also be provided to the 
Departmental Consulting Archeologist. Upon request by lineal descendants 
or

[[Page 208]]

Indian tribe officials, museum and Federal agency officials must provide 
lineal descendants, Indian tribe officials and traditional religious 
leaders with access to records, catalogues, relevant studies, or other 
pertinent data for the limited purposes of determining the geographic 
origin, cultural affiliation, and basic facts surrounding acquisition 
and accession of objects covered by the summary. Access to this 
information may be requested at any time and must be provided in a 
reasonable manner to be agreed upon by all parties. The Review committee 
also must be provided access to such materials.
    (4) Requests for information. During the summary consultation, 
museum and Federal agency officials must request, as appropriate, the 
following information from Indian tribes and Native Hawaiian 
organizations that are, or are likely to be, culturally affiliated with 
their collections:
    (i) Name and address of the Indian tribe official to act as 
representative in consultations related to particular objects;
    (ii) Recommendations on how the consultation process should be 
conducted, including:
    (A) Names and appropriate methods to contact any lineal descendants, 
if known, of individuals whose unassociated funerary objects or sacred 
objects are included in the summary;
    (B) Names and appropriate methods to contact any traditional 
religious leaders that the Indian tribe or Native Hawaiian organization 
thinks should be consulted regarding the collections; and
    (iii) Kinds of cultural items that the Indian tribe or Native 
Hawaiian organization considers to be funerary objects, sacred objects, 
or objects of cultural patrimony.
    (e) Museum and Federal agency officials must document the following 
information regarding unassociated funerary objects, sacred objects, and 
objects of cultural patrimony in their collections and must use this 
documentation in determining the individuals, Indian tribes, and Native 
Hawaiian organizations with which they are affiliated:
    (1) Accession and catalogue entries;
    (2) Information related to the acquisition of unassociated funerary 
object, sacred object, or object of cultural patrimony, including:
    (i) The name of the person or organization from whom the object was 
obtained, if known;
    (ii) The date of acquisition;
    (iii) The place each object was acquired, i.e., name or number of 
site, county, State, and Federal agency administrative unit, if 
applicable; and
    (iv) The means of acquisition, i.e., gift, purchase, or excavation;
    (3) A description of each unassociated funerary object, sacred 
object, or object of cultural patrimony, including dimensions, 
materials, and photographic documentation, if appropriate, and the 
antiquity of such objects, if known;
    (4) A summary of the evidence used to determine the cultural 
affiliation of the unassociated funerary objects, sacred objects, or 
objects of cultural patrimony pursuant to Sec. 10.14 of these 
regulations.
    (f) Notification. Repatriation of unassociated funerary objects, 
sacred objects, or objects of cultural patrimony to lineal descendants, 
culturally affiliated Indian tribes, or Native Hawaiian organizations as 
determined pursuant to Sec. 10.10 (a), must not proceed prior to 
submission of a notice of intent to repatriate to the Departmental 
Consulting Archeologist, and publication of the notice of intent to 
repatriate in the Federal Register. The notice of intent to repatriate 
must describe the unassociated funerary objects, sacred objects, or 
objects of cultural patrimony being claimed in sufficient detail so as 
to enable other individuals, Indian tribes or Native Hawaiian 
organizations to determine their interest in the claimed objects. It 
must include information that identifies each claimed unassociated 
funerary object, sacred object, or object of cultural patrimony and the 
circumstances surrounding its acquisition, and describes the objects 
that are clearly identifiable as to cultural affiliation. It must also 
describe the objects that are not clearly identifiable as being 
culturally affiliated with a particular Indian tribe or Native Hawaiian 
organization, but

[[Page 209]]

which, given the totality of circumstances surrounding acquisition of 
the objects, are likely to be culturally affiliated with a particular 
Indian tribe or Native Hawaiian organization. The Departmental 
Consulting Archeologist must publish the notice of intent to repatriate 
in the Federal Register. Repatriation may not occur until at least 
thirty (30) days after publication of the notice of intent to repatriate 
in the Federal Register.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]



Sec. 10.9  Inventories.

    (a) General. This section carries out section 5 of the Act. Under 
section 5 of the Act, each museum or Federal agency that has possession 
or control over holdings or collections of human remains and associated 
funerary objects must compile an inventory of such objects, and, to the 
fullest extent possible based on information possessed by the museum or 
Federal agency, must identify the geographical and cultural affiliation 
of each item. The purpose of the inventory is to facilitate repatriation 
by providing clear descriptions of human remains and associated funerary 
objects and establishing the cultural affiliation between these objects 
and present-day Indian tribes and Native Hawaiian organizations. Museums 
and Federal agencies are encouraged to produce inventories first on 
those portions of their collections for which information is readily 
available or about which Indian tribes or Native Hawaiian organizations 
have expressed special interest. Early focus on these parts of 
collections will result in determinations that may serve as models for 
other inventories. Federal agencies must ensure that these requirements 
are met for all collections from their lands or generated by their 
actions whether the collections are held by the Federal agency or by a 
non-Federal institution.
    (b) Consultation--(1) Consulting parties. Museum and Federal agency 
officials must consult with:
    (i) Lineal descendants of individuals whose remains and associated 
funerary objects are likely to be subject to the inventory provisions of 
these regulations; and
    (ii) Indian tribe officials and traditional religious leaders:
    (A) From whose tribal lands the human remains and associated 
funerary objects originated;
    (B) That are, or are likely to be, culturally affiliated with human 
remains and associated funerary objects; and
    (C) From whose aboriginal lands the human remains and associated 
funerary objects originated.
    (2) Initiation of consultation. Museum and Federal agency officials 
must begin inventory consultation as early as possible, no later in the 
inventory process than the time at which investigation into the cultural 
affiliation of human remains and associated funerary objects is being 
conducted. Consultation may be initiated with a letter, but should be 
followed up by telephone or face-to-face dialogue.
    (3) Provision of information. During inventory consultation, museums 
and Federal agency officials must provide the following information in 
writing to lineal descendants, when known, and to officials and 
traditional religious leaders representing Indian tribes or Native 
Hawaiian organizations that are, or are likely to be, culturally 
affiliated with the human remains and associated funerary objects.
    (i) A list of all Indian tribes and Native Hawaiian organizations 
that are, or have been, consulted regarding the particular human remains 
and associated funerary objects;
    (ii) A general description of the conduct of the inventory;
    (iii) The projected time frame for conducting the inventory; and
    (iv) An indication that additional documentation used to identify 
cultural affiliation will be supplied upon request.
    (4) Requests for information. During the inventory consultation, 
museum and Federal agency officials must request, as appropriate, the 
following information from Indian tribes and Native Hawaiian 
organizations that are, or are likely to be, culturally affiliated with 
their collections:
    (i) Name and address of the Indian tribe official to act as 
representative in consultations related to particular human remains and 
associated funerary objects;

[[Page 210]]

    (ii) Recommendations on how the consultation process should be 
conducted, including:
    (A) Names and appropriate methods to contact any lineal descendants 
of individuals whose remains and associated funerary objects are or are 
likely to be included in the inventory; and
    (B) Names and appropriate methods to contact traditional religious 
leaders who should be consulted regarding the human remains and 
associated funerary objects.
    (iii) Kinds of objects that the Indian tribe or Native Hawaiian 
organization reasonably believes to have been made exclusively for 
burial purposes or to contain human remains of their ancestors.
    (c) Required information. The following documentation must be 
included, if available, for all inventories completed by museum or 
Federal agency officials:
    (1) Accession and catalogue entries, including the accession/
catalogue entries of human remains with which funerary objects were 
associated;
    (2) Information related to the acquisition of each object, 
including:
    (i) The name of the person or organization from whom the object was 
obtained, if known;
    (ii) The date of acquisition,
    (iii) The place each object was acquired, i.e., name or number of 
site, county, State, and Federal agency administrative unit, if 
applicable; and
    (iv) The means of acquisition, i.e., gift, purchase, or excavation;
    (3) A description of each set of human remains or associated 
funerary object, including dimensions, materials, and, if appropriate, 
photographic documentation, and the antiquity of such human remains or 
associated funerary objects, if known;
    (4) A summary of the evidence, including the results of 
consultation, used to determine the cultural affiliation of the human 
remains and associated funerary objects pursuant to Sec. 10.14 of these 
regulations.
    (d) Documents. Two separate documents comprise the inventory:
    (1) A listing of all human remains and associated funerary objects 
that are identified as being culturally affiliated with one or more 
present-day Indian tribes or Native Hawaiian organizations. The list 
must indicate for each item or set of items whether cultural affiliation 
is clearly determined or likely based upon the preponderance of the 
evidence; and
    (2) A listing of all culturally unidentifiable human remains and 
associated funerary objects for which no culturally affiliated present-
day Indian tribe or Native Hawaiian organization can be determined.
    (e) Notification. (1) If the inventory results in the identification 
or likely identification of the cultural affiliation of any particular 
human remains or associated funerary objects with one or more Indian 
tribes or Native Hawaiian organizations, the museum or Federal agency, 
not later than six (6) months after completion of the inventory, must 
send such Indian tribes or Native Hawaiian organizations the inventory 
of culturally affiliated human remains and associated funerary objects, 
including all information required under Sec. 10.9 (c), and a notice of 
inventory completion that summarizes the results of the inventory.
    (2) The notice of inventory completion must summarize the contents 
of the inventory in sufficient detail so as to enable the recipients to 
determine their interest in claiming the inventoried items. It must 
identify each particular set of human remains or each associated 
funerary object and the circumstances surrounding its acquisition, 
describe the human remains or associated funerary objects that are 
clearly identifiable as to cultural affiliation, and describe the human 
remains and associated funerary objects that are not clearly 
identifiable as being culturally affiliated with an Indian tribe or 
Native Hawaiian organization, but which, given the totality of 
circumstances surrounding acquisition of the human remains or associated 
objects, are identified as likely to be culturally affiliated with a 
particular Indian tribe or Native Hawaiian organization.
    (3) If the inventory results in a determination that the human 
remains are of an identifiable individual, the museum or Federal agency 
official must convey this information to the lineal descendant of the 
deceased individual,

[[Page 211]]

if known, and to the Indian tribe or Native Hawaiian organization of 
which the deceased individual was culturally affiliated.
    (4) The notice of inventory completion and a copy of the inventory 
must also be sent to the Departmental Consulting Archeologist. These 
submissions should be sent in both printed hard copy and electronic 
formats. Information on the proper format for electronic submission and 
suggested alternatives for museums and Federal agencies unable to meet 
these requirements are available from the Departmental Consulting 
Archeologist.
    (5) Upon request by an Indian tribe or Native Hawaiian organization 
that has received or should have received a notice of inventory 
completion and a copy of the inventory as described above, a museum or 
Federal agency must supply additional available documentation to 
supplement the information provided with the notice. For these purposes, 
the term documentation means a summary of existing museum or Federal 
agency records including inventories or catalogues, relevant studies, or 
other pertinent data for the limited purpose of determining the 
geographical origin, cultural affiliation, and basic facts surrounding 
the acquisition and accession of human remains and associated funerary 
objects.
    (6) If the museum or Federal agency official determines that the 
museum or Federal agency has possession of or control over human remains 
that cannot be identified as affiliated with a particular individual, 
Indian tribes or Native Hawaiian organizations, the museum or Federal 
agency must provide the Department Consulting Archeologist notice of 
this result and a copy of the list of culturally unidentifiable human 
remains and associated funerary objects. The Departmental Consulting 
Archeologist must make this information available to members of the 
Review Committee. Section 10.11 of these regulations will set forth 
procedures for disposition of culturally unidentifiable human remains of 
Native American origin. Museums or Federal agencies must retain 
possession of such human remains pending promulgation of Sec. 10.11 
unless legally required to do otherwise, or recommended to do otherwise 
by the Secretary. Recommendations regarding the disposition of 
culturally unidentifiable human remains may be requested prior to final 
promulgation of Sec. 10.11.
    (7) The Departmental Consulting Archeologist must publish notices of 
inventory completion received from museums and Federal agencies in the 
Federal Register.
    (f) Completion. Inventories must be completed not later than 
November 16, 1995. Any museum that has made a good faith effort to 
complete its inventory, but which will be unable to complete the process 
by this deadline, may request an extension of the time requirements from 
the Secretary. An indication of good faith efforts must include, but not 
necessarily be limited to, the initiation of active consultation and 
documentation regarding the collections and the development of a written 
plan to carry out the inventory process. Minimum components of an 
inventory plan are: a definition of the steps required; the position 
titles of the persons responsible for each step; a schedule for carrying 
out the plan; and a proposal to obtain the requisite funding.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]



Sec. 10.10  Repatriation.

    (a) Unassociated funerary objects, sacred objects, and objects of 
cultural patrimony--(1) Criteria. Upon the request of a lineal 
descendant, Indian tribe, or Native Hawaiian organization, a museum or 
Federal agency must expeditiously repatriate unassociated funerary 
objects, sacred objects, or objects of cultural patrimony if all the 
following criteria are met:
    (i) The object meets the definitions established in Sec. 10.2 
(d)(2)(ii), (d)(3), or (d)(4); and
    (ii) The cultural affiliation of the object is established:
    (A) Through the summary, consultation, and notification procedures 
in Sec. 10.14 of these regulations; or
    (B) By presentation of a preponderance of the evidence by a 
requesting Indian tribe or Native Hawaiian organization pursuant to 
section 7(c) of the Act; and

[[Page 212]]

    (iii) The known lineal descendant or culturally affiliated Indian 
tribe or Native Hawaiian organization presents evidence which, if 
standing alone before the introduction of evidence to the contrary, 
would support a finding that the museum or Federal agency does not have 
a right of possession to the objects as defined in Sec. 10.10 (a)(2); 
and
    (iv) The agency or museum is unable to present evidence to the 
contrary proving that it does have a right of possession as defined 
below; and
    (v) None of the specific exceptions listed in Sec. 10.10 (c) apply.
    (2) Right of possession. For purposes of this section, ``right of 
possession'' means possession obtained with the voluntary consent of an 
individual or group that had authority of alienation. The original 
acquisition of a Native American unassociated funerary object, sacred 
object, or object of cultural patrimony from an Indian tribe or Native 
Hawaiian organization with the voluntary consent of an individual or 
group with authority to alienate such object is deemed to give right of 
possession to that object.
    (3) Notification. Repatriation must take place within ninety (90) 
days of receipt of a written request for repatriation that satisfies the 
requirements of paragraph (a)(1) of this section from a lineal 
descendent or culturally affiliated Indian tribe or Native Hawaiian 
organization, provided that the repatriation may not occur until at 
least thirty (30) days after publication of the notice of intent to 
repatriate in the Federal Register as described in Sec. 10.8.
    (b) Human remains and associated funerary objects--(1) Criteria. 
Upon the request of a lineal descendant, Indian tribe, or Native 
Hawaiian organization, a museum and Federal agency must expeditiously 
repatriate human remains and associated funerary objects if all of the 
following criteria are met:
    (i) The human remains or associated funerary object meets the 
definitions established in Sec. 10.2 (d)(1) or (d)(2)(i); and
    (ii) The affiliation of the deceased individual to known lineal 
descendant, present day Indian tribe, or Native Hawaiian organization:
    (A) Has been reasonably traced through the procedures outlined in 
Sec. 10.9 and Sec. 10.14 of these regulations; or
    (B) Has been shown by a preponderance of the evidence presented by a 
requesting Indian tribe or Native Hawaiian organization pursuant to 
section 7(c) of the Act; and
    (iii) None of the specific exceptions listed in Sec. 10.10 (c) 
apply.
    (2) Notification. Repatriation must take place within ninety (90) 
days of receipt of a written request for repatriation that satisfies the 
requirements of Sec. 10.10 (b)(1) from the culturally affiliated Indian 
tribe or Native Hawaiian organization, provided that the repatriation 
may not occur until at least thirty (30) days after publication of the 
notice of inventory completion in the Federal Register as described in 
Sec. 10.9.
    (c) Exceptions. These requirements for repatriation do not apply to:
    (1) Circumstances where human remains, funerary objects, sacred 
objects, or objects of cultural patrimony are indispensable to the 
completion of a specific scientific study, the outcome of which is of 
major benefit to the United States. Human remains, funerary objects, 
sacred objects, or objects of cultural patrimony in such circumstances 
must be returned no later than ninety (90) days after completion of the 
study; or
    (2) Circumstances where there are multiple requests for repatriation 
of human remains, funerary objects, sacred objects, or objects of 
cultural patrimony and the museum or Federal agency, after complying 
with these regulations, cannot determine by a preponderance of the 
evidence which requesting party is the most appropriate claimant. In 
such circumstances, the museum or Federal agency may retain the human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony until such time as the requesting parties mutually agree upon 
the appropriate recipient or the dispute is otherwise resolved pursuant 
to these regulations or as ordered by a court of competent jurisdiction; 
or
    (3) Circumstances where a court of competent jurisdiction has 
determined that the repatriation of the human remains, funerary objects, 
sacred objects,

[[Page 213]]

or objects of cultural patrimony in the possession or control of a 
museum would result in a taking of property without just compensation 
within the meaning of the Fifth Amendment of the United States 
Constitution, in which event the custody of the objects must be as 
provided under otherwise applicable law. Nothing in these regulations 
must prevent a museum or Federal agency, where otherwise so authorized, 
or a lineal descendant, Indian tribe, or Native Hawaiian organization, 
from expressly relinquishing title to, right of possession of, or 
control over any human remains, funerary objects, sacred objects, or 
objects of cultural patrimony.
    (4) Circumstances where the repatriation is not consistent with 
other repatriation limitations identified in Sec. 10.15 of these 
regulations.
    (d) Place and manner of repatriation. The repatriation of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony must be accomplished by the museum or Federal agency in 
consultation with the requesting lineal descendants, or culturally 
affiliated Indian tribe or Native Hawaiian organization, as appropriate, 
to determine the place and manner of the repatriation.
    (e) The museum official or Federal agency official must inform the 
recipients of repatriations of any presently known treatment of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony with pesticides, preservatives, or other substances that 
represent a potential hazard to the objects or to persons handling the 
objects.
    (f) Record of repatriation. (1) Museums and Federal agencies must 
adopt internal procedures adequate to permanently document the content 
and recipients of all repatriations.
    (2) The museum official or Federal agency official, at the request 
of the Indian tribe official, may take such steps as are considered 
necessary pursuant to otherwise applicable law, to ensure that 
information of a particularly sensitive nature is not made available to 
the general public.
    (g) Culturally unidentifiable human remains. If the cultural 
affiliation of human remains cannot be established pursuant to these 
regulations, the human remains must be considered culturally 
unidentifiable. Museum and Federal agency officials must report the 
inventory information regarding such human remains in their holdings to 
the Departmental Consulting Archeologist who will transmit this 
information to the Review Committee. The Review Committee is responsible 
for compiling an inventory of culturally unidentifiable human remains in 
the possession or control of each museum and Federal agency, and, for 
recommending to the Secretary specific actions for disposition of such 
human remains.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1, 1997]



Sec. 10.11  Disposition of culturally unidentifiable human remains. [Reserved]



Sec. 10.12  Civil penalties.

    (a) The Secretary's authority to assess civil penalties. The 
Secretary is authorized by section 9 of the Act to assess civil 
penalties on any museum that fails to comply with the requirements of 
the Act. As used in this section, ``failure to comply with requirements 
of the Act'' also means failure to comply with applicable portions of 
the regulations set forth in this part. As used in this section ``you'' 
refers to the museum or the museum official designated responsible for 
matters related to implementation of the Act.
    (b) Definition of ``failure to comply''. (1) Your museum has failed 
to comply with the requirements of the Act if it:
    (i) After November 16, 1990, sells or otherwise transfers human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony in violation of the Act, including, but not limited to, an 
unlawful sale or transfer to any individual or institution that is not 
required to comply with the Act; or
    (ii) After November 16, 1993, has not completed summaries as 
required by the Act; or
    (iii) After November 16, 1995, or the date specified in an extension 
issued by the Secretary, whichever is later, has not completed 
inventories as required by the Act; or
    (iv) After May 16, 1996, or six months after completion of an 
inventory under

[[Page 214]]

an extension issued by the Secretary, whichever is later, has not 
notified culturally affiliated Indian tribes and Native Hawaiian 
organizations; or
    (v) Refuses to repatriate human remains, funerary object, sacred 
object, or object of cultural patrimony to a lineal descendant or 
culturally affiliated Indian tribe or Native Hawaiian organization 
pursuant to the requirements of the Act; or
    (vi) Repatriates human remains, funerary object, sacred object, or 
object of cultural patrimony before publishing a notice in the Federal 
Register as required by the Act.
    (2) Each violation will constitute a separate offense.
    (c) How to notify the Secretary of a failure to comply. (1) Any 
person may bring an allegation of failure to comply to the attention of 
the Secretary.
    (2) The Secretary may take the following steps upon receiving such 
an allegation:
    (i) Review the alleged failure to comply;
    (ii) Identify the specific provisions of the Act which allegedly 
have not been complied with;
    (iii) Determine if the institution of a civil penalty action is in 
the public interest in the circumstances; and
    (iv) If appropriate, estimate the proposed penalty.
    (d) How the Secretary determines the penalty amount. (1) The penalty 
amount will be .25% of your museum's annual budget, or $5000, whichever 
is less, and, such additional sum as the Secretary may determine is 
appropriate after taking into account:
    (i) The archeological, historical, or commercial value of the human 
remains, funerary object, sacred object, or object of cultural patrimony 
involved including, but not limited to, consideration of their 
importance to performing traditional practices; and
    (ii) The damages suffered, both economic and non-economic, by the 
aggrieved party or parties including, but not limited to, the costs of 
attorney and expert witness fees, investigations, and administrative 
expenses related to efforts to compel compliance with the Act; and
    (iii) The number of violations that have occurred.
    (2) An additional penalty of $100 per day after the date the final 
administrative decision takes effect if your museum continues to violate 
the Act.
    (3) The Secretary may reduce the penalty amount if there is:
    (i) A determination that you did not willfully fail to comply; or
    (ii) An agreement by you to mitigate the violation, including, but 
not limited to, payment of restitution to the aggrieved party or 
parties; or
    (iii) A demonstration of hardship or inability to pay, provided that 
this factor will only apply when you have not been previously found to 
have failed to comply with the regulations in this part; or
    (iv) A determination that the proposed penalty would constitute 
excessive punishment under the circumstances.
    (e) How the Secretary notifies you of a failure to comply. (1) If 
the allegations are verified, the Secretary serves you with a notice of 
failure to comply either by personal delivery or by registered or 
certified mail (return receipt requested). The notice includes:
    (i) A concise statement of the facts believed to show a failure to 
comply;
    (ii) A specific reference to the provisions of the Act and/or the 
regulations in this part that you have allegedly not complied with;
    (iii) The amount of the proposed penalty, including any initial 
proposal to mitigate or remit where appropriate, or a statement that the 
Secretary will serve notice of a proposed penalty amount after 
ascertaining the damages associated with the alleged failure to comply; 
and
    (iv) Notification of the right to file a petition for relief as 
provided in this section below, or to await the Secretary's notice of 
assessment and to request a hearing. The notice will also inform you of 
your right to seek judicial review of any final administrative decision 
assessing a civil penalty.
    (2) The Secretary also sends a copy of the notice of failure to 
comply to:
    (i) Any lineal descendant of a known Native American individual 
whose human remains or cultural items are in question; and
    (ii) Any Indian tribes or Native Hawaiian organizations that are, or 
are

[[Page 215]]

likely to be, culturally affiliated with the human remains or cultural 
items in question.
    (f) Actions you may take upon receipt of a notice. If you are served 
with a notice of failure to comply, you may: (1) Seek informal 
discussions with the Secretary;
    (2) File a petition for relief. You may file a petition for relief 
with the Secretary within 45 calendar days of receiving the notice of 
failure to comply (or of a proposed penalty amount, if later). Your 
petition for relief may request the Secretary to assess no penalty or to 
reduce the amount. Your petition must be in writing and signed by an 
official authorized to sign such documents. Your petition must set forth 
in full the legal or factual basis for the requested relief.
    (3) Take no action and await the Secretary's notice of assessment; 
or
    (4) Accept in writing or by payment the proposed penalty, or any 
mitigation or remission offered in the notice. If you accept the 
proposed penalty or mitigation or remission, you waive the notice of 
assessment and the right to request a hearing.
    (g) How the Secretary assesses the penalty. (1) The Secretary 
assesses the civil penalty when the period for filing a petition for 
relief expires, or upon completing the review of any petition filed, or 
upon completing informal discussions, whichever is later.
    (2) The Secretary considers all available information, including 
information provided during the process of assessing civil penalties or 
furnished upon further request by the Secretary.
    (3) If the facts warrant a conclusion that you have not failed to 
comply, the Secretary notifies you that you will have no penalty 
assessed.
    (4) If the facts warrant a conclusion that you have failed to 
comply, the Secretary may determine a penalty according to the standards 
in paragraph (d) of this section.
    (5) The Secretary notifies you of the penalty amount assessed by 
serving a written notice of assessment, either in person or by 
registered or certified mail (return receipt requested). The notice of 
assessment includes:
    (i) The facts and conclusions from which the Secretary determined 
that you have failed to comply;
    (ii) The basis for determining the penalty amount assessed and/or 
any offer to mitigate or remit the penalty; and
    (iii) Notification of the right to request a hearing, including the 
procedures to follow, and to seek judicial review of any final 
administrative decision assessing a civil penalty.
    (h) How you request a hearing. (1) You may file a written, dated 
request for a hearing on a notice of assessment with the Hearings 
Division, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 North Quincy Street, Arlington, Virginia 22203-1923. You 
must enclose a copy of the notice of failure to comply and a copy of the 
notice of assessment. Your request must state the relief sought, the 
basis for challenging the facts used as the basis for determining the 
failure to comply and fixing the assessment, and your preference as to 
the place and date for a hearing. You must serve a copy of the request 
upon the Solicitor of the Department of the Interior personally or by 
registered or certified mail (return receipt requested) at the address 
specified in the notice of assessment. Hearings will take place 
following procedures set forth in 43 CFR part 4, subparts A and B.
    (2) Your failure to file a written request for a hearing within 45 
days of the date of service of a notice of assessment waives your right 
to a hearing.
    (i) Hearing appearance and practice. (1) Upon receiving a request 
for a hearing, the Hearings Division assigns an administrative law judge 
to the case, gives notice of assignment promptly to the parties, and 
files all pleadings, papers, and other documents in the proceeding 
directly with the administrative law judge, with copies served on the 
opposing party.
    (2) Subject to the provisions of 43 CFR 1.3, you may appear by 
representative, or by counsel, and may participate fully in those 
proceedings. If you fail to appear and the administrative law judge 
determines this failure is without good cause, the administrative law 
judge may, in his/her discretion, determine that this failure waives 
your

[[Page 216]]

right to a hearing and consent to the making of a decision on the 
record.
    (3) Departmental counsel, designated by the Solicitor of the 
Department, represents the Secretary in the proceedings. Upon notice to 
the Secretary of the assignment of an administrative law judge to the 
case, this counsel must enter his/her appearance on behalf of the 
Secretary and files all petitions and correspondence exchanges by the 
Secretary and the respondent which become part of the hearing record. 
Thereafter, you must serve all documents for the Secretary to his/her 
counsel.
    (4) Hearing administration. (i) The administrative law judge has all 
powers accorded by law and necessary to preside over the parties and the 
proceedings and to make decisions under 5 U.S.C. 554-557.
    (ii) The transcript of testimony, the exhibits, and all papers, 
documents and requests filed in the proceedings constitute the record 
for decision. The administrative law judge renders a written decision 
upon the record, which sets forth his/her findings of fact and 
conclusions of law, and the reasons and basis for them, and an 
assessment of a penalty, if any.
    (iii) Unless you file a notice of appeal described in the 
regulations in this part, the administrative law judge's decision 
constitutes the final administrative determination of the Secretary in 
the matter and takes effect 30 calendar days from this decision.
    (iv) In this hearing, the amount of civil penalty assessed will be 
determined in accordance with paragraph (d) of this section, and will 
not be limited by the amount assessed by the Secretary or any offer of 
mitigation or remission made by the Secretary.
    (j) How you appeal a decision. (1) Either you or the Secretary may 
appeal the decision of an administrative law judge by filing a ``Notice 
of Appeal'' with the Director, Office of Hearings and Appeals, U.S. 
Department of Interior, 801 North Quincy Street, Arlington, Virginia 
22203-1923, within 30 calendar days of the date of the administrative 
law judge's decision. This notice must be accompanied by proof of 
service on the administrative law judge and the opposing party.
    (2) Upon receiving this notice, the Director, Office of Hearings and 
Appeals, appoints an ad hoc appeals board to hear and decide an appeal. 
To the extent they are not inconsistent with the regulations in this 
part the provision of the Department of Hearings and Appeals Procedures 
in 43 CFR part 4, subparts A, B, and G apply to such appeal proceedings. 
The appeal board's decision on the appeal must be in writing and takes 
effect as the final administrative determination of the Secretary on the 
date it is rendered, unless otherwise specified in the decision.
    (3) You may obtain copies of decisions in civil penalty proceedings 
instituted under the Act by sending a request to the Director, Office of 
Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy 
Street, Arlington, Virginia 22203-1923. Fees for this service are 
established by the Director of that Office.
    (k) The final administrative decision. (1) When you have been served 
with a notice of a failure to comply and have accepted the penalty as 
provided in the regulations in this part, the notice constitutes the 
final administrative decision;
    (2) When you have been served with a notice of assessment and have 
not filed a timely request for a hearing as provided in the regulations 
in this part, the notice of assessment constitutes the final 
administrative decision.
    (3) When you have been served with a notice of assessment and have 
filed a timely request for a hearing as provided in these regulations in 
this part, the decision resulting from the hearing or any applicable 
administrative appeal from it constitutes the final administrative 
decision.
    (l) How you pay the penalty. (1) If you are assessed a civil 
penalty, you have 45 calendar days from the date of issuance of the 
final administrative decision to make full payment of the penalty 
assessed to the Secretary, unless you have filed a timely request for 
appeal with a court of competent jurisdiction.
    (2) If you fail to pay the penalty, the Secretary may request the 
Attorney General to institute a civil action to collect the penalty in 
the U.S. District Court for the district in which your

[[Page 217]]

museum is located. Where the Secretary is not represented by the 
Attorney General, the Secretary may start civil action directly. In 
these actions, the validity and amount of the penalty will not be 
subject to review by the court.
    (3) Assessing a penalty under this section is not a waiver by the 
Secretary of the right to pursue other available legal or administrative 
remedies.

[62 FR 1821, Jan. 13, 1997, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 10.13  Future applicability. [Reserved]



                           Subpart D--General



Sec. 10.14  Lineal descent and cultural affiliation.

    (a) General. This section identifies procedures for determining 
lineal descent and cultural affiliation between present-day individuals 
and Indian tribes or Native Hawaiian organizations and human remains, 
funerary objects, sacred objects, or objects of cultural patrimony in 
museum or Federal agency collections or excavated intentionally or 
discovered inadvertently from Federal lands. They may also be used by 
Indian tribes and Native Hawaiian organizations with respect to tribal 
lands.
    (b) Criteria for determining lineal descent. A lineal descendant is 
an individual tracing his or her ancestry directly and without 
interruption by means of the traditional kinship system of the 
appropriate Indian tribe or Native Hawaiian organization or by the 
common law system of descendence to a known Native American individual 
whose remains, funerary objects, or sacred objects are being requested 
under these regulations. This standard requires that the earlier person 
be identified as an individual whose descendants can be traced.
    (c) Criteria for determining cultural affiliation. Cultural 
affiliation means a relationship of shared group identity that may be 
reasonably traced historically or prehistorically between a present-day 
Indian tribe or Native Hawaiian organization and an identifiable earlier 
group. All of the following requirements must be met to determine 
cultural affiliation between a present-day Indian tribe or Native 
Hawaiian organization and the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony of an earlier group:
    (1) Existence of an identifiable present-day Indian tribe or Native 
Hawaiian organization with standing under these regulations and the Act; 
and
    (2) Evidence of the existence of an identifiable earlier group. 
Support for this requirement may include, but is not necessarily limited 
to evidence sufficient to:
    (i) Establish the identity and cultural characteristics of the 
earlier group,
    (ii) Document distinct patterns of material culture manufacture and 
distribution methods for the earlier group, or
    (iii) Establish the existence of the earlier group as a biologically 
distinct population; and
    (3) Evidence of the existence of a shared group identity that can be 
reasonably traced between the present-day Indian tribe or Native 
Hawaiian organization and the earlier group. Evidence to support this 
requirement must establish that a present-day Indian tribe or Native 
Hawaiian organization has been identified from prehistoric or historic 
times to the present as descending from the earlier group.
    (d) A finding of cultural affiliation should be based upon an 
overall evaluation of the totality of the circumstances and evidence 
pertaining to the connection between the claimant and the material being 
claimed and should not be precluded solely because of some gaps in the 
record.
    (e) Evidence. Evidence of a kin or cultural affiliation between a 
present-day individual, Indian tribe, or Native Hawaiian organization 
and human remains, funerary objects, sacred objects, or objects of 
cultural patrimony must be established by using the following types of 
evidence: Geographical, kinship, biological, archeological, 
anthropological, linguistic, folklore, oral tradition, historical, or 
other relevant information or expert opinion.

[[Page 218]]

    (f) Standard of proof. Lineal descent of a present-day individual 
from an earlier individual and cultural affiliation of a present-day 
Indian tribe or Native Hawaiian organization to human remains, funerary 
objects, sacred objects, or objects of cultural patrimony must be 
established by a preponderance of the evidence. Claimants do not have to 
establish cultural affiliation with scientific certainty.



Sec. 10.15  Limitations and remedies.

    (a) Failure to claim prior to repatriation. (1) Any person who fails 
to make a timely claim prior to the repatriation or disposition of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony is deemed to have irrevocably waived any right to claim such 
items pursuant to these regulations or the Act. For these purposes, a 
``timely claim'' means the filing of a written claim with a responsible 
museum or Federal agency official prior to the time the particular human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony at issue are duly repatriated or disposed of to a claimant by 
a museum or Federal agency pursuant to these regulations.
    (2) If there is more than one (1) claimant, the human remains, 
funerary object, sacred object, or objects of cultural patrimony may be 
held by the responsible museum or Federal agency or person in possession 
thereof pending resolution of the claim. Any person who is in custody of 
such human remains, funerary objects, sacred objects, or objects of 
cultural patrimony and does not claim entitlement to them must place the 
objects in the possession of the responsible museum or Federal agency 
for retention until the question of custody is resolved.
    (b) Failure to claim where no repatriation or disposition has 
occurred. [Reserved]
    (c) Exhaustion of remedies. No person is considered to have 
exhausted his or her administrative remedies with respect to the 
repatriation or disposition of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony subject to subpart B of these 
regulations, or, with respect to Federal lands, subpart C of these 
regulations, until such time as the person has filed a written claim for 
repatriation or disposition of the objects with the responsible museum 
or Federal agency and the claim has been duly denied following these 
regulations.
    (d) Savings provisions. Nothing in these regulations can be 
construed to:
    (1) Limit the authority of any museum or Federal agency to:
    (i) Return or repatriate human remains, funerary objects, sacred 
objects, or objects of cultural patrimony to Indian tribes, Native 
Hawaiian organizations, or individuals; and
    (ii) Enter into any other agreement with the consent of the 
culturally affiliated Indian tribe or Native Hawaiian organization as to 
the disposition of, or control over, human remains, funerary objects, 
sacred objects, or objects of cultural patrimony.
    (2) Delay actions on repatriation requests that were pending on 
November 16, 1990;
    (3) Deny or otherwise affect access to court;
    (4) Limit any procedural or substantive right which may otherwise be 
secured to individuals or Indian tribes or Native Hawaiian 
organizations; or
    (5) Limit the application of any State or Federal law pertaining to 
theft of stolen property.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1, 1997]



Sec. 10.16  Review committee.

    (a) General. The Review Committee will advise Congress and the 
Secretary on matters relating to these regulations and the Act, 
including, but not limited to, monitoring the performance of museums and 
Federal agencies in carrying out their responsibilities, facilitating 
and making recommendations on the resolution of disputes as described 
further in Sec. 10.17, and compiling a record of culturally 
unidentifiable human remains that are in the possession or control of 
museums and Federal agencies and recommending actions for their 
disposition.
    (b) Recommendations. Any recommendation, finding, report, or other 
action of the Review Committee is advisory only and not binding on any 
person. Any records and findings made by

[[Page 219]]

the Review Committee may be admissible as evidence in actions brought by 
persons alleging a violation of the Act.



Sec. 10.17  Dispute resolution.

    (a) Formal and informal resolutions. Any person who wishes to 
contest actions taken by museums, Federal agencies, Indian tribes, or 
Native Hawaiian organizations with respect to the repatriation and 
disposition of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony is encouraged to do so through informal 
negotiations to achieve a fair resolution of the matter. The Review 
Committee may aid in this regard as described below. In addition, the 
United States District Courts have jurisdiction over any action brought 
that alleges a violation of the Act.
    (b) Review Committee Role. The Review Committee may facilitate the 
informal resolution of disputes relating to these regulations among 
interested parties that are not resolved by good faith negotiations. 
Review Committee actions may include convening meetings between parties 
to disputes, making advisory findings as to contested facts, and making 
recommendations to the disputing parties or to the Secretary as to the 
proper resolution of disputes consistent with these regulations and the 
Act.

                  Appendix A to Part 10--Sample Summary

    The following is a generic sample and should be used as a guideline 
for preparation of summaries tailoring the information to the specific 
circumstances of each case.
    Before November 17, 1993
    Chairman or Other Authorized Official
    Indian tribe or Native Hawaiian organization
    Street
    State
    Dear Sir/Madame Chair:
    I write to inform you of collections held by our museum which may 
contain unassociated funerary objects, sacred objects, or objects of 
cultural patrimony that are, or are likely to be, culturally affiliated 
with your Indian tribe or Native Hawaiian organization. This 
notification is required by section 6 of the Native American Graves 
Protection and Repatriation Act.
    Our ethnographic collection includes approximately 200 items 
specifically identified as being manufactured or used by members of your 
Indian tribe or Native Hawaiian organization. These items represent 
various categories of material culture, including sea and land hunting, 
fishing, tools, household equipment, clothing, travel and 
transportation, personal adornment, smoking, toys, and figurines. The 
collection includes thirteen objects identified in our records as 
``medicine bags.''
    Approximately half of these items were collected by John Doe during 
his expedition to your reservation in 1903 and accessioned by the museum 
that same year (see Major Museum Publication, no. 65 (1965).
    Another 50 of these items were collected by Jane Roe during her 
expeditions to your reservation between 1950-1960 and accessioned by the 
museum in 1970 (see Major Museum: no. 75 (1975). Accession information 
indicates that several of these items were collected from members of the 
Able and Baker families.
    For the remaining approximately 50 items, which were obtained from 
various collectors between 1930 and 1980, additional collection 
information is not readily available.
    In addition to the above mentioned items, the museum has 
approximately 50 ethnographic items obtained from the estate of a 
private collector and identified as being collected from the ``northwest 
portion of the State.''
    Our archeological collection includes approximately 1,500 items 
recovered from ten archeological sites on your reservation and another 
5,000 items from fifteen sites within the area recognized by the Indian 
Claims Commission as being part of your Indian tribe's aboriginal 
territory.
    Please feel free to contact Fred Poe at (012) 345-6789 regarding the 
identification and potential repatriation of unassociated funerary 
objects, sacred objects, or objects of cultural patrimony in this 
collection that are, or are likely to be, culturally affiliated with 
your Indian tribe or Native Hawaiian organization. You are invited to 
review our records, catalogues, relevant studies or other pertinent data 
for the purpose of determining the geographic origin, cultural 
affiliation, and basic facts surrounding acquisition and accession of 
these items. We look forward to working together with you.
    Sincerely,
    Museum Official
    Major Museum

      Appendix B to Part 10--Sample Notice of Inventory Completion

    The following is an example of a Notice of Inventory Completion 
published in the Federal Register.
    National Park Service
    Notice of Inventory Completion for Native American Human Remains and 
Associated

[[Page 220]]

Funerary Objects from Hancock County, ME, in the Control of the National 
Park Service.
    AGENCY: National Park Service, Interior.
    ACTION: Notice.
    Notice is hereby given following provisions of the Native American 
Graves Protection and Repatriation Act, 25 U.S.C. 3003(d), of completion 
of the inventory of human remains and associated funerary objects from a 
site in Hancock County, ME, that are presently in the control of the 
National Park Service.
    A detailed inventory and assessment of these human remains has been 
made by National Park Service curatorial staff, contracted specialists 
in physical anthropology and prehistoric archeology, and representatives 
of the Penobscot Nation, Aroostook Band of Micmac, Houlton Band of 
Maliseet, and the Passamaquoddy Nation, identified collectively 
hereafter as the Wabanaki Tribes of Maine.
    The partial remains of at least seven individuals (including five 
adults, one subadult, and one child) were recovered in 1977 from a 
single grave at the Fernald Point Site (ME Site 43-24), a prehistoric 
shell midden on Mount Desert Island, within the boundary of Acadia 
National Park. A bone harpoon head, a modified beaver tooth, and several 
animal and fish bone fragments were found associated with the eight 
individuals. Radiocarbon assays indicate the burial site dates between 
1035-1155 AD. The human remains and associated funerary objects have 
been catalogued as ACAD-5747, 5749, 5750, 5751, 5752, 5783, 5784. The 
partial remains of an eighth individual (an elderly male) was also 
recovered in 1977 from a second grave at the Fernald Point Site. No 
associated funerary objects were recovered with this individual. 
Radiocarbon assays indicate the second burial site dates between 480-680 
AD. The human remains have been catalogued as ACAD-5748. The human 
remains and associated funerary objects of all nine individuals are 
currently in the possession of the University of Maine, Orono, ME.
    Inventory of the human remains and associated funerary objects and 
review of the accompanying documentation indicates that no known 
individuals were identifiable. A representative of the Wabanaki Tribes 
of Maine has identified the Acadia National Park area as a historic 
gathering place for his people and stated his belief that there exists a 
relationship of shared group identity between these individuals and the 
Wabanaki Tribes of Maine. The Prehistoric Subcommittee of the Maine 
State Historic Preservation Office's Archaeological Advisory Committee 
has found it reasonable to trace a shared group identity from the Late 
Prehistoric Period (1000-1500 AD) inhabitants of Maine as an undivided 
whole to the four modern Indian tribes known collectively as the 
Wabanaki Tribes of Maine on the basis of geographic proximity; survivals 
of stone, ceramic and perishable material culture skills; and probable 
linguistic continuity across the Late Prehistoric/Contact Period 
boundary. In a 1979 article, Dr. David Sanger, the archeologist who 
conducted the 1977 excavations at the Fernald Point Site and uncovered 
the abovementioned burials, recognizes a relationship between Maine 
sites dating to the Ceramic Period (2,000 B.P.-1600 A.D.) and present-
day Algonkian speakers generally known as Abenakis, including the 
Micmac, Maliseet, Passamaquoddy, Penboscot, Kennebec, and Pennacook 
groups.
    Based on the above mentioned information, officials of the National 
Park Service have determined that, pursuant to 25 U.S.C. 3001 (2), there 
is a relationship of shared group identity which can be reasonably 
traced between these human remains and associated funerary objects and 
the Wabanaki Tribes of Maine.
    This notice has been sent to officials of the Wabanaki Tribes of 
Maine. Representatives of any other Indian tribe which believes itself 
to be culturally affiliated with these human remains and associated 
funerary objects should contact Len Bobinchock, Acting Superintendent, 
Acadia National Park, P.O. Box 177, Bar Harbor, ME 04609, telephone: 
(207) 288-0374, before August 31, 1994. Repatriation of these human 
remains and associated funerary objects to the Wabanaki Tribes of Maine 
may begin after that date if no additional claimants come forward.
    Dated: July 21, 1994

Francis P. McManamon,
Departmental Consulting Archeologist,
Chief, Archeological Assistance Division.

[Published: August 1, 1994]



PART 11--NATURAL RESOURCE DAMAGE ASSESSMENTS--Table of Contents




                         Subpart A--Introduction

Sec.
11.10  Scope and applicability.
11.11  Purpose.
11.12  Biennial review of regulations.
11.13  Overview.
11.14  Definitions.
11.15  What damages may a trustee recover?
11.16  [Reserved]
11.17  Compliance with applicable laws and standards.
11.18  Incorporation by reference.
11.19  [Reserved]

                     Subpart B--Preassessment Phase

11.20  Notification and detection.
11.21  Emergency restorations.
11.22  Sampling of potentially injured natural resources.

[[Page 221]]

11.23  Preassessment screen--general.
11.24  Preassessment screen--information on the site.
11.25  Preassessment screen--preliminary identification of resources 
          potentially at risk.

                    Subpart C--Assessment Plan Phase

11.30  What does the authorized official do if an assessment is 
          warranted?
11.31  What does the Assessment Plan include?
11.32  How does the authorized official develop the Assessment Plan?
11.33  What types of assessment procedures are available?
11.34  When may the authorized official use a type A procedure?
11.35  How does the authorized official decide whether to use type A or 
          type B procedures?
11.36  May the authorized official use both type A and type B procedures 
          for the same release?
11.37  Must the authorized official confirm exposure before implementing 
          the Assessment Plan?
11.38  Assessment Plan--preliminary estimate of damages.

                      Subpart D--Type A Procedures

11.40  What are type A procedures?
11.41  What data must the authorized official supply?
11.42  How does the authorized official apply the NRDAM/CME or NRDAM/
          GLE?
11.43  Can interested parties review the results of the preliminary 
          application?
11.44  What does the authorized official do after the close of the 
          comment period?

                      Subpart E--Type B Procedures

11.60  Type B assessments--general.
11.61  Injury determination phase--general.
11.62  Injury determination phase--injury definition.
11.63  Injury determination phase--pathway determination.
11.64  Injury determination phase--testing and sampling methods.
11.70  Quantification phase--general.
11.71  Quantification phase--service reduction quantification.
11.72  Quantification phase--baseline services determination.
11.73  Quantification phase--resource recoverability analysis.
11.80  Damage determination phase--general.
11.81  Damage determination phase--restoration and compensation 
          determination plan.
11.82  Damage determination phase--alternatives for restoration, 
          rehabilitation, replacement, and/or acquisition of equlvalent 
          resources.
11.83  Damage determination phase--use value methodologies.
11.84  Damage determination phase--implementation guidance.

                    Subpart F--Post-Assessment Phase

11.90  What documentation must the authorized official prepare after 
          completing the assessment?
11.91  How does the authorized official seek recovery of the assessed 
          damages from the potentially responsible party?
11.92  Post-assessment phase--restoration account.
11.93  Post-assessment phase--restoration plan.

Appendix I to Part 11--Methods for Estimating the Areas of Ground Water 
          and Surface Water Exposure During the Preassessment Screen
Appendix II to Part 11--Format for Data Inputs and Modifications to the 
          NRDAM/CME
Appendix III to Part 11--Format for Data Inputs and Modifications to the 
          NRDAM/GLE

    Authority: 42 U.S.C. 9651(c), as amended.

    Source: 51 FR 27725, Aug. 1, 1986, unless otherwise noted.



                         Subpart A--Introduction



Sec. 11.10  Scope and applicability.

    The Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (CERCLA), as amended, 42 U.S.C. 9601 et seq., and 
the Clean Water Act (CWA), 33 U.S.C. 1251-1376, provide that natural 
resource trustees may assess damages to natural resources resulting from 
a discharge of oil or a release of a hazardous substance covered under 
CERCLA or the CWA and may seek to recover those damages. This part 
supplements the procedures established under the National Oil and 
Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300, 
for the identification, investigation, study, and response to a 
discharge of oil or release of a hazardous substance, and it provides a 
procedure by which a natural resource trustee can determine compensation 
for injuries to natural resources that have not been nor are expected to 
be addressed by response actions conducted pursuant to the NCP. The 
assessment procedures set forth in this part are not mandatory.

[[Page 222]]

However, they must be used by Federal or State natural resource trustees 
in order to obtain the rebuttable presumption contained in section 
107(f)(2)(C) of CERCLA. This part applies to assessments initiated after 
the effective date of this final rule.

[53 FR 5171, Feb. 22, 1988]



Sec. 11.11  Purpose.

    The purpose of this part is to provide standardized and cost-
effective procedures for assessing natural resource damages. The results 
of an assessment performed by a Federal or State natural resource 
trustee according to these procedures shall be accorded the evidentiary 
status of a rebuttable presumption as provided in section 107(f)(2)(C) 
of CERCLA.

[53 FR 5171, Feb. 22, 1988]



Sec. 11.12  Biennial review of regulations.

    The regulations and procedures included within this part shall be 
reviewed and revised as appropriate 2 years from the effective date of 
these rules and every second anniversary thereafter.



Sec. 11.13  Overview.

    (a) Purpose. The process established by this part uses a planned and 
phased approach to the assessment of natural resource damages. This 
approach is designed to ensure that all procedures used in an 
assessment, performed pursuant to this part, are appropriate, necessary, 
and sufficient to assess damages for injuries to natural resources.
    (b) Preassessment phase. Subpart B of this part, the preassessment 
phase, provides for notification, coordination, and emergency 
activities, if necessary, and includes the preassessment screen. The 
preassessment screen is meant to be a rapid review of readily available 
information that allows the authorized official to make an early 
decision on whether a natural resource damage assessment can and should 
be performed.
    (c) Assessment Plan phase. If the authorized official decides to 
perform an assessment, an Assessment Plan, as described in subpart C of 
this part, is prepared. The Assessment Plan ensures that the assessment 
is performed in a planned and systematic manner and that the 
methodologies chosen demonstrate reasonable cost.
    (d) Type A assessments. The simplified assessments provided for in 
section 301(c)(2)(A) of CERCLA are performed using the standard 
procedures specified in subpart D of this part.
    (e) Type B assessments. Subpart E of this part covers the 
assessments provided for in section 301(c)(2)(B) of CERCLA. The process 
for implementing type B assessments has been divided into the following 
three phases.
    (1) Injury Determination phase. The purpose of this phase is to 
establish that one or more natural resources have been injured as a 
result of the discharge of oil or release of a hazardous substance. The 
sections of subpart E comprising the Injury Determination phase include 
definitions of injury, guidance on determining pathways, and testing and 
sampling methods. These methods are to be used to determine both the 
pathways through which resources have been exposed to oil or a hazardous 
substance and the nature of the injury.
    (2) Quantification phase. The purpose of this phase is to establish 
the extent of the injury to the resource in terms of the loss of 
services that the injured resource would have provided had the discharge 
or release not occurred. The sections of subpart E comprising the 
Quantification phase include methods for establishing baseline 
conditions, estimating recovery periods, and measuring the degree of 
service reduction stemming from an injury to a natural resource.
    (3) Damage Determination phase. The purpose of this phase is to 
establish the appropriate compensation expressed as a dollar amount for 
the injuries established in the Injury Determination phase and measured 
in the Quantification phase. The sections of subpart E of this part 
comprising the Damage Determination phase include guidance on acceptable 
cost estimating and valuation methodologies for determining compensation 
based on the costs of restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources, plus, at the discretion of the 
authorized official, compensable value, as defined in Sec. 11.83(c) of 
this part.

[[Page 223]]

    (f) Post-assessment phase. Subpart F of this part includes 
requirements to be met after the assessment is complete. The Report of 
Assessment contains the results of the assessment, and documents that 
the assessment has been carried out according to this rule. Other post-
assessment requirements delineate the manner in which the demand for a 
sum certain shall be presented to a responsible party and the steps to 
be taken when sums are awarded as damages.

[51 FR 27725, Aug. 1, 1986, as amended at 59 FR 14281, Mar. 25, 1994]



Sec. 11.14  Definitions.

    Terms not defined in this section have the meaning given by CERCLA 
or the CWA. As used in this part, the phrase:
    (a) Acquisition of the equivalent or replacement means the 
substitution for an injured resource with a resource that provides the 
same or substantially similar services, when such substitutions are in 
addition to any substitutions made or anticipated as part of response 
actions and when such substitutions exceed the level of response actions 
determined appropriate to the site pursuant to the NCP.
    (b) Air or air resources means those naturally occurring 
constituents of the atmosphere, including those gases essential for 
human, plant, and animal life.
    (c) Assessment area means the area or areas within which natural 
resources have been affected directly or indirectly by the discharge of 
oil or release of a hazardous substance and that serves as the 
geographic basis for the injury assessment.
    (d) Authorized official means the Federal or State official to whom 
is delegated the authority to act on behalf of the Federal or State 
agency designated as trustee, or an official designated by an Indian 
tribe, pursuant to section 126(d) of CERCLA, to perform a natural 
resource damage assessment. As used in this part, authorized official is 
equivalent to the phrase ``authorized official or lead authorized 
official,'' as appropriate.
    (e) Baseline means the condition or conditions that would have 
existed at the assessment area had the discharge of oil or release of 
the hazardous substance under investigation not occurred.
    (f) Biological resources means those natural resources referred to 
in section 101(16) of CERCLA as fish and wildlife and other biota. Fish 
and wildlife include marine and freshwater aquatic and terrestrial 
species; game, nongame, and commercial species; and threatened, 
endangered, and State sensitive species. Other biota encompass 
shellfish, terrestrial and aquatic plants, and other living organisms 
not otherwise listed in this definition.
    (g) CERCLA means the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, 42 U.S.C. 9601 et seq., as 
amended.
    (h) Committed use means either: a current public use; or a planned 
public use of a natural resource for which there is a documented legal, 
administrative, budgetary, or financial commitment established before 
the discharge of oil or release of a hazardous substance is detected.
    (i) Control area or control resource means an area or resource 
unaffected by the discharge of oil or release of the hazardous substance 
under investigation. A control area or resource is selected for its 
comparability to the assessment area or resource and may be used for 
establishing the baseline condition and for comparison to injured 
resources.
    (j) Cost-effective or cost-effectiveness means that when two or more 
activities provide the same or a similar level of benefits, the least 
costly activity providing that level of benefits will be selected.
    (k) CWA means the Clean Water Act, as amended, 33 U.S.C. 1251 et 
seq., also referred to as the Federal Water Pollution Control Act.
    (l) Damages means the amount of money sought by the natural resource 
trustee as compensation for injury, destruction, or loss of natural 
resources as set forth in section 107(a) or 111(b) of CERCLA.
    (m) Destruction means the total and irreversible loss of a natural 
resource.
    (n) Discharge means a discharge of oil as defined in section 
311(a)(2) of the CWA, as amended, and includes, but is not limited to, 
any spilling, leaking,

[[Page 224]]

pumping, pouring, emitting, emptying, or dumping of oil.
    (o) Drinking water supply means any raw or finished water source 
that is or may be used by a public water system, as defined in the SDWA, 
or as drinking water by one or more individuals.
    (p) EPA means the U.S. Environmental Protection Agency.
    (q) Exposed to or exposure of means that all or part of a natural 
resource is, or has been, in physical contact with oil or a hazardous 
substance, or with media containing oil or a hazardous substance.
    (r) Fund means the Hazardous Substance Superfund established by 
section 517 of the Superfund Amendments and Reauthorization Act of 1986.
    (s) Geologic resources means those elements of the Earth's crust 
such as soils, sediments, rocks, and minerals, including petroleum and 
natural gas, that are not included in the definitions of ground and 
surface water resources.
    (t) Ground water resources means water in a saturated zone or 
stratum beneath the surface of land or water and the rocks or sediments 
through which ground water moves. It includes ground water resources 
that meet the definition of drinking water supplies.
    (u) Hazardous substance means a hazardous substance as defined in 
section 101(14) of CERCLA.
    (v) Injury means a measurable adverse change, either long- or short-
term, in the chemical or physical quality or the viability of a natural 
resource resulting either directly or indirectly from exposure to a 
discharge of oil or release of a hazardous substance, or exposure to a 
product of reactions resulting from the discharge of oil or release of a 
hazardous substance. As used in this part, injury encompasses the 
phrases ``injury,'' ``destruction,'' and ``loss.'' Injury definitions 
applicable to specific resources are provided in Sec. 11.62 of this 
part.
    (w) Lead authorized official means a Federal or State official 
authorized to act on behalf of all affected Federal or State agencies 
acting as trustees where there are multiple agencies, or an official 
designated by multiple tribes where there are multiple tribes, affected 
because of coexisting or contiguous natural resources or concurrent 
jurisdiction.
    (x) Loss means a measurable adverse reduction of a chemical or 
physical quality or viability of a natural resource.
    (y) Natural Contingency Plan or NCP means the National Oil and 
Hazardous Substances Contingency Plan and revisions promulgated by EPA, 
pursuant to section 105 of CERCLA and codified in 40 CFR part 300.
    (z) Natural resources or resources means land, fish, wildlife, 
biota, air, water, ground water, drinking water supplies, and other such 
resources belonging to, managed by, held in trust by, appertaining to, 
or otherwise controlled by the United States (including the resources of 
the fishery conservation zone established by the Magnuson Fishery 
Conservation and Management Act of 1976), any State or local government, 
any foreign government, any Indian tribe, or, if such resources are 
subject to a trust restriction on alienation, any member of an Indian 
tribe. These natural resources have been categorized into the following 
five groups: Surface water resources, ground water resources, air 
resources, geologic resources, and biological resources.
    (aa) Natural resource damage assessment or assessment means the 
process of collecting, compiling, and analyzing information, statistics, 
or data through prescribed methodologies to determine damages for 
injuries to natural resources as set forth in this part.
    (bb) Oil means oil as defined in section 311(a)(1) of the CWA, as 
amended, of any kind or in any form, including, but not limited to, 
petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other 
than dredged spoil.
    (cc) On-Scene Coordinator or OSC means the On-Scene Coordinator as 
defined in the NCP.
    (dd) Pathway means the route or medium through which oil or a 
hazardous substance is or was transported from the source of the 
discharge or release to the injured resource.
    (ee) Reasonable cost means the amount that may be recovered for the 
cost of performing a damage assessment. Costs are reasonable when: the 
Injury Determination, Quantification, and Damage Determination phases

[[Page 225]]

have a well-defined relationship to one another and are coordinated; the 
anticipated increment of extra benefits in terms of the precision or 
accuracy of estimates obtained by using a more costly injury, 
quantification, or damage determination methodology are greater than the 
anticipated increment of extra costs of that methodology; and the 
anticipated cost of the assessment is expected to be less than the 
anticipated damage amount determined in the Injury, Quantification, and 
Damage Determination phases.
    (ff) Rebuttable presumption means the procedural device provided by 
section 107(f)(2)(C) of CERCLA describing the evidentiary weight that 
must be given to any determination or assessment of damages in any 
administrative or judicial proceeding under CERCLA or section 311 of the 
CWA made by a Federal or State natural resource trustee in accordance 
with the rule provided in this part.
    (gg) Recovery period means either the longest length of time 
required to return the services of the injured resource to their 
baseline condition, or a lesser period of time selected by the 
authorized official and documented in the Assessment Plan.
    (hh) Release means a release of a hazardous substance as defined in 
section 101(22) of CERCLA.
    (ii) Replacement or acquisition of the equivalent means the 
substitution for an injured resource with a resource that provides the 
same or substantially similar services, when such substitutions are in 
addition to any substitutions made or anticipated as part of response 
actions and when such substitutions exceed the level of response actions 
determined appropriate to the site pursuant to the NCP.
    (jj) Response means remove, removal, remedy, or remedial actions as 
those phrases are defined in sections 101(23) and 101(24) of CERCLA.
    (kk) Responsible party or parties and potentially responsible party 
or parties means a person or persons described in or potentially 
described in one or more of the categories set forth in section 107(a) 
of CERCLA.
    (ll) Restoration or rehabilitation means actions undertaken to 
return an injured resource to its baseline condition, as measured in 
terms of the injured resource's physical, chemical, or biological 
properties or the services it previously provided, when such actions are 
in addition to response actions completed or anticipated, and when such 
actions exceed the level of response actions determined appropriate to 
the site pursuant to the NCP.
    (mm) SDWA means the Safe Drinking Water Act, 42 U.S.C. 300f-300j-10.
    (nn) Services means the physical and biological functions performed 
by the resource including the human uses of those functions. These 
services are the result of the physical, chemical, or biological quality 
of the resource.
    (oo) Site means an area or location, for purposes of response 
actions under the NCP, at which oil or hazardous substances have been 
stored, treated, discharged, released, disposed, placed, or otherwise 
came to be located.
    (pp) Surface water resources means the waters of the United States, 
including the sediments suspended in water or lying on the bank, bed, or 
shoreline and sediments in or transported through coastal and marine 
areas. This term does not include ground water or water or sediments in 
ponds, lakes, or reserviors designed for waste treatment under the 
Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6901-
6987 or the CWA, and applicable regulations.
    (qq) Technical feasibility or technically feasible means that the 
technology and management skills necessary to implement an Assessment 
Plan or Restoration and Compensation Determination Plan are well known 
and that each element of the plan has a reasonable chance of successful 
completion in an acceptable period of time.
    (rr) Trustee or natural resource trustee means any Federal natural 
resources management agency designated in the NCP and any State agency 
designated by the Governor of each State, pursuant to section 
107(f)(2)(B) of CERCLA, that may prosecute claims for damages under 
section 107(f) or 111(b) of CERCLA; or an Indian tribe, that may 
commence an action under section 126(d) of CERCLA.
    (ss) Type A assessment means standard procedures for simplified 
assessments requiring minimal field observation to

[[Page 226]]

determine damages as specified in section 301(c)(2)(A) of CERCLA.
    (tt) Type B assessment means alternative methodologies for 
conducting assessments in individual cases to determine the type and 
extent of short- and long-term injury and damages, as specified in 
section 301(c)(2)(B) of CERCLA.
    (uu) Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, including any Alaska Native village but 
not including any Alaska Native regional or village corporation, which 
is recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5171, Feb. 22, 1988; 59 
FR 14281, Mar. 25, 1994]



Sec. 11.15  What damages may a trustee recover?

    (a) In an action filed pursuant to section 107(f) or 126(d) of 
CERCLA, or sections 311(f) (4) and (5) of the CWA, a natural resource 
trustee who has performed an assessment in accordance with this rule may 
recover:
    (1) Damages as determined in accordance with this part and 
calculated based on injuries occurring from the onset of the release 
through the recovery period, less any mitigation of those injuries by 
response actions taken or anticipated, plus any increase in injuries 
that are reasonably unavoidable as a result of response actions taken or 
anticipated;
    (2) The costs of emergency restoration efforts under Sec. 11.21 of 
this part;
    (3) The reasonable and necessary costs of the assessment, to 
include:
    (i) The cost of performing the preassessment and Assessment Plan 
phases and the methodologies provided in subpart D or E of this part; 
and
    (ii) Administrative costs and expenses necessary for, and incidental 
to, the assessment, assessment planning, and restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
planning, and any restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources undertaken; and
    (4) Interest on the amounts recoverable as set forth in section 
107(a) of CERCLA. The rate of interest on the outstanding amount of the 
claim shall be the same rate as is specified for interest on investments 
of the Hazardous Substance Superfund established under subchapter A of 
chapter 98 of the Internal Revenue Code of 1954. Such interest shall 
accrue from the later of: The date payment of a specified amount is 
demanded in writing, or the date of the expenditure concerned;
    (b) The determination of the damage amount shall consider any 
applicable limitations provided for in section 107(c) of CERCLA.
    (c) Where an assessment determines that there is, in fact, no 
injury, as defined in Sec. 11.62 of this part, the natural resource 
trustee may not recover assessment costs.
    (d) There shall be no double recovery under this rule for damages or 
for assessment costs, that is, damages or assessment costs may only be 
recovered once, for the same discharge or release and natural resource, 
as set forth in section 107(f)(1) of CERCLA.
    (e) Actions for damages and assessment costs shall comply with the 
statute of limitations set forth in section 113(g), or, where 
applicable, section 126(d) of CERCLA.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 
FR 5172, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 
1996]



Sec. 11.16  [Reserved]



Sec. 11.17  Compliance with applicable laws and standards.

    (a) Worker health and safety. All worker health and safety 
considerations specified in the NCP shall be observed, except that 
requirements applying to response actions shall be taken to apply to the 
assessment process.
    (b) Resource protection. Before taking any actions under this part, 
particularly before taking samples or making determinations of 
restoration or replacement, compliance is required with any applicable 
statutory consultation or review requirements, such as the Endangered 
Species Act; the Migratory

[[Page 227]]

Bird Treaty Act; the Marine Protection, Research, and Sanctuaries Act; 
and the Marine Mammal Protection Act, that may govern the taking of 
samples or in other ways restrict alternative management actions.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5172, Feb. 22, 1988]



Sec. 11.18  Incorporation by reference.

    (a) The following publications or portions of publications are 
incorporated by reference:
    (1) Part II only (Fish-Kill Counting Guidelines) of ``Monetary 
Values of Freshwater Fish and Fish-Kill Guidelines,'' American Fisheries 
Society Special Publication Number 13, 1982; available for purchase from 
the American Fisheries Society, 5410 Grosvenor Lane, Bethesda, MD 20814, 
ph: (301) 897-8616. Reference is made to this publication in 
Secs. 11.62(f)(4)(i)(B) and 11.71(l)(5)(iii)(A) of this part.
    (2) Appendix 1 (Travel Cost Method), Appendix 2 (Contingent 
Valuation (Survey) Methods), and Appendix 3 (Unit Day Value Method) only 
of Section VIII of ``National Economic Development (NED) Benefit 
Evaluation Procedures'' (Procedures), which is Chapter II of Economic 
and Environmental Principles and Guidelines for Water and Related Land 
Resources Implementation Studies, U.S. Department of the Interior, Water 
Resources Council, Washington, DC, 1984, DOI/WRC/-84/01; available for 
purchase from the National Technical Information Service (NTIS), 5285 
Port Royal Road, Springfield, VA 22161; PB No. 84-199-405; ph: (703) 
487-4650. Reference is made to this publication in Sec. 11.83(a)(3) of 
this part.
    (3) ``Uniform Appraisal Standards for Federal Land Acquisition'' 
(Uniform Appraisal Standards), Interagency Land Acquisition Conference, 
Washington, DC, 1973; available for purchase from the Superintendent of 
Documents, U.S. Government Printing Office, Washington, DC 20402; Stock 
Number 052-059-00002-0; ph: (202) 783-3238. Reference is made to this 
publication in Sec. 11.83(c)(2)(i) of this part.
    (4) The CERCLA Type A Natural Resource Damage Assessment Model for 
Coastal and Marine Environments Technical Documentation, Volumes I-VI, 
dated April 1996, including Revision I dated October 1997, and Revision 
II dated December 1999, prepared for the U.S. Department of the Interior 
by Applied Science Associates, Inc., A.T. Kearney, Inc., and Hagler 
Bailly Consulting, Inc. (NRDAM/CME technical document). Interested 
parties may obtain a copy of this document from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161; PB96-
501788; ph: (703) 487-4650. Sections 11.34 (a), (b), and (e), 11.35(a), 
11.36(b), 11.40(a), and 11.42(a), and Appendix II refer to this 
document.
    (5) The CERCLA Type A Natural Resource Damage Assessment Model for 
Great Lakes Environments Technical Documentation, Volumes I-IV, dated 
April 1996, including Revision I dated October 1997, and Revision II 
dated December 1999, prepared for the U.S. Department of the Interior by 
Applied Science Associates, Inc., and Hagler Bailly Consulting, Inc. 
(NRDAM/GLE technical document). Interested parties may obtain a copy of 
this document from the National Technical Information Service, 5285 Port 
Royal Road, Springfield, VA 22161; PB96-501770; ph: (703) 487-4650. 
Sections 11.34 (a), (b), and (e), 11.35(a), 11.36(b), 11.40(a), and 
11.42(a), and Appendix III refer to this document.
    (b) The publications or portions of publications listed in paragraph 
(a) of this section are available for inspection at the Office of the 
Federal Register, 800 North Capitol Street, NW., Washington, DC 20408. 
These incorporations by reference were approved by the Director of the 
Federal Register in accordance with 5 U.S.C. 552(a). These materials are 
incorporated as they exist on the date of the approval and a notice of 
any change in these materials will be published in the Federal Register.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 9772, Mar. 25, 1988; 61 
FR 20609, May 7, 1996; 62 FR 60459, Nov. 10, 1997; 65 FR 6014, Feb. 8, 
2000]



Sec. 11.19  [Reserved]



                     Subpart B--Preassessment Phase



Sec. 11.20  Notification and detection.

    (a) Notification. (1) Section 104(b)(2) of CERCLA requires prompt 
notification

[[Page 228]]

of Federal and State natural resource trustees of potential damages to 
natural resources under investigation and requires coordination of the 
assessments, investigations, and planning under section 104 of CERCLA 
with such trustees.
    (2) The NCP provides for the OSC or lead agency to notify the 
natural resource trustee when natural resources have been or are likely 
to be injured by a discharge of oil or a release of a hazardous 
substance being investigated under the NCP.
    (3) Natural resource trustees, upon such notification described in 
paragraphs (a) (1) and (2) of this section, shall take such actions, as 
may be consistent with the NCP.
    (b) Previously unreported discharges or releases. If a natural 
resource trustee identifies or is informed of apparent injuries to 
natural resources that appear to be a result of a previously 
unidentified or unreported discharge of oil or release of a hazardous 
substance, he should first make reasonable efforts to determine whether 
a discharge or release has taken place. In the case of a discharge or 
release not yet reported or being investigated under the NCP, the 
natural resource trustee shall report that discharge or release to the 
appropriate authority as designated in the NCP.
    (c) Identification of co-trustees. The natural resource trustee 
should assist the OSC or lead agency, as needed, in identifying other 
natural resource trustees whose resources may be affected as a result of 
shared responsibility for the resources and who should be notified.

[53 FR 5172, Feb. 22, 1988]



Sec. 11.21  Emergency restorations.

    (a) Reporting requirements and definition. (1) In the event of a 
natural resource emergency, the natural resource trustee shall contact 
the National Response Center (800/424-8802) to report the actual or 
threatened discharge or release and to request that an immediate 
response action be taken.
    (2) An emergency is any situation related to a discharge or release 
requiring immediate action to avoid an irreversible loss of natural 
resources or to prevent or reduce any continuing danger to natural 
resources, or a situation in which there is a similar need for emergency 
action.
    (b) Emergency actions. If no immediate response actions are taken at 
the site of the discharge or release by the EPA or the U.S. Coast Guard 
within the time that the natural resource trustee determines is 
reasonably necessary, or if such actions are insufficient, the natural 
resource trustee should exercise any existing authority he may have to 
take on-site response actions. The natural resource trustee shall 
determine whether the potentially responsible party, if his identity is 
known, is taking or will take any response action. If no on-site 
response actions are taken, the natural resource trustee may undertake 
limited off-site restoration action consistent with its existing 
authority to the extent necessary to prevent or reduce the immediate 
migration of the oil or hazardous substance onto or into the resource 
for which the Federal or State agency or Indian tribe may assert 
trusteeship.
    (c) Limitations on emergency actions. The natural resource trustee 
may undertake only those actions necessary to abate the emergency 
situation, consistent with its existing authority. The normal procedures 
provided in this part must be followed before any additional restoration 
actions other than those necessary to abate the emergency situation are 
undertaken. The burden of proving that emergency restoration was 
required and that restoration costs were reasonable and necessary based 
on information available at the time rests with the natural resource 
trustee.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5173, Feb. 22, 1988]



Sec. 11.22  Sampling of potentially injured natural resources.

    (a) General limitations. Until the authorized official has made the 
determination required in Sec. 11.23 of this part to proceed with an 
assessment, field sampling of natural resources should be limited to the 
conditions identified in this section. All sampling and field work shall 
be subject to the provisions of Sec. 11.17 of this part concerning 
safety and applicability of resource protection statutes.

[[Page 229]]

    (b) Early sampling and data collection. Field samples may be 
collected or site visits may be made before completing the preassessment 
screen to preserve data and materials that are likely to be lost if not 
collected at that time and that will be necessary to the natural 
resource damage assessment. Field sampling and data collection at this 
stage should be coordinated with the lead agency under the NCP to 
minimize duplication of sampling and data collection efforts. Such field 
sampling and data collection should be limited to:
    (1) Samples necessary to preserve perishable materials considered 
likely to have been affected by, and contain evidence of, the oil or 
hazardous substance. These samples generally will be biological 
materials that are either dead or visibly injured and that evidence 
suggests have been injured by oil or a hazardous substance;
    (2) Samples of other ephemeral conditions or material, such as 
surface water or soil containing or likely to contain oil or a hazardous 
substance, where those samples may be necessary for identification and 
for measurement of concentrations, and where necessary samples may be 
lost because of factors such as dilution, movement, decomposition, or 
leaching if not taken immediately; and
    (3) Counts of dead or visibly injured organisms, which may not be 
possible to take if delayed because of factors such as decomposition, 
scavengers, or water movement. Such counts shall be subject to the 
provisions of Sec. 11.71(l)(5)(iii) of this part.



Sec. 11.23  Preassessment screen--general.

    (a) Requirement. Before beginning any assessment efforts under this 
part, except as provided for under the emergency restoration provisions 
of Sec. 11.21 of this part, the authorized official shall complete a 
preassessment screen and make a determination as to whether an 
assessment under this part shall be carried out.
    (b) Purpose. The purpose of the preassessment screen is to provide a 
rapid review of readily available information that focuses on resources 
for which the Federal or State agency or Indian tribe may assert 
trusteeship under section 107(f) or section 126(d) of CERCLA. This 
review should ensure that there is a reasonable probability of making a 
successful claim before monies and efforts are expended in carrying out 
an assessment.
    (c) Determination. When the authorized official has decided to 
proceed with an assessment under this part, the authorized official 
shall document the decision in terms of the criteria provided in 
paragraph (e) of this section in a Preassessment Screen Determination. 
This Preassessment Screen Determination shall be included in the Report 
of Assessment described in Sec. 11.90 of this part.
    (d) Content. The preassessment screen shall be conducted in 
accordance with the guidance provided in this section and in Sec. 11.24-
-Preassessment screen--information on the site and Sec. 11.25--
Preassessment screen--preliminary identification of resources 
potentially at risk, of this part.
    (e) Criteria. Based on information gathered pursuant to the 
preassessment screen and on information gathered pursuant to the NCP, 
the authorized official shall make a preliminary determination that all 
of the following criteria are met before proceeding with an assessment:
    (1) A discharge of oil or a release of a hazardous substance has 
occurred;
    (2) Natural resources for which the Federal or State agency or 
Indian tribe may assert trusteeship under CERCLA have been or are likely 
to have been adversely affected by the discharge or release;
    (3) The quantity and concentration of the discharged oil or released 
hazardous substance is sufficient to potentially cause injury, as that 
term is used in this part, to those natural resources;
    (4) Data sufficient to pursue an assessment are readily available or 
likely to be obtained at reasonable cost; and
    (5) Response actions, if any, carried out or planned do not or will 
not sufficiently remedy the injury to natural resources without further 
action.
    (f) Coordination. (1) In a situation where response activity is 
planned or underway at a particular site, assessment activity shall be 
coordinated with the lead agency consistent with the NCP.

[[Page 230]]

    (2) Whenever, as part of a response action under the NCP, a 
preliminary assessment or an OSC Report is to be, or has been, prepared 
for the site, the authorized official should consult with the lead 
agency under the NCP, as necessary, and to the extent possible use 
information or materials gathered for the preliminary assessment or OSC 
Report, unless doing so would unnecessarily delay the preassessment 
screen.
    (3) Where a preliminary assessment or an OSC Report does not exist 
or does not contain the information described in this section, that 
additional information may be gathered.
    (4) If the natural resource trustee already has a process similar to 
the preassessment screen, and the requirements of the preassessment 
screen can be satisfied by that process, the processes may be combined 
to avoid duplication.
    (g) Preassessment phase costs. (1) The following categories of 
reasonable and necessary costs may be incurred in the preassessment 
phase of the damage assessment:
    (i) Release detection and identification costs;
    (ii) Trustee identification and notification costs;
    (iii) Potentially injured resource identification costs;
    (iv) Initial sampling, data collection, and evaluation costs;
    (v) Site characterization and preassessment screen costs; and
    (vi) Any other preassessment costs for activities authorized by 
Secs. 11.20 through 11.25 of this part.
    (2) The reasonable and necessary costs for these categories shall be 
limited to those costs incurred by the authorized official for, and 
specifically allocable to, site-specific efforts taken during the 
preassessment phase for assessment of damages to natural resources for 
which the agency or Indian tribe is acting as trustee. Such costs shall 
be supported by appropriate records and documentation and shall not 
reflect regular activities performed by the agency or Indian tribe in 
management of the natural resource. Activities undertaken as part of the 
preassessment phase shall be taken in a manner that is cost-effective, 
as that phrase is used in this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5173, Feb. 22, 1988]



Sec. 11.24  Preassessment screen--information on the site.

    (a) Information on the site and on the discharge or release. The 
authorized official shall obtain and review readily available 
information concerning:
    (1) The time, quantity, duration, and frequency of the discharge or 
release;
    (2) The name of the hazardous substance, as provided for in Table 
302.4--List of Hazardous Substances and Reportable Quantities, 40 CFR 
302.4;
    (3) The history of the current and past use of the site identified 
as the source of the discharge of oil or release of a hazardous 
substance;
    (4) Relevant operations occurring at or near the site;
    (5) Additional oil or hazardous substances potentially discharged or 
released from the site; and
    (6) Potentially responsible parties.
    (b) Damages excluded from liability under CERCLA. (1) The authorized 
official shall determine whether the damages:
    (i) Resulting from the discharge or release were specifically 
identified as an irreversible and irretrievable commitment of natural 
resources in an environmental impact statement or other comparable 
environmental analysis, that the decision to grant the permit or license 
authorizes such commitment of natural resources, and that the facility 
or project was otherwise operating within the terms of its permit or 
license, so long as, in the case of damages to an Indian tribe occurring 
pursuant to a Federal permit or license, the issuance of that permit or 
license was not inconsistent with the fiduciary duty of the United 
States with respect to such Indian tribe; or
    (ii) And the release of a hazardous substance from which such 
damages resulted have occurred wholly before enactment of CERCLA; or
    (iii) Resulted from the application of a pesticide product 
registered under the Federal Insecticide, Fungicide, and Rodenticide 
Act, 7 U.S.C. 135-135k; or

[[Page 231]]

    (iv) Resulted from any other federally permitted release, as defined 
in section 101(10) of CERCLA; or
    (v) Resulting from the release or threatened release of recycled oil 
from a service station dealer described in section 107(a)(3) or (4) of 
CERCLA if such recycled oil is not mixed with any other hazardous 
substance and is stored, treated, transported or otherwise managed in 
compliance with regulations or standards promulgated pursuant to section 
3014 of the Solid Waste Disposal Act and other applicable authorities.
    (2) An assessment under this part shall not be continued for 
potential injuries meeting one or more of the criteria described in 
paragraph (b)(1) of this section, which are exceptions to liability 
provided in sections 107(f), (i), and (j) and 114(c) of CERCLA.
    (c) Damages excluded from liability under the CWA. (1) The 
authorized official shall determine whether the discharge meets one or 
more of the exclusions provided in section 311 (a)(2) or (b)(3) of the 
CWA.
    (2) An assessment under this part shall not be continued for 
potential injuries from discharges meeting one or more of the CWA 
exclusions provided for in paragraph (c)(1) of this section.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 
FR 5173, Feb. 22, 1988]



Sec. 11.25  Preassessment screen--preliminary identification of resources potentially at risk.

    (a) Preliminary identification of pathways. (1) The authorized 
official shall make a preliminary identification of potential exposure 
pathways to facilitate identification of resources at risk.
    (2) Factors to be considered in this determination should include, 
as appropriate, the circumstances of the discharge or release, the 
characteristics of the terrain or body of water involved, weather 
conditions, and the known physical, chemical, and toxicological 
properties of the oil or hazardous substance.
    (3) Pathways to be considered shall include, as appropriate, direct 
contact, surface water, ground water, air, food chains, and particulate 
movement.
    (b) Exposed areas. An estimate of areas where exposure or effects 
may have occurred or are likely to occur shall be made. This estimate 
shall identify:
    (1) Areas where it has been or can be observed that the oil or 
hazardous substance has spread;
    (2) Areas to which the oil or hazardous substance has likely spread 
through pathways; and
    (3) Areas of indirect effect, where no oil or hazardous substance 
has spread, but where biological populations may have been affected as a 
result of animals moving into or through the site.
    (c) Exposed water estimates. The area of ground water or surface 
water that may be or has been exposed may be estimated by using the 
methods described in appendix I of this part.
    (d) Estimates of concentrations. An estimate of the concentrations 
of oil or a hazardous substance in those areas of potential exposure 
shall be developed.
    (e) Potentially affected resources. (1) Based upon the estimate of 
the areas of potential exposure, and the estimate of concentrations in 
those areas, the authorized official shall identify natural resources 
for which he may assert trusteeship that are potentially affected by the 
discharge or release. This preliminary identification should be used to 
direct further investigations, but it is not intended to preclude 
consideration of other resources later found to be affected.
    (2) A preliminary estimate, based on information readily available 
from resource managers, of the services of the resources identified as 
potentially affected shall be made. This estimate will be used in 
determining which resources to consider if further assessment efforts 
are justified.



                    Subpart C--Assessment Plan Phase



Sec. 11.30  What does the authorized official do if an assessment is warranted?

    (a) If the authorized official determines during the Preassessment 
Phase that an assessment is warranted, the authorized official must 
develop a plan for the assessment of natural resource damages.

[[Page 232]]

    (b) Purpose. The purpose of the Assessment Plan is to ensure that 
the assessment is performed in a planned and systematic manner and that 
methodologies selected from subpart D for a type A assessment or from 
subpart E for a type B assessment, including the Injury Determination, 
Quantification, and Damage Determination phases, can be conducted at a 
reasonable cost, as that phrase is used in this part.
    (c) Assessment Plan phase costs. (1) The following categories of 
reasonable and necessary costs may be incurred in the Assessment Plan 
phase of the damage assessment:
    (i) Methodology identification and screening costs;
    (ii) Potentially responsible party notification costs;
    (iii) Public participation costs;
    (iv) Exposure confirmation analysis costs;
    (v) Preliminary estimate of damages costs; and
    (vi) Any other Assessment Plan costs for activities authorized by 
Secs. 11.30 through 11.38.
    (2) The reasonable and necessary costs for these categories shall be 
limited to those costs incurred or anticipated by the authorized 
official for, and specifically allocable to, site specific efforts taken 
in the development of an Assessment Plan for a resource for which the 
agency or Indian tribe is acting as trustee. Such costs shall be 
supported by appropriate records and documentation, and shall not 
reflect regular activities performed by the agency or tribe in 
management of the natural resource. Activities undertaken as part of the 
Assessment Plan phase shall be taken in a manner that is cost-effective, 
as that phrase is used in this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5174, Feb. 22, 1988; 59 
FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 1996]



Sec. 11.31  What does the Assessment Plan include?

    (a) General content and level of detail. (1) The Assessment Plan 
must identify and document the use of all of the type A and/or type B 
procedures that will be performed.
    (2) The Assessment Plan shall be of sufficient detail to serve as a 
means of evaluating whether the approach used for assessing the damage 
is likely to be cost-effective and meets the definition of reasonable 
cost, as those terms are used in this part. The Assessment Plan shall 
include descriptions of the natural resources and the geographical areas 
involved. The Assessment Plan shall also include a statement of the 
authority for asserting trusteeship, or co-trusteeship, for those 
natural resources considered within the Assessment Plan. The authorized 
official's statement of the authority for asserting trusteeship shall 
not have the force and effect of a rebuttable presumption under 
Sec. 11.91(c) of this part. In addition, for type B assessments, the 
Assessment Plan shall include the sampling locations within those 
geographical areas, sample and survey design, numbers and types of 
samples to be collected, analyses to be performed, preliminary 
determination of the recovery period, and other such information 
required to perform the selected methodologies.
    (3) The Assessment Plan shall contain information sufficient to 
demonstrate that the damage assessment has been coordinated to the 
extent possible with any remedial investigation feasibility study or 
other investigation performed pursuant to the NCP.
    (4) The Assessment Plan shall contain procedures and schedules for 
sharing data, split samples, and results of analyses, when requested, 
with any identified potentially responsible parties and other natural 
resource trustees.
    (b) Identification of types of assessment procedures. The Assessment 
Plan must identify whether the authorized official plans to use a type A 
procedure, type B procedures, or a combination. Sections 11.34 through 
11.36 contain standards for deciding which types of procedures to use. 
The Assessment Plan must include a detailed discussion of how these 
standards are met.
    (c) Specific requirements for type B procedures. If the authorized 
official plans to use type B procedures, the Assessment Plan must also 
include the following:
    (1) The results of the confirmation of exposure performed under 
Sec. 11.37;
    (2) A Quality Assurance Plan that satisfies the requirements listed 
in the

[[Page 233]]

NCP and applicable EPA guidance for quality control and quality 
assurance plans;
    (3) The objectives, as required in Sec. 11.64(a)(2) of this part, of 
any testing and sampling for injury or pathway determination; and
    (4) The Restoration and Compensation Determination Plan developed in 
accordance with the guidance in Sec. 11.81 of this part. If existing 
data are not sufficient to develop the Restoration and Compensation 
Determination Plan as part of the Assessment Plan, the Restoration and 
Compensation Determination Plan may be developed later, at any time 
before the completion of the Injury Determination or Quantification 
phases. If the Restoration and Compensation Determination Plan is 
published separately, the public review and comment will be conducted 
pursuant to Sec. 11.81(d) of this part.
    (d) Specific requirements for type A procedures. If the authorized 
official plans to use a type A procedure, the Assessment Plan must also 
contain the information described in subpart D.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 
FR 5174, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 
1996]



Sec. 11.32  How does the authorized official develop the Assessment Plan?

    (a) Pre-development requirements. The authorized official shall 
fulfill the following requirements before developing an Assessment Plan.
    (1) Coordination. (i) If the authorized official's responsibility is 
shared with other natural resource trustees as a result of coexisting or 
contiguous natural resources or concurrent jurisdiction, the authorized 
official shall ensure that all other known affected natural resource 
trustees are notified that an Assessment Plan is being developed. This 
notification shall include the results of the Preassessment Screen 
Determination.
    (ii) Authorized officials from different agencies or Indian tribes 
are encouraged to cooperate and coordinate any assessments that involve 
coexisting or contiguous natural resources or concurrent jurisdiction. 
They may arrange to divide responsibility for implementing the 
assessment in any manner that is agreed to by all of the affected 
natural resource trustees with the following conditions:
    (A) A lead authorized official shall be designated to administer the 
assessment. The lead authorized official shall act as coordinator and 
contact regarding all aspects of the assessment and shall act as final 
arbitrator of disputes if consensus among the authorized officials 
cannot be reached regarding the development, implementation, or any 
other aspect of the Assessment Plan. The lead authorized official shall 
be designated by mutual agreement of all the natural resource trustees. 
If consensus cannot be reached as to the designation of the lead 
authorized official, the lead authorized official shall be designated in 
accordance with paragraphs (a)(1)(ii) (B), (C), or (D) of this section:
    (B) When the natural resources being assessed are located on lands 
or waters subject to the administrative jurisdiction of a Federal 
agency, a designated official of the Federal agency shall act as the 
lead authorized official.
    (C) When the natural resources being assessed, pursuant to section 
126(d) of CERCLA, are located on lands or waters of an Indian tribe, an 
official designated by the Indian tribe shall act as the lead authorized 
official.
    (D) For all other natural resources for which the State may assert 
trusteeship, a designated official of the State agency shall act as the 
lead authorized official.
    (iii) If there is a reasonable basis for dividing the assessment, 
the natural resource trustee may act independently and pursue separate 
assessments, actions, or claims so long as the claims do not overlap. In 
these instances, the natural resource trustees shall coordinate their 
efforts, particularly those concerning the sharing of data and the 
development of the Assessment Plans.
    (2) Identification and involvement of the potentially responsible 
party. (i) If the lead agency under the NCP for response actions at the 
site has not identified potentially responsible parties, the authorized 
official shall make reasonable efforts to identify any potentially 
responsible parties.
    (ii) In the event the number of potentially responsible parties is 
large or if

[[Page 234]]

some of the potentially responsible parties cannot be located, the 
authorized official may proceed against any one or more of the parties 
identified. The authorized official should use reasonable efforts to 
proceed against most known potentially responsible parties or at least 
against all those potentially responsible parties responsible for 
significant portions of the potential injury.
    (iii)(A) The authorized official shall send a Notice of Intent to 
Perform an Assessment to all identified potentially responsible parties. 
The Notice shall invite the participation of the potentially responsible 
party, or, if several parties are involved and if agreed to by the lead 
authorized official, a representative or representatives designated by 
the parties, in the development of the type and scope of the assessment 
and in the performance of the assessment. The Notice shall briefly 
describe, to the extent known, the site, vessel, or facility involved, 
the discharge of oil or release of hazardous substance of concern to the 
authorized official, and the resources potentially at risk. The Notice 
shall also contain a statement of authority for asserting trusteeship, 
or co-trusteeship, over those natural resources identified as 
potentially at risk.
    (B) The authorized official shall allow at least 30 calendar days, 
with reasonable extensions granted as appropriate, for the potentially 
responsible party or parties notified to respond to the Notice before 
proceeding with the development of the Assessment Plan or any other 
assessment actions.
    (b) Plan approval. The authorized official shall have final approval 
as to the appropriate methodologies to include in the Assessment Plan 
and any modifications to the Assessment Plan.
    (c) Public involvement in the Assessment Plan. (1) The authorized 
official must make the Assessment Plan available for review by any 
identified potentially responsible parties, other natural resource 
trustees, other affected Federal or State agencies or Indian tribes, and 
any other interested member of the public for a period of at least 30 
calendar days, with reasonable extensions granted as appropriate. The 
authorized official may not perform any type B procedures described in 
the Assessment Plan until after this review period.
    (2) Any comments concerning the Assessment Plan received from 
identified potentially responsible parties, other natural resource 
trustees, other affected Federal or State agencies or Indian tribes, and 
any other interested members of the public, together with responses to 
those comments, shall be included as part of the Report of Assessment, 
described in Sec. 11.90 of this part.
    (d) Plan implementation. At the option of the authorized official 
and if agreed to by any potentially responsible party, or parties acting 
jointly, the potentially responsible party or any other party under the 
direction, guidance, and monitoring of the authorized official may 
implement all or any part of the Assessment Plan finally approved by the 
authorized official. Any decision by the authorized official to allow or 
not allow implementation by the potentially responsible party shall be 
documented in the Assessment Plan.
    (e) Plan modification. (1) The Assessment Plan may be modified at 
any stage of the assessment as new information becomes available.
    (2)(i) Any modification to the Assessment Plan that in the judgment 
of the authorized official is significant shall be made available for 
review by any identified potentially responsible party, any other 
affected natural resource trustees, other affected Federal or State 
agencies or Indian tribes, and any other interested members of the 
public for a period of at least 30 calendar days, with reasonable 
extensions granted as appropriate, before tasks called for in the 
modified plan are begun.
    (ii) Any modification to the Assessment Plan that in the judgment of 
the authorized official is not significant shall be made available for 
review by any identified potentially responsible party, any other 
affected natural resource trustees, other affected Federal or State 
agencies or Indian tribes, and any other interested members of the 
public, but the implementation of such modification need not be delayed 
as a result of such review.

[[Page 235]]

    (f) Plan review. (1) After the Injury Determination phase is 
completed and before the Quantification phase is begun, the authorized 
official shall review the decisions incorporated in the Assessment Plan.
    (2) The purpose of this review is to ensure that the selection of 
methodologies for the Quantification and Damage Determination phases is 
consistent with the results of the Injury Determination phase, and that 
the use of such methodologies remains consistent with the requirements 
of reasonable cost, as that term is used in this part.
    (3) Paragraphs (f)(1) and (f)(2) of this section do not apply to the 
use of a type A procedure.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5174, Feb. 22, 1988; 59 
FR 14282, Mar. 25, 1994; 61 FR 20609, May 7, 1996]



Sec. 11.33  What types of assessment procedures are available?

    There are two types of assessment procedures:
    (a) Type A procedures are simplified procedures that require minimal 
field observation. Subpart D describes the type A procedures. There are 
two type A procedures: a procedure for coastal or marine environments, 
which incorporates the Natural Resource Damage Assessment Model for 
Coastal and Marine Environments, Version 2.51 (NRDAM/CME); and a 
procedure for Great Lakes environments, which incorporates the Natural 
Resource Damage Assessment Model for Great Lakes Environments, Version 
1.51 (NRDAM/GLE).
    (b) Type B procedures require more extensive field observation than 
the type A procedures. Subpart E describes the type B procedures.

[61 FR 20610, May 7, 1996, as amended at 62 FR 60459, Nov. 10, 1997; 65 
FR 6014, Feb. 8, 2000]



Sec. 11.34  When may the authorized official use a type A procedure?

    The authorized official may use a type A procedure only if:
    (a) The released substance entered an area covered by the NRDAM/CME 
or NRDAM/GLE. Section 3.4, Volume III of the NRDAM/CME technical 
document (incorporated by reference, see Sec. 11.18) identifies the 
areas that the NRDAM/CME covers. Section 6.2, Volume III of the NRDAM/
GLE technical document (incorporated by reference, see Sec. 11.18) 
describes the areas that the NRDAM/GLE covers;
    (b) The NRDAM/CME or NRDAM/GLE cover the released substance. Table 
7.1, Volume I of the NRDAM/CME technical document lists the substances 
that the NRDAM/CME covers. Table 7.1, Volume I of the NRDAM/GLE 
technical document lists the substances that the NRDAM/GLE covers;
    (c) The released substance entered water at or near the surface;
    (d) At the time of the release, winds did not vary spatially over 
the area affected by the release in a way that would significantly 
affect the level or extent of injuries;
    (e) The authorized official is not aware of any reliable evidence 
that, for species that are likely to represent a significant portion of 
the claim, the species biomass is significantly lower than the species 
biomass assigned by the NRDAM/CME or the NRDAM/GLE Tables IV.2.1 through 
IV.2.115 and IV.5.1 through IV.5.77, Volume III of the NRDAM/CME 
technical document list the species biomasses in the NRDAM/CME. Tables 
III.3.17 through III.3.27 and III.3.40 through III.3.50, Volume III of 
the NRDAM/GLE technical document list the species biomasses in the 
NRDAM/GLE ; and
    (f) Subsurface currents either: are not expected to significantly 
affect the level or extent of injuries; or are reasonably uniform with 
depth over the water column in the area affected by the release.

[61 FR 20610, May 7, 1996]



Sec. 11.35  How does the authorized official decide whether to use type A or type B procedures?

    (a) If the authorized official determines under Sec. 11.34 that a 
type A procedure is available, the authorized official must then decide 
whether to use that procedure or use type B procedures. The authorized 
official must make this decision by weighing the difficulty of 
collecting site-specific data against the suitability of the averaged 
data and simplifying assumptions in the type A procedure for the release 
being assessed. The authorized official

[[Page 236]]

may use type B procedures if they can be performed at a reasonable cost 
and if the increase in accuracy provided by those procedures outweighs 
the increase in assessment costs. Section 1, Volume I of the NRDAM/CME 
technical document (incorporated by reference, see Sec. 11.18) lists the 
simplifying assumptions made in the NRDAM/CME. Volumes III through IV of 
the NRDAM/CME technical document list the data in the NRDAM/CME. Section 
1, Volume I of the NRDAM/GLE technical document (incorporated by 
reference, see Sec. 11.18) lists the simplifying assumptions made in the 
NRDAM/GLE. Volume III of the NRDAM/GLE technical document lists the data 
in the NRDAM/GLE.
    (b) The authorized official must use type B procedures rather than a 
type A procedure whenever a potentially responsible party:
    (1) Submits a written request for use of type B procedures along 
with documentation of the reasons supporting the request; and
    (2) Advances all reasonable costs of using type B procedures within 
a time frame acceptable to the authorized official.
    (c) If there is no available type A procedure, the authorized 
official must use type B procedures to calculate all damages.
    (d) Except as provided in paragraph (b) of this section, the 
authorized official may change the type of procedure used in light of 
comments received on the Assessment Plan. [See Sec. 11.32(e)(2) to 
determine if the authorized official must provide for additional public 
review.] However, if the authorized official decides to use type B 
procedures in lieu of a type A procedure, and cannot confirm exposure 
under Sec. 11.37, the authorized official may not then use a type A 
procedure.

[61 FR 20610, May 7, 1996]



Sec. 11.36  May the authorized official use both type A and type B procedures for the same release?

    (a) The authorized official may use both a type A procedure and type 
B procedures for the same release if:
    (1) The type B procedures are cost-effective and can be performed at 
a reasonable cost;
    (2) There is no double recovery; and
    (3) The type B procedures are used only to determine damages for 
injuries or compensable values that do not fall into the categories 
addressed by the type A procedure. [Sections 11.14(v) and 11.62 define 
``injury.'' Section 11.83(c)(1) defines ``compensable value.'']
    (b) The type A procedures address the following categories of injury 
and compensable value:
    (1) Direct mortality of species covered by the NRDAM/CME or NRDAM/
GLE resulting from short-term exposure to the released substance. Volume 
IV of the NRDAM/CME technical document (incorporated by reference, see 
Sec. 11.18) lists the species that the NRDAM/CME covers. Section 3, 
Volume III of the NRDAM/GLE technical document (incorporated by 
reference, see Sec. 11.18) lists the species that the NRDAM/GLE covers;
    (2) Direct loss of production of species covered by the NRDAM/CME or 
NRDAM/GLE resulting from short-term exposure to the released substance;
    (3) Indirect mortality of species covered by the NRDAM/CME or NRDAM/
GLE resulting from disruption of the food web by direct mortality or 
direct loss of production;
    (4) Indirect loss of production of species covered by the NRDAM/CME 
or NRDAM/GLE resulting from disruption of the food web by direct 
mortality or direct loss of production;
    (5) Lost assimilative capacity of water column and sediments;
    (6) Lost economic rent for lost commercial harvests resulting from 
any closures specified by the authorized official and/or from population 
losses;
    (7) Lost recreational harvests resulting from any closures specified 
by the authorized official and/or from population losses;
    (8) For the type A procedure for coastal and marine environments, 
lost wildlife viewing, resulting from population losses, by residents of 
the States bordering the provinces in which the population losses 
occurred. [A province is one of the geographic areas delineated in Table 
6.1, Volume I of the NRDAM/CME technical document.] For the type A 
procedure for Great Lakes

[[Page 237]]

environments, lost wildlife viewing, resulting from population losses, 
by residents of local areas bordering the provinces in which the 
population losses occurred. [A province is one of the geographic areas 
delineated in Table 8.1, Volume I of the NRDAM/GLE technical document.];
    (9) Lost beach visitation due to closure; and
    (10) For the type A procedure for Great Lakes environments, lost 
boating due to closure.
    (c) If the authorized official uses both type A and type B 
procedures, he or she must explain in the Assessment Plan how he or she 
intends to prevent double recovery.
    (d) When the authorized official uses type B procedures for injuries 
not addressed in a type A procedure, he or she must follow all of 
subpart E (which contains standards for determining and quantifying 
injury as well as determining damages), Sec. 11.31(c) (which addresses 
content of the Assessment Plan), and Sec. 11.37 (which addresses 
confirmation of exposure). When the authorized official uses type B 
procedures for compensable values that are not included in a type A 
procedure but that result from injuries that are addressed in the type A 
procedure, he or she need not follow all of subpart E, Sec. 11.31(c), 
and Sec. 11.37. Instead, the authorized official may rely on the injury 
predictions of the type A procedure and simply use the valuation 
methodologies authorized by Sec. 11.83(c) to calculate compensable 
value. When using valuation methodologies, the authorized official must 
comply with Sec. 11.84.

[61 FR 20610, May 7, 1996]



Sec. 11.37  Must the authorized official confirm exposure before implementing the Assessment Plan?

    (a) Before including any type B methodologies in the Assessment 
Plan, the authorized official must confirm that at least one of the 
natural resources identified as potentially injured in the preassessment 
screen has in fact been exposed to the released substance.
    (b) Procedures. (1) Whenever possible, exposure shall be confirmed 
by using existing data, such as those collected for response actions by 
the OSC, or other available studies or surveys of the assessment area.
    (2) Where sampling has been done before the completion of the 
preassessment screen, chemical analyses of such samples may be performed 
to confirm that exposure has occurred. Such analyses shall be limited to 
the number and type required for confirmation of exposure.
    (3) Where existing data are unavailable or insufficient to confirm 
exposure, one or more of the analytical methodologies provided in the 
Injury Determination phase may be used. The collection and analysis of 
new data shall be limited to that necessary to confirm exposure and 
shall not include testing for baseline levels or for injury, as those 
phrases are used in this part.

[51 FR 27725, Aug. 1, 1986. Redesignated and amended at 61 FR 20610, 
20611, May 7, 1996]



Sec. 11.38  Assessment Plan--preliminary estimate of damages.

    (a) Requirement. When performing a type B assessment pursuant to the 
requirements of subpart E of this part, the authorized official shall 
develop a preliminary estimate of: the anticipated costs of restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
for the injured natural resources; and the compensable value, as defined 
in Sec. 11.83(c) of this part, of the injured natural resources, if the 
authorized official intends to include compensable value in the damage 
claim. This preliminary estimate is referred to as the preliminary 
estimate of damages. The authorized official shall use the guidance 
provided in this section, to the extent possible, to develop the 
preliminary estimate of damages.
    (b) Purpose. The purpose of the preliminary estimate of damages is 
for reference in the scoping of the Assessment Plan to ensure that the 
choice of the scientific, cost estimating, and valuation methodologies 
expected to be used in the damage assessment fulfills the requirements 
of reasonable cost, as that term is used in this part. The authorized 
official will also use the preliminary estimate of damages in the

[[Page 238]]

review of the Assessment Plan, as required in Sec. 11.32(f) of this 
part, to ensure the requirements of reasonable cost are still met.
    (c) Steps. The preliminary estimate of damages should include 
consideration of the ability of the resources to recover naturally and, 
if relevant, the compensable value through the recovery period with and 
without possible alternative actions. The authorized official shall 
consider the following factors, to the extent possible, in making the 
preliminary estimate of damages:
    (1) The preliminary estimate of costs of restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
should include consideration of a range of possible alternative actions 
that would accomplish the restoration, rehabilitation, replacement, and/
or acquisition of the equivalent of the injured natural resources.
    (i) The preliminary estimate of costs should take into account the 
effects, or anticipated effects, of any response actions.
    (ii) The preliminary estimate of costs should represent the expected 
present value of anticipated costs, expressed in constant dollars, and 
should include direct and indirect costs, and include the timing of 
those costs. The provisions detailed in Secs. 11.80-11.84 of this part 
are the basis for the development of the estimate.
    (iii) The discount rate to be used in developing the preliminary 
estimate of costs shall be that determined in accordance with the 
guidance in Sec. 11.84(e) of this part.
    (2) The preliminary estimate of compensable value should be 
consistent with the range of possible alternatives for restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
being considered.
    (i) The preliminary estimate of compensable value should represent 
the expected present value of the anticipated compensable value, 
expressed in constant dollars, accrued through the period for the 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources to baseline conditions, i.e., between the 
occurrence of the discharge or release and the completion of the 
restoration, rehabilitation, replacement, and/or acquisition of the 
equivalent of the injured resources and their services. The estimate 
should use the same base year as the preliminary estimate of costs of 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources. The provisions detailed in Secs. 11.80-11.84 of 
this part are the basis for the development of this estimate.
    (ii) The preliminary estimate of compensable value should take into 
account the effects, or anticipated effects, of any response actions.
    (iii) The discount rate to be used in developing the preliminary 
estimate of compensable value shall be that determined in accordance 
with the guidance in Sec. 11.84(e) of this part.
    (d) Content and timing. (1) In making the preliminary estimate of 
damages, the authorized official should rely upon existing data and 
studies. The authorized official should not undertake significant new 
data collection or perform significant modeling efforts at this stage of 
the assessment planning phase.
    (2) Where possible, the authorized official should make the 
preliminary estimate of damages before the completion of the Assessment 
Plan as provided for in Sec. 11.31 of this part. If there is not 
sufficient existing data to make the preliminary estimate of damages at 
the same time as the assessment planning phase, this analysis may be 
completed later, at the end of the Injury Determination phase of the 
assessment, at the time of the Assessment Plan review.
    (3) The authorized official is not required to disclose the 
preliminary estimate before the conclusion of the assessment. At the 
conclusion of the assessment, the preliminary estimate of damages, along 
with its assumptions and methodology, shall be included in the Report of 
the Assessment as provided for in Sec. 11.91 of this part.
    (e) Review. The authorized official shall review, and revise as 
appropriate, the preliminary estimate of damages at the end of the 
Injury Determination and Quantification phases. If there is

[[Page 239]]

any significant modification of the preliminary estimate of damages, the 
authorized official shall document it in the Report of the Assessment.

[59 FR 14282, Mar. 25, 1994. Redesignated at 61 FR 20610, May 7, 1996]



                      Subpart D--Type A Procedures



Sec. 11.40  What are type A procedures?

    (a) A type A procedure is a standardized methodology for performing 
Injury Determination, Quantification, and Damage Determination that 
requires minimal field observation. There are two type A procedures: the 
type A procedure for coastal and marine environments; and the type A 
procedure for Great Lakes environments. The type A procedure for coastal 
and marine environments incorporates a computer model called the Natural 
Resource Damage Assessment Model for Coastal and Marine Environments 
Version 2.51 (NRDAM/CME). The NRDAM/CME technical document (incorporated 
by reference, see Sec. 11.18) includes and explains the NRDAM/CME. The 
type A procedure for Great Lakes environments incorporates a computer 
model called the Natural Resource Damage Assessment Model for Great 
Lakes Environments Version 1.51 (NRDAM/GLE). The NRDAM/GLE technical 
document (incorporated by reference, see Sec. 11.18) includes and 
explains the NRDAM/GLE. The authorized official must follow Secs. 11.41 
through 11.44 when using the type A procedures.
    (b) The reasonable and necessary costs incurred in conducting 
assessments under this subpart shall be limited to those costs incurred 
or anticipated by the authorized official for, and specifically 
allocable to, incident-specific efforts taken in the assessment of 
damages for natural resources for which the agency or Indian tribe is 
acting as trustee. Such costs shall be supported by appropriate records 
and documentation, and shall not reflect regular activities performed by 
the agency or the Indian tribe in management of the natural resource. 
Activities undertaken as part of the damage assessment shall be taken in 
a manner that is cost-effective, as that phrase is used in this part.

[52 FR 9096, Mar. 20, 1987, as amended at 53 FR 5175, Feb. 22, 1988; 61 
FR 20611, May 7, 1996; 62 FR 60459, Nov. 10, 1997; 65 FR 6014, Feb. 8, 
2000]



Sec. 11.41  What data must the authorized official supply?

    (a) The NRDAM/CME and the NRDAM/GLE require several data inputs to 
operate. The authorized official must develop the following data inputs:
    (1) The identity of the released substance;
    (2) The mass or volume of the identified substance that was 
released;
    (3) The duration of the release;
    (4) The time of the release;
    (5) The location of the release;
    (6) The wind conditions;
    (7) The extent of response actions;
    (8) The extent of any closures;
    (9) The implicit price deflator; and
    (10) For the NRDAM/CME, the condition of the currents and tides.
    (b) The authorized official must change the data in the NRDAM/CME 
and the NRDAM/GLE for the following parameters if he or she is aware of 
more accurate data:
    (1) Air temperature;
    (2) Water temperature at the surface;
    (3) Total suspended sediment concentration;
    (4) Mean settling velocity of suspended solids; and
    (5) Habitat type.
    (c)(1) If the release occurred in Alaska and the authorized official 
is not aware of any reliable evidence that ice was absent from the site 
of the release, then he or she must turn on the ice modeling function. 
Otherwise, the authorized official must leave the ice modeling function 
off.
    (2) If the release occurred in the Great Lakes and the authorized 
official is aware of reliable evidence that ice was absent from the site 
of the release, then he or she must turn off the ice modeling function.
    (d) The authorized official must develop the data inputs and 
modifications and include them in the Assessment Plan in the format 
specified in Appendix II (for the NRDAM/CME) or Appendix III (for the 
NRDAM/GLE).

[61 FR 20611, May 7, 1996]

[[Page 240]]



Sec. 11.42  How does the authorized official apply the NRDAM/CME or NRDAM/GLE?

    (a) The authorized official must perform a preliminary application 
of the NRDAM/CME or NRDAM/GLE with the data inputs and modifications 
developed under Sec. ;11.41. Volume II of the NRDAM/CME technical 
document (incorporated by reference, see Sec. ;11.18) describes how to 
apply the NRDAM/CME. Volume II of the NRDAM/GLE technical document 
(incorporated by reference, see Sec. 11.18) describes how to apply the 
NRDAM/GLE. For cases involving releases of two or more substances or a 
release of a mixture of substances, the authorized official may only 
apply the NRDAM/CME or NRDAM/GLE once using only one of the substances.
    (b) If the preliminary application of the NRDAM/CME or NRDAM/GLE 
indicates damages in excess of $100,000, then the authorized official 
must decide whether to:
    (1) Limit the portion of his or her claim calculated with the type A 
procedure to $100,000; or
    (2) Compute all damages using type B procedures.

[61 FR 20611, May 7, 1996]



Sec. 11.43  Can interested parties review the results of the preliminary application?

    After completing the preliminary application of the NRDAM/CME or 
NRDAM/GLE, if the authorized official decides to continue with the type 
A procedure, he or she must issue an Assessment Plan for public comment 
as described in Sec. 11.32. The Assessment Plan must include the 
information described in Sec. 11.31, the data inputs and modifications 
developed under Sec. 11.41, and a summary of the results of the 
preliminary application. The Assessment Plan must also identify a 
contact from whom a complete copy of the printout of the preliminary 
application can be obtained.

[61 FR 20612, May 7, 1996]



Sec. 11.44  What does the authorized official do after the close of the comment period?

    (a) The authorized official must carefully review all comments 
received on the Assessment Plan, provide substantive responses to all 
comments, and modify the Plan as appropriate. [See Sec. 11.32(e)(2) to 
determine if the authorized official must provide for additional public 
review.]
    (b) If, after reviewing the public comments, the authorized official 
decides to continue with the type A procedure, he or she must then 
perform a final application of the NRDAM/CME or NRDAM/GLE, using final 
data inputs and modifications based on Sec. 11.41 and any reliable 
information received during the public review and comment period.
    (c) After completing the final application of the NRDAM/CME or 
NRDAM/GLE, the authorized official must prepare a Report of Assessment. 
The Report of Assessment must include the printed output from the final 
application as well as the Preassessment Screen Determination and the 
Assessment Plan.
    (d) If the authorized official is aware of reliable evidence that a 
private party has recovered damages for commercial harvests lost as a 
result of the release, the authorized official must eliminate from the 
claim any damages for such lost harvests that are included in the lost 
economic rent calculated by the NRDAM/CME or NRDAM/GLE.
    (e) If the authorized official is aware of reliable evidence that 
the NRDAM/CME or NRDAM/GLE application covers resources beyond his or 
her trustee jurisdiction, the authorized official must either:
    (1) Have the other authorized official(s) who do have trustee 
jurisdiction over those resources join in the type A assessment; or
    (2) Eliminate any damages for those resources from the claim for 
damages.
    (f) If the final application of the NRDAM/CME or NRDAM/GLE, adjusted 
as needed under paragraphs (d) and (e), calculates damages in excess of 
$100,000, then the authorized official must limit the portion of his or 
her

[[Page 241]]

claim calculated with the type A procedure to $100,000.
    (g) After preparing the Report of Assessment, the authorized 
official must follow the steps described in subpart F.

[61 FR 20612, May 7, 1996]



                      Subpart E--Type B Procedures



Sec. 11.60  Type B assessments--general.

    (a) Purpose. The purpose of the type B assessment is to provide 
alternative methodologies for conducting natural resource damage 
assessments in individual cases.
    (b) Steps in the type B assessment. The type B assessment consists 
of three phases: Sec. 11.61--Injury Determination; Sec. 11.70--
Quantification; and Sec. 11.80--Damage Determination, of this part.
    (c) Completion of type B assessment. After completion of the type B 
assessment, a Report of Assessment, as described in Sec. 11.90 of this 
part, shall be prepared. The Report of Assessment shall include the 
determinations made in each phase.
    (d) Type B assessment costs. (1) The following categories of 
reasonable and necessary costs may be incurred in the assessment phase 
of the damage assessment:
    (i) Sampling, testing, and evaluation costs for injury and pathway 
determination;
    (ii) Quantification costs (including baseline service determination 
and resource recoverability analysis);
    (iii) Restoration and Compensation Determination Plan development 
costs including:
    (A) Development of alternatives;
    (B) Evaluation of alternatives;
    (C) Potentially responsible party, agency, and public reviews;
    (D) Other such costs for activities authorized by Sec. 11.81 of this 
part;
    (iv) Cost estimating and valuation methodology calculation costs; 
and
    (v) Any other assessment costs authorized by Secs. 11.60-11.84 of 
this part.
    (2) The reasonable and necessary costs for these categories shall be 
limited to those costs incurred or anticipated by the authorized 
official for, and specifically allocable to, site-specific efforts taken 
in the assessment of damages for a natural resource for which the agency 
or Indian tribe is acting as trustee. Such costs shall be supported by 
appropriate records and documentation, and shall not reflect regular 
activities performed by the agency or the Indian tribe in management of 
the natural resource. Activities undertaken as part of the damage 
assessment phase shall be taken in a manner that is cost-effective, as 
that phrase is used in this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5175, Feb. 22, 1988; 59 
FR 14283, Mar. 25, 1994]



Sec. 11.61  Injury determination phase--general.

    (a) Requirement. (1) The authorized official shall, in accordance 
with the procedures provided in the Injury Determination phase of this 
part, determine: whether an injury to one or more of the natural 
resources has occurred; and that the injury resulted from the discharge 
of oil or release of a hazardous substance based upon the exposure 
pathway and the nature of the injury.
    (2) The Injury Determination phase consists of Sec. 11.61--general; 
Sec. 11.62--injury definition; Sec. 11.63--pathway determination; and 
Sec. 11.64--testing and sampling methods, of this part.
    (b) Purpose. The purpose of the Injury Determination phase is to 
ensure that only assessments involving well documented injuries 
resulting from the discharge of oil or release of a hazardous substance 
proceed through the type B assessment.
    (c) Injury Determination phase steps. (1) The authorized official 
shall determine whether the potentially injured resource constitutes a 
surface water, ground water, air, geologic, or biological resource as 
defined in Sec. 11.14 of this part. The authorized official shall then 
proceed in accordance with the guidance provided in the injury 
definition section, Sec. 11.62 of this part, to determine if the 
resource is injured.
    (2) The authorized official shall follow the guidance provided in 
the testing and sampling methods section, Sec. 11.64 of this part, in 
selecting the methodology for determining injury. The authorized 
official shall select from available testing and sampling procedures one 
or more procedures that meet the requirements of the selected 
methodologies.

[[Page 242]]

    (3) The authorized official shall follow the guidance provided in 
the pathway section, Sec. 11.63 of this part, to determine the route 
through which the oil or hazardous substance is or was transported from 
the source of the discharge or release to the injured resource.
    (4) If more than one resource, as defined in Sec. 11.14(z) of this 
part, has potentially been injured, an injury determination for each 
resource shall be made in accordance with the guidance provided in each 
section of the Injury Determination phase.
    (d) Selection of methodologies. (1) One of the methodologies 
provided in Sec. 11.64 of this part for the potentially injured 
resource, or one that meets the acceptance criteria provided for that 
resource, shall be used to establish injury.
    (2) Selection of the methodologies for the Injury Determination 
phase shall be based upon cost-effectiveness as that phrase is used in 
this part.
    (e) Completion of Injury Determination phase. (1) Upon completion of 
the Injury Determination phase, the Assessment Plan shall be reviewed in 
accordance with the requirements of Sec. 11.32(f) of this part.
    (2) When the authorized official has determined that one or more of 
the natural resources has been injured as a result of the discharge or 
release, the authorized official may proceed to the Quantification and 
the Damage Determination phases.
    (3) When the authorized official has determined that an injury has 
not occurred to at least one of the natural resources or that an injury 
has occurred but that the injury cannot be linked to the discharge or 
release, the authorized official shall not pursue further assessment 
under this part.



Sec. 11.62  Injury determination phase--injury definition.

    (a) The authorized official shall determine that an injury has 
occurred to natural resources based upon the definitions provided in 
this section for surface water, ground water, air, geologic, and 
biological resources. The authorized official shall test for injury 
using the methodologies and guidance provided in Sec. 11.64 of this 
part. The test results of the methodologies must meet the acceptance 
criteria provided in this section to make a determination of injury.
    (b) Surface water resources. (1) An injury to a surface water 
resource has resulted from the discharge of oil or release of a 
hazardous substance if one or more of the following changes in the 
physical or chemical quality of the resource is measured:
    (i) Concentrations and duration of substances in excess of drinking 
water standards as established by sections 1411-1416 of SDWA, or by 
other Federal or State laws or regulations that establish such standards 
for drinking water, in surface water that was potable before the 
discharge or release;
    (ii) Concentrations and duration of substances in excess of water 
quality criteria established by section 1401(1)(D) of SDWA, or by other 
Federal or State laws or regulations that establish such criteria for 
public water supplies, in surface water that before the discharge or 
release met the criteria and is a committed use, as the phrase is used 
in this part, as a public water supply;
    (iii) Concentrations and duration of substances in excess of 
applicable water quality criteria established by section 304(a)(1) of 
the CWA, or by other Federal or State laws or regulations that establish 
such criteria, in surface water that before the discharge or release met 
the criteria and is a committed use, as that phrase is used in this 
part, as a habitat for aquatic life, water supply, or recreation. The 
most stringent criterion shall apply when surface water is used for more 
than one of these purposes;
    (iv) Concentrations of substances on bed, bank, or shoreline 
sediments sufficient to cause the sediment to exhibit characteristics 
identified under or listed pursuant to section 3001 of the Solid Waste 
Disposal Act, 42 U.S.C. 6921; or
    (v) Concentrations and duration of substances sufficient to have 
caused injury as defined in paragraphs (c), (d), (e), or (f) of this 
section to ground water, air, geologic, or biological resources, when 
exposed to surface water, suspended sediments, or bed, bank, or 
shoreline sediments.

[[Page 243]]

    (2)(i) The acceptance criterion for injury to the surface water 
resource is the measurement of concentrations of oil or a hazardous 
substance in two samples from the resource. The samples must be one of 
the following types, except as specified in paragraph (b)(3) of this 
section:
    (A) Two water samples from different locations, separated by a 
straight-line distance of not less than 100 feet; or
    (B) Two bed, bank, or shoreline sediment samples from different 
locations separated by a straight-line distance of not less than 100 
feet; or
    (C) One water sample and one bed, bank, or shoreline sediment 
sample; or
    (D) Two water samples from the same location collected at different 
times.
    (ii) In those instances when injury is determined and no oil or 
hazardous substances are detected in samples from the surface water 
resource, it must be demonstrated that the substance causing injury 
occurs or has occurred in the surface water resource as a result of 
physical, chemical, or biological reactions initiated by the discharge 
of oil or release of a hazardous substance.
    (3) If the maximum straight-line distance of the surface water 
resource is less than 100 feet, then the samples required in paragraph 
(b)(2)(i) (A) and (B) of this section should be separated by one-half 
the maximum straight-line distance of the surface water resource.
    (c) Ground water resources. (1) An injury to the ground water 
resource has resulted from the discharge of oil or release of a 
hazardous substance if one or more of the following changes in the 
physical or chemical quality of the resource is measured:
    (i) Concentrations of substances in excess of drinking water 
standards, established by sections 1411-1416 of the SDWA, or by other 
Federal or State laws or regulations that establish such standards for 
drinking water, in ground water that was potable before the discharge or 
release;
    (ii) Concentrations of substances in excess of water quality 
criteria, established by section 1401(1)(d) of the SDWA, or by other 
Federal or State laws or regulations that establish such criteria for 
public water supplies, in ground water that before the discharge or 
release met the criteria and is a committed use, as the phrase is used 
in this part, as a public water supply;
    (iii) Concentrations of substances in excess of applicable water 
quality criteria, established by section 304(a)(1) of the CWA, or by 
other Federal or State laws or regulations that establish such criteria 
for domestic water supplies, in ground water that before the discharge 
or release met the criteria and is a committed use as that phrase is 
used in this part, as a domestic water supply; or
    (iv) Concentrations of substances sufficient to have caused injury 
as defined in paragraphs (b), (d), (e), or (f) of this section to 
surface water, air, geologic, or biological resources, when exposed to 
ground water.
    (2) The acceptance criterion for injury to ground water resources is 
the measurement of concentrations of oil or hazardous substance in two 
ground water samples. The water samples must be from the same 
geohydrologic unit and must be obtained from one of the following pairs 
of sources, except as specified in paragraph (c)(3) of this section:
    (i) Two properly constructed wells separated by a straight-line 
distance of not less than 100 feet; or
    (ii) A properly constructed well and a natural spring or seep 
separated by a straight-line distance of not less than 100 feet; or
    (iii) Two natural springs or seeps separated by a straight-line 
distance of not less than 100 feet.
    (3) If the maximum straight-line distance of the ground water 
resource is less than 100 feet, the samples required in paragraph (c)(2) 
of this section should be separated by one-half of the maximum straight-
line distance of the ground water resource.
    (4) In those instances when injury is determined and no oil or 
hazardous substance is detected in samples from the ground water 
resource, it must be demonstrated that the substance causing injury 
occurs or has occurred in the ground water resource as a result of 
physical, chemical, or biological reactions initiated by the discharge 
of oil or release of hazardous substances.

[[Page 244]]

    (d) Air resources. An injury to the air resource has resulted from 
the discharge of oil or release of a hazardous substance if one or more 
of the following changes in the physical or chemical quality of the 
resource is measured:
    (1) Concentrations of emissions in excess of standards for hazardous 
air pollutants established by section 112 of the Clean Air Act, 42 
U.S.C. 7412, or by other Federal or State air standards established for 
the protection of public welfare or natural resources; or
    (2) Concentrations and duration of emissions sufficient to have 
caused injury as defined in paragraphs (b), (c), (e), or (f) of this 
section to surface water, ground water, geologic, or biological 
resources when exposed to the emissions.
    (e) Geologic resources. An injury to the geologic resource has 
resulted from the discharge of oil or release of a hazardous substance 
if one or more of the following changes in the physical or chemical 
quality of the resource is measured:
    (1) Concentrations of substances sufficient for the materials in the 
geologic resource to exhibit characteristics identified under or listed 
pursuant to section 3001 of the Solid Waste Disposal Act, 42 U.S.C. 
6921;
    (2) Concentrations of substances sufficient to raise the negative 
logarithm of the hydrogen ion concentration of the soil (pH) to above 
8.5 (above 7.5 in humid areas) or to reduce it below 4.0;
    (3) Concentrations of substances sufficient to yield a salt 
saturation value greater than 2 millimhos per centimeter in the soil or 
a sodium adsorption ratio of more than 0.176;
    (4) Concentrations of substances sufficient to decrease the water 
holding capacity such that plant, microbial, or invertebrate populations 
are affected;
    (5) Concentrations of substances sufficient to impede soil microbial 
respiration to an extent that plant and microbial growth have been 
inhibited;
    (6) Concentrations in the soil of substances sufficient to inhibit 
carbon mineralization resulting from a reduction in soil microbial 
populations;
    (7) Concentrations of substances sufficient to restrict the ability 
to access, develop, or use mineral resources within or beneath the 
geologic resource exposed to the oil or hazardous substance;
    (8) Concentrations of substances sufficient to have caused injury to 
ground water, as defined in paragraph (c) of this section, from physical 
or chemical changes in gases or water from the unsaturated zone;
    (9) Concentrations in the soil of substances sufficient to cause a 
toxic response to soil invertebrates;
    (10) Concentrations in the soil of substances sufficient to cause a 
phytotoxic response such as retardation of plant growth; or
    (11) Concentrations of substances sufficient to have caused injury 
as defined in paragraphs (b), (c), (d), or (f), of this section to 
surface water, ground water, air, or biological resources when exposed 
to the substances.
    (f) Biological resources. (1) An injury to a biological resource has 
resulted from the discharge of oil or release of a hazardous substance 
if concentration of the substance is sufficient to:
    (i) Cause the biological resource or its offspring to have undergone 
at least one of the following adverse changes in viability: death, 
disease, behavioral abnormalities, cancer, genetic mutations, 
physiological malfunctions (including malfunctions in reproduction), or 
physical deformations; or
    (ii) Exceed action or tolerance levels established under section 402 
of the Food, Drug and Cosmetic Act, 21 U.S.C. 342, in edible portions of 
organisms; or
    (iii) Exceed levels for which an appropriate State health agency has 
issued directives to limit or ban consumption of such organism.
    (2) The method for determining injury to a biological resource, as 
defined in paragraph (f)(1)(i) of this section, shall be chosen based 
upon the capability of the method to demonstrate a measurable biological 
response. An injury can be demonstrated if the authorized official 
determines that the biological response under consideration can satisfy 
all of the following acceptance criteria:
    (i) The biological response is often the result of exposure to oil 
or hazardous substances. This criterion excludes biological responses 
that are

[[Page 245]]

caused predominately by other environmental factors such as disturbance, 
nutrition, trauma, or weather. The biological response must be a 
commonly documented response resulting from exposure to oil or hazardous 
substances.
    (ii) Exposure to oil or hazardous substances is known to cause this 
biological response in free-ranging organisms. This criterion identifies 
biological responses that have been documented to occur in a natural 
ecosystem as a result of exposure to oil or hazardous substances. The 
documentation must include the correlation of the degree of the 
biological response to the observed exposure concentration of oil or 
hazardous substances.
    (iii) Exposure to oil or hazardous substances is known to cause this 
biological response in controlled experiments. This criterion provides a 
quantitative confirmation of a biological response occurring under 
environmentally realistic exposure levels that may be linked to oil or 
hazardous substance exposure that has been observed in a natural 
ecosystem. Biological responses that have been documented only in 
controlled experimental conditions are insufficient to establish 
correlation with exposure occurring in a natural ecosystem.
    (iv) The biological response measurement is practical to perform and 
produces scientifically valid results. The biological response 
measurement must be sufficiently routine such that it is practical to 
perform the biological response measurement and to obtain scientifically 
valid results. To meet this criterion, the biological response 
measurement must be adequately documented in scientific literature, must 
produce reproducible and verifiable results, and must have well defined 
and accepted statistical criteria for interpreting as well as rejecting 
results.
    (3) Unless otherwise provided for in this section, the injury 
determination must be based upon the establishment of a statistically 
significant difference in the biological response between samples from 
populations in the assessment area and in the control area. The 
determination as to what constitutes a statistically significant 
difference must be consistent with the quality assurance provisions of 
the Assessment Plan. The selection of the control area shall be 
consistent with the guidance provided in Sec. 11.72 of this part.
    (4) The biological responses listed in this paragraph have been 
evaluated and found to satisfy the acceptance criteria provided in 
paragraph (f)(2) of this section. The authorized official may, when 
appropriate, select from this list to determine injury to fish and 
wildlife resources or may designate another response as the determiner 
of injury provided that the designated response can satisfy the 
acceptance criteria provided in paragraph (f)(2) of this section. The 
biological responses are listed by the categories of injury for which 
they may be applied.
    (i) Category of injury--death. Five biological responses for 
determining when death is a result of exposure to the discharge of oil 
or release of a hazardous substance have met the acceptance criteria.
    (A) Brain cholinesterase (ChE) enzyme activity. Injury has occurred 
when brain ChE activity in a sample from the population has been 
inhibited by at least 50 percent compared to the mean for normal brain 
ChE activity of the wildlife species. These enzymes are in the nervous 
system of vertebrate organisms and the rate of ChE activity is 
associated with the regulation of nerve impulse transmission. This 
biological response may be used to confirm injury when anti-ChE 
substances, such as organophosphorus and carbamate pesticides, are 
suspected to have resulted in death to bird and mammal species.
    (B) Fish kill investigations. Injury has occurred when a significant 
increase in the frequency or numbers of dead or dying fish can be 
measured in accordance with the procedures for counting dead or dying 
fish contained in Part II (Fish-Kill Counting Guidelines) of ``Monetary 
Values of Freshwater Fish and Fish-Kill Counting Guidelines,'' American 
Fisheries Society Special Publication Number 13, 1982 (incorporated by 
reference, see Sec. 11.18).
    (C) Wildlife kill investigations. Injury has occurred when a 
significant increase in the frequency or number of dead or dying birds 
or mammal species

[[Page 246]]

can be measured in a population sample from the assessment area as 
compared to a population sample from a control area. Wildlife kill 
investigations may be used when acute mortality has occurred to multiple 
wildlife species, or when detectable quantities of oil or hazardous 
substances have adherred to, bound to, or otherwise covered surface 
tissue, or had been ingested or inhaled by dead or dying bird or mammal 
species.
    (D) In situ bioassay. Injury has occurred when a statistically 
significant difference can be measured in the total mortality and/or 
mortality rates between population samples exposed in situ to a 
discharge of oil or a release of hazardous substance and those in a 
control site. In situ caged or confined bioassay may be used to confirm 
injury when oil or hazardous substances are suspected to have caused 
death to fish species.
    (E) Laboratory toxicity testing. Injury has occurred when a 
statistically significant difference can be measured in the total 
mortality and/or mortality rates between population samples of the test 
organisms placed in exposure chambers containing concentrations of oil 
or hazardous substances and those in a control chamber. Published 
standardized laboratory fish toxicity testing methodologies for acute 
flow-through, acute static, partial-chronic (early life stage), and 
chronic (life cycle) toxicity tests may be used to confirm injury. The 
oil or hazardous substance used in the test must be the exact substance 
or a substance that is reasonably comparable to that suspected to have 
caused death to the natural population of fish.
    (ii) Category of injury--disease. One biological response for 
determining when disease is a result of exposure to the discharge of oil 
or release of a hazardous substance has met the acceptance criteria.
    (A) Fin erosion. Injury has occurred when a statistically 
significant difference can be measured in the frequency of occurrence of 
fin erosion (also referred to as fin rot) in a population sample from 
the assessment area as compared to a sample from the control area. Fin 
erosion shall be confirmed by appropriate histological procedures. Fin 
erosion may be used when oil or hazardous substances are suspected to 
have caused the disease.
    (iii) Category of injury--behavioral abnormalities. Two biological 
responses for determining when behavioral abnormalities are a result of 
the exposure to the discharge of oil or release of a hazardous substance 
have met the acceptance criteria.
    (A) Clinical behavioral signs of toxicity. Injury has occurred when 
a statistically significant difference can be measured in the frequency 
of occurrence of clinical behavioral signs of toxicity in a population 
sample from the assessment area as compared to a sample from the control 
area. Clinical behavioral signs of toxicity are characteristic 
behavioral symptoms expressed by an organism in reponse to exposure to 
an oil or hazardous substance. The clinical behavioral signs of toxicity 
used shall be those that have been documented in published literature.
    (B) Avoidance. Injury has occurred when a statistically significant 
difference can be measured in the frequency of avoidance behavior in 
population samples of fish placed in testing chambers with equal access 
to water containing oil or a hazardous substance and the control water. 
The oil or hazardous substance used in the test must be the exact 
substance or a substance that is reasonably comparable to that suspected 
to have caused avoidance to the natural populations of fish. This 
biological response may be used to confirm injury when oil or hazardous 
substances are suspected to have resulted in avoidance behavior in fish 
species.
    (iv) Category of injury--cancer. One biological response for 
determining when cancer is a result of exposure to the discharge of oil 
or release of a hazardous substance has met the acceptance criteria.
    (A) Fish neoplasm. Injury has occurred when a statistically 
significant difference can be measured in the frequency of occurrence of 
the fish neoplasia when comparing population samples from the assessment 
area and a control area. Neoplasms are characterized by relatively 
autonomous growth of abnormal cells that by proliferation infiltrate, 
press upon, or invade

[[Page 247]]

healthy tissue thereby causing destruction of cells, interference with 
physiological functions, or death of the organism. The following type of 
fish neoplasia may be used to determine injury: liver neoplasia and skin 
neoplasia. The neoplasms shall be confirmed by histological procedures 
and such confirmation procedures may also include special staining 
techniques for specific tissue components, ultra-structural examination 
using electron microscopy to identify cell origin, and to rule out or 
confirm viral, protozoan, or other causal agents. Fish neoplasm may be 
used to determine injury when oil or hazardous substances are suspected 
to have been the causal agent.
    (v) Category of injury--physiological malfunctions. Five biological 
responses for determining when physiological malfunctions are a result 
of exposure to the discharge of oil or release of a hazardous substance 
have met the acceptance criteria.
    (A) Eggshell thinning. Injury has occurred when eggshell thicknesses 
for samples for a population of a given species at the assessment area 
are thinner than those for samples from a population at a control area, 
or are at least 15 percent thinner than eggshells collected before 1946 
from the same geographic area and stored in a museum. This biological 
response is a measure of avian eggshell thickness resulting from the 
adult bird having assimilated the oil or hazardous substance. This 
biological response may be used when the organochlorine pesticide DDT or 
its metabolites are suspected to have caused such physiological 
malfunction injury.
    (B) Reduced avian reproduction. Injury has occurred when a 
statistically significant difference can be measured in the mean number 
of young fledged per active nest when comparing samples from populations 
in the assessment area and a control area. The fledging success (the 
number of healthy young leaving the nest) shall be used as the 
measurement of injury. Factors that may contribute to this measurement 
include egg fertility, hatching success, and survival of young. This 
biological response may be used when oil or hazardous substances are 
suspected to have reduced the nesting success of avian species.
    (C) Cholinesterase (ChE) enzyme inhibition. Injury has occurred when 
brain ChE activity in a sample from the population at the assessment 
area shows a statistically significant inhibition when compared to the 
mean activity level in samples from populations in a control area. These 
enzymes are in the nervous systems of vertebrate organisms and the rate 
of ChE activity is associated with the regulation of nerve impulse 
transmission. This biological response may be used as a demonstration of 
physiological malfunction injury to birds, mammals, and reptiles when 
anti-ChE substances, such as organophosphorus and carbamate pesticides, 
have been discharged or released.
    (D) Delta-aminolevulinic acid dehydratase (ALAD) inhibition. Injury 
has occurred when the activity level of whole blood ALAD in a sample 
from the population of a given species at an assessment area is 
significantly less than mean values for a population at a control area, 
and ALAD depression of at least 50 percent can be measured. The ALAD 
enzyme is associated with the formation of hemoglobin in blood and in 
chemical detoxification processes in the liver. This biological response 
is a measure of the rate of ALAD activity. This biological response may 
be used to determine injury to bird and mammal species that have been 
exposed to lead.
    (E) Reduced fish reproduction. Injury has occurred when a 
statistically significant difference in reproduction success between the 
control organisms and the test organisms can be measured based on the 
use of published standardized laboratory toxicity testing methodologies. 
This biological response may be used when the oil or hazardous substance 
is suspected to have caused a reduction in the reproductive success of 
fish species. Laboratory partial-chronic and laboratory chronic toxicity 
tests may be used. The oil or hazardous substance used in the test must 
be the exact substance or a substance that is reasonably comparable to 
that suspected to have caused reduced reproductive success in the 
natural population of fish.

[[Page 248]]

    (vi) Category of injury--physical deformation. Four biological 
responses for determining when physical deformations are a result of 
exposure to the discharge of oil or release of a hazardous substance 
have met the injury acceptance criteria.
    (A) Overt external malformations. Injury has occurred when a 
statistically significant difference can be measured in the frequency of 
overt external malformation, such as small or missing eyes, when 
comparing samples from populations of wildlife species from the 
assessment area and a control area. This biological response may be used 
as a demonstration of injury when such physical deformations are 
observed in wildlife species exposed to oil or hazardous substances.
    (B) Skeletal deformities. Injury has occurred when a statistically 
signficant difference can be measured in the frequency of skeletal 
deformities, such as defects in growth of bones, when comparing samples 
from populations of wildlife species from the assessment area and a 
control area. This biological response may be used as a demonstration of 
injury when such physical deformations are observed in wildlife species 
exposed to oil or hazardous substances.
    (C) Internal whole organ and soft tissue malformation. Injury has 
occurred when a statistically signficant difference can be measured in 
the frequency of malformations to brain, heart, liver, kidney, and other 
organs, as well as soft tissues of the gastrointestinal tract and 
vascular system, when comparing samples from populations of wildlife 
species in the assessment area and a control area. This biological 
response may be used as a demonstration of injury when such physical 
deformations are observed in wildlife species exposed to oil or 
hazardous substances.
    (D) Histopathological lesions. Injury has occurred when a 
statistically signficant difference can be measured in the frequency of 
tissue or cellular lesions when comparing samples from populations of 
wildlife species from the assessment area and a control area. This 
biological response may be used as a demonstration of injury when such 
physical deformations are observed in wildlife species exposed to oil or 
hazardous substances.



Sec. 11.63  Injury determination phase--pathway determination.

    (a) General. (1) To determine the exposure pathways of the oil or 
hazardous substance, the following shall be considered:
    (i) The chemical and physical characteristics of the discharged oil 
or released hazardous substance when transported by natural processes or 
while present in natural media;
    (ii) The rate or mechanism of transport by natural processes of the 
discharged oil or released hazardous substance; and
    (iii) Combinations of pathways that, when viewed together, may 
transport the discharged oil or released hazardous substance to the 
resource.
    (2) The pathway may be determined by either demonstrating the 
presence of the oil or hazardous substance in sufficient concentrations 
in the pathway resource or by using a model that demonstrates that the 
conditions existed in the route and in the oil or hazardous substance 
such that the route served as the pathway.
    (3) To the extent that the information needed to make this 
determination is not available, tests shall be conducted and necessary 
data shall be collected to meet the requirements of this section. 
Methods that may be used to conduct these additional tests and collect 
new information are described in Sec. 11.64 of this part.
    (b) Surface water pathway. (1) When the surface water resource is 
suspected as the pathway or a component of the pathway, the authorized 
official shall determine, using guidance provided in this paragraph, 
whether the surface water resource, either solely or in combination with 
other media, served as the exposure pathway for injury to the resource.
    (2)(i) Using available information and such additional tests as 
necessary, it should be determined whether the surface water resource 
downstream or downcurrent of the source of discharge or release has been 
exposed to the oil or hazardous substance.
    (ii) When the source of discharge or release is on an open water 
body, such

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as a marsh, pond, lake, reservoir, bay, estuary, gulf,or sound, it 
should be determined, using available information and such additional 
tests as necessary, whether the surface water resource in the vicinity 
of the source of discharge or release has been exposed to the oil or 
hazardous substance.
    (3)(i) If a surface water resource is or likely has been exposed, 
the areal extent of the exposed surface water resource should be 
estimated, including delineation of:
    (A) Channels and reaches:
    (B) Seasonal boundaries of open water bodies; and
    (C) Depth of exposed bed, bank, or shoreline sediments.
    (ii) As appropriate to the exposed resource, the following should be 
determined:
    (A) Hydraulic parameters and streamflow characteristics of channels 
and reaches;
    (B) Bed sediment and suspended sediment characteristics, including 
grain size, grain mineralogy, and chemistry of grain surfaces;
    (C) Volume, inflow-outflow rates, degree of stratification, 
bathymetry, and bottom sediment characteristics of surface water bodies;
    (D) Suspended sediment concentrations and loads and bed forms and 
loads of streams and tidally affected waters; and
    (E) Tidal flux, current direction, and current rate in coastal and 
marine waters.
    (4)(i) Using available information and data from additional tests as 
necessary, the mobility of the oil or hazardous substance in the exposed 
surface water resource should be estimated. This estimate should 
consider such physical and chemical characteristics of the oil or 
hazardous substance as aqueous solubility, aqueous miscibility, density, 
volatility, potential for chemical degradation, chemical precipitation, 
biological degradation, biological uptake, and adsorption.
    (ii) Previous studies of the characteristics discussed in paragraph 
(b)(4)(i) of this section should be relied upon if hydraulic, physical, 
and chemical conditions in the exposed surface water resource are 
similar to experimental conditions of the previous studies. In the 
absence of this information, those field and laboratory studies 
necessary to estimate the mobility of the oil or hazardous substance in 
surface water flow may be performed.
    (5)(i) The rate of transport of the oil or hazardous substance in 
surface water should be estimated using available information and with 
consideration of the hydraulic properties of the exposed resource and 
the physical and chemical characteristics of the oil or hazardous 
substance.
    (ii) Transport rates may be estimated using:
    (A) The results of previous time-of-travel and dispersion studies 
made in the exposed surface water resource before the discharge or 
release;
    (B) The results of previous studies, conducted with the same or 
similar chemical substances to those discharged or released under 
experimental conditions similar to the hydraulic, chemical, and 
biological conditions in the exposed surface water resource;
    (C) The results of field measurements of time-of-travel and 
dispersion made in the exposed or comparable surface water resource, 
using natural or artificial substances with transport characteristics 
that reasonably approximate those of the oil or hazardous substance; and
    (D) The results of simulation studies using the results of 
appropriate time-of-travel and dispersion studies in the exposed or 
comparable surface water resource.
    (c) Ground water pathway. (1) When ground water resources are 
suspected as the pathway or a component of the pathway, the authorized 
official shall determine, using guidance provided in this paragraph, 
whether ground water resources, either solely or in combination with 
other media, served as the exposure pathway for injury to the resource.
    (2) Using available information and such additional tests as 
necessary, it should be determined whether the unsaturated zone, the 
ground water, or the geologic materials beneath or downgradient of the 
source of discharge or release have been exposed to the oil or hazardous 
substance.

[[Page 250]]

    (3) If a ground water resource is or likely has been exposed, 
available information and such additional tests should be used as 
necessary to determine the characteristics of the unsaturated zone, as 
well as any aquifers and confining units containing the exposed ground 
water, in the vicinity of the source of discharge or release. The 
characteristics of concern include:
    (i) Local geographical extent of aquifers and confining units;
    (ii) Seasonal depth to saturated zone beneath the site;
    (iii) Direction of ground water flow in aquifers;
    (iv) Local variation in direction of ground water flow resulting 
from seasonal or pumpage effects;
    (v) Elevation of top and bottom of aquifer and confining units;
    (vi) Lithology, mineralogy, and porosity of rocks or sediments 
comprising the unsaturated zone, aquifers, and confining units;
    (vii) Transmissivity and hydraulic conductivity of aquifers and 
confining units; and
    (viii) Nature and amount of hydraulic connection between ground 
water and local surface water resources.
    (4)(i) Using available information and such additional tests as 
necessary, the mobility of the oil or hazardous substance within the 
unsaturated zone and in the exposed ground water resources should be 
estimated. This estimate should consider local recharge rates and such 
physical and chemical characteristics of the oil or hazardous substance 
as aqueous solubility, aqueous miscibility, density, volatility, 
potential for chemical degradation, chemical precipitation, biological 
degradation, biological uptake, and adsorption onto solid phases in the 
unsaturated zone, aquifers, and confining units.
    (ii) Previous studies of the characteristics discussed in paragraph 
(c)(4)(i) of this section should be relied upon if geohydrologic, 
physical, and chemical conditions in the exposed ground water resource 
are similar to experimental conditions of the previous studies. In the 
absence of this information, field and laboratory studies may be 
performed as necessary to estimate the mobility of the oil or hazardous 
substance within the unsaturated zone and in ground water flows.
    (5)(i) The rate of transport of the oil or hazardous substance in 
ground water should be estimated using available information and with 
consideration of the site hydrology, geohydrologic properties of the 
exposed resource, and the physical and chemical characteristics of the 
oil or hazardous substance.
    (ii) Transport rates may be estimated using:
    (A) Results of previous studies conducted with the same or similar 
chemical substance, under experimental geohydrological, physical, and 
chemical conditions similar to the ground water resource exposed to the 
oil or hazardous substance;
    (B) Results of field measurements that allow computation of arrival 
times of the discharged or released substance at downgradient wells, so 
that an empirical transport rate may be derived; or
    (C) Results of simulation studies, including analog or numerical 
modeling of the ground water system.
    (d) Air pathway. (1) When air resources are suspected as the pathway 
or a component of the pathway, the authorized official shall determine, 
using guidance provided in this paragraph, whether the air resources 
either solely or in combination with other media, served as the exposure 
pathway for injury to the resource.
    (2) Using available information, air modeling, and additional field 
sampling and analysis, it should be determined whether air resources 
have been exposed to the discharge of oil or release of a hazardous 
substance.
    (3)(i) If an air resource is or has likely been exposed, available 
information and such additional tests as necessary should be used to 
estimate the areal extent of exposure and the duration and frequency of 
exposure of such areas to emissions from the discharge of oil or release 
of a hazardous substance.
    (ii) The areal extent of exposure is defined as the geographical 
surface area or space where emissions from the source of discharge or 
release are found or otherwise determined to be present for such 
duration and frequency as to

[[Page 251]]

potentially result in injury to resources present within the area or 
space.
    (4) Previous studies of the characteristics discussed in paragraph 
(d)(3)(i) of this section should be relied upon if the conditions in the 
exposed air resource are similar to experimental conditions of the 
previous studies. In the absence of this information, air sampling and 
analysis methods identified in Sec. 11.64(d) of this part, air modeling 
methods, or a combination of these methods may be used in identifying 
the air exposure pathway and in estimating the areal extent of exposure 
and duration and frequency of exposure.
    (5) For estimating the areal extent, duration, and frequency of 
exposure from the discharge or release, the following factors shall be 
considered as may be appropriate for each emissions event:
    (i) The manner and nature in which the discharge or release occurs, 
including the duration of the emissions, amount of the discharge or 
release, and emergency or other time critical factors;
    (ii) The configuration of the emitting source, including sources 
such as ponds, lagoons, pools, puddles, land and water surface spills, 
and venting from containers and vessels;
    (iii) Physical and chemcial properties of substances discharged or 
released, including volatility, toxicity, solubility, and physical 
state;
    (iv) The deposition from the air and re-emission to the air of 
gaseous and particulate emissions that provide periodic transport of the 
emissions; and
    (v) Air transport and dispersion factors, including wind speed and 
direction, and atmospheric stability and temperature.
    (e) Geologic pathway. (1) When geologic resources are suspected as 
the pathway or a component of the pathway, the authorized official shall 
determine, using guidance provided in this paragraph, whether geologic 
resources, either solely or in combination with other media, served as 
the exposure pathway for injury to the resource.
    (2)(i) Using available information and the methods listed in 
Sec. 11.64(e) of this part, it should be determined whether any element 
of the geologic resource has been exposed to the oil or hazardous 
substance. If a geologic resource is or has likely been exposed, the 
areal extent of the exposed geologic resource, including the lateral and 
vertical extent of the dispersion, should be estimated.
    (ii) To determine whether the unsaturated zone served as a pathway, 
the guidance provided in paragraph (c) of this section should be 
followed.
    (f) Biological pathway. (1) When biological resources are suspected 
as the pathway or a component of the pathway, the authorized official 
shall determine, using the guidance provided in this paragraph, whether 
biological resources, either solely or in combination with other media, 
served as the exposure pathway for injury to the resource.
    (2) Biological pathways that resulted from either direct or indirect 
exposure to the oil or hazardous substance, or from exposure to products 
of chemical or biological reactions initiated by the discharge or 
release shall be identified. Direct exposure can result from direct 
physical contact with the discharged oil or released hazardous 
substance. Indirect exposure can result from food chain processes.
    (3) If the oil or hazardous substance adhered to, bound to, or 
otherwise covered surface tissue, or was ingested, or inhaled but not 
assimilated, the area of dispersion may be determined based upon 
chemical analysis of the appropriate tissues or organs (such as leaves, 
lungs, stomach, intestine, or their contents) that were directly exposed 
to the oil or hazardous substance.
    (4) If the oil or hazardous substance was assimilated, the areal 
dispersion may be determined based upon one or more of the following 
alternative procedures:
    (i) If direct exposure to the biological resource has occurred, 
chemical analysis of the organisms that have been exposed may be 
performed.
    (ii) If indirect exposure to the biological resource has occurred, 
either chemical analysis of free-ranging biological resources using one 
or more indicator species as appropriate, or laboratory analysis of one 
or more in situ

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placed indicator species as appropriate may be performed.
    (A) Indicator species, as used in this section, means a species of 
organism selected consistent with the following factors to represent a 
trophic level of a food chain:
    (1) General availability of resident organisms in the assessment 
area;
    (2) Potential for exposure to the oil or hazardous substance through 
ingestion, assimilation, or inhalation;
    (3) Occurrence of the substance in a chemical form that can be 
assimilated by the organism;
    (4) Capacity of the organism to assimilate, bioconcentrate, 
bioaccumulate, and/or biomagnify the substance;
    (5) Capacity of the organism to metabolize the substance to a form 
that cannot be detected through available chemical analytical 
procedures; and
    (6) Extent to which the organism is representative of the food chain 
of concern.
    (B) Collection of the indicator species should be limited to the 
number necessary to define the areal dispersion and to provide 
sufficient sample volume for chemical analysis.
    (C) When in situ procedures are used, indicator species that behave 
comparably to organisms existing under free-ranging conditions shall be 
collected. The indicator species used in this procedure shall be 
obtained either from a control area selected consistent with provisions 
of Sec. 11.72 of this part or obtained from a suitable supply of wild-
strain organisms reared in a laboratory setting. Appropriate chemical 
analysis shall be performed on a representative subsample of the 
indicator species before in situ placement.
    (iii) In situ placement procedures shall be used where the 
collection of samples would be inconsistent with the provisions of 
Sec. 11.17(b) of this part.
    (5) Sampling sites and the number of replicate samples to be 
collected at the sampling sites shall be consistent with the quality 
assurance provisions of the Assessment Plan.
    (6) Chemical analysis of biological resource samples collected for 
the purpose of this section shall be conducted in accordance with the 
quality assurance provisions of the Assessment Plan.



Sec. 11.64  Injury determination phase--testing and sampling methods.

    (a) General. (1) The guidance provided in this section shall be 
followed for selecting methodologies for the Injury Determination phase.
    (2) Before selecting methodologies, the objectives to be achieved by 
testing and sampling shall be defined. These objectives shall be listed 
in the Assessment Plan. In developing these objectives, the availability 
of information from response actions relating to the discharge or 
release, the resource exposed, the characteristics of the oil or 
hazardous substance, potential physical, chemical, or biological 
reactions initiated by the discharge or release, the potential injury, 
the pathway of exposure, and the potential for injury resulting from 
that pathway should be considered.
    (3) When selecting testing and sampling methods, only those 
methodologies shall be selected:
    (i) For which performance under conditions similar to those 
anticipated at the assessment area has been demonstrated;
    (ii) That ensure testing and sampling performance will be cost-
effective;
    (iii) That will produce data that were previously unavailable and 
that are needed to make the determinations; and
    (iv) That will provide data consistent with the data requirements of 
the Quantification phase.
    (4) Specific factors that should be considered when selecting 
testing and sampling methodologies to meet the requirements in paragraph 
(a)(3) of this section include:
    (i) Physical state of the discharged or released substance;
    (ii) The duration, frequency, season, and time of the discharge or 
release;
    (iii) The range of concentrations of chemical compounds to be 
analyzed in different media;
    (iv) Detection limits, accuracy, precision, interferences, and time 
required to perform alternative methods;
    (v) Potential safety hazards to obtain and test samples;
    (vi) Costs of alternative methods; and
    (vii) Specific guidance provided in paragraphs (b), (c), (d), (e), 
and (f) of this section.

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    (b) Surface water resources. (1) Testing and sampling for injury to 
surface water res